Saturday, April 20, 2013

West Fertilizer CFATS Status

It is interesting that the Department of Homeland Security has been telling just about anyone that has asked (I received the same information from a Department spokesman) that the West Fertilizer facility that blew up this week is not covered under the Chemical Facility Anti-Terrorism Standards (CFATS) because the facility had never filed a Top Screen which would have initiated a review of their terrorism risk by the Infrastructure Security Compliance Division (ISCD). The Department is usually very reluctant to talk about such matters since it would violate the CFATS regulations if they discussed the status of a facility that was regulated.

Of course part of the reason for the different approach in this case is that DHS is the only organization at the federal level that currently has a legal mandate to regulate facilities that store ammonium nitrate fertilizer and they don’t want any part of the responsibility for the situation in West, TX. Which is kind of silly since their mandate has nothing to do with safe storage; they are responsible for overseeing the secure storage of the material under the CFATS program. Okay, and their much delayed ammonium nitrate security program would also regulate the sale and transfer of ammonium nitrate, but that isn’t involved here either.

What is a Top Screen

The CFATS program was designed to regulate security at chemical facilities that are at high-risk of being attacked by terrorist. It was set up so that any facility that has an inventory of certain DHS chemicals of interest (COI; chemicals that could cause a catastrophic incident if released or detonated at the facility or could be used to make improvised explosives or chemical weapons) at or above a certain screening threshold quantity (STQ) is required to submit an online report called a Top Screen. This report provides DHS with information about the quantities of COI stored at the facility and some basic information about the facility (including its location).

DHS takes this Top Screen information and reviews it to make a preliminary determination if the facility is at high-risk of a terrorist attack. There is a lot of discussion going on right now about how ISCD makes that determination (see here and here) and DHS isn’t publicly discussing the details of their review process for security reasons. Having said that it doesn’t take a lot of insider knowledge to guess that for a local fertilizer distribution facility like West Fertilizer, that review would probably concentrate on the size and location of the surrounding community for determining the release threat (detonation of stored material on site). My guess is that ISCD would conclude that a small town like West, TX, lacking some sort of iconic international claim to fame, would not be considered to be a serious terrorist target.

Facilities that submit a Top Screen and subsequently determined not to be at high-risk of a terrorist attack are told they are not covered under the CFATS program and reminded that if their situation changes significantly they should re-submit a Top Screen.  Then the folks at ISCD forget about them. The Department has received over 40,000 Top Screens since the program started in 2007 and less than 4,000 facilities are currently covered under CFATS. Most places are just not realistic terrorist targets.

Why no Top Screen in this Case

I have not talked to anyone from West Fertilizer; they don’t need gadflies bothering them now. They have lost their livelihood, friends, family and neighbors; they have more important things to do than talk to folks like me. I can, however, make an educated guess about why a facility like West Fertilizer might not have submitted a Top Screen.

First off, the company is a small company; news reports say 10 employees. It is owned and operated by a local man who set up shop in 1962. He probably has a lady working in the office that takes customer orders, opens the mail, makes bank deposits and writes out the checks for suppliers and payroll. He certainly does not have an environmental health and safety professional on staff. Like the vast majority of people in this country he has probably never heard of the Federal Register and has certainly never read it.

When the EPA’s risk management program came into being he was probably not aware of it and would have been grandfathered out of its coverage because of his size and location. In 2006 when that grandfather clause expired he wasn’t aware of it and was subsequently fined for not having a risk management program in place. He has reportedly made all of the required program filings since then.

In 2007 when the CFATS program became operational, it is very likely that he did not hear anything about it. Even if he did, he wouldn’t have considered his fertilizer distribution operation to be a chemical facility. I would even bet that the discussions within the fertilizer industry were ignored because of the relatively small size of his operation and the fact that no one would expect to see terrorist in West, TX.

Now, how many other fertilizer distributors across the country have not submitted Top Screens? I don’t know and I don’t think anybody does. I would bet that there are a couple of people in ISCD that are currently trying to find out. I would guess that there are hundreds, maybe as many as a couple thousand, of similarly sized distributors in small towns across this country. If there are farmers there will be fertilizer and anhydrous ammonia and ammonium nitrate are two of the cheapest and most effective methods of increasing soil nitrogen content.

Would West Fertilizer have been Regulated

Before I go down this road, let me make it absolutely clear; if West Fertilizer had been a CFATS covered facility, DHS would still have had nothing to do with preventing the current incident since it looks like an industrial accident not a terrorist attack. CFATS is a security program not a safety program. If CFATS inspectors saw a grossly unsafe situation, they might mention it to the owner, but they couldn’t do anything about it. They probably couldn’t even report it, legally, to OSHA because of the information security provisions of the CFATS regulations.

So, if West had submitted a Top Screen, would they have been given a preliminary designation as a high-risk chemical? As I mentioned earlier ISCD isn’t discussing the details of the methodology they use to evaluate the Top Screen data, but for a release type chemical it would mainly have to do with the number of people that would be directly affected by a worst case release (and the plant blowing up would certainly qualify as that). While the community in West, TX is certainly devastated, I’m believe that their small size would have caused ISCD to say that there wasn’t a significant risk of a terrorist attack on the facility.

Now ammonium nitrate is not just a release risk. Since it can be used to make a real explosive (and no, the stuff that blew up so spectacularly this week is not really an explosive; conditions had to be just right for it to explode) and is an internationally preferred component for IEDs, ISCD also considers ammonium nitrate to be a theft/diversion risk. But West apparently handled and shipped their ammonium nitrate in bulk (big trucks or medium sized trailers), so they probably would not have made the cut for that risk either.

Should Fertilizer Distributors be Covered

An interesting question now arises. Does the spectacular explosion in West, TX change that calculus? There has been a huge amount of press coverage of this incident and there would have been even more if the fools in Boston were not still running around playing at being terrorists. While the Boston attack was smaller and produced fewer casualties and damage, it caught more news coverage. But even with Boston and a couple of ricin letters, the explosion in West made national and international news. In a slower news cycle the coverage would have been much larger.

Since one of the things that terrorists crave is publicity, the coverage of this incident may make the terrorist’s calculation of desirable targets slide towards favoring attacks on fertilizer distributors. It will be interesting to see if the folks at ISCD re-look at how they assess the release risk at these types of facilities. I think that facilities where there are things like apartment buildings, nursing homes or schools (all three in West, TX) within the potential 2 psi overpressure zone (a measure of blast effects) of the facility should have their terrorist risk potential raised to at least the Tier 4 level.


Debbi Jo Fox said...

"DHS takes this Top Screen information and reviews it to make a preliminary determination if the facility is at high-risk of a terrorist attack."

Doesn't the Top Screen provide information that is used to determine if the facility should be a covered facility?

The SVA would then provide the information to place the covered facility in a certain preliminary tier designation.


PJCoyle said...

Debbi Jo: Practically speaking your are correct, but according to 6 CFR 27.220(a)the Top Screen determination is an 'initial determination' that a facility presents a high-level of security risk.
Of course, any proceedings past the submission of a Top Screen require CVI certification so as a practical matter once you receive your initial notification based upon the Top Screen you are in the CFATS program.

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