Jack Frost and CFATS

A recent US EPA press release highlights the government’s problem with enforcing environmental and safety regulations. The press release explains the punitive actions that the EPA took against Jack Frost Fruit Company, of Yakima, Washington for failing to fulfill the Risk Management Plan obligations required by their storage of more than 10,000 lbs of anhydrous ammonia. The question becomes did the same company avoid the requirements of CFATS for the same chemical? RMP Violations The facility was fined for not having a Risk Management Plan (RMP) for a potential accidental off-site release of anhydrous ammonia. The RMP requires a company to assess their safety systems and material handling procedures to ensure that they are reducing the risks of releases of anhydrous ammonia. Additionally, the RMP requires that the facility communicate with the local community and emergency response personnel about the presence of the chemical and the emergency response requirements in the event of a release. In addition to a fine of $20,554 the company is being required to undertake two projects to reduce the risks associated with an off-site release. The first project will be making improvements to their handling system and procedures to reduce the potential for an accidental release. The second project will help the local emergency response personnel to prepare for a potential release. The cost of the two projects will be at least $85,000. In most cases where there is no RMP at a covered facility it is because the company was not aware of, or misunderstood, the requirements for an RMP. There will also be some number of companies that were aware of the requirements but decided not to spend the money to comply with those requirements. In either case the public is left at risk for exposure to an accidental release of toxic or highly flammable chemicals. CFATS Cause for Concern Regardless of the reason for not having an RMP, it is likely that the facility without an RMP is also not complying with the CFATS regulations. Facilities that are not aware of their obligations under RMP, a long standing EPA program, are likely be to equally unaware of their CFATS obligations. Facilities that willfully avoid their RMP obligations are probably not going comply with potentially expensive CFATS requirements. CFATS Compliance Efforts While DHS certainly has its hands full in getting the CFATS program fully functional (we are still waiting for the roll out of the Site Security Plan tool in CSAT), some effort needs to be expended to ensure that all chemical facilities with a STQ quantity of one of the DHS COI have completed a Top Screen. One low cost effort would be to screen all completed EPA RMP enforcement actions against the list of facilities that have completed a Top Screen. Facilities showing up on the first, but not the second list should receive an enforcement letter from the Secretary directing the facility to complete a Top Screen. As the Site Security Plan portion of CFATS gets to the field, DHS needs to begin looking seriously at how they are going to ensure that all potentially covered facilities are aware of their obligation to submit a Top Screen submission. Techniques are going to have to be developed to identify classes of facilities that probably have DHS COI on site. This could be done by data mining the Top Screen submission data base. Commercial data bases could then be used to identify other facilities in those classes for potential enforcement actions. Potential Congressional Actions As Congress begins to look at extending the CFATS authorization or, hopefully, making the program permanent, some thought needs to be applied to providing DHS with additional tools to aid in ensuring regulatory compliance. One way to do that would be to require that EPA provide DHS with a list of all facilities that have submitted a current RMP. This would help DHS to identify some of the facilities that should have completed a Top Screen submission. Other government agencies with comparable programs that DHS used to formulate their COI list should also be required to provide similar facility lists to DHS. Congress could also consider requiring manufacturers and distributors of COI to provide to DHS lists of customers that received more than a STQ of a COI. These rules would not need to be as extensive as those being developed for ammonium nitrate manufacturers and suppliers. Such lists would provide DHS with information on facilities that should have submitted a Top Screen. Moving Forward with CFATS DHS is finishing the process of getting their CFATS program fully established. Once that is done they need to begin working on the enforcement side of the program. That enforcement will be focused on ensuring compliance with security plans at self-identified high-risk facilities. It also needs to have an enforcement component that actively looks for potential high-risk facilities that have not yet begun the CFATS process.