Monday, March 31, 2008

Farm Bill Contains Chemical Security Provisions

As the Food and Energy Security Act of 2007 (HR 2419), commonly known as the ‘Farm Bill’, is nearing its final form. It seems strange to be talking about the Farm Bill on the Chemical Plant Security News Blog, but large bills like this can have strange provisions buried deep where no one notices. These strange provisions miss the scrutiny of the appropriate congressional committees and are often ignored when larger provisions attract all of the attention.


Back in November, Sen. Charles Grassley (R-Iowa) was proud of a provision that he had inserted into the bill that exempted propane from the DHS CFATS regulations. That provision is not in the version of the bill currently under consideration. There are, however, two other sections that deal with chemical security matters.


Section 11070 – Report on Stored Quantities of Propane


This section requires that the Secretary provides a report to Congress (to the Agriculture and DHS oversight committees in both houses) within 6 months (240 days) concerning the “possession of quantities of propane that meet or exceed the screening threshold quantity for propane” established in the CFATS regulations. That report will include


  • the number of facilities that completed a Top Screen that had at least an STQ amount of (60,000 pounds) of propane on site, and
  • the number of agricultural facilities that completed a Top Screen that had at least an STQ amount of (60,000 pounds) of propane on site, and
  • the number of propane facilities initially determined to be high-risk facilities, and
  • the number of propane facilities that submit an SVA, SSP or ASP, and
  • the number of propane facilities that file an appeal under the CFATS regulation, and
  • the average cost of completing a Top Screen, an SVA, and an SSP (including the cost of implementing an SSP).


Additionally, the Secretary is required, within 30 days, to “conduct educational outreach activities for rural facilities” that are required to complete a Top Screen for propane. The Secretary is authorized to use the “Food and Agricultural Sector Coordinating Council established under the national infrastructure protection plan” to complete the outreach program.


This is a major change from Senator Grassley’s earlier provision. It does required to Secretary to undertake yet another report to Congress, but Congress does have certain over-site responsibilities. Actually, there should probably be a number such reports for a wide variety of facilities that were included in the term ‘chemical facility’ under CFATS that most people do not consider to be chemical plants. And the chemicals concerned should not be limited to just propane.


While I agree with the wide net that DHS used on the initial assessment of the extent of risk for chemical terrorist attacks, it is entirely appropriate that that scope should be reviewed after the initial assessment is completed. If there were clearly-definable categories of facilities that completed Top Screens but resulted no facilities being designated as high-risk facilities, DHS should consider exempting that class of facilities from future considerations.


Section 12405 - Agricultural Chemicals Security Credit


This section provides for a tax credit to compensate for agricultural chemical security spending. The credit would be 30% of the allowable expenditures with a cumulative 5 year limit of $100,000 per facility or a yearly limit of $2,000,000 per taxpayer. The ‘per taxpayer’ limit is obviously written to benefit large agricultural businesses with multiple facilities. Such an agribusiness would have to have 100 facilities to be able to get $2M per year for all five years of the program.


The section provides a relatively extensive list of allowable expenditures. They range from completing background checks to implementing site security plans. The only real limit is that the costs must be directly related to the security of ‘specified agricultural chemicals’. The only ‘specified chemicals’ in the legislation are pesticides and fertilizers. There are no provisions for including security for fuels, propane, or anhydrous ammonia in calculating the credit.


Chemical security provisions of the CFATS regulations are going to cost high-risk chemical facilities a great deal of money. This section will help to off-set some of that cost for agricultural chemical facilities. Unfortunately, there does not seem to be a high level of coordination between the Department of Agriculture and DHS involved in this legislation.


Final Version of HR 2419


The final version of HR 2419 has not yet been written. It is not unusual for complex bills such as this to have ‘minor, insignificant’ revisions added to them in the final wrangling of the legislative process. People are looking at, and fighting over, the larger provisions of the legislation. The right to add ‘minor’ revisions is frequently awarded in return for support of the over-all bill. It will be interesting to see what other changes are made that concern chemical security, particularly since agricultural interests have been the most vocal and effective opponents of CFATS.

Saturday, March 29, 2008

FBI/DHS issued Special Assessment this week

It has been a couple of days now since the FBI/DHS issued their “Joint Homeland Special Assessment” following the latest jihadist message from Al Qaeda. According to the article about the ‘assessment’,  no one really expects an Al Qaeda attack. ‘Wannabes and sympathizers’ are of the type threat that intelligence people are looking for.


Because of Al Qaeda’s diatribe against the Israeli ‘siege laid upon Gaza’ and the expected Dutch release this weekend of the anti-Muslim video, by Geert Wilders, facilities associated with or connected to either of those two countries might want to increase their vigilance somewhat over the coming weeks.


