It is not often that security measures under the Chemical
Facility Anti-Terrorism Standards (CFATS) program make the newspaper, but they
did this week in the
El
Dorado News-Times in El Dorado, AR. The issue was a meeting of the Union
County
Quorum
Court where the owner of a local oil refinery was asking the County to
close a portion of a public road that runs through the refinery. The owner
cited the CFATS program as the reason that the road needed to be closed.
According to the article:
“Ratcliff [lawyer representing the
refinery] said safety standards imposed by the United States Department of
Homeland Security in response to the Sept. 11, 2001 attacks on the United
States are not able to be met by Lion Oil/Delek because the road is open.”
The author of the article noted that Ratcliff was referring
to the CFATS program.
Security Issues
Looking at the
Satellite
view from Google Maps® it is easy to see what ‘security issues’ come into
play with this public road. First it divides the large storage tank farm on the
west side of the refinery in two. It also divides a flammable gas storage tank
area just north of the larger tank farm. And many of the storage tanks (liquid
and gas) are well within the blast radius of a reasonably sized vehicle-borne
explosive device. There is also a tank-wagon marshalling area and a tank-wagon
loading area along the road.
It is hard to tell what chemicals are stored in the large
tank farm, but, given that this is a petrochemical refinery, I would reasonably
assume that most of the tanks contain some sort of flammable hydrocarbon. The
horizontal pressure tanks on either side of the tank farm contain some sort of
flammable gas; the give away is the ‘4’ in the upper diamond on the hazard
placard on the tanks.
CFATS Considerations
Neither of these tank farms are very close to any
residential areas or schools. There are two small churches that the refinery is
using to define the road closure limits, but I doubt that either attracts more
than a couple hundred parishioners at most. What that means is that the Infrastructure
Security Compliance Division (the CISA group that administers the CFATS
program) probably bases their high-risk determination for this refinery on the
close proximity of the operations area of the facility further to the East to
residential areas of El Dorado.
ISCD give facilities a great deal of leeway in defining facility
boundaries for the purposes of determining what is a covered facility. There
might be a chance that, if the refinery were to be divided into two parts with
the boundary between them being the creek that runs north-south through the
facility, the western potion of the facility that includes Hinson Road (the
road being proposed to be closed) might not be determined to be a high-risk
facility and thus out of the scope of the CFATS program.
Similarly, if the western half of the facility were to be
determined to be a high-risk facility, the facility could manage the large tank
farm in such a way that the three tanks closest to Hanson Road would not be
used for storage of chemicals that were on the list of DHS chemicals of
interest (COI). This would allow the facility to exclude those three tanks from
the restricted-access portion of the facility. This would leave just the
flammable-gas tanks as areas of concern along the road. Security measures could
be designed to specifically protect those tanks from VBIED attacks.
CFATS and RBPS Guidance
The author of the article about the situation made note
about the “Dept. of Homeland Security’s Chemical Facility Anti-Terrorism
Standards Risk-Based Performance Standards. She picked up on the following repetitive
statement in that
guidance
document:
“Note: This document is a “guidance
document” and does not establish any legally enforceable requirements. All
security measures, practices, and metrics contained herein simply are possible,
nonexclusive examples for facilities to consider as part of their overall strategy
to address the risk-based performance standards under the Chemical Facility
Anti-Terrorism Standards and are not prerequisites to regulatory compliance.”
What most people who have not worked with the CFATS program
do not understand is that the CFATS regulations (
6
CFR 27.230) set 12 broadly worded risk-based performance standards (RBPS).
The guidance document provides information about how facilities can meet those
broad requirements. The facility and ISCD reach an understanding about what the
facility will include in its site security plan (SSP) to meet the statutory
requirements for that particular facility; each facility would have its own unique
methods to deal with the specific security situation at that facility. Once
that SSP is approved by ISCD, the requirements of that SSP are the regulatory
requirements for that facility.
Public Decisions and CVI
The big problem for the refinery going forward with the road
closure process is providing enough information about their security issues to
the County without running afoul of the restrictions on sharing
Chemical-terrorism
Vulnerability Information (CVI). Security information about CFATS covered
facilities are considered to be controlled unclassified information (CUI) with
specific rules about how that information can be shared with local government
officials; for CVI that includes requiring individuals that are being given
access to have completed
on-line training
in how to protect CVI information.
The County rules, in this case, requiring a 3-person panel
to review the information for a contested road closure seem well suited to the
CVI requirements. The three people assigned to the panel could take the relatively
brief training and then receive the security information from the refinery’s lawyer
to consider in the road closure petition. They could then make their
recommendation without including any of the specific security information.
The big problem with that is that the 3-member panel is
supposed to hold public hearings to get both sides of the issue. The public is
specifically excluded from having access to CVI so the refinery would be
required to make their arguments without providing any of the pertinent
security information. Those sanitized arguments may be inadequate to support
the request.
Commentary
I would be very surprised if a large refinery were just starting
the CFATS process, but I suppose that it could happen. If the facility has not
yet had its SSP authorized, there are still alternatives available to closing
the road through the facility. I have discussed some of them above, but there
are other, probably more expensive, security measures that could be employed
that would obviate the need for the road closure.
If the facility SSP has been authorized, it would seem that
the facility had included as a proposed security measure the closure of the
road. If that is the case the facility made a commitment to ISCD that the road
would be closed. Failure to get the County to effect the closure would require
the facility to renegotiate their SSP; ISCD would be upset, but I suspect that
they would understand that the facility had no control over the actions of the
County government.
What I suspect is happening is that the original facility
SSP was negotiated by the previous owners and authorized and subsequently
approved by ISCD. It would have included some expensive planned compensating
controls to allow the road to remain open. Those controls would have been
proposed because the owners knew that getting the County to close the road was
going to be difficult at best. The new owners have no desire to spend the money
necessary to implement the controls. ISCD would be in the process of
threatening noncompliance sanctions and the new owners are trying hard to get
the financially easier security measures in place as an ‘appropriate response’
to the non-compliance actions.
It will be interesting to see how this turns out.
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