Friday, October 8, 2010

All Hazards CFATS and Emergency Response

While DHS-ISCD is understandably reticent about detailing just how they make the decision to include, or not include, a facility in the list of High-Risk Chemical Facilities covered under the CFATS regulations, it does not take any regulatory genius to realize that the off-site consequences of a successful terrorist attack must be an important part of the consideration process. With than in mind, it is quite surprising to the novice observer of Federal Government operations, that the CFATS program pays practically no attention what so ever to the actual off-site consequences of a successful attack in the security planning process.

No CFATS ERP Requirement

The reason is not that DHS-ISCD believes that the security plans developed will absolutely prevent all successful terrorist attacks; no one with any background in security would think for a second that any security program would be capable of stopping all determined terror attacks. No, I’m sure that everyone connected with ISCD is well aware that there will likely be a successful terrorist attack on a high-risk chemical facility (and ISCD will be unfairly blamed by Congress and the media for the failure to stop the attack).

No the reason that effective emergency response planning is ignored in the CFATS (and the OSHA/EPA chemical safety) regulations is two-fold. The first is that the facilities that will be attacked will have no authority to plan and/or direct the emergency response efforts beyond the boundaries of their facility. The second is that no one in Congress or the Executive Branch wants to be responsible for placing a dreaded ‘unfunded mandate’ on a State or local government body.

Inadequate EPA ERP Requirement

Actually, there are provisions in EPA regulations for emergency response planning under the Emergency Planning & Community Right-to-Know Act (EPCRA, 40 CFR 355). For the covered facility the requirements are quite simple; notify the Local Emergency Planning Committee (LEPC) that the facility is covered, appoint an Emergency Coordinator to work with the LEPC, and provide the LEPC with information they request. Finally, facilities must report significant releases of covered chemicals to local emergency response agencies..

Unfortunately, the LEPCs have little funding beyond some FEMA grant monies, their members have little or no training in emergency response planning, and no one is responsible for ensuring that they are doing the job for which they were intended. While there are a few activist LEPCs that are well known within their communities, most people wouldn’t know if their community even had an LEPC (many communities with high-risk chemical facilities do not), much less what evacuation plans had been put into place for their protection.

Actually, it is quite surprising that DHS did not take the easy way out when they were developing the CFATS program and simply piggy-back an emergency response planning requirement for a terrorist attack on top of the LEPC program requirements for an accidental release. The EPA has been getting away with it for years.

All Chemical Hazards ERP

Actually, consolidating all emergency response planning for chemical release incidents does make a certain amount of sense. It doesn’t make much difference if the release is due to an industrial accident or a terrorist attack, most of the emergency response actions will be the same. Since FEMA is the all hazards emergency response agency for the Federal Government it would make sense that they would be the agency that should be responsible for overseeing the ERP efforts supporting both EPCRA and CFATS programs.

In fact, we could expand the ERP requirements to include high-risk chemical transportation releases due to potential terror attacks or accidents. We would probably want to limit that to those rail shipments of security-sensitive materials covered under rail route security and safety assessment requirements since there are no current efforts to regulate other hazmat routes at the Federal level.

Under such a program, there would be a Federal requirement for the establishment of an LEPC in every county potentially affected by a chemical release from an EPCRA or CFATS covered facility or a rail-line identified as a primary or alternative route for security-sensitive materials. This would require the establishment of a Chemical Emergency Response Office (CERO) in FEMA to which EPCRA and CFATS covered facilities and railroads would report the physical area affected by a potential release of a covered chemical.

To ensure that LEPC’s were actually established, the chair of each LEPC would be a CERO employee. Additional federal staffing would depend on the number of covered facilities that were potentially affecting the LEPC county and the number of residents of that county. The assistant chair would be from the appropriate State emergency response agency and the deputy chair would be a member of the local county government. Additional LEPC members would represent each emergency response agency within the county and each covered facility and/or railroad affecting that county.

CERO would also be responsible for providing routine funding for and the oversight of the chemical emergency response planning efforts of the affected LEPCs. The ERPs would be required to be submitted to CERO for review and approval. CERO would also ensure that ERPs are routinely exercised through periodic table top exercises and drills. The CERO would also be responsible for establishing and enforcing the regulatory aspects of the ERP program, including establishing the minimum standards for ERPs.

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