Saturday, October 19, 2019

CFATS and a Small-Town Road Closure

It is not often that security measures under the Chemical Facility Anti-Terrorism Standards (CFATS) program make the newspaper, but they did this week in the El Dorado News-Times in El Dorado, AR. The issue was a meeting of the Union County Quorum Court where the owner of a local oil refinery was asking the County to close a portion of a public road that runs through the refinery. The owner cited the CFATS program as the reason that the road needed to be closed. According to the article:

“Ratcliff [lawyer representing the refinery] said safety standards imposed by the United States Department of Homeland Security in response to the Sept. 11, 2001 attacks on the United States are not able to be met by Lion Oil/Delek because the road is open.”

The author of the article noted that Ratcliff was referring to the CFATS program.

Security Issues

Looking at the Satellite view from Google Maps® it is easy to see what ‘security issues’ come into play with this public road. First it divides the large storage tank farm on the west side of the refinery in two. It also divides a flammable gas storage tank area just north of the larger tank farm. And many of the storage tanks (liquid and gas) are well within the blast radius of a reasonably sized vehicle-borne explosive device. There is also a tank-wagon marshalling area and a tank-wagon loading area along the road.

It is hard to tell what chemicals are stored in the large tank farm, but, given that this is a petrochemical refinery, I would reasonably assume that most of the tanks contain some sort of flammable hydrocarbon. The horizontal pressure tanks on either side of the tank farm contain some sort of flammable gas; the give away is the ‘4’ in the upper diamond on the hazard placard on the tanks.

CFATS Considerations

Neither of these tank farms are very close to any residential areas or schools. There are two small churches that the refinery is using to define the road closure limits, but I doubt that either attracts more than a couple hundred parishioners at most. What that means is that the Infrastructure Security Compliance Division (the CISA group that administers the CFATS program) probably bases their high-risk determination for this refinery on the close proximity of the operations area of the facility further to the East to residential areas of El Dorado.

ISCD give facilities a great deal of leeway in defining facility boundaries for the purposes of determining what is a covered facility. There might be a chance that, if the refinery were to be divided into two parts with the boundary between them being the creek that runs north-south through the facility, the western potion of the facility that includes Hinson Road (the road being proposed to be closed) might not be determined to be a high-risk facility and thus out of the scope of the CFATS program.

Similarly, if the western half of the facility were to be determined to be a high-risk facility, the facility could manage the large tank farm in such a way that the three tanks closest to Hanson Road would not be used for storage of chemicals that were on the list of DHS chemicals of interest (COI). This would allow the facility to exclude those three tanks from the restricted-access portion of the facility. This would leave just the flammable-gas tanks as areas of concern along the road. Security measures could be designed to specifically protect those tanks from VBIED attacks.

CFATS and RBPS Guidance

The author of the article about the situation made note about the “Dept. of Homeland Security’s Chemical Facility Anti-Terrorism Standards Risk-Based Performance Standards. She picked up on the following repetitive statement in that guidance document:

“Note: This document is a “guidance document” and does not establish any legally enforceable requirements. All security measures, practices, and metrics contained herein simply are possible, nonexclusive examples for facilities to consider as part of their overall strategy to address the risk-based performance standards under the Chemical Facility Anti-Terrorism Standards and are not prerequisites to regulatory compliance.”

What most people who have not worked with the CFATS program do not understand is that the CFATS regulations (6 CFR 27.230) set 12 broadly worded risk-based performance standards (RBPS). The guidance document provides information about how facilities can meet those broad requirements. The facility and ISCD reach an understanding about what the facility will include in its site security plan (SSP) to meet the statutory requirements for that particular facility; each facility would have its own unique methods to deal with the specific security situation at that facility. Once that SSP is approved by ISCD, the requirements of that SSP are the regulatory requirements for that facility.

Public Decisions and CVI

The big problem for the refinery going forward with the road closure process is providing enough information about their security issues to the County without running afoul of the restrictions on sharing Chemical-terrorism Vulnerability Information (CVI). Security information about CFATS covered facilities are considered to be controlled unclassified information (CUI) with specific rules about how that information can be shared with local government officials; for CVI that includes requiring individuals that are being given access to have completed on-line training in how to protect CVI information.

The County rules, in this case, requiring a 3-person panel to review the information for a contested road closure seem well suited to the CVI requirements. The three people assigned to the panel could take the relatively brief training and then receive the security information from the refinery’s lawyer to consider in the road closure petition. They could then make their recommendation without including any of the specific security information.

The big problem with that is that the 3-member panel is supposed to hold public hearings to get both sides of the issue. The public is specifically excluded from having access to CVI so the refinery would be required to make their arguments without providing any of the pertinent security information. Those sanitized arguments may be inadequate to support the request.


I would be very surprised if a large refinery were just starting the CFATS process, but I suppose that it could happen. If the facility has not yet had its SSP authorized, there are still alternatives available to closing the road through the facility. I have discussed some of them above, but there are other, probably more expensive, security measures that could be employed that would obviate the need for the road closure.

If the facility SSP has been authorized, it would seem that the facility had included as a proposed security measure the closure of the road. If that is the case the facility made a commitment to ISCD that the road would be closed. Failure to get the County to effect the closure would require the facility to renegotiate their SSP; ISCD would be upset, but I suspect that they would understand that the facility had no control over the actions of the County government.

What I suspect is happening is that the original facility SSP was negotiated by the previous owners and authorized and subsequently approved by ISCD. It would have included some expensive planned compensating controls to allow the road to remain open. Those controls would have been proposed because the owners knew that getting the County to close the road was going to be difficult at best. The new owners have no desire to spend the money necessary to implement the controls. ISCD would be in the process of threatening noncompliance sanctions and the new owners are trying hard to get the financially easier security measures in place as an ‘appropriate response’ to the non-compliance actions.

It will be interesting to see how this turns out.

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