I’m not sure if these ‘assessments’ are being sent to ‘high-risk’ chemical facilities, but they certainly should be. This assessment is certainly not a warning of an impending attack, but high-risk facilities should be watching these types of ‘warnings’, and making ‘proper’ adjustments to their security posture.


A ‘proper’ response may be no more than reminding security personnel and employees to be on the lookout for unusual activity around the facility. Or maybe ask the local police to make an extra patrol past the plant after dark. Even this minor increase in threat deserves a response.

Update on FBI International Symposium on Agroterrorism

About a month and a half ago I wrote a brief blog (see “FBI Symposium on Agroterrorism”) on Symposium on Agroterrorism that the FBI is sponsoring next month. I noted that DHS was not included on the program and suggested that DHS might want to take part and talk about chemical security ‘down on the farm’. Looking at the symposium web site yesterday I noted that DHS is now contributing a team presentation.


On Monday, April 21st, during the second afternoon breakout session there is a topic (Topic #3) entitled: “The Increasing Threat of Agricultural Chemicals”. David Morton and David Reed, DHS, Chemical Security Analysis Center, will be providing the presentation. I’m not sure what that covers exactly, but any outreach to the agricultural sector has to be of some benefit to DHS.

Friday, March 28, 2008

DHS Review of SVA’s and SSP’s under HR 5577

This is part of a continuing series taking a detailed look at the provisions of the new Chemical Facility Anti-terrorism Act of 2008 recently introduced in Congress (HR 5577IH). Today’s entry looks at the first half of Section 2105: Enforcement.


Previous blogs in this series include:


·        CFATA of 2008 Introduced as HR. 5577

·        Personnel Background Checks and HR 5577

·        Ranking of Chemical Facilities by HR 5577

·        General SVA and SSP Requirements under HR 5577

·        Minimum SVA Requirements under HR 5577

·        Minimum SSP Requirements under HR 5577

·        Risk Based Performance Standards under HR 5577

·        Alternative Security Programs under HR 5577

·        Record Keeping and Site Inspections under HR 5577


The first half of this section of the recently introduced legislation deals with the responsibility of the Secretary to set deadlines for the submission of SVA’s and SSP’s. It also requires the Secretary to review each such submitted document. In the event of disapproval of one of these documents it outlines the procedures that will be used to require compliance. Finally it explains the ultimate sanction, provisions for an order to cease operations.


Submission of Information


Section 2105(a) requires that the Secretary establish deadlines for the initial submission of SVA’s and SSP’s. It allows the Secretary to set different deadlines for the different risk tiers. It also requires that the Secretary establish requirements for covered chemical facilities to periodically review their SVA and SSP to ensure that they are still adequate for current conditions.


It also requires the Secretary to establish specific requirements, including deadlines, for the submission of information about major changes at the facility. Major changes include:


  • “any change in the use by the covered chemical facility of more than a threshold amount of any substance of concern that could affect the requirements of the chemical facility under this title; and”


  • “any significant change in a security vulnerability assessment or site security plan submitted by the covered chemical facility.”


There is nothing in this portion of the legislation that would appear to require any significant changes in the current CFATS regulations. It does provide the Secretary with clearer guidance in this area than did the Section 505 authorization.


Review of SVA and SSP


The CFATA of 2008 gives the Secretary 180 days from the receipt of an SVA or SSP to review the document for compliance with this legislation and the associated rules developed to implement the law. This is a new requirement; there is no time limit in the CFATS regulation for the Secretary to review either document.


This section provides specific guidance to the Secretary describing the circumstances that require disapproval of either an SVA or SSP. The wording does not state or imply that these will be the only causes of disapproval. The SVA or SSP will be disapproved if the Secretary determines that:


  • “the security vulnerability assessment or site security plan does not comply with the requirements under section 2103; or”


  • “in the case of a site security plan, the plan or the implementation of the plan is insufficient to address any vulnerabilities identified in a security vulnerability assessment of the covered chemical facility or associated oversight actions taken under section 2103 or section 2104, including a red team exercise.”


The second listed cause for disapproval encompasses actions that could come after the initial approval of the site security plan. This means that just because an SSP or SVA has been approved that it must stay approved. This is designed to ensure that both of these documents are living documents, subject to change andrevision.


