Friday, July 5, 2019

Reader Comments – Expand HR 3310 Study

There is an interesting discussion thread on LinkedIn® about an earlier post of mine on the introduction of HR 3310. In my commentary at the end of the post, I proposed some changes to the language of HR 3310 that would expand the emergency response planning study to cover terrorist attacks at chemical facilities other than those covered under the Chemical Facility Anti-Terrorism Standards (CFATS) program that would be addressed under the current language.


Cathi Cross, a longtime reader of this blog, suggested that the study be further expanded to include an even wider range of chemical emergency response planning.

Michael Kennedy, another longtime reader, noted that: “it's a disturbing trend that DHS is viewed as first in line for first responder information”.

Response Responsibility

Emergency response planning has been an interesting problem for the Federal Government. For the most part, first responders to a chemical incident of any sort are going to come from local government organizations; police, fire and emergency medical care. For larger incidents, this initial response will probably be supplemented by State National Guard chemical units, but those are not expected to start arriving for about 24 hours. So, for the first 24 hours, emergency response activities are going to rely on local governments.

Admittedly, the largest chemical facilities (particularly refineries), the on-site response is going to come from on-site corporate response teams. Those teams will, however, limit their response activities to locations within the facility fence line. Those activities may minimize off-site consequences, but they will not be a direct response to off-site consequences.

Smaller facilities will have smaller, less well equipped and trained emergency response teams. Those teams may be able to respond to limited chemical spills but would usually not be expected to a major release like that seen in a terrorist attack or large-scale weather event. These smaller teams would rely on support from local emergency response for on-site response for these larger events.

The smallest chemical facilities will have no response capability for hazardous chemical release incidents. They will have facility evacuation plans but will rely on local government agencies for initial response, and many will rely on those same agencies for at least initial clean-up activities.

Off-site transportation incidents will rely almost entirely on local government response agencies. Shippers and transport companies may provide for contract clean-up activities after an incident is stabilized, but the emergency response will be accomplished by local authorities.

Federal safety and security regulations from a wide variety of agencies all take cognizance of these realities. They require facilities and shippers to provide basic emergency response information to these local response agencies; this information normally takes the form of a safety data sheet (SDS) that the organization provides to local agencies near the facility, or to local agencies at the scene of an accident through the shipper.

Emergency Response Planning Limitations

Generally speaking, the Federal government, through a variety of programs in DHS, DOT and EPA make local government agencies responsible for off-site emergency response planning. The facility or shipper has safety and security requirement with which they must comply, but their off-site emergency planning (other than oil spill cleanup) responsibilities essentially end when they provide SDS to local government agencies (at accident sites for transportation emergencies). This makes a certain amount of sense since the owner/shipper has no idea what capabilities the local government agencies have for emergency response and have no authority to allocate those response activities.

Different localities have different emergency response capabilities and even more diverse planning and coordination skills. None of the existing regulations and laws governing emergency response planning take into account the skills, capabilities and funding resources for these planning activities; they simply assign generic response planning responsibilities. Some grant funding is available through the various programs, but they are allocated without regards to the relative capabilities and responsibilities for various localities.

The other problem is that facilities submit an SDS for all of the chemicals on site. For even a small chemical manufacturing facility that could be a large number of SDS’s. The smallest chemical company that I worked for had over 200 MSDS (the precursor to the current SDS) on file that we updated with the local fire department. Many of the chemicals (and often the ‘most dangerous’) are held in only lab quantities (gallon containers or less), but the local fire department is expected to review and plan emergency responses for each.

There is a relatively small subset of chemical facilities that do have to do more than just provide SDS to the local fire department. Those are facilities involved in the EPA’s Risk Management Program. They are required to provide local officials with information on their worst-case release scenario and how far from the release a serious, life-threatening effect would be felt. This at least provides local planners with a definitive incident at which they can target their planning efforts.

Modifications to HR 3310

With all of the above in mind, one thing is painfully obvious to anyone in the emergency response community, there is no one that has a definitive picture of how well communities across the country are protected against the consequences of catastrophic chemical releases. Fortunately, the United States has not had a Bhopal scale incident where large numbers of people are killed from a chemical release. A large portion of the reason for this is that most chemical facilities are doing a decent job of managing their chemical risks and taking appropriate protective measures to stop such catastrophic releases.

The idea of conducting a national scale study of the current ability of local government agencies to plan for and react to a catastrophic, Bhopal-scale chemical release (either accidental or as a result of a terrorist attack) certainly would provide a strong basis for Congress taking additional action to help protect neighbors of chemical facilities. Unfortunately, the study in HR 3310 is a bit to narrow in scope to provide a clear picture of the national chemical-emergency response planning capabilities.

To adequately expand the coverage of the HR 3310 study to be more inclusive of the potential large-scale chemical incidents we need to first modify the definition of ‘covered chemical facilities’ that I had proposed in my earlier blog post. I would add two new sub-paragraphs to that definition

(E) Program 2 of the Risk Management Program as defined in 40 CFR 68.10(c); or
(F) A railcar carrying 20,000-lbs or more of a toxic or flammable substance listed in 40 CFR 68.130.

The addition of (F) would probably require a change to the definition of ‘high concentration’ to reflect the nature of the transportation facility. I would add a sub-paragraph (C) to the definition I provided in my earlier blog post:

(C) any portion of a rail-line (or a rail-siding attached to that line) of a Class I or Class II railroad which would meet requirements in (A) or (B) where that line segment is reported by the railroad to transport one or more of the toxic or flammable substances listed in 40 CFR 68.130.

Additionally, we need to clarify the term terrorist attack so that it would include any catastrophic release of toxic, flammable or explosive chemical beyond the reasonable control of the facility owner. I would propose the following definition:

(3) Terrorist Attack – the term ‘terrorist attack’ means any deliberate human activity designed to inflict damage to a covered facility with the intent to cause the catastrophic release of one or more of the toxic or flammable substances listed in 40 CFR 68.130; or a natural event like a tornado, hurricane, earthquake or wildfire that results in the same type release.

Next, I would change the agency responsible for conducting the study. While the DHS Science and Technology Directorate certainly has the technical chops and research contacts necessary to conduct such a study, the agency which should probably be responsible for coordinating and overseeing this type of emergency response planning (and execution as required) would be the Federal Emergency Management Agency. Thus, I would revise §1(a) to read:

(a) STUDY REQUIRED.—The Administrator of the Federal Emergency Management Agency, in consultation with the Under Secretary for Science and Technology, shall conduct a study on how to improve training and support for local emergency response providers in areas with high concentrations of covered chemical facilities in how to respond to a terrorist attack on a chemical facility.

With this expanded scope for the study, I think that it would probably be best to include a new paragraph (f) to the bill authorizing funding for the study. I do not have the foggiest idea of how much money it would cost, so I will use here a well-known congressional weasel-wording trick:

(f) As much money as may be necessary for the conduct of the study described herein is authorized to be expended.

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