Homeland Security Committee Publishes CFATS Substitute Language

Today the Homeland Security Committee added a note to their web page for their Wednesday markup hearing (that I discussed this weekend) reporting that Rep. Meehan (R,PA) will be offering another set of substitute language for HR 4007. Since there is not an official version of the bill as marked up by Meehan’s Subcommittee it is difficult to sort out the ‘small’ changes in the language. The big changes are easy to see.

Personnel Surety

This bill continues to try to deal with industry complaints about the personnel surety program under development by DHS. The wording gets more confusing and it seems the only intent of the new wording is to eliminate the personnel surety program. The legislation spends much more time explaining what DHS cannot do than it does defining what should be accomplished by the program.

The one positive new addition in this portion of the bill is a requirement for DHS to “to expedite the development of a common credential that screens against the terrorist screening database on a recurrent basis and meets all other screening requirements of this title” §2101(d)(3)(C)(i). Unfortunately this is a far cry from a legislative mandate for a CFATS equivalent of the MTSA TWIC. Only a clear legislative mandate will make this a program that will be accepted by the entire chemical industry.

One of the objections that the Democrats have always had with all of the personnel surety programs discussed to date for CFATS is the lack of a redress process for personnel that believe they have been incorrectly identified as having terrorist ties. New language has been added to this bill to address that concern, kind of. The new language requires the Secretary to establish a personnel surety program that provides redress to an individual “who believes that the personally identifiable information submitted to the Department for such vetting by a covered chemical facility, or its designated representative, was inaccurate” §2101(d)(3)(A)(iii). This completely ignores that possibility of being incorrectly identified as having terrorist ties due to an error on the part of the Government.

Rail Facility Exemption

DHS has long maintained that the responsibility for regulating the chemical security of rail facilities lies with TSA. This was specifically addressed in the pre-amble to the CFATS interim final rule in the Federal Register (72 FR 17688-17745) (see page 17699 for that discussion). Apparently, someone has had some concerns with the final sentence in that discussion:

“DHS may in the future, however, re-evaluate the coverage of railroads, and would issue a rulemaking to consider the matter.”

In any case §2104(c)(1), Rail Transit, makes it explicitly clear that any rail facilities regulated under 49 CFR 1580 will not be affected by the new CFATS regulation. Those facilities would certainly include designated ‘rail secure areas’ for all railroad hazmat shippers handling rail sensitive materials {§1580.107(a)(2)} and for all railroad receivers in high threat urban areas receiving rail sensitive materials {§1580.107(a)(2)}.  

Then §2104(c)(2) goes one step further and exempts all railroad facilities as defined in 1580.3 as being exempt from requirements to submit a Top Screen. That definition states:

“Rail facility means a location at which rail cargo or infrastructure assets are stored, cargo is transferred between conveyances and/or modes of transportation, where transportation command and control operations are performed, or maintenance operations are performed. The term also includes, but is not limited to, passenger stations and terminals, rail yards, crew management centers, dispatching centers, transportation terminals and stations, fueling centers, and telecommunication centers.”

This would specifically exempt most crude oil train loading facilities from CFATS regulations. This is even though the security at those facilities is not regulated by TSA since crude oil is not a rail sensitive material as defined in §1580.100(b).

Other Exemptions Removed

All language exempting other facilities from the CFATS coverage has been removed from this bill. This means that the following facilities would be required to submit a Top Screen to DHS if they had one or more of the 300+ DHS chemicals of interest (COI) listed in Appendix A to 6 CFR Part 27 at or above the screening threshold quantity set for that chemical in that Appendix:

• MTSA covered facilities;

• Public water systems;

• Treatment works;

• DOD owned facilities; and

• NRC regulated facilities

The language maintaining the current CFATS statutory exemption for these facilities had been found in the definition of ‘Covered Facility’ in what is now §2101(f)(1). There is no trace of that language there, or anywhere else in the bill. This is certainly a sweeping addition of responsibility for the folks at the DHS Infrastructure Security Compliance Division (ISCD). It is particularly surprising given the new exemption for rail facilities that are not covered by any security scheme.

Still Missing

This bill is still missing any language that would allow it to be considered successfully in the Senate. There is no mention of employee participation or inherently safer technology. Without even the most stripped down language addressing these areas there is no way that this bill, no matter how quickly it is passed in the House, would ever begin to see debate in the Senate, much less pass a cloture vote.

Democrats will certainly offer such language in Wednesday’s hearing. It will be interesting to see if they can craft language that will be acceptable to the Republican majority on the panel. If they cannot, then this bill will be effectively dead.

A Closer Look at the Heritage Foundation Report – More Regulations

This is the third blog in a series taking a critical look at the recent Heritage Foundation report on the problems with the CFATS program. While the report authored by Jessica Zuckerman is not up to the usual editorial standards of the Heritage Foundation it does raise some interesting issues. The earlier blog posts can be found here:

A Closer Look at the Heritage Foundation Report – CFATS Description

A Closer Look at the Heritage Foundation Report – Four Principles

In this posting I will look at the “Calls for Further Regulations” section of the Heritage Foundation report. Generally Ms. Zuckerman gets the cart before the horse in this section and jumps to early conclusions as has been her writing style throughout the report.