Notification of Disapproval


In the event that the Secretary disapproves either an SVA or SSP he is required to provide a written notice to the facility that:


  • “includes a clear explanation of deficiencies in the assessment, plan, or implementation of the plan; and”


  • “requires the owner or operator of the covered chemical facility to revise the assessment or plan to address any deficiencies and,”


  • “by such date as the Secretary determines is appropriate, to submit to the Secretary the revised assessment or plan”


The Secretary is also required to provide guidance on how the facility can address the identified deficiencies. For facilities that are in ‘high-risk’ tiers the Secretary is required, if asked by the facility, “consult with the owner or operator to identify appropriate steps” to correct the deficiencies.


Order to Cease Operations


If the facility does not complete the actions necessary to correct the deficiencies noted in the initial Notice of Disapproval by the date indicated the Secretary will issue “an order requiring the owner or operator to correct specified deficiencies by a specified date”. If a facility in a high-risk tier “continues to be in noncompliance after” the date specified, the Secretary may issue an order to “cease operations at the facility” until the facility is in compliance.


The Secretary may not issue a cease operation order to “the owner or operator of a drinking water or wastewater facility” unless the Secretary determines that “continued operation of the facility represents a clear and present danger to homeland security.” This is a very stiff standard and probably ensures that a cease operation order will not be issued to such a facility. The reason for this provision is fairly obvious; the shutting down of a community’s water or waste water treatment facility is not something to be done lightly.

Thursday, March 27, 2008

Employee Representatives and Chemical Facility Security

If you have been following my recent series of blogs about the newly introduced Chemical Facility Anti-terrorism Act of 2008 (for the latest see: “Record Keeping and Site Inspections under HR 5577”) you will notice that there are frequent references “employee representatives” in the legislation. There has been a lot of pressure from labor organizations to include their members in the chemical facility security process. That pressure has obviously yielded fruit.


Labor’s argument has been that due to the secrecy involved in the security process there is currently no way for outside organizations to evaluate if DHS and facility management are actually doing everything possible to provide security or just conducting a window dressing exercise. They argue that labor unions, where they exist in chemical facilities, are a natural entity to serve as an independent check on the process. Additionally, employees at a facility have a natural interest in seeing that terrorist attacks on the facility are prevented.


Any body that has seen the news about the lax enforcement by OSHA at the BP facility in Texas or the sugar facility in Georgia will have a hard time arguing that DHS will do a good job of enforcing the security regulations just because they are a government agency. It certainly makes more sense involving labor unions in the process than outside community or environmental groups.


Having said all of that, it seems to me that there are problems with this solution that have not been addressed in the legislation. These potential problems are a natural result of the adversarial nature of organized labor and management in this country and the labor laws that keep a firm separation between these two groups.


Background Checks and Employee Representatives


In an early blog in the series (see: Personnel Background Checks and HR 5577) I noted the requirement for chemical facilities to complete background checks on “individuals who have access to restricted areas or critical assets” {Section 2114(a)(1)}. An employee representative could be expected to fall under that definition. If an employer or DHS determines that such a representative failed that background investigation, it would seem to follow that that individual would no longer have access to those restricted areas. The entire facility could conceivably be defined as a restricted area.


Section 2114(f) attempts to address that by stating that:


Nothing in the section shall be construed to abridge any right or responsibility of a covered individual or covered chemical facility under any other Federal, State, local, or tribal law or collective bargaining agreement.”


I am sure that this section was never intended to require a facility to allow access to critical assets to someone that was a ‘demonstrated’ security risk. I am also sure that any attempt by management to restrict the activities of a union representative based on such a background check would result, at the very least, in an appeal to the NLRB.


CVI and Employee Representatives


In my latest blog on HR 5577 I talk about the requirement for management to provide a copy of their SVA and SSP to employee representatives. Along with this comes a responsibility for those representatives to maintain the security of those documents. If the current Chemical Vulnerability Information regulations are maintained under the new law (and nothing appears to require otherwise) this mean that DHS would have to clear those representatives before the facility was allowed to share those documents.


If DHS finds the employee representative’s name on a terrorist watch list, they will not authorize the facility to share the information. This again sets up a potential conflict between management and labor over internal conflicts between this requirement to share information and the CVI requirement to restrict the flow of information. 


If these conflicts in requirements are not ironed out before this legislation goes into effect, there will be needless delays in carrying out the other provisions of this legislation while NLRB and court hearings are heard and resolved. Anyone that thinks that labor and management will be able to work things out in a less litigious manner has not been paying attention to labor relations in the last half-century.

Wednesday, March 26, 2008

Record Keeping and Site Inspections under HR 5577

This is part of a continuing series taking a detailed look at the provisions of the new Chemical Facility Anti-terrorism Act of 2008 recently introduced in Congress (HR 5577IH). Today’s entry looks at Section 2104: Record Keeping; Site Inspections.


