Reader Comment – 02-01-10 IST and OSHA

Anonymous responded to my earlier blog about fertilizer facilities and the IST provisions of HR 2868. Anonymous wrote:

“I happen to agree that IST is largely a safety issue as it pertains to finding the safest way to manufacture goods. So I agree with Pam Guffain's statement there and I have been thinking that IST enforcement could possibly have a better fit under OSHA. Largely, US companies are familiar with OSHA regulations and if OSHA regulated a process as it pertains to safety it would be better for both companies and employees. OSHA should have enough of a big stick to enforce IST. Enforcement overlaps are already occurring with CFATS and other agencies. But I'll save that for a future comment. I'd also like to suggest Mr. Wegmeyer to look at the CFATS process and take note that it is largely an electronic process. I am unsure how they think it ads too much paperwork for a company to handle.”

Safety or Security Proponents of the mandatory IST provisions of HR 2868 are quick to point out that there are no guaranteed security measures that will provide absolute protection against a successful terrorist attack. They note that the only sure way to protect against the effects of the release of toxic chemicals in a successful attack is for those chemicals not to be present. So they note that IST mandates are ultimately security measures. Opponents of the same provisions note that chemical engineering scientists came up with the concept of inherently safer technology as a safety technique. It was never intended to be a security measure. Neither is there an absolute measure of safety that can be used to evaluate the comparative safety of techniques. What both sides refuse to acknowledge is that while IST is a safety measure, when the safety of the community surrounding the plant is taken into account, especially in light of the most severe ‘worst case’ scenario associated with a terrorist attack, it may also be viewed as security measure. In these cases IST is a security measure for the community as well as the facility. But this is true of most security measures; they are also safety measures. DHS – OSHA – EPA There are three different government agencies that might be expected to supervise the application of IST measures; OSHA, EPA and DHS. OSHA regulations mainly deal with facility and employee safety issues; IST can certainly fall under that umbrella. EPA deals with the effects of chemical releases on the environment and off-site personnel; IST can also find shelter there. Finally, DHS deals with protecting the country from terrorist attacks and recovery from catastrophic events; IST could be regulated here as well. Both OSHA and the EPA have a long history of abdicating responsibility for chemical process safety. Both agencies have regulatory responsibility for watching over chemical manufacturing processes, but are only active in pursuing that responsibility after an accident or incident has occurred. They have repeatedly ignored calls for additional controls on process safety for such obvious problems as dust explosions and reactive process safety; responding only after large numbers of deaths occur. So, it looks like IST, if it is to be regulated, will have to fall under the purview of DHS. Actually, industry should be grateful that the only agency to regulate IST will apparently be DHS. The language of HR 2868 is relatively benign for the large majority of facilities; most facilities will only have to conduct an IST assessment. Only a small number of facilities will have to justify not implementing an IST technique using their own assessment data. Based upon the current wording of §2111 of HR 2868 it is unlikely that any facility will be forced to implement an IST methodology against its will. CFATS Paperwork Anonymous is correct in stating that all submissions to DHS are done electronically on-line using the Chemical Security Assessment Tool. This certainly reduces a great deal of the paperwork associated with the typical Washington regulatory scheme. Unfortunately, it far from eliminates paperwork. First, facilities will have to collect the data necessary for completing these assessment tools. While the Top Screen Tool will require little more than collecting inventory data, the SVA and SSP will require the collection of an increasing amount of data. Some of this data will never have been collected before by most facilities. As I have mentioned on a number of occasions, the Site Security Plan submitted to DHS via CSAT is badly misnamed. It is a collection of information about existing and planned security measures for the facility; it is not a security plan. Every facility will have to develop a written plan supporting that document, outlining a wide variety of security procedures that the facility will have to show to DHS inspectors to demonstrate compliance with their own SSP. The personnel surety program provides just one example. Facilities will have to have a written program describing their procedures for conducting background investigations for all personnel authorized unaccompanied access to critical areas of the facility. The procedure will also have to explain how the results those checks will be evaluated to allow or disallow that access. The appellate process for those decisions will also have to be outlined. Then there will be the record keeping necessary to document the implementation of those procedures. No, the CFATS regulations are far from paperwork free.