Wednesday, October 16, 2013

Chemical Safety and Security EO – Shutdown and Deadlines

This is part of a continuing series of blog posts discussing President Obama’s recently signed executive order on “Improving Chemical Facility Safety and Security” (EO 13650). The other posts in the series are:

The federal fiscal fiasco has now gone through 15 days and there is no clear end in sight. The November 5th deadline for a number of actions directed in the safety and security EO is fast approaching and there is no work being done on any of this stuff. So what real effect will the government shutdown have on the progress in meeting the President’s goals for chemical safety and security? Realistically, there won’t be much of an impact.

Lack of Clear Goals

First off, the deadlines were as much political theater as anything else; a number plucked out of the President’s hat. Work will not be complete on any of the mandated areas on November 5th plus whatever time the President adds to compensate for the shutdown and it was never going to have been ‘completed’ on time. The reason being that, with two exceptions, none of the requirements had concretely measurable outcomes that could be fulfilled on a given date.

The two exceptions, listed below, in and of themselves, are really just starting points for further action by the agencies involved. In an earlier blog I described those two exceptions this way:

The Secretary of Homeland Security shall identify a list of chemicals, including poisons and reactive substances, that should be considered for addition to the CFATS Chemicals of Interest list.

The Secretary of Labor shall issue a Request for Information designed to identify issues related to modernization of the PSM Standard and related standards necessary to meet the goal of preventing major chemical accidents.

COI Expansion List

There has only been public discussion, and limited public discussion at that, about two additions to the DHS list of chemicals of interest (COI). A certain gadfly blogger has been advocating the re-addition of methyl bromide to the list, and there has been some low level congressional mention of adding sodium fluoroacetate to the list. The first has been officially addressed previously by the Department in the preamble to the rule establishing the COI list and will probably be ignored. The second does not fall into any of the categories of interest to the CFATS program as a potential terrorist target so it can reasonably be ignored as well.

So the Department could simply say ‘review complete, no additions necessary’ and it would have fulfilled this requirement.

Even if a list of actual chemicals was established and published, such a list would be meaningless without actual action taken to include it in Appendix A. Writing a justification and publishing a rule to actually implement the change will take years due to the publish and comment requirements for making a change to regulations. I would not even expect to see a notice of proposed rulemaking published until sometime in the spring of 2014 at the earliest.

PSM Modernization

The publication of a request for information about potential changes to the PSM process “necessary to meet the goal of preventing major chemical accidents” was one of the silliest and least productive goals included in the EO since there was no mention of taking any sort of follow-up action on the information collected in the RFI process. Industry is generally satisfied with the program and would not be expected to provide any serious suggestions for significant expansion of its requirements.

The Chemical Safety Board has already provided fairly detailed information about what it would like to see the PSM and RMP programs do to address the problem of reactive chemistry and those recommendations have been categorically ignored by both OSHA and the EPA.

I fully expect that on November 5th, provided that the fiscal fiasco is resolved in the next week or so, that OSHA will publish a formal RFI in the Federal Register fulfilling the requirements of §6(e)(i) of the EO. The resulting comments will be collected, collated and studied by the appropriate regulators, but no concrete changes will be proposed to the PSM standards. After all, nobody actually told OSHA to propose any changes, and to be fair, OSHA does not have personnel or funding to address an expansion of the PSM standards; Congressional action would be a necessary prerequisite to any such expansion.

Moving Forward

No the funding fiasco is causing all sorts of problems for the federal government, but, if it ends in the next week or so, there should be no problems with meeting the November 5h requirements of the EO. If the fiasco extends much beyond that time, the artificial and inconsequential deadline will be pretty much forgotten and ignored in the effort to sort out the real problems that will arise in restarting the federal government.

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