Previous blogs in this series include:


·        CFATA of 2008 Introduced as HR. 5577

·        Personnel Background Checks and HR 5577

·        Ranking of Chemical Facilities by HR 5577

·        General SVA and SSP Requirements under HR 5577

·        Minimum SVA Requirements under HR 5577

·        Minimum SSP Requirements under HR 5577

·        Risk Based Performance Standards under HR 5577

·        Alternative Security Programs under HR 5577


It should go without saying that for this regulation to be effective there are going to have to be provisions for federal over site and verification. This section specifically requires that each covered facility that is required to submit an SVA or SSP to maintain a current copy of those documents on site. It also provides for the Secretary or his designee “at a reasonable time and on presentation of credentials” to have the right of entry to any covered facility.


Inspections and Verification


This legislation gives the Secretary or his designee the legal right to conduct “chemical facility security inspections and verifications”. It also allows for the Secretary to write regulations that establish third party inspectors to conduct these inspections. During the inspection it requires that the inspector will:


·        “consult with owners, operators, and supervisory and non-supervisory employees of the covered chemical facility, and any employee representatives, as appropriate; and”


·        “provide an opportunity to such owners, operators, employees, and employee representatives to be present during the inspection or verification for the purpose of providing assistance when and where it is appropriate.”


These ‘consultation’ provisions are not found in the current CFATS regulations. While the details will be explicated in the revised regulations (if this law passes) it seems that there will be more people involved in any inspections than normally involved in regulatory visits. It might include a requirement to meet with a ‘Site Security Committee’ and will certainly involve a parade of people following an inspector on a walk around.


Requests for Records


As part of the over site process the Secretary can request that covered facilities submit appropriate information to DHS to ensure that SVA’s were properly performed and SSP’s are adequately implemented. Alternatively, the Secretary or his designee can, “, on presentation of credentials, may at reasonable times obtain access to and copy any documentation” necessary to perform that over site.


When handling such information DHS is required to provide appropriate security and to handle the documents in an appropriate manner. This requirement is implied for third-party inspectors designated by the Secretary.


Employee Representatives


Any facility required to submit an SVA or SSP that has an ‘employee representative’ is required to provide copies of the SVA and SSP to that representative. The employee representative is required to provide the same sort of protections to those documents as is the facility (detailed under Section 2108).




Any facility that to “fails to maintain, produce, or allow access to records or to the property of the covered chemical facility” as required under this legislation will receive a compliance order from the Secretary. This is the first step in a procedure (detailed in later sections) that could lead to fines and even an order to stop operations.

Tuesday, March 25, 2008

Alternative Security Programs under HR 5577

This is part of a continuing series taking a detailed look at the provisions of the new Chemical Facility Anti-terrorism Act of 2008 recently introduced in Congress (HR 5577IH). Today’s entry looks at the part of Section 2103 dealing with Alternative Security Programs, Section 2103(e).


Previous blogs in this series include:


·        CFATA of 2008 Introduced as HR. 5577

·        Personnel Background Checks and HR 5577

·        Ranking of Chemical Facilities by HR 5577

·        General SVA and SSP Requirements under HR 5577

·        Minimum SVA Requirements under HR 5577

·        Minimum SSP Requirements under HR 5577

·        Risk Based Performance Standards under HR 5577


Section 27.235 of the current CFATS regulations provides for the use of “Alternate Security Plans (ASP). Tier 4 (the lowest ‘high-risk’ rating) can use an ASP in lieu of an Security Vulnerability Assessment (SVA). Tiers 1, 2, and 3 can use an ASP in lieu of a Site Security Plan (SSP). The ASP must meet all of the requirements for SVA’s or SSP’s.


One of the reasons that the current rule allows an ASP only for Tier 4 SVA’s is that DHS uses data from the SVA to make a final determination about the risk ranking of high-risk chemical facilities. In order to ensure that the highest risk facilities are evaluated promptly the data from the SVA feeds into an automated review program within theChemical Security Assessment Tool (CSAT). There is nothing in the new regulation that requires that that be changed.


Use of Alternative Security Programs


This regulation provides for a wider range of alternative security programs. It allows any facility to request permission from the Secretary to use an alternative security program for either SVA’s or SSP’s. Additionally, it allows the Secretary to authorize the use of alternative security programs without their being requested. As long as the program meets the requirements of Section 2103 and provides “for an equivalent level of security”, the Secretary can approve the alternative program.


An interesting provision of this legislation is that it allows the Secretary to authorize a broad class or category of facilities to use an alternative security program. This would allow, for example, the Secretary to approve all chlorine manufacturing or distribution facilities to use a program developed by the Chlorine Council.


