Saturday, January 4, 2014

Suggested Revision to §106 of HR 2279

In an earlier blog I took Rep. Waxman (D,CA) to task for his ineffective amendment to HR 2279. I know that it is easy to criticize but criticism without suggestions for corrective actions serve very little purpose. With that in mind, I have drafted replacement language for the current section 106 in the version of HR 2279 that the House Rules Committee will consider this week.

Section 106 Chemical Hazard Notifications

The Secretary of the Department of Homeland Security (the Secretary), acting through the Director of the Infrastructure Security Compliance Division (the Director) of the National Protection and Programs Directorate will ensure that:

(a) Each State or tribal emergency response commission is notified of each facility within that State or tribal area that reports on a Top Screen submission having a quantity of any release flammable, release toxic or release explosive chemical listed in Appendix A of 6 CFR Part 27 in a quantity in excess of the screening threshold quantity set forth in that Appendix for that chemical. The notification required will include, as a minimum:

(1) The facility name, address and the reported latitude and longitude of the facility;
(2) The name, telephone number and email address of the Top Screen Submitter; and
(3) The name and quantity of each release flammable, release toxic, or release explosive chemical reported on the facility Top Screen;

(b) That each Security Vulnerability Assessment submitted by facilities preliminarily determined by the Secretary to be at high risk of terrorist attack will include information about the Local Emergency Planning Committee (LEPC) for the county in which the facility is located. That information will include, as a minimum:

(1) The name and contact information for the Chair of that LEPC; and
(2) The latest date that the LEPC was contacted with information about the release flammable, release toxic and release explosives chemicals reported on the facility’s most recent Top Screen;

(c) That each Site Security Plan submitted by facilities determined by the Secretary to be at high-risk of a terrorist attack will include information about the coordination conducted by the facility with local police, fire and emergency response agencies concerning their responses to deliberate or accidental releases of release flammable, release toxic or release explosive chemicals from that facility; and

(d) That for the purposes of this section ammonium nitrate, solid (nitrogen concentration of 23% nitrogen or greater) will be considered a release explosive chemical.

This language ensures that there is a proactive effort made by DHS to ensure that each State and tribal emergency response commission knows about the release flammable, release toxic and release explosive chemicals located within its jurisdictions. Unfortunately, DHS will not know about such chemicals in facilities exempted from the CFATS reporting requirements. It would, however, cover each of the 40,000 + facilities that have submitted Top Screens under the current program.

I have expanded Waxman’s explosive notification to include the flammable and toxic chemicals covered in Appendix A as well. Each of these ‘release’ security issue chemicals have been determined by various government agencies to have potential off-site consequences in the event of a catastrophic release at quantities greater than the STQ. Those potential off-site consequences make them all of potential interest to emergency planners and responders.

Again, fertilizer grade ammonium nitrate is not legally considered to be an explosive under any current definition. As we saw in West, TX, however, fertilizer grade ammonium nitrate can have explosive consequences if not stored or handled properly. Thus is should be included in this notification process. The language in paragraph (d) takes care of that.

Paragraphs (b) and (c) expand on Waxman’s original intention by ensuring that there is contact between the facility and their local LEPC and first responders. Without violating the current inane restrictions in the CFATS authorization language, these paragraphs will at least ensure that some level of communications exists between the covered CFATS facilities and the local planning and response agencies.

I hope that some Congressperson steps up and offers something like this language as an amendment to HR 2279. I will not be upset if the one that does ‘steals’ this language with or without attribution.

Of course, I’m not going to hold my breath. While I know that a large number of congressional staffers read this blog, I haven’t seen anyone in Congress take one of my suggestons yet. That’s okay; that allows me to criticize with impunity and allows me to employ my favorite phase; “I told you so…”

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