Review - CFATS History and Appendix A

Yesterday, CISA published the second part of their look back at the Chemical Facility Anti-Terrorism Standards (CFATS) program on the 15^th Anniversary of the program. This installment looks at the establishment of Appendix A to 6 CFR Part 27, DHS Chemicals of Interest. My earlier posts in this series include:

CFATS 15th Anniversary – CISA Takes a Look Back

Outsider Comments

As with my earlier post in this series, here are some links below about my contemporary blog posts about Appendix A issues:

Changes to the DHS Chemical Facility Security Web Site,

First Security Vulnerability Assessments to be done soon

More changes to the DHS Web Site,

DHS responds to agriculture and propane industry complaints,

Chemical warfare agent injures over 100 in Nevada onion field,

Slow pace of CFATS implementation,

IED’s and Chemical Facilities,

DHS Revises Appendix A,

The politics behind Appendix A propane rules,

DHS increases the number of flammable chemicals regulated under CFATS,

Laboratories get some breaks in the Chemicals of Interest List,

Ammonium Nitrate Rules Tightened,

New Appendix A changes CVI Training?,

Appendix A published in Federal Register,

Chemical Security makes the DHS Leadership Blog, and

Hole in Propane Rules,

 

For more details about the importance of Appendix A, see my article at CFSN Detailed Analysis - https://patrickcoyle.substack.com/p/cfats-history-and-appendix-a - subscription required.

Appendix A Roundtable Discussion

I just finished listening to the roundtable discussion about possible changes to Appendix A to 6 CFR Part 27, the CFATS regulations. I talked about this roundtable in an earlier post.

The roundtable format allowed for the private sector participants (and apparently a couple of people from some public sector agencies as well) that were able to attend the event in Washington, to provide some comments and exchange some ideas on the parts of Appendix A that might need changing. As I mentioned earlier the topics that were covered were:

• The possible addition of chemicals to, and/or the deletion or modification of COI currently listed in Appendix A;

• The applicability and/or modification of any Screening Threshold Quantities (STQ) or minimum concentrations;

• Concentration and mixtures rules associated with Appendix A, which are described in 6 CFR 27.204;

• Isotopic variants to include comments on Chemical Abstract Service (CAS) Registry Numbers and nomenclature;

• The classification of COI within different security issues, to include the potential for re-designating certain chemicals now listed solely as release flammable so they are listed solely as toxic or as toxic and flammable; and

• Criteria for “counting rules” for screening threshold quantities to include clarification on how to determine if a COI is in transportation.

DHS provided a slide for each of the topics listed above (slides will be available at some point on www.Regulations.gov; Docket # DHS-2014-0016-0071). Those slides included a couple of specific discussion points that came from the earlier public comments about Appendix A for the Advance Notice of Proposed Rulemaking (ANPRM) on the CFATS program.

The audio was poor (a problem with HSIN not ISCD) on the phone in link, but the comments that I could understand were many of the same  things that we saw eight years ago when the CFATS NPRM was published.

There will be a public comment period this afternoon for the event in Washington, but I don’t think that I will spend any time listening to that. Instead I am going to get back to work on my submission for this on the topic of toxic inhalation hazard chemicals listed in Appendix A. Needless to say readers will see it first here.

DHS Publishes Notice of Possible Changes to COI List

Today the DHS Infrastructure Security Compliance Division (ISCD) published a meeting notice in the Federal Register (80 FR 62504-62506) for a meeting in Washington, DC on October 27^th, 2015 concerning possible changes to 6 CFR Part 27 Appendix A, the DHS Chemicals of Interest (COI) list for the Chemical Facility Anti-Terrorism Standards (CFATS) program. The public meeting will include a round-table discussion of the changes being considered and a public listening session. The meeting will be web cast.

ISCD is reviewing the current Appendix A and is looking for public input in the following areas:

• The possible addition of chemicals to, and/or the deletion or modification of COI currently listed in Appendix A;

• The applicability and/or modification of any Screening Threshold Quantities (STQ) or minimum concentrations;

• Concentration and mixtures rules associated with Appendix A, which are described in 6 CFR 27.204;

• Isotopic variants to include comments on Chemical Abstract Service (CAS) Registry Numbers and nomenclature;

• The classification of COI within different security issues, to include the potential for re-designating certain chemicals now listed solely as release flammable so they are listed solely as toxic or as toxic and flammable; and

• Criteria for “counting rules” for screening threshold quantities to include clarification on how to determine if a COI is in transportation.