Partial Recognition


CFATA of 2008 also allows for the Secretary to recognize that an alternative security program my not meet all of the requirements of Section 2103, but still approve the alternative. That approval would identify the additional information that the facility would have to provide to meet the requirements of the legislation.


Review Required


One of the complaints heard about alternative security programs is that they are nothing more than a way to allow industry to avoid implementing serious security procedures. This section specifically states that nothing in this section absolves the Secretary from the requirement to review each individual SVA and SSP to insure that all of the requirements of this legislation are met.

Monday, March 24, 2008

Risk Based Performance Standards under HR 5577

This is part of a continuing series taking a detailed look at the provisions of the new Chemical Facility Anti-terrorism Act of 2008 recently introduced in Congress (HR 5577IH). Today’s entry looks at the part of Section 2103 dealing with the Risk Based Performance Standards for Site Security Plans, Section 2103(c).


Previous blogs in this series include:


·        CFATA of 2008 Introduced as HR. 5577

·        Personnel Background Checks and HR 5577

·        Ranking of Chemical Facilities by HR 5577

·        General SVA and SSP Requirements under HR 5577

·        Minimum SVA Requirements under HR 5577

·        Minimum SSP Requirements under HR 5577


This section deals with the general requirements for the risk based performance standards required for the site security plans for high-risk chemical facilities. The specific standards that are required are found in the definition section {Section 2101(2)} of the legislation. An unannotated list of those requirements will be included at the end of this blog.


General Explanation of Risk Based Performance Standards


This legislation requires the Secretary to establish ‘risk based performance standards’ for facilities to use when establishing their site security plans. These standards will require higher risk facilities to use increasingly stringent “stringent risk-based chemical security performance standards”. They will be allowed to select a combination of security measures to meet these standards.


Criteria to Be Considered


In addition to ensuring that the standards are both risk-based and performance-based, the Secretary is charged with ensuring that the standards take into consideration:


·        “the cost and technical feasibility of compliance by a covered chemical facility with the requirements under this title;”


·        “the different quantities and forms of substances of concern stored, used, and handled at covered chemical facilities; and”


·        “the potential extent of death, injury, and serious adverse effects to human health, the environment, critical infrastructure, national security, the national economy, and public welfare that would result from a chemical facility terrorist incident.”


Guidance to Be Provided


A new requirement to this legislation is the requirement that the Secretary is to provide guidance to each “covered chemical facility” what types of “security performance measures” could be used in a site security plan to fulfill the requirements of the risk based performance standards. Under the current CFATS regulations there are no provisions for such guidance; in keeping with the restrictions of the authorizing legislation.


Additionally the Secretary is required to inform each covered facility what types of “methods to reduce the consequences of a terrorist attack” (the phrase used in this legislation to mean inherently safer technology) that would result in a lower risk tier ranking or even being removed from the list of covered facilities.


Interestingly this section of the legislation does not refer to ‘high risk tier’ facilities when discussing the requirement for site security plans. The Section 2103(b)(2) requirements for site security plans only pertain to facilities “assigned to a high-risk tier”. The requirements in this section apply to ‘covered facilities’. Thus, it seems that HR 5577 intends for a separate set of rules lower-risk tier facilities. Both sets of rules would include the same risk based performance standards.


List of Risk-Based Performance Standards


The following is an abbreviated list of the risk-based performance standards listed in the definition section of the proposed law. While some of these standards are self-explanatory, others will require a more detailed look in future blogs.


(A) restricting the area perimeter;


(B) securing site assets;


(C) screening and controlling access to the facility


(D) methods to deter, detect, and delay a chemical facility terrorist incident


(E) securing and monitoring the shipping, receipt, and storage of a substance of concern for the chemical facility;


(F) deterring theft or diversion of a substance of concern;


(G) deterring insider sabotage;


(H) deterring cyber sabotage


(I) developing an emergency plan to respond to chemical facility terrorist incidents


(J) maintaining effective monitoring, communications, and warning systems


(K) ensuring mandatory annual security training, exercises, and drills of chemical facil1ity personnel;


(L) performing personnel surety for individuals with access to restricted areas or critical assets


M) escalating the level of protective measures for periods of elevated threat;


(N) specific threats, vulnerabilities, or risks identified by the Secretary for that chemical facility;


(O) reporting of significant security incidents to the Department and to appropriate local law enforcement officials;


(P) identifying, investigating, reporting, and maintaining records of significant security incidents and suspicious activities in or near the site;


(Q) establishing one or more officials and an organization responsible for security and for compliance with these standards;


(R) maintaining appropriate records relating to the security of the facility;


(S) assessing, as appropriate, or utilizing methods to reduce the consequences of a terrorist attack; or


            (T) any additional security performance standards the Secretary may specify.

