Tuesday, December 31, 2013

House to Consider Adding Explosive Reporting Requirement

A notice posted on the House Rules Committee web site provides instructions for the filing of possible amendments to HR 2279, the Reducing Excessive Deadline Obligations Act of
2013 as the Committee plans on meeting the week of January 8th to formulate a rule for the floor consideration of that bill. While this bill mainly concerns administrative amendments to the RCRA and CERCLA rules an amendment was made during the approval of this bill by the House Energy and Commerce Committee that would add specific State reporting requirements to some facilities covered by the CFATS regulations.

Explosives Reporting Requirement

Section 6, Explosive Risks Planning Notification, was added to the bill as the result of an amendment offered by Rep Waxman (D,CA). That section states:

“Not later than 180 days after the date of enactment of this Act, the owner or operator of each facility at which substances listed in appendix A to part 27 of title 6, Code of Federal Regulations [Link Added], as flammables or explosives are present above the screening threshold listed therein shall notify the State emergency response commission for the State in which such facility is located that such substances are present at such facility and of the amount of such substances that are present at such facility.”

Actually the terminology used in §6 is not quite accurate; it should read “… listed as having a Release Flammable, or Release Explosive, Security Issue in Appendix A…..”. It is clear from the language in §6 that the Theft EXP/IEDP Security Issue materials are not included in the language ‘or explosive’ since they are not themselves explosive, just precursors to making explosives or improvised explosives.

Since Waxman’s comments in the Dissenting Views section of the Committee Report (pgs 20-21) specifically refer to the ammonium nitrate explosion at the West Fertilizer facility in Texas, one would might assume that the ammonium nitrate stored at the facility would have been covered by this Section, but since that was fertilizer grade material it was not covered under the Release Explosive category [Defined as: Ammonium nitrate, (with more than 0.2 percent combustible substances, including any organic substance calculated as carbon, to the exclusion of any other added substance)] in Appendix A.

It would have been covered under the Theft EXP/IEDP as it is a precursor chemical to making explosive grade ammonium nitrate [Defined as Ammonium nitrate, solid (nitrogen concentration of 23% nitrogen or greater)]. So, under the requirement proposed here the West Fertilizer facility would not have had any obligation to report their ammonium nitrate to the Texas emergency response commission.

It is also not clear why Waxman failed to include chemicals with a Release Toxic Security Issue in this notification requirement; the possible effected area/population may be quite a bit larger for some of the toxic chemicals than for the flammable or explosive release chemicals.

More than CFATS Coverage

The wording of this section would apply to many more facilities than just those covered by the CFATS program. Many facilities with more than a screening amount of the chemicals listed in Appendix A (DHS chemicals of interest, COI) are not covered by CFATS because the DHS Infrastructure Security Compliance Division (ISCD) determines, after reviewing their Top Screen data submission, that they are not at high-risk of terrorist attack and thus not covered by CFATS.

The requirement of §6 would also apply to facilities specifically exempted by Congress from coverage under the CFATS regulation. This would include water and waste water treatment plants, MTSA covered facilities, nuclear facilities regulated by NRC and DOD facilities.

Invisible Rule

There is an even more basic problem with this reporting requirement; it is added to a bill that most facilities would never hear about. This largest portion of this bill is addressed to actions to be taken by the EPA in establishing regulations. This is the only portion of the bill that applies directly to the private sector. Thus, a very large proportion of the facilities that would be required to take actions based upon this bill would never know of the requirement.

Moreover, there is no way that anyone in the Federal government would know if a covered facility made the required reports as the reports are to be made to unnamed State agencies with no feed back to the regulatory agencies at the Federal level who might (or might not) be aware of the existence of the covered chemicals.

This is one of those congressional requirements that are made without thought as a knee jerk reaction to a real problem. In this case it does not even come close to addressing the issue it was made in response to as the chemical in question does not meet the definition of the chemical hazard referred to in the bill.

Congressman Waxman almost certainly realizes that this section was added in contravention of House rules prohibiting unrelated information being included in a bill. He should also be aware of the problems with the ammonium nitrate definition as he has been involved with the CFATS business almost since its inception well before the 2006 addition of the §550 authorization to the Homeland Security spending bill.

The only thing that I can conclude is that Waxman is taking the easy way out and pushing a completely ineffective requirement because it is easy to get passed rather than trying to do something effective and complex in dealing with the way that the EPA and OSHA deal with explosive chemicals. And that is one of the reasons that we are in the chemical dilemma that we are currently facing, no one in Congress is willing to do the hard work to get real chemical safety legislation passed.

NOTE: The actual bill that the House Rules Committee will be considering is a mash up of three separate bills reported by the House Energy and Commerce Committee; HR 2279, HR 2226 and HR 2318. The §6 language discussed above will actually be in §106 of the new version of HR 2279.

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