Wednesday, March 9, 2011

Reader Question – Water Facilities and IST

Yesterday Corinne, a new reader with a background in water facility security, left the following question on my blog post on HR 908 and HR 916:

“Do you think that the Water Sector or IST could be added back into any of these bills? I know it was a big item last year.”
Both of these controversial issues were important in chemical security legislation during the last session and are still being heavily pushed by environmental activist groups like Greenpeace and are supported by the Obama Administration. The short answer is that , because of the change in leadership in the House, neither will likely to be fully implemented in final legislation.

IST Provisions

In politics the simple answer is seldom really important and inherently safer technology is a good illustration of that point. First off, no one disagrees with the basic IST premise that both safety and security at a facility may be increased by simply modifying the use of highly dangerous chemicals like chlorine or anhydrous ammonia. This universal recognition is exemplified by the fact that Sen. Collins’, whose opposition to IST mandates is well known, included an IST provision in her CFATS extension bill, S 473. That provision (§2104) provides technical assistance when requested by a covered facility in evaluating and implementing facility and process changes that would reduce the risk at the facility.

Republican opposition to IST mandates has stymied passage of ‘comprehensive chemical security legislation’ since probably as early as 2003. This year, with the Republicans fully in charge of the House will make it virtually impossible for any bill with an IST mandate from being passed in that body. While the Democrats nominally control the Senate, there are not enough votes to close debate on any IST mandate amendments to a CFATS bill.

That does not necessarily mean the effective end of IST debate. A properly drafted IST provision could make its way into an approved CFATS reauthorization bill. I think that a narrowly crafted reporting requirement for Tier 1 facilities with release toxic chemicals of interest could be approved in the Senate; it would be more problematic in the House.

What many opponents have failed to realize is that their refusal to discuss IST provisions is that they have made it possible for companies to transfer the risk at their facility to other communities. Such techniques as increasing the number of hazardous material shipments to lower inventories would allow facilities to drop out of coverage under the CFATS program while increasing the risk of release during transit.

Water Facility CFATS Coverage

To date, the public opposition to the removal of the CFATS exemption for water treatment and waste water treatment facilities has been intimately tied to the opposition to IST mandates in the legislation. The argument has long been made that ‘disinfection decisions’ should be made at the local level not the Federal or State level. Removal of IST provisions from the equation, does not necessarily remove the objections of the water treatment community to being included in the CFATS program.

The current EPA security rules do not specifically address the security of high-risk chemicals, including potentially chlorine gas, anhydrous ammonia and sulfur dioxide, used at many of those facilities. Actually they don’t require much in the way of any kind of security. The EPA rules simply require the completion of a vulnerability assessment and the development of an emergency response plan; neither of which is required to be approved by EPA.

To be fair, most of the highest risk facilities (those with multiple railcars of TIH chemicals on-site) do have security measures in place, but there has been no outside evaluation of the adequacy of those measures. Coverage of these facilities in the CFATS programs will inevitably result in increased security costs so there is unlikely to be whole hearted support by the water processing industry for CFATS coverage.

To date there has been no indication that anyone is going to re-address the issue of CFATS coverage for water treatment facilities. Again the Obama administration has pushed for the removal of this exemption, but that has been intimately tied to IST provisions that would address the use of chlorine gas. Without those provisions included in the legislation, there does not seem to be much of a push to address the issue. Of course, the level of opposition to such a provision would also be reduced. If someone were to take the initiative and add a provision removing the CFATS exemption for water facilities, there would certainly be some opposition from that industry, but it might not be enough to derail the legislation.

Political Crystal Ball

A political crystal ball is necessarily murky and as difficult to interpret as a Greek Oracle, but I don’t really expect to see significant IST language in any CFATS bill that would pass this year beyond that that is included in Sen. Collins’ bill. Without an IST mandate, it is unlikely that someone will spend the political capital necessary to remove the water facility exception in CFATS.

CAVEAT: All of the above discussion goes out the window in the event of an attack or serious plot for an attack on a high-risk chemical facility.

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