A brief DHS Web Site Update

For those of you that have signed up for notification when the ‘Critical Infrastructure: Chemical Security’ web site page has changed, you know that DHS has added a link on that page to the Federal Register page dealing with the clarification about propane that I discussed in an earlier blog (see: “DHS Clarifies Propane Mixture Rule”). I mention this for two reasons: 1) bring the web page change to your notice, and 2) acknowledge that DHS has made yet another advance in their change notification procedures.


Let’s look at the latter first. I have been documenting the evolution of the DHS change notification procedures on their chemical security web site. The notification message that I received by email is the latest part of that evolution. They announced that the change had been made and they explained what the change was. Once again, I would like to congratulate DHS on their progressive attempts to make their web site more user friendly.


There was one small problem, the link that should have gone to the page went to an inactive site ( instead. That appears to be a simple error rather than a short coming in their notification system.


Now looking at the propane clarification, I would like to cover a couple points that I missed in my earlier blog.


First I have some questions about the timing of this clarification. It was issued on the 21st of March, two days after the end of the 60 day extension for completing the Top Screen. Or maybe the last day of the extension, depending on where DHS counted from (January 19th or 21st). In either case, it came too late to be of any use to anyone filing either under the original time limit or the extension. This begs the question, for who was this clarification provided?


The second is a web site issue. The Federal Register entry mentions that


“Since publication of the Appendix A Final Rule, the Department has received numerous inquiries about the STQ provisions for the COI propane and about the applicability of the release-flammable mixture provisions to products that contain the COI propane and to other products that contain some propane.”


Interestingly the FAQ web page on the Chemical Security Site lists only one question about the propane COI dealing with flammable mixtures; question 1224, “How do you calculate the STQ for Propane in a mixture?” The answer to that question (as of 3-22-08, a day after the page in the notification was changed) was dated 11-24-07 and states that “The minimum concentration and mixtures provisions for propane are the same as for all other release-flammables.”


It is odd that, if there had been ‘numerous inquiries’, that the latest question on the FAQ page is dated 11-24-07. Finally, it is disappointing that the answer to that question is the same out of date information that necessitated the clarification. I would have expected to see the information in the clarification appear first on the FAQ page.

Saturday, March 22, 2008

The Propane Industry and IST

I ran across an interesting web page yesterday on the National Propane Gas Association web site. It is entitled “Congress Considering Chemical Security Law to Discourage Propane StorageIt is part of the propane industry’s efforts to limit the effect of chemical security rules on their facilities and on their customers’ facilities. What will come as a surprise to anyone that has been reading this blog for very long is that I tend to at least partially agree with them on their newest issue.<?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />


Their latest concern is with the inherently safer technology (IST) requirements of the new Chemical Facility Anti-terrorism Act of 2008 currently being considered by Congress. They are concerned that it “will require covered facilities to analyze whether reducing or eliminating storage will reduce a facility’s security risk.” They are afraid that a security-based analysis would encourage facilities to switch to fuels that are not covered by the chemical security rules.


Actually there are two separate actions under the heading ‘method to reduce the consequences of a terrorist attack’ {Section 2101(11)} that would be of concern to the propane industry:


·         “use of less hazardous substances or benign substances;”


·         “use of smaller quantities of substances of concern;”


Less Hazardous Substitutes


The main point that proponents of IST use to justify mandatory implementation is that if the hazardous chemical is no longer present, then the site is no longer a chemical terrorist target. While a simplification of a potentially complex situation, it does have a basis of truth associated with it.


Propane is actually a relatively good example of the benefit of IST if one only looks at the situation as a security problem. There are a number of alternative fuels that could be used to replace propane in most heating applications. They would require changes in storage tanks and relatively minor equipment modifications to implement. While still dangerous, the alternative fuels are not listed in Appendix A so they legally qualify as less hazardous chemicals.


Of course there are a number of non-security related benefits that are associated with the use of propane as a fuel. Propane is cleaner burning than liquid fuels like fuel oil, diesel or gasoline, producing fewer air pollutants like NOx, SOx, and a whole host of heavy metals. It also produces less carbon dioxide per BTU of heat output than most of its liquid competitors. Only ethanol comes close to being as clean, but it has its own host of environmental problems.


