CFATS Reauthorization – Inherently Safer Technology

This is part of a continuing series of blog posts on my proposed changes to the CFATS authorization. The current authorization for the program ends on December 18^th, 2018. These posts address some of the language that I would like to see in any re-authorization bill. Earlier posts in the series include:

CFATS Reauthorization – Cybersecurity

CFATS Reauthorization – Agricultural Production Facilities

CFATS Authorization – Protection from Drones

CFATS Authorization – Excluded Facilities

CFATS Reauthorization – Academic Laboratories

Environmentalists and Democrats have been after the EPA and DHS to implement a chemical risk reduction program known as inherently safer technology (IST). The standard approach advocated by these groups has been a Federal mandate to implement IST (typically assumed to be replacing hazardous chemicals with less hazardous alternatives) unless a facility can demonstrate that it is economically detrimental.

Risk reduction through the use of less dangerous chemicals, reducing the amount of dangerous chemicals and/or altering chemical processes to less hazardous conditions is a well-established engineering approach that the chemical process industry generally supports. What the industry objects to is a mandate enforced by regulators that do not understand the engineering or business conditions involved.

The CFATS program has been an unintended experiment in a non-mandated IST program. Because of the costs associated with a security program that meets the Risk-Based Performance Standards (and is inspected to ensure that it complies with those standards), the cost-benefit standards for IST implementation have changed in a significant part of the chemical industry. Unfortunately, we only have the absolute minimum of information available about the results of this experiment. I would propose the following language to correct that dearth of information:

Sec. 634 – Inherently Safer Technology

(a) Definitions -

(1) Inherently Safer Technology – The term ‘inherently safer technology’ or ‘IST’ means any combination of chemical engineering or inventory management practices that reduces the risk of a release, discharge, or the theft or diversion of a chemical of interest (COI) listed in Appendix A. These practices may include changing chemical process conditions, changing the form of COI used, substitution of less hazardous chemicals for release security issue COI, or any other measure that, when reported to ISCD, would allow for the facility to be removed from its covered facility status.

(2) ISCD – The term ‘ISCD’ means the Infrastructure Security Compliance Division, or any successor organization, that is responsible for the oversight of the Chemical Facility Anti-Terrorism Standards (CFATS) program described under this sub-chapter.

(b) The Secretary will commission a study to be conducted by the National Academies of Sciences, Engineering and Medicine (the Academies) to look at the IST practices used by chemical facilities that were able to leave the CFATS program since its inception in 2007. The study will look at:

(1) Each facility that was removed from the CFATS program;

(2) Determine what changes were reported to the ISCD that allowed ISCD to remove the facility from the CFATS program;

(3) What IST changes were made at the facility that allowed the changes in reported information;

(4) The cost of the implementation of the IST used;

(5) The cost savings associated with the IST implementation; and

(6) Any lessons learned

(c) In support of the conduct of the study described in (b) the Secretary will:

(1) Ensure that each researcher involved in the program have clearance for access to Chemical-terrorism Vulnerability Information (CVI) in accordance with 6 CFR 27.400;

(2) Provide researchers with a list of previously covered facilities that were removed from the CFATS program because of new information provided to ISCD;

(3) Ensure that full access to Chemical Security Inspectors and ISCD records about the facilities identified as being part of the study will be made available to researchers;

(4) Will forward to the identified facilities any questionnaires developed by the research team that support the preparation of the report described in (b) with a notice of a requirement to provide the information requested under authority of this section and, that the information will be protected in accordance with §623;

(d) The report described in (b) will be prepared in an unclassified form and will not include any information that would allow for the identification of a facility that was previously or currently a covered facility under the CFATS program. An annex may be published that contains CVI and will be protected accordingly. The report, without any CVI annex, will be published on the CFATS web site.

(e) Within one year of the report described in (b) being published, the Secretary will prepare recommendations to Congress about how the conclusions reached in the report could be incorporated in the authorization language for the CFATS program.