Reader Comment 10-16-09 IST Changes

Our good friend Anonymous left a comment on my earlier blog about changes made to HR 2868 by the Energy and Environment Subcommittee. Anonymous wrote: “You missed a big one. Mandatory IST only applies for facilities tiered 1 and 2 for release risk, not theft/diversion etc.” What Anonymous is referring to is the language in §2111(b)(1)(A) that reads in part:

“The owner or operator of a covered chemical facility that is assigned to tier 1 or tier 2 because of the potential extent and likelihood of death, injury, and serious adverse effects to human health, the environment, critical infrastructure, public health, homeland security, national security, and the national economy from a release of a substance of concern [emphasis added] at the covered chemical facility, shall implement methods to reduce the consequences of a terrorist attack on the chemical facility if the Director of the Office of Chemical Facility Security determines….”

The word ‘release’ would seem to eliminate facilities that did not have release toxic, flammable or explosive materials from consideration under this provision. As a practical matter however, this is not really a major change. Almost all of your Tier 1 or Tier 2 facilities and most of the Tier 3 facilities will have release COI. This is what places them in the highest risk categories. There may be an occasional facility that could make it to the higher tiers just because of the huge quantity of a theft/diversion COI but they would be few and far between.