Smaller Quantities


If eliminating a risky chemical eliminates the site as a target, it follows that reducing a risky chemical should reduce the level of risk of attack. Under the current regulations this is especially true for users of propane. Because of the way that DHS rewrote the rules for propane, a minor change can take a facility right out of the ‘high-risk’ facility category; either reducing the total amount on site to less than 60,000 pounds or moving the propane in excess of that amount into 10,000-lb storage tanks (which are excluded from consideration). Nothing in HR 5577 will change this.


While this may be a legally effective method for risk reduction for users of propane, neither option is of much use for removing propane storage facilities or distribution facilities from the high-risk facility list. Changing to the smaller 10,000-lb tanks is not really a practical option. Besides, it would increase the number of connections that would have to be made for each unloading and loading operation, there by increasing the safety risk at the facility.


Restrictions on Implementation


HR 5577 is not completely blind to the problems involved in a blanket requirement to implement IST programs. The proposed legislation contains a number of provisions that provide legally sufficient reasons to not implement IST programs. Both the lack of economic viability and problems with feasibility can provide acceptable reasons not to implement IST programs.


There is another way out as well. Interestingly, the first acceptable reason to not implement IST programs mentioned in the legislation {Section 2110(b)(1)(A)} deals with transferring as opposed to limiting risk. This sub-paragraph states that IST should be implemented only if it


“…would not increase the interim storage of a substance of concern outside the facility or directly result in the creation of a new covered chemical facility assigned to a high-risk tier under section 2102(c)(3) or the assignment of an existing facility to a high-risk tier”


Inadequate Protections


The propane industry is not satisfied that these limits on the requirement to assess and implement IST programs will adequately protect their business. They feel that the pressure to implement IST programs would drive many of their customers to alternate fuels. That combined with pressure on distributors and storage facilities to limit inventories would make their business more expensive to operate and less profitable.


What they would like to see, lacking an outright removal of the IST provisions, is outlined by Congressman Mike Rogers in his Dissenting View in the House Homeland Security Committee report on HR 5577:


“The final version of this bill should contain an exemption for a discreet subset of facilities, specifically, those that sell or use nontoxic fuels for the purposes of heating, cooking, agriculture, or motor fuel. This would enable users and producers of relatively safe fuels like propane to continue business operations that directly affect the livelihoods of many thousands of people, and indirectly impact the entire Nation’s economic vitality.”


I think that the current wording of the requirements for assessing and implementing IST projects is probably adequate for propane storage facilities and distributors to determine that decreasing inventories is not an acceptable method of reducing the consequences of a terrorist attack. It is probably not adequate, however, to prevent a number of commercial or agricultural users of propane from having to consider switching to alternative fuels.


Rather than see an exemption like that suggested by Congressman Rogers, I would propose a more general requirement to include environmental reasons as one of the legitimate justifications that could be included in the assessment as a cause not to implement an IST program. For example the following could be added to Section 2110(b)(1):


“(D) would not increase the rate of carbon dioxide emission from the facility or otherwise harm the environment.”


This would provide some protection to the propane industry in keeping with the previous intent of Congress to encourage the use of cleaner fuels. It would not make them a special exempted industry. Additionally, it would provide a legitimate protection to other types of facilities that could be inappropriately forced into implementing an IST program that caused more problems than it reduced risk of a terrorist attack.

Friday, March 21, 2008

DHS Clarifies Propane Mixture Rule

Today DHS published in the Federal Register a clarification on the CFATS rules for calculating STQ quantities for mixtures containing propane. According to the notice signed by Robert Stephan, Assistant Secretary for Infrastructure Protection;


“Since publication of the Appendix A Final Rule, the Department has received numerous inquiries about the STQ provisions for the COI propane and about the applicability of the release-flammable mixture provisions to products that contain the COI propane and to other products that contain some propane. To respond to those inquiries and alleviate any confusion, the Department is publishing this notice to provide clarification on this matter.”


Another Propane Problem


Apparently the problem is that what is commonly called ‘Propane’ (this is my usage to avoid confusion) is actually a mixture of flammable gasses, at least 87.5% of which is generally the actual chemical propane. Other chemicals commonly included are butane, ethane, and pentane (among others). Under the flammable release mixtures rule, if any of these other chemicals were present in amounts in excess of 1%, the total mixture would have to be reported for those chemicals if the total amount of the mixture met the STQ for that material.


Normally this is not a problem. The flammable mixture would only get reported on the Top Screen one time, under the name of the chemical that made up the largest part of that mixture. Once again, the fact that propane is an exception to the rules has come back to bite DHS. The STQ for propane is much larger than for the other chemicals, so the propane in the mixture might not be reportable on the Top Screen, but the other chemicals would be.


