Monday, August 3, 2009

HR 3258 Analysis – Substance of Concern

This is another in a continuing series of blog postings about the recently introduced HR 3258, the Drinking Water System Security Act of 2009. This bill is designed to be a companion bill to HR 2868, the Chemical Facility Anti-Terrorism Act of 2009, extending chemical facility security rules to water treatment facilities. Previous postings in this series include:
HR 3258 Section-by-Section Analysis
HR 3258 Analysis – Political Background
HR 3258 Analysis – 50 Enforcement Agencies

Section 1431(a)(4)(B) requires that the Administrator of the US EPA to consult with the Secretary of DHS in the designation of ‘substances of concern’. Later, §1431(a)(5) discusses the requirements for the development of that list. This posting will look at the subject of ‘substances of concern’ (SOC) in this proposed legislation.

Appendix A, 6 CFR Part 27

Readers of this blog will be well familiar with the DHS list of chemicals of concern (COI) found in Appendix A to 6 CFR part 27. The drafters of this legislation clearly require that listing of SOC will be patterned after that list, but did not specifically require that the Administrator use that list of chemicals in the development and enforcement of the regulations that will be written to implement this legislation. There are a number of reasons for this.

First, the SOC will not be used to determine which facilities will be covered under the resulting regulations. DHS uses the list of COI to define which facilities will file a Top Screen. This legislation addresses a much smaller universe of potentially covered facilities and the drafters were able to provide a clear definition of covered facilities in the legislation. This means that the Administrator will put the list of SOC to a much different use than that which the DHS list of COI is used.

Next the number of potential chemicals that will be found at water treatment facilities will be much different than those potentially found at chemical facilities. It is extremely unlikely (approaching impossible) that a water treatment facility would have any of the chemical warfare agents found in Appendix A (chlorine was not listed as a CW agent) for example. This will allow for a much smaller list of regulated chemicals.

Finally the standard which the Administrator would use to establish a ‘threshold quantity’ (TQ), roughly the equivalent of the ‘screening threshold quantity’ (STQ) used by DHS, for each chemical on the SOC list will be substantially different than the standard used by the Secretary. DHS concentrated on off-site affects of a release or theft/diversion of the covered chemicals.

This legislation envisions similar standard, but is also much more concerned with the continued operation of the water treatment facility. Thus a quantity that would severely disrupt operation of the facility if released would be of higher consequence than a similar disruption of a chemical facility.


One of the characteristics of chemicals that the Administrator is required to consider in the selection of SOC is reactivity {§1431(a)(5)(B)}. The term is not defined in the legislation, nor is it one that was widely used in the development of the list of COI. Part of the problem that the Secretary had in considering the reactivity of chemicals in the development of the list of COI was that such a wide range of chemicals will violently react with a small number of chemicals specific to that chemical. Reactivity is really only a security issue if the other chemical is present on site. As a result, the Secretary only considered reactivity if water was one of the reactive pair.

The Administrator does not face that same daunting task of examining such a wide range of reactive pairs of chemicals in determining which chemicals should make the list SOC. With the smaller number of chemicals that are going to be found in bulk storage at water treatment facilities, it will be easier to develop a reasonable list of reactive chemicals that should make the list.

Sodium Hypochlorite (industrial concentrations of common chlorine bleach) is a good example. It is widely used in the disinfection of drinking water. It violently reacts with a number of other chemicals that are typically found at water treatment facilities including ammonia, hydrochloric (muriatic) acid, and sulfuric acid. The reaction produces large quantities of heat and evolves chlorine gas. The reaction is very fast and the gas produced so quickly that it is quite possible to rupture the storage tank if large volumes of the co-reactant are introduced.

While the chlorine gas cloud is a potential danger to on-site and off-site personnel, it is the destruction of the storage tank that would be of larger concern as it could effectively shut down the facility. Since the list of SOC is not being used to define the list of covered facilities, adding a chemical like Sodium Hypochlorite to the list will not result in any more facilities submitting information to the Administrator.

The Administrator is using the SOC data submitted by the facility (the EPA equivalent of the Top Screen) to help determine the Tier ranking of the facility. Of course, the inclusion of Sodium Hypochlorite would only make sense if all of the typical reactants potentially found in bulk storage at water treatment facilities are also included in the list of SOC.


One of the chemicals that caused a great deal of controversy in the development of the DHS list of COI was propane. When DHS tried to apply the typical flammable chemical rules to propane, the propane industry mounted a major political effort to get their product exempted from CFATS regulation. In the end DHS reached a political compromise that set a much higher SQT for propane than was reasonable based on objective fact. Again, the expressed reason for the high SQT was to limit the number of covered facilities.

With the current legislation defining ‘covered facility’ by size of the served community rather than the amount of chemicals on-site, there is no need to provide propane with special political treatment. The TQ for propane should be set the same way as other flammable chemicals; based on their potential affect on off-site populations or disruption of facility operations if deliberately released.


Anonymous said...


I am a graduate process engineer from New Zealand.
At the moment we are planning to upgrade our disinfection facility of a 380000m3/d capacity water treatment plant. To meet the production requirement it is estimated that there would be 16 chlorine drums (920 kg each) onsite. Given the new Drinking Water System Security Act this may have an impact on our project...I was just wondering given the large quantity of chlorine drums onsite, is our facility quite likely to be classified as Tier 1 or 2?

Would be much appreciated if you could shed some light on my query...

many thanks in advance

Edward said...


I have several clients that use chlorine for water treatment and their Tier rating varies dependent upon many other factors than just number of cylinders.

The issue with the Chlorine is theft, and not a volumetric release so the factors used would be the inherent security of the facility, its proximity ares of consequence (towns, built up areas other infrastructure etc) and climactic conditions like the prevailing winds. While I cannot speak for DHS at all, I have not seen a facility with chlorine 1 ton cylinders as a COI in rural areas listed as Tier 1 or 2. My questions include: Where is your facility being built? Are there plans to continue to build around it? What populations concentrations exist and how far away are they? There are many other questions, but they border on CVI, so they are best left out.

PJCoyle said...

I have done two blog postings about these two responses. They can be found at:

Reader Comment – 11-15-09 Water Tiering:

Reader Comment – 11-22-09 – Chlorine Cylinders:

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