Friday, May 3, 2013

S 814 Introduced – CFATS Top Screen Violations

As I noted last week, Sen. Lautenberg (D,NJ) introduced S814, the Protecting Communities from Chemical Explosions Act of 2013 [ Links added 08:02 CDT, 5-3-13]. This bill would amend the §550 authorization language for CFATS (6 USC 121 Note; Okay I’ll admit to an inconsistency here, but a ‘note’ in this section of 6 USC is difficult to isolate since there are so many of them and they are not readily identifiable. In this case the CFATS authorization ‘note’ is the first one after the ‘Effective Date of the 2009 Amendment’ section on page 20.) by making it unlawful to “intentionally fail to file a Chemical Security Assessment Tool Top-Screen” {§550(d)(3)(A)}.

Civil Penalaties

Actually the bill first extends the civil penalties currently listed in §550(d) for a violation of “an order issued under this section” to the failure to file a Top Screen in the Chemical Security Assessment Tool by a facility that holds “holds a quantity of a chemical of interest that is at or above the screening threshold quantity established under the interim final regulations” {§550(d)(2)}.

This continues the existing use of civil penalties to require compliance with the CFATS regulations, but it does apply the use of the other existing penalty under §550(g) of allowing the Secretary discretionary authority to “issue an order for the facility to cease operation, until the owner or operator complies”.

Criminal Penalties

As I noted above the new §550(d)(3)(a) establishes a criminal enforcement basis for the CFATS regulations, or at least the Top Screen enforcement. §550(d)(3)(B) goes on to provide for the criminal penalties associated with that enforcement; up to six years in prison and/or an unspecified fine under 18 USC. This would make an intentional failure to file a required Top Screen a felony.

Current Top Screen Enforcement

The current CFATS regulations already provide an enforcement mechanism for the Secretary to apply to facilities that do not submit Top Screens. Section 27.200(b) of 6 CFR allows the Secretary to specifically order an individual facility or class of facilities to submit Top Screens. If a facility fails to comply with such an order then §27.200(c) allows the Secretary to assess the standard $25,000 per day civil penalty authorized by the current §550(d) and/or issue an order to cease operations.

This procedure allows the Department (or more accurately the Infrastructure Security Compliance Division (ISCD) of DHS) to cooperatively contact facilities that may not be aware of, or fully understand, their CFATS Top Screen obligations to gain voluntary compliance and then provides for escalating enforcement actions to require compliance.


All one has to do is to look at the title of this bill, “Protecting Communities from Chemical Explosions Act of 2013”, to realize that this bill is nothing more than political grandstanding, attempting to gain political leverage by capitalizing on the recent chemical tragedy in West, Tx. The bill would do nothing directly or indirectly to prevent chemical explosions or provide any protection against chemical explosions.

At this point there is nothing in the public record that indicates that the owner of West Fertilizer intentionally failed to submit a Top Screen for his facility. The record only shows a failure to submit that information. It may have been caused by a small town business man not being aware of this requirement or a misunderstanding of the application of the requirement to his business.

I have personally run into at least one chemical manufacturing facility owner that was not aware of the existence of the CFATS regulations nor the fact that he was intending to handle a chemical that would have required the submission of a Top Screen. Let’s face it; very few people actually read the Federal Register, and many people do not have lawyers/consultants on retainer to review the changing federal regulatory environment.

Existing Alternative

Suggesting new federal requirements to address a problem that has not yet had its root cause identified is premature at best. There is, however, a simple but potentially effective action that Secretary Napolitano could take almost immediately that would ease some of the concern about similar facilities not being appropriately covered under CFATS. She could cause to be issued a notice in the Federal Register requiring all commercial fertilizer distributors that have not already done so to complete a Top Screen submission within the next 60 days. I am sure that the Fertilizer Institute would be more than happy to help get the word out through its associated suppliers about such a notice.

1 comment:

Anonymous said...

Hello. Thanx for writing on these issues.

If I understand correctly it seems that DHS has had less than 200 facilities comply with CFATS Top-Screen.

Do you have an opinion on how DHS will get the others to comply and then how they will determine if the final security plan is actually effective and not 'lip-service'?

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