ISCD has also updated their CFATS web site to include links to the registration page for this meeting and the revised page on the CFATS ANPRM that now includes information on the Appendix A update being considered.

While advance registration for this meeting is not required, DHS is now taking reservations for spaces at the meeting (live and on-line). Written public comments are also be solicited by ISCD. Comments may be submitted via the Federal eRulemaking Portal (www.Regulations.gov; Docket # DHS-2014-0016).

OMB Approves 2014-2015 Methyl Bromide Exceptions

The OMB’s Office of Information and Regulatory Affairs (OIRA) announced yesterday that it had approved the EPA’s final rule for the critical use exceptions (CUE) for the continued use of methyl bromide under the Montreal Protocol. Publication of the rule could be seen by the end of the week.

There are a couple of interesting comments in the docket for this rule (here, here and here; PDF download links). What is missing from the docket this year is a copy of the EPA’s letter to users and manufacturers of methyl bromide notifying them that the EPA would take no enforcement action against users and manufacturers for the use of methyl bromide for CUE this year while the EPA got this delayed rule through the publication process.

Once again it is clear that DHS erred in 2007 when it removed methyl bromide from the final version of Appendix a to 6 CFR 27 based upon the EPA’s assurance that methyl bromide was being phased out of use/production. While the use of methyl bromide has certainly decreased it shows no sign of disappearing from the US market place.

Perhaps if manufacturers and distributors were subject to CFATS program security costs, there might have been more of an incentive to phase out this toxic inhalation hazard product.

Another New Authorized Use of Methyl Bromide Fumigant

Yesterday the Animal Plant Health Inspection Service (APHIS) published a notice in the Federal Register (78 FR 68021-68022) announcing that a treatment schedule for methyl bromide fumigation of blueberries for Mediterranean fruit fly and South American fruit fly to the Plant Protection and Quarantine (PPQ) Treatment Manual. This completes their action on this treatment proposal initiated in June.

The wording of the notice would seem to indicate that the EPA will now have to consider this a new critical use of methyl bromide that would be an exempted use under the Montreal Protocol on Substances that Deplete the Ozone Layer. This would potentially extend the period under which organizations could produce or import methyl bromide in the United States under the phase out of methyl bromide.

Once again (I know, I do harp on this subject) this calls into question the DHS decision to remove methyl bromide (a toxic inhalation hazard chemical) from the CFATS list of DHS chemicals of interest (COI; Note: It was on the draft list but was not included on the final list). As usual, I urge DHS to reconsider their failure to include methyl bromide in Appendix A, 6 CFR 20.

USDA Expands Use of Methyl Bromide Fumigant

Today the USDA Animal and Plant Health Inspection Service (APHIS) published a notice in the Federal Register (78 FR 36507-36508) concerning a proposed new treatment schedule for the use of the fumigant methyl bromide. According to the notice APHIS has “determined that it is necessary to immediately add to the Plant Protection and Quarantine (PPQ) Treatment Manual an additional treatment schedule for methyl bromide fumigation of blueberries for Mediterranean fruit fly and South American fruit fly”.

This is not actually a new use for methyl bromide, but a modification (lowering the application temperature from 70° F to 60° F) of the currently approved treatment procedure (T101-i-1-1). It does, however, provide an example of why the Environmental Protection Agency is having such a difficult time phasing out the use of methyl bromide as a fumigant under the provisions of the Montreal Protocol on the Protection of Atmospheric Ozone. Methyl bromide is just too effective a tool as a pesticidial (okay that’s probably made-up, but it ought to be a word) fumigant.

Public comments on this proposed action (which becomes effective upon publication of this notice today) may be submitted via the Federal eRulemaking Portal (www.Regulations.gov; Docket # APHIS-2013-0007). Such comments need to be submitted by August 19^th, 2013.

ABBREVIATED RANT: The toxic-inhalation-hazard (TIH) chemical methyl bromide was not included in the current list of DHS chemicals of interest for the CFATS program (Appendix A, 6 CFR Part 27) because it was ‘being phased out of commercial use’ by the EPA. Needless to say it is still in general use and should be added to Appendix A.

Methyl Bromide Exemptions for 2014

Today the Environmental Protection Agency published a solicitation in the Federal Register (76 FR 34700-34703) for submission of requests for critical use exemptions for the use of methyl bromide as a pest control agent in 2014. As readers of this blog are probably painfully aware by now, the use of methyl bromide has been being phased out since 2005, but EPA (under the Montreal Protocol) has provided critical use exemptions to that phase out for uses where no alternative pest control agent exists or is approved for use.


