Reader Reply – 10-17-09 IST Changes

On Friday I responded to a reader comment about changes made to the IST provisions of HR 2868 in the Energy and Environment Subcommittee markup. The comment from Anonymous was that I had missed a significant change made in my earlier discussion. That change reduced the potential coverage of IST mandates to Tier 1 and 2 facilities with Release COI. I acknowledged (and detailed) that change, but opined that it wasn’t really significant because of the small number of facilities that it could potentially effect. On Saturday morning Anonymous posted the following reply to that opinion:

“The debate indicated that reducing the IST implementation universe of facilities to those in tiers 1 or 2 because of a risk of release (as opposed to theft or sabotage) greatly reduces the numbers of facilities that would be covered. Basically it means that the IST implementation authority would apply ONLY to the facilities that have large quantities of COI AND are located in areas where a release of the COI could hurt alot of people. This was a significant compromise on the part of Chairmen Markey and Waxman.”

It would appear that Anonymous (in this particular case any way) is someone that is close to the debate in the Energy and Commerce Committee, possibly even a committee staffer. While I lack any way of verifying that assumption, I will make that assumption for this discussion and will accept that someone told Waxman and Markey that such a change would ‘greatly reduce the number of facilities that would be covered’ by the provision while not limiting the practical effectiveness of the change. Having made clear my assumptions, lets look at the practical effect of this change. Tier 1 and Tier 2 Facilities First we have to understand that DHS has been very tight lipped about the procedure they use for making the decision to make a Top Screen reporting facility into a high-risk facility actually covered by CFATS and how those facilities are ranked into the four risk-based tiers. Chairmen Waxman and Markey may have been briefed on that decision making process, but I certainly haven’t. I can, however, make some reasonable guesses. The only publicly available information on the Tier rankings is the number of facilities that have been placed in each Tier. While those exact numbers change frequently as chemical inventories and processes change, for the purposes of this discussion I think we can safely use the figures that DHS briefed at this year’s Chemical Security Summit. According to slide number 4 of the DHS Chemical Facility Anti-Terrorism Standards Overview presentation there are 195 Tier 1 facilities and 678 Tier 2 facilities out of a total of 6,400 covered facilities. This means that there are 873 facilities out of the more than 30,000 facilities that submitted Top Screens that present the highest risk of terrorist attack. Presumably a successful attack on these facilities would wreck a savage toll on the surrounding communities, causing inconceivable amounts of death and destruction. Types of COI There are three categories of chemicals of interest (COI) that DHS uses in classifying threats to chemical facilities; Sabotage, Theft/Diversion, and Release. Of these three categories it is only the Release COI that poses an immediate danger in the event of a successful terrorist attack. The other two categories will be moved to another location where additional work must be done to make them into terrorist weapons. Most of the Theft/Diversion COI, for instance, are precursors to making chemical warfare agents or improvised explosives. The balance of that category are those chemicals that are themselves CW agents or explosives and are also listed, in larger quantities, as Release COI. Release COI are those toxic, flammable, or explosive chemicals that if released on site pose a great danger to the facility and local community. Of the three types of Release COI, arguably the most dangerous to the largest area are the toxic release chemicals. There are some of these toxic release COI that have potential calculated casualties in the hundreds of thousands. While the flammable and explosive release COI will probably not be responsible for anywhere near the number of casualties, the damage they can produce will be much more visibly impressive and produce longer term consequences due to their damage of critical infrastructure. Consequences of Successful Terrorist Attacks If we were to look at the almost 900 facilities that make the Tier 1/2 list of facilities, I would be willing to bet that DHS only included facilities that, if successfully attacked, would have immediate consequences on the largest number of people. This would require that the facilities would be near significant population centers and house large amounts of release COI. The other types of COI give DHS and law enforcement additional time after a successful attack to stop significant loss of life. That significantly reduces their risk. Furthermore, I would be willing to bet that the largest majority of Tier 1 facilities are those with significant amounts of Release Toxic COI. These toxic chemicals have a significantly larger area of lethal effect, pound for pound, than do Release Flammable COI or Release Explosive COI. The only way facilities with these chemicals would have a chance of making it to the small list of Tier 1 facilities is to have such large stores of these chemicals that, if successfully attacked, would produce an explosion of cataclysmic proportions. Limiting COI Requiring IST Now, back in February of this year I wrote that: “Restricting the mandatory IST provisions to just Release Toxic COI will undercut some of the industry opposition to IST since it will severely curtail the number of facilities that will face the prospect of implementing the IST provisions.” I also noted that the environmental and labor groups pushing hardest on the IST issue were focusing on toxic chemicals like chlorine, anhydrous ammonia, and hydrogen fluoride; focusing on Release Toxic COI would specifically satisfy their demands. If the people making the arguments to Chairmen Waxman and Markey were attempting to reduce the number of facilities that were exposed to the IST provisions, then they did not read my blog closely enough. Whatever political price they paid for the Waxman/Markey concession on this matter was much too high a price for what little they achieved. Messrs. Waxman and Markey, however, come out of this deal smelling like a rose. They made, practically speaking, a small concession covering a limited number of facilities and now look like statesmen. That is the stuff of politics played in the big leagues. I’m sorry that I had to blow their cover.