She opens her discussion by stating:

“In spite of the critical issues that have ensued after the implementa­tion of the CFATS program, there have been many calls for further regulation of the chemical sector. While generally misguided, many of these measures have received a good deal of attention in Congress.” (pgs 7-8)

Because she is a late comer to the chemical facility security issue she just doesn’t realize that all of these calls for additional regulation pre-date the formation of CFATS and form the basis for the political wrangling that delayed chemical security legislation for so long and caused the poorly conceived interim congressional authorization for the current program.

Regulation of Exempted Facilities

In this portion of the report Zuckerman identifies the five categories of facilities exempted from CFATS coverage. She ignores the current DHS efforts to harmonize chemical security coverage at two of these categories (MTSA and NRC regulated facilities) and singles out water related facilities for her examples of the errors of expanding the CFATS coverage.

She starts off her argument by stating that:

“These facilities currently fall under the regulatory authority of the Environmental Protection Agency (EPA) and are already subject to risk management and emergency plan­ning requirements under the Safe Drinking Water and Clean Water Acts.” (pg 8)

There are two problems with this tired argument. First the majority of the CFATS covered facilities also come under risk management and emergency planning requirements under a variety of EPA and OSHA regulations. Of course none of these cover prevention of terrorist attacks; that is why chemical security regulations were deemed necessary.

Secondly, the weak and unenforceable (even if EPA did have security inspectors) water security regulations only require larger water facilities (with more than 3500 customers) to conduct a security vulnerability assessment of threats to water quality. There are no security standards set with which these facilities must comply and certainly no EPA effort to regulate the security of toxic chemicals (principally chlorine gas, but a number of other toxic release hazards as well) at these facilities.

She concludes with the tired argument that “any shutdown due to regula­tory non-compliance would likely have large effects on public health and well-being” (pg 8). The suggestion that DHS would shut down non-compliant water treatment facilities is a non-argument that has been specifically addressed in every legislative effort to add water treatment facilities to the CFATS program.

Finally, Ms. Zuckerman ignores the most powerful argument against adding the water treatment industry to the CFATS program. Such coverage would more than double the number of facilities covered under the program with the vast majority of those facilities falling under Tier 1 or Tier 2 coverage. This would certainly exacerbate the current work-load problems ISCD is experiencing.

Of course, DHS is well aware of this problem and have included in all of their latest suggestions for CFATS coverage of water facilities that EPA actually take charge of the security at those facilities using the CSAT tools for the administration of that program. Unfortunately, DHS and EPA can begin working out the details of such a program but it would take specific congressional authorization to implement as EPA has even less authority to require security measures than does DHS.

Inherently Safer Technology Mandate

Zuckerman reports the rhetoric of the IST debate fairly well. Unfortunately no effort was made to examine any of the actual legislative proposals that have been submitted in either the House or the Senate over the years. The political proponents of mandating the consideration of IST implementation have been careful to moderate their proposals by having the implementation requirements to be based upon the assessment of potential methods done by facility management. Industry and its political supporters have generally been unwilling to discuss how such proposals could be modified into a workable proposal.

The report does briefly address the fact that a number of facilities have already availed themselves of IST implementation measures to remove themselves from the CFATS regulatory regime; noting that:

“In fact, more than 2,000 chemical facili­ties are no longer deemed high-risk and are no longer subject to CFATS, due to voluntary risk-reduction measures.” (pg 8)

She doesn’t address, however, the problem that ISCD doesn’t have a formal mechanism for reviewing those changes to determine how those ‘risk reductions’ were achieved. Many methods of risk reduction at a facility are really nothing more than risk transfer; moving the risk to other manufacturing facilities, storage facilities or transportation nodes. Other risk reduction moves are little more than gaming the system like the industry change of a standard 20% aqueous ammonia concentration to 19% to avoid the material being covered under CFATS.

The issue of IST as a security measure is more complex than the discussion provided in this report. It deserves a more detailed review that provides both sides with a clearer understanding of the positions of the two sides so that a compromise might be achieved in this area where there is legitimate potential for gains in absolute security for many chemical facilities.

EPA Authority Under the Clean Air Act

This final heading under the section concerning potential legislation provides Ms. Zuckerman another chance to provide a superficial examination of the rhetoric of the situation rather than address the actual issues involved. She focuses on the fact that this suggested regulation is an alternative method of enforcing IST requirements that are being politically stalled in Congress, but fails to address the precarious legal justification being used (see my more detailed discussion in my blog post on HR 6345) to forward this proposal. She also fails to mention that the proponents of this idea have gone beyond addressing a letter to the President; there are reports that a formal petition has been filed with the EPA requesting enforcement under the General Duty Clause.

The superficial discussion of the issues involved allows Ms. Zuckerman to jump to another conclusion based upon facts not addressed in the report. She closes this section by stating that:

“But, not only would the Clean Air Act proposal undermine one of the few things CFATS gets right—the restriction on the federal govern­ment from proscribing specific secu­rity measures—it would also likely impose overlapping and confusing requirements and additional cost burdens [emphasis added] on facilities already regu­lated by CFATS.” (pg 9)

While almost anyone in industry would agree with this statement by Ms. Zuckerman there is nothing in the preceding paragraphs that addresses these issues. A political commentator might be able to get away with such a leap in a blog post or editorial, it is considered ill form in a purported background information report.

Almost to the End

Well there is just one more section of this Heritage Foundation report left to look at and I’ll cover it in a later blog.