Wednesday, January 11, 2012

No Longer Covered by CFATS

The other day a long time reader asked me what I thought about the claims by DHS that as many as 1300 facilities has essentially opted out of the CFATS program by removing listed DHS Chemicals of Interest (COI) from their facility inventories. This seems like one of those no-brainer questions with an obvious answer of "It’s a good thing". I learned a long time ago that obvious answers frequently hide unintended consequences. So let’s look at this in more detail.

The Requirement

Let’s start by looking at the CFATS requirement for what facilities are covered by the CFATS regulations. Initially it depends on whether or not facilities have (or have had within the last 60 days) more than a screening threshold quantity (STQ) of a listed COI on site. Those facilities have to submit a Top Screen which allows DHS to determine if the chemicals combined with the location and some other undisclosed factors place the facility at high-risk for being a terrorist target. High-risk facilities are then covered by CFATS (okay it’s a tad bit more complicated than that, but it will suffice for this discussion).

Essentially a chemical makes the COI list if it has the potential for a severe off-site consequence if it is released in quantity, or it may be used to make explosive devices or chemical weapons; concentrations of the COI in mixtures and solutions matter. The STQ is set by determining the amount necessary to be a ‘severe consequence’ or a large enough explosion or CW weapon release; details and politics alter cases.

Reduce or Eliminate the Risk

It would seem obvious that if a facility sufficiently reduced their risk of terrorist attack there would be no need for them to remain under the CFATS regulation. It would also seem clear that eliminating the use of a COI or reducing the inventory of a COI still used to below the STQ should by the definition of the CFATS rules removes the facility from the high-risk category.

What is less clear is that since the vast majority of facilities that filed a Top Screen were notified that they were not at high-risk even though they had one or more COI at or above the STQ, there is an amount of a COI that constitutes a high-risk quantity (HRQ) that is equal or greater than the STQ. One would assume that the HRQ would apply only to release type COI  (flammable, explosive, or toxic) and would vary depending on the relative location of local population concentrations and other potential terrorist targets.

Theoretically then a facility could reduce their inventory of their COI to below the HRQ for that chemical at that facility and the facility would no longer be at high-risk of a terrorist attack. Unless (or until) DHS is willing to share that theoretical HRQ with the facility there is no practical way of reducing the facility risk below the high-risk threshold beyond trial and error.

Practical Aspects of Risk Reduction

The most obvious way of eliminating a COI is to find a substitute chemical for your process that is not on the Appendix A list of chemicals. This is certainly what the folks at Greenpeace and any number of other environmental organizations are expecting to see if they achieve their goal of including an inherently safer technology (IST) mandate in the CFATS program. Eliminate the most dangerous chemicals and the terrorist threat goes away.

Unfortunately, there are a number of ways that a COI can be eliminated from inventory without materially affecting the risk profile of the facility. For example, I know of at least one chemical supplier that encouraged their customers to switch from 20% ammonium hydroxide to 19%; 20% is covered in CFATS, 19% is not. Does this decrease risk? Probably not since inventory levels will probably be increased because the underlying process still needs the same amount of active ingredient, ammonium hydroxide. BTW: the 20% concentration was picked because that was the standard industrial concentration; the next lower standard commercial concentration was significantly lower and safer.

Another way to effectively eliminate a COI is to reduce the maximum amount in inventory below the STQ. Amounts below that level are not reportable to ISCD on the Top Screen. If the manufacturing process still requires the same level of COI consumption (or production) this becomes a bothersome inventory management issue. With most of the release COI having STQ’s in the 10,000 lb range this would typically result in switching from bulk shipments to smaller packages with more shipments. This, in turn, leads to more handling requirements and increasing the risk of accidental releases; which much more common already than release due to terrorist attack.

Less ethical inventory games are also possible. A manufacturer may want to schedule a year’s worth of production of a product to get in a single week. The greater than STQ inventory quantity (say a rail car) of methyl isocyanate (MIC) arrives on site and is consumed within 7 days. A Top Screen is filed showing the maximum inventory and DHS starts to process the information. Then 60-days after the last MIC is consumed a new Top Screen is submitted shown 0 lbs of MIC. Sometime later the railcar load of MIC is ordered again and the submission cycle is repeated.

ISCD Management of Changing Inventory

Since the CFATS Chemical Security Assessment Tool (CSAT) does not yet have a tool specifically designed to handle the opting-out process (it’s coming in December 2011; hold your breath) ISCD doesn’t really have a way of handling these issues comprehensively. So apparently they just continue to process the new and revised Top Screens from these facilities.

So, ask me again what I think about the 1300 facilities that have disappeared from the CFATS program and I’ll ask a not so simple question in return. How many of them have legitimately reduced their risk of terrorist attack without transferring their risk somewhere else and how many of them have simply gamed the system to avoid the cost of having to install security measures to reduce their risk.
I’ll bet you even money that ISCD can’t legitimately answer my question.

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