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.

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