Monday, November 10, 2008

EPA Anhydrous Ammonia Fines

Last week there was an article posted to SeattlePI.NWSource.Com about fines that the EPA had levied on a number of companies for failing to have adequate risk management plans for their anhydrous ammonia storage. Since these same facilities should have come under the CFATS Top Screen requirement, at a minimum, this brings up the question of how DHS will identify facilities that have not complied with the Top Screen filing requirement. The article notes that many “of the companies cited are small to moderate in size, she said, which might explain in part why they are less aware of the regulations.” This might also indicate that they are as unaware of DHS CFATS regulations as they are of EPA RMP regulations which have been around for much longer. RMP Points to Top Screen According to the article the fines were levied on a variety of food processing facilities that use anhydrous ammonia for their refrigeration system. These facilities had to have at least 10,000 lbs of anhydrous ammonia on-site to come under the EPA RMP regulations. This happens to be the same amount that requires the facility to submit a Top Screen. This means that all of the facilities that filed, or should have filed RMPs. for anhydrous ammonia should have completed Top Screens. Ensuring CFATS Compliance Regulatory enforcement is always a challenge for federal agencies. For so many regulations the federal government has to assume that covered people will file the necessary reports to bring them to the agency’s attention. DHS certainly has this problem with the CFATS regulation. With the exception of the largest, best known facilities, DHS has to wait for facilities to file Top Screens before it can begin to determine if the facility is a high-risk facility that is covered under CFATS. With the very small enforcement team that Congress has authorized, DHS certainly does not have the manpower to track down all of the facilities that did not complete Top Screens to determine if they should have. Remember, it is not enough for a facility to just have a COI at the facility, if they do not have a STQ of that COI, they do not have to complete a Top Screen. Right now that problem is compounded by the fact the DHS is concentrating on getting SVA’s evaluated for Tier 1 and Tier 2 facilities. They will soon be evaluating Tier 3 and Tier 4 SVA’s (an much larger number of facilities). Then they will begin working on Site Security Plans which will require at least two site visits for each of the 7,000 high-risk facilities. Compliance Assurance Team At some point in time, DHS is going to have to start looking for facilities that have not met their Top Screen filing requirements. To do this DHS is going to have to form some sort of compliance assurance team. This is a good time to look at how such a team might operate. The one thing that is certain is that this team is not going to be out driving around the country looking for unreported high-risk chemical facilities. They are going to have to use some other method of locating potential scofflaws. Data mining is going to be their most effective tool. Data Mining other Federal Databases There are a number of federal government databases that will include facilities that will have an STQ amount of a wide variety of COI. This is mainly due to the way that DHS has set up the list of COI, relying on other government agencies classification of ‘significant’ quantities of these chemicals. The release COI are going to be the easiest facilities to track down since most of these have their STQ based on action levels from other agencies. Comparing the list of Top Screen facilities with lists from these other agencies will provide DHS with a list of facilities that probably should have completed a Top Screen submission. The simplest way to deal with these facilities would be to send a letter requiring them to complete a Top Screen submission. The normal enforcement rules would take over from there. Data Mining the Top Screen The theft/diversion and sabotage COI will be harder to track down from other agency databases because DHS has set a significantly lower threshold of interest than other agencies have done in most cases. This means that DHS is going to have to look at data from the Top Screen to identify industries that use these COI rather than facilities. Once an industry is identified that has a significant number of facilities submitting a Top Screen for one or more theft/diversion or sabotage COI, DHS can evaluate the need for requiring all facilities from that industry to submit a Top Screen. If a significant number of the facilities from that industry who submitted Top Screens were designated as high-risk facilities, the Secretary would certainly be justified in requiring all facilities in that industry to submit a Top Screen. If none were designated as high-risk facilities, there would be little need to have that industry submit Top Screens. Moving Forward Hopefully, someone at DHS is taking a look at these enforcement requirements. I know that they are working hard at developing and implementing all of the tools required to get the current high-risk facilities through the CFATS process. Still, CFATS will only be effective if all of the potential high-risk chemical facilities are identified and evaluated.

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