To make it even more confusing, propane in tanks smaller than 10,000 pounds does not have to be counted in the STQ calculations at all. The same does not hold true for the compounds in ‘Propane’.


The Clarification


So DHS issued today’s ‘clarification’ of the rule; ‘Propane’ (with at least 87.5% propane) will be treated as a unitary chemical not as a mixture. The other chemicals that make up the mixture known as ‘Propane’ will not be considered as separate constituents under the flammable release mixture rule.


To make this ‘perfectly clear’ DHS adds this statement at the end of the Federal Register Notice:


“The statement in the Appendix A Final Rule preamble that the mixtures provisions for propane are the same as for all other release-flammables, 72 FR 65407, should be read in this intended context. Since it would not be logical or reasonable to apply the release-flammable mixtures provision to the COI propane (products containing at least 87.5% propane), the preamble statement was intended to cover mixtures containing less than 87.5% propane.”


This is what happens when regulatory agencies try to prepare reasonable regulations based on logic and science and then allow the politicians to muddy the waters when they pander to special interest groups.

Minimum SSP Requirements under HR 5577

This is part of a continuing series taking a detailed look at the provisions of the new Chemical Facility Anti-terrorism Act of 2008 recently introduced in Congress (HR 5577IH). Today’s entry looks at the part of Section 2103 dealing with the minimum requirements for Site Security Plans, Section 2103(b)(2).


Previous blogs in this series include:


·        CFATA of 2008 Introduced as HR. 5577

·        Personnel Background Checks and HR 5577

·        Ranking of Chemical Facilities by HR 5577

·        General SVA and SSP Requirements under HR 5577

·        Minimum SVA Requirements under HR 5577


As noted under the section on the minimum requirements for SVA’s, only those covered facilities in ‘high-risk tiers’ are required to complete a Site Security Plan (SSP) under this proposed regulation. It is still unsure if this means that some of the facilities on the current ‘high-risk’ list will fall off of the list.


Security Measures


This legislation requires that the Site Security plan address the following security measures:


·        “address the vulnerabilities of the facility identified in the security vulnerability assessment; and”


·        “meet the risk-based chemical facility security performance standards established by the Secretary.”


The risk-based performance standards are very similar to the ones covered in the current CFATS regulations. There is not enough room in one blog to cover the performance standards and the other requirements set out in this section. The performance standards will be covered more in depth in a subsequent blog.


Periodic Drills and Exercises


The site security plan is required to address the schedule and plan for the conduct of drills and exercises to aid in the evaluation of the effectiveness of the plan. Those drills must include the participation of site employees, both supervisory and non-supervisory, as well as employee representative (union officials). The plan must also provide for the participation of local law enforcement and first responders.


The current CFATS regulations only addressed the issue of drills and exercises in passing. Section 27.255 required facilities to keep records of the drills and exercises that were conducted. The specific inclusion of this requirement is a clear recognition that a plan, no matter how good, has little chance of being successfully employed in an emergency if it has not been properly trained and exercised.


Emergency Response Plan


Recognizing that there is no way to stop all terrorist attacks, the legislation requires that the SSP includes provisions for the response to a successful attack. The plan must lay out the “equipment, plan and procedures” that will be used to respond “in the event of a chemical facility terrorist incident”.


Since every facility will have its own peculiar problems, each emergency response plan will be unique, but this act doe require that it cover, as a minimum “site evacuation, release mitigation, and containment plans.”


Emergency Response Plans are covered in the performance standards section of CFATS under the heading “Response” {Section 27.230(9)}. While the guidance providedin this new legislation is brief; it is more detailed than CFATS.


Government Cooperation


Very few chemical facilities have the personnel on site that would be required to respond to more than the simplest terrorist attack. This means that the facility would have to rely on outside assistance from the government to respond to an attack. This legislation requires that the coordination undertaken to support this plan needs to be spelled out in the plan, including that made with law enforcement and emergency responders.


Site Security Officer


In order to avoid confusion in an emergency response situation where outside agencies are going to have to work with the facility management in a confusing and fluid situation,  the legislation specifies that the site security plan identify “the security officer who will be the point of contact for incident management purposes”.


Enhanced Security


During periods of increased threat, the facility will have to ramp up its security procedures. This section requires that the SSP specifies the actions that the facility will put into place “when the Secretary determines that heightened terrorist threat conditions exist.”


Inherently Safer Technology


This section of the bill provides a brief mention of the requirements for assessing and perhaps putting into action “a plan to implement methods to reduce the consequences of a terrorist attack.” The detailed requirements for that assessment and implantation are covered in much more detail in other sections of the legislation. The details will be dealt with in a later blog.

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