This notice begins the exemption process for methyl bromide uses in 2014. User and producer submissions made in response to this notice will be used by EPA to determine what uses will be allowed in 2014 and how much methyl bromide will be produced that year to meet those uses.

Personal Rant Warning: The reason that I keep harping on this relatively obscure action is that in 2007 when DHS was formulating the list of chemicals that would be used to determine if a facility needed to submit a Top Screen to start the CFATS process, they accepted the word of EPA that methyl bromide was being phased out and removed it from their proposed list of chemicals that became Appendix A to 6 CFR part 27.

So today, facilities that produce, store or use methyl bromide, a toxic inhalation hazard chemical, may not be covered by the security requirements of CFATS unless they have some other listed chemical in their inventory. Clearly, the EPA expects that methyl bromide use will continue through at least 2014 (and probably much longer; methyl bromide is just too effective a fumigant to be able to be easily replaced in all applications).

So, once again, I urge DHS in their current review of the chemicals listed in Appendix A to consider putting methyl bromide back on the list of DHS chemicals of interest with a screening threshold quantity based upon the same reasoning used for similar toxic inhalation hazard chemicals.

EPA Cancels Some Methyl Bromide Registrations

The Environmental Protection Agency (EPA) continues to slowly wind down the use of methyl bromide in the United States. Friday they issued an order in the Federal Register (76 FR 29238-29240) canceling the registration of methyl bromide for certain soil fumigation uses as requested by the manufacturers. The sale of methyl bromide fumigants for these uses will not be allowed after varying dates (depending on the use) as late as December 31st, 2014. The continued use of ‘existing stocks’ may be allowed for up to 120 days after the termination of the registration.

This order does not terminate all registered uses of methyl bromide as a fumigant, but it will significantly reduce the total usage of this toxic inhalation hazard chemical that is known to have a deleterious affect on the concentration of ozone in the upper atmosphere. This atmospheric affect is the reason that methyl bromide use is being phased out world wide.

As long time readers of this blog are certainly aware, I continue to be concerned that DHS has not included methyl bromide on it list of chemicals of interest (COI) for the CFATS program. It was removed from the proposed list of Appendix A chemicals at the request of EPA because its use was being phased out. Here it is, almost four years later, and methyl bromide is still ‘being phased out’ and will continue in that mode for at least another two and a half years.

As long as methyl bromide continues to be used a fumigant it will continue to pose the same sort of security threat as other TIH chemicals. DHS certainly needs to strongly consider adding methyl bromide to Appendix A in the current on-going review of that list of COI.

Updating Appendix A

I have been hearing from a number of different sources that the folks at ISCD are working with a couple of different industry groups at looking at modifications to the list of DHS chemicals of interest found in Appendix A. This November it will be three years since the publication of that list so it is certainly time for adjustments to be made. No word on any specifics of those discussions, but I have some ideas about what may be under discussion and, of course, some ideas of what changes I would like to see made. Gasoline One thing that is certainly under discussion will be the issue of the coverage of gasoline storage terminals. Back in January DHS issued a request for comments on their attempts to regulate security at gasoline storage terminals. This was basically issued in response to a petition submitted by the International Liquid Terminals Association (ILTA) that “raised both technical and procedural issues related to the applicability of Appendix A and the Top-Screen requirement to” gasoline terminals (75 FR 2446). One of the major issues raised by industry was the fact that the DHS interpretation of the rules as applying to such terminals had never been expressly discussed in any rule making process, thus violating a number of rules for establishing regulations. So any rule updating Appendix A will certainly include addressing the gasoline issue. As I have mentioned on a number of occasions, I firmly believe that gasoline terminals should be regulated under CFATS. While gasoline vapor cloud explosions are not easy to affect, I think that the danger of a potential VCE is being down played by industry. An accidental VCE is a low frequency hazard because of the various factors that must come together for the VCE to occur. In a properly planned and executed terrorist attack every effort will be made to optimize conditions to provide the necessary prerequisites for a VCE. I also think that even if a terrorist attack fails to put those various conditions together to actually form a VCE and only causes a major terminal fire, that would be counted as a successful terrorist attack. Because of the special place that gasoline has in our economy, the destruction of a major gasoline terminal with the accompanying probable damage to a fuel pipeline would have serious economic effects. This is especially true in a weakened economy. Finally, serious consideration needs to be made about declaring gasoline a theft/diversion chemical of interest. A tanker load of gasoline is an easily transportable and deployable potential flame weapon. Either through a fire in the tanker on a crowded freeway during rush hours in a major urban area or pouring gasoline from a four inch hose into a large building like a major shopping mall could cause huge number of casualties at very soft targets. While the same could be said for any flammable liquid, gasoline has a special place because of the huge number of tankers on the road every day and the political connections to the Middle East. Al Qaeda has remarked on this political status and has vowed on a number of occasions to target gasoline manufacture and distribution. Removing COI or Increasing STQ I would hope that DHS would take a look at the data that they have accumulated on a huge number of Top Screens submitted over the last two and a half years. I would be very surprised if such a review did not find that there were some chemicals on the list of COI that did not result in facilities being declared high-risk chemicals. This could be caused by either relatively low inventory levels or isolation from civilian populations or other potential targets. If a chemical currently on the list is not associated with any high-risk facilities, it would seem that we could remove that chemical from the list. Without increasing the risk of potential terrorist attack, we could reduce the administrative burden on facilities submitting needless Top Screen. The same could be said for the setting of Screening Threshold Quantities (STQ). If all high-risk facilities for a particular COI have substantially more inventory than the current STQ, then DHS would be justified in increasing STQ for that COI; again reducing a needless administrative burden.

