Writing IST Legislation

NOTE: This blog first appeared on 02-23-09. New additions are set in []. As I have mentioned on a couple of different occasions, I believe that there is going to be a major push to include a mandatory IST provision in the legislation that will continue the authorization of the current CFATS regulations. It doesn’t take any great insight or a crystal ball to make that claim; a number of safety and environmental advocacy groups have made it perfectly clear that that is one of their major objectives for this legislative session. It is also fairly clear that there are sufficient votes in the House Homeland Security Committee to approve legislation containing mandatory IST provision; HR 5577 passed easily last year. It is likely that there will be sufficient votes for it to pass in the House as well. The Senate is a much closer call, but I think that a properly crafted bill with adequate protections of industry from a capricious DHS will garner support from a key Senator, Sen. Collins (R, ME), the ranking member of the Senate Homeland Security Committee. That support may be enough to pass a cloture motion and then allow a Democratic majority to pass the bill. With this in mind, I think that it is important the chemical industry (the ACC and SOCMA in particular) to stop their absolute opposition to IST and work with Chairman Thompson [now Chairman Lieberman and Ranking Member Collins] to craft sensible and workable IST wording for the chemical facility security legislation that is sure to be introduced in the next couple of months [HR 2868 passed in House]. I have some suggestions for what that wording should include. Stand Alone IST I think that including an IST requirement in the Site Security Plan (SSP) portion of the legislation is self-defeating. The IST provisions should be in a stand alone section of the legislation and subsequent regulations. The time requirement should run independently of the time limits for the CSAT process. There are a couple of reasons for this. First, a realistic appraisal of all of the IST alternatives for a facility could take significantly more time than required to complete an SSP. If the SSP time standard were adhered to a sloppy and inevitably negative IST report would be the result. If the SSP time frame were extended to an adequate time for completing an IST evaluation, it would unnecessarily delay properly protecting the facility, especially if it was determined that no reasonable IST was available for that facility. Second the facility will need to know what the alternative security cost would be for not completing a marginal IST project. The only way that they would be able to determine that is for the facility to have an approved SSP. That way the proper alternative cost can be accurately weighed into the equations. [An economically ‘unfeasible’ IST could become feasible if the security cost of not implementing the technique was considered.] The final reason is that the implementation of IST could take a great deal of time depending on the construction requirements. The facility would need to have security procedures and equipment on hand for the higher-risk pre-IST conditions until the changes have been completely implemented and the ‘offending’ COI removed from the facility. Limit Application of IST HR 5577 last year limited its IST provision to the ‘highest-risk facilities’ without adequately defining what that meant. I think that a more reasonable provision would be to require facilities with release toxic COI in Tiers 1 and 2 to conduct an IST evaluation for those COI. Other categories of COI would not be required to be evaluated for IST. [HR 2868 does limit IST implementation requirements to release COI, not release toxic COI.] It is true that there is no inherent reason that any high-risk chemical cannot have an IST alternative. However, a realistic appraisal of the situation would show that PIH chemicals in particular are attracting the political ire of the advocacy groups pushing for IST implementation. These chemicals would also be responsible, in the event of a successful terrorist attack, for the widest range of serious injuries and death. 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. Additionally, the facilities that will have to complete IST reviews will be the facilities that would be the hardest to defend not having done the review. IST EvaluationsSince the legislation would limit the mandatory IST review to just release toxic COI there are only two forms of IST that realistically need to be considered. The first is substituting a less hazardous chemical or process for the release toxic COI. The second alternative would be significantly reducing the inventory of the release toxic COI. Both alternatives would have to have some restrictions placed on them in the legislation. Substituting chemicals should not simply shift the toxic release hazard from one location to another. For example, simply switching from chlorine to hypochlorite should not be allowed [I should have said ‘required’] unless it can be shown that the manufacturing site for the hypochlorite would not be at increased risk because of a larger amount of chlorine used to make the hypochlorite. [This provision is included in HR 2868.] Similarly, reducing the amount of the release toxic COI inventory by taking more frequent and smaller shipments would increase the risk of accidental release of, or attack on, the COI in transit. [Furthermore, increasing the number of shipments increases the risk from accidental release during handling.] This does not increase the security or safety of the entire system. Evaluating Evaluations [Assessments] One of the common complaints from industry is that they do not believe that ‘bureaucrats’ have the technical expertise to critically review an IST evaluation done by industry. On the other hand, advocacy groups would be quick to point out that not validating negative IST reviews would provide a wide open thoroughfare for industry to avoid making realistic changes to their processes. Both sides can point to a host of evidence to support their position. The obvious solution to this impasse is to have a technical review done by technically qualified individuals. The legislation should require the National Academy of Sciences to establish an Inherently Safer Technology Process Review Board. This board would be funded by DHS and be charged with four overlapping missions:

Provide for a technical review of facility IST evaluations; Identify areas of research that would support decreasing cost and increasing effectiveness of IST techniques; Provide funding for and oversee such research; and License the use of techniques developed in such research.

This technical review would serve to keep industry honest in conducting their site IST evaluation, it would help to identify technical roadblocks to IST implementation and help to clear those road blocks. [This technical review would, inevitably, increase the time necessary to evaluate whether or not DHS should require the implementation of the IST evaluated by the facility. This provides another justification for removing the IST assessment from the SSP process.] Moving Forward The two sides of the IST debate have staked out their positions over the last year. Industry wants no part of government mandates for process change. Advocacy groups want government to regulate against the industrial use of PIH chemicals. At some point between those two positions lies a reasonable compromise that will allow the chemical industry to operate with a minimum of government interference while increasing the safety of communities around high-risk chemical facilities. The option described here provides a starting point for the discussions necessary to reach that compromise.