Monday, November 5, 2007

The politics behind Appendix A propane rules

Today DHS published a poor transcript of a Press Conference held last Friday about the release of the revised Appendix A to 6 CFR part 27. I say that it is a poor transcript because who ever put it together makes Assistant Secretary Robert B. Stephan and Maribeth Kelliher sound like illiterate people who know nothing the Chemical Security Anti-terrorism Standards (6 CFR part 27) or Appendix A. One has to read through serious misspellings and incorrect word choices by the transcriber to try to piece together what was probably said.


One thing that Secretary Stephan tried to make clear (I think that was what he said) was that lobbying and politics had little to do with the final product that was released on Friday. This point was also made in the final rule in response to various comments about exempting various classes of facilities (pages 69 thru 71 of the Final Rule published on the DHS Website) from coverage under the regulation. Specifically the rule states:


“There are risks with facilities possessing certain amounts of certain chemicals, and the Department is seeking to address these risks under its new authority in Section 550. This extends to all facilities that present high levels of security risk and possess chemicals that may be of interest to terrorists. Moreover, these risks are associated with the characteristics and quantity of the chemical, rather than the business or activity associated with the industry or facility. As such, it would not be appropriate for DHS to exempt, by regulation, entire types of activities or industries.” (pages 70-71)


While, in my opinion, DHS has generally done a pretty good job of ignoring political pressure to lessen the impact of the regulations, it has completely caved in with respect to propane. Of course the political pressure was intense. Almost 4,000 of the 4,300 comments received (page 54 of the Final Rule) dealt with propanein an obvious organized writing campaign. In my blog on MySpace in June I wrote about two Senators making public threats to withhold enforcement funding from DHS if they did not exempt propane users from CSAT regulations. I later reported on this blog that DHS felt it necessary to respond with a page on their web site about the pressure to exempt propane from being listed as a dangerous chemical.


In the end the political pressure obviously became too great. According to the final rule the criteria for flammable release chemicals are: “chemicals with the potential to create a vapor cloud explosion that would affect populations within and beyond the facility, if intentionally released” (page 8). All other flammable liquids and gasses have an STQ set at 10,000 lbs in keeping with the EPA estimates of the amount required for significant off-site consequences. For propane, DHS set the STQ at 60,000 lbs and exempted any propane in tanks holding less than 10,000 lbs from being included in the calculations to determine STQ.


In its comments about setting this politically motivated STQ DHS made the statement that; “Sixty thousand pounds is the estimated maximum amount of propane that non-industrial propane customers, such as restaurants and farmers, (italics mine) typically use.” (page 43). While reasonable people would probably agree that the detonation of a 60,000 lb tank of propane on a remote farm would probably not produce a politically important result; the detonation of the same size tank at a crowded restaurant would certainly make for a politically successful terrorist attack.


The purpose of Appendix A is not to determine what constitutes a high risk target. The purpose is to provide a screening tool that will allow DHS to collect data that will allow it to capture most of the chemical facilities that would present a high risk for terrorist attack. On page 19 of the final rule DHS states that: “The STQ is not the threshold for establishing whether a given facility is a high risk facility, but it is a threshold for determining whether the facility must complete and submit a Top-Screen.” The data provided in the Top Screen is the first in a series of tools that DHS utilizes to determine if a facility is a high risk facility.


In this case, political pressure has become the screening tool that DHS uses to determine if a facility is at high risk for a chemical based terrorist attack. One can now only hope that this politically motivated STQ is not responsible for providing a terrorist group with an unregulated weapon to use against the American Public.

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