On the other hand if every facility (or even most of them) with just barely an STQ amount has been declared a high-risk facility, then DHS might want to consider lowering the STQ. If the risk for just an STQ is high enough to be of concern, then we are almost certainly not identifying all of the at-risk facilities. Methyl Bromide I have pointed out on a number of occasions that DHS relied on misleading information from the EPA when it specifically included methyl bromide from the list of release toxic COI. EPA assured DHS that methyl bromide was being phased out as use as a soil fumigant, but subsequent EPA actions reveal that the chemical will be around for some time. This combined with the political reasons that methyl bromide is supposed to be phased out could make this a specific target chemical for any number of different eco-terrorist groups. DHS needs to consider adding this to the list of COI. Feedback As I understand things, during this development process, DHS is working with a variety of industry groups on the revision of Appendix A. While some people get upset about this type of ‘special privilege’ being given to industry, I think that it is entirely proper that the people that will be most directly affected by these regulations have some input in their development. Let’s face it, the real probability of any given facility being attacked is quite small, but all of the high-risk facilities are being required to spend big money to prevent the low-probability occurrence activity. On the other hand, groups other than industry also have a stake in these regulations. The environmentalists will probably get more say in the development of the revision to Appendix A than they did the development of the original list, just give the political party in power. Unfortunately, that still leaves many groups under represented; including local emergency response planning groups and even first responders. I would like to open this up discussion here on this blog. I know that there are a number of DHS folks that read this blog, including someone in the Secretary’s office. Let’s see if we can get a good discussion about what types of changes should be made to the Appendix A list of COI, including changes in specific SQT amounts. For this discussion I would appreciate it if we left the ‘Anonymous’ identification alone. If you don’t want to give your name (and I know a number of good reason why that would happen) at least give a description of your background or affiliation (ie: “chemplant worker”, “local organizer”, “EMT”, or “security guard”). Remember, for most of us this will probably be your only chance for input until the NPRM for the change is published.

Update on Methyl Bromide Rule

This is just a quick update on the methyl bromide rule from the EPA that I have been following over the last 9 months or so. On Friday the Office of Management and Budget approved the Final Rule. This means that the polished version may be published later this week or next in the Federal Register. Actually the just published EPA Regulatory Agenda for the Spring of 2010 shows the final rule being issued this month; which means this week. From an environmental view point this only means that the phase out continues to be stretched well beyond the original 2005 target. Actually there isn’t any real end in site because of the lack of an adequate substitute in certain agricultural applications. The uses and inventories will continue to get smaller, but it looks like these annual regulations will continue for some time. From a chemical facility security point of view, it continues to point out the flaw in the reasoning of DHS when they excluded both methyl bromide and chloropicrin from Appendix A when that was adopted in 2007. I’m not faulting the DHS regulation writers; they were just taking the EPA information at face value. At this point I think that DHS just needs to bite the bullet and add these two chemicals to the release-toxic hazard list in Appendix A.