Thursday, October 12, 2017

Can Off-Site Changes Effect CFATS Tiering?

I have discussed the ‘material modifications’ reporting requirements {6 CFR 27.210(d)} of the Chemical Facility Anti-Terrorism Standards (CFATS) program on a number of occasions. Those discussions have centered around modifications made by the facility. What happens when the modifications are made off-site by someone other than the facility? This question is being raised in Buffalo, NY (see here and here).

The Problem

The issue in Buffalo is being raised because a developer is trying to reconfigure an existing facility in an industrial complex to a commercial rather than industrial facility. The proposed facility would be a “commercial office and flex space, with the possibility of space for a coffee shop or restaurant, primarily to serve tenants of the complex” according to one of the news reports.

The issue raised by the CFATS facility is two-fold. First, from the CFATS perspective, the additional people coming into the immediate vicinity (this is a six-acre industrial park) of the chemical facility could result in the DHS Infrastructure Security Compliance Division (ISCD) revisiting the risk tiering of the facility and potentially raising the security standards necessary for an approved site security plan. Those higher security standards would almost certainly cost the company more money.

The second part is the nuisance problem with people not used to working in an industrial environment complaining about the smells associated with chemical manufacturing (sulfuric acid manufacturing in this particular case) or the heavy truck and rail traffic transiting the area in support of that manufacturing.

On the other side, the owner of the property being redeveloped is concerned about his right to obtain the maximum financial return on the investment in the property. Apparently, this commercialization of an industrial property appears to be the best way to ensure that return.

Material Modification Reporting

The specific wording of §27.210(d) reads:

“If a covered facility makes material modifications to its operations or site, the covered facility must complete and submit a revised Top-Screen to the Department within 60 days of the material modification. In accordance with the resubmission requirements in §27.210(b)(2) and (3), the Department will notify the covered facility as to whether the covered facility must submit a revised Security Vulnerability Assessment, Site Security Plan, or both.”

The initial phrase of that paragraph; ‘covered facility makes material modifications’; would not seem to be applicable in this instance since the modifications are being made by someone else. However, looking back to §27.200(a) we see that DHS specifically has the authority to “at any time, request information from chemical facilities that may reflect potential consequences of or vulnerabilities to a terrorist attack or incident”.

Taking both sections into account, it would seem reasonable that a facility has a responsibility to report to notify ISCD of changes near the facility that would affect those potential consequences. Initially filing a new Top Screen may not be required, however. I suspect that a phone call to the CFATS Help Desk {(866) 323-2957} would be the most appropriate first step.


Conflicts such as these are not as uncommon a problem as one would like to think. Here in my current home town of Columbus, GA there is a day-care facility that shares a fence line with a chemical manufacturing facility. Another chemical facility in the same industrial park had to buy a piece of adjacent property to stop a milk processing facility from being built less than a hundred yards from hazardous material storage tanks.

Zoning issues, what gets built where, are a local matter for local governments to resolve. Unfortunately, many (most?) local governments do a less than stellar job of looking at the potential for industrial accidents on adjacent properties when making these types of decisions. The most obvious case in recent history is the ammonium nitrate explosion in West, Texas. The Chemical Safety Board report [.PDF download] on the incident includes an entire section on the land use planning problem.

It looks to me like the local Planning Board failed to take into consideration the potential for industrial accidents so close to a commercial facility in making its decision. At the very least it is setting up the community for a rising number of nuisance complaints being made to the local fire department and police department about ‘unusual odors’ and ‘chemical releases’.

Sulfuric acid fumes are irritating and easily detectable at very low levels; levels considered to be safe. Folks in an industrial setting quickly learn to ignore them due to frequent exposure and knowledge of what is going on. Customers periodically visiting the area are not going to have that level of experience and are certain to complain, particularly at eating establishments where smell is an important part of the experience.

Planning boards that fail to take problems like these into account when making zoning decisions in industrial areas are setting the municipal government up for future problems; problems that could be avoided by keeping reasonable separations between industrial operations and non-manufacturing concerns.

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