Monday, October 5, 2009

Blending EPA and DHS Enforcement

Yesterday I described the proposed combination of enforcement efforts that DHS and EPA representatives briefed to the Energy and Commerce Subcommittee in a hearing last week. They noted that the Administration had determined that EPA should be the lead agency in the enforcement of chemical security matters at water treatment and waste water treatment facilities. DHS would provide extensive support for that effort, in particular the use of the CSAT tool for collecting and analyzing chemical security information. While the administration has decided that these two agencies will cooperate to an unprecedented extent, actually making that happen may be much more difficult. Ignoring for the moment the typically bureaucratic competitiveness that will make detailed cooperation a challenge, there are organizational differences and regulatory requirements that will have to be over come. For example, consider the Top Screen submission. Top Screen Problems DHS has set up this CSAT tool to take inputs from chemical facilities that have a screening threshold quantity (STQ) of a DHS chemical of interest (COI) on hand. Facilities provide some basic facility information and detailed information on the COI on hand within the last six months. DHS uses the tool to determine which facilities are potentially high risk facilities, eliminating better than 75% of the facilities submitting Top Screens. HR 3258 would have EPA determine what facilities are at high risk by the number of customers that the facility serves; more than 3,500 customers would make the facility a high-risk facility. Those high-risk facilities would submit Top Screens solely for the preliminary sorting into tier rankings. Using the current Top Screen programming, CSAT would sort the facilities into 5 categories, Tiers 1 thru 4 and others. CFATS would take the others, if they were chemical facilities, and send them a letter saying that they were not covered facilities under 6 CFR part 27 and have a nice day. They would not have to deal with DHS ISCD again unless they increased their inventory levels of COI or added new COIs to their inventory. Under the proposed legislation the ‘other’ facilities would presumably be lumped in with the Tier 4 facilities. They would still have to do security vulnerability assessments, site security plans and emergency response plans. While there is probably justification for securing water treatment facilities at this level, few if any of the chemical security rules would really apply. It would probably make more sense to add a 5th Tier ranking for water treatment facilities with more than 3,500 customers but no significant chemical inventories (no COI at or above STQ). Working with Congress Of course, before these two agencies have a chance to try to work out the details of their different approaches to chemical security enforcement, there will have to be some significant changes made to the wording of HR 2868 and HR 3258. Not only will there have to be provisions made to move waste water treatment facilities from HR 2868 to HR 3258 (with the attendant Congressional negotiations), but details of the water security legislation will have to be adjusted to account for the problems that will have to be solved to make it possible for EPA to use the CSAT tool in an effective manner. I understand that the DHS ISCD staff is working closely with the Energy and Commerce staff to work out some of these problems. It will be interesting to see how soon the Committee staff, even with that help, has the changes ready to bring to a Committee Markup. With Congress currently slated to adjourn on October 23rd (a date that will probably slip to allow for passage of a health care package this year) there is not much time to get left to get this out of Committee this year. Particularly with the number of other Committees that will have to be consulted.

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