EO 13650: Another Request for Input

This evening I received and interesting email from the EO 1650 Working Group (it does pay to sign up for mailing lists) about their on-going attempts to comply with §6(a) of the Improving Chemical Safety and Security Executive Order. This section addressed the modernization of “key policies, regulations, and standards” in three general areas:

• Identifying identifies improvements to existing risk management practices through agency programs, private sector initiatives, Government guidance, outreach, standards, and regulations;

• Engaging key stakeholders to discuss the options and other means to improve chemical risk management that may be available; and

• Developing a plan for implementing practical and effective improvements to chemical risk management identified above.

The email announced that in support of these objectives the Working Group was soliciting public input. The email contained a link to an OSHA web page that provided a rather lengthy discussion (it took up 23 pages of a .PDF document attached to the email) of the programs affected and some of the options that are already being considered. Skimming the document it looks like there is only minimal overlap between this feedback request and the earlier OSHA PMN request for information.

It does include a solicitation of pubic input. Comments may be submitted via the Federal eRulemaking Portal (www.regulations.gov; Docket # OSHA-2013-0026). Comments should be submitted by March 31^st, 2014. This date is almost five months past the ‘deadline’ (November 5^th 2013) set forth in the EO for the §6(a) requirements. Well I never did really expect those deadlines to be met; this is way too complex and requires public input. The almost 90-day comment period is certainly a minimum amount of time to expect the sort of detailed responses being submitted.

The §6(a) request is a lengthy document addressing some very complex chemical safety and security issues. I should have a chance to read it this weekend and start some blog posts about interesting details.

NPPD Publishes Chem EO Listening Sessions Notice – 11-19-13

The DHS National Protection and Programs Directorate (NPPD) published a notice in today’s Federal Register (78 FR 69433-69434) announcing the next two public listening sessions being held jointly with OSHA and EPA concerning the President’s Chemical Safety and Security Executive Order (EO 13650). It also lists the dates for two webinars that will serve a similar purpose.

The notice provides addresses for the previously announced listening sessions in Springfield, IL (today, kinda late huh?) and Orlando, FL (December 11^th). The later sessions are not listed.

The notice lists a new (to me anyway) on-line service for registering for federal government events; www.GovEvents.com. The notice states that:

“If you wish to attend any public listening session and/or a Webinar and/or make an oral comment/presentation at both the in-person and Webinar listening sessions, you must register at www.GovEvents.com. “

As of this writing (06:05 CST) today’s meeting is listed (on page 2) but the December 11^th session is not. The November 25^th webinar is listed, but the December 16^th webinar is not listed. The registration process is relatively painless.

NOTE: This site requires registration, but it has some peculiar rules. Unless you belong to a listed government agency or contractor you have to select ‘government employee/military’ to get through the registration process. They really need a ‘private citizen’ listing if they are going to require the use of this site for meeting registrations. Once registered in their system you can sign in via LinkedIn or Facebook accounts.

OMB Receives ANPRM for OSHA PSM Revision

Yesterday the Office of Management and Budget (OMB) announced that it had received an advanced notice of proposed rulemaking from the Occupational Safety and Health Administration for possible modifications of its Process Safety Management (PSM) program.

According to the Spring 2013 Unified agenda this potential rulemaking could include:

• Clarifying the PSM exemption for atmospheric storage tanks;

• Expanding coverage and requirements for reactivity hazards;

• Expanding the scope of paragraph (j) to cover the mechanical integrity of any safety-critical equipment;

• Expanding the scope of paragraph (l) to require greater organizational management of change from employers; and

• Updating §§1910.106 and 1910.107 based on the latest consensus standards. 

While this ANPRM would appear to be in response to requirement in the President’s Chemical Safety and Security Executive Order (EO 13650) to determine if the “PSM can and should be expanded to address additional regulated substances and types of hazards” {6(c)}, it was placed on the Spring Unified Agenda before July 4^th, well before the EO was published.

At this point there is no telling just what changes are being considered. Even when this ANPRM is published it will be more about getting feedback from industry and the public about what types of things should be considered in the rulemaking. There will be no actual language for the potential changes included in this initial document of the rulemaking process.

With the complexity of the issues and the controversies surrounding them, this rulemaking could take quite some time. The ANPRM, however, should move fairly quickly through the review process at OMB. We might see the ANPRM published before Thanksgiving or certainly before Christmas.

It will be interesting to see how long it will take the EPA to initiate a similar rulemaking process for their Risk Management Program. There was nothing in the Spring Unified Agenda to indicate that such a rulemaking was already in progress when the EO was published. 

Chemical Safety and Security Working Group and the CSB

The next set of deadlines for the Chemical Safety and Security Working Group, November 5^th, is fast approaching and as we all know the federal funding fiasco is not allowing any actual work towards achieving the goals that are targeted for completion on that date. This hiccup isn’t helped when the Working Group doesn’t even start working on at least one of the problems until the bureaucratic last minute.

In an article on the Chemical Engineering News (CEN) web site describing the FFF effects on the Chemical Safety Board, the Managing Director of the CSB, Daniel Horowitz is quoted as saying:

“All of that is frozen at this point,” Horowitz says. “We were also commencing discussions with other agencies about the presidential executive order on chemical safety and the effort to coordinate prevention and response efforts across the federal sector. The first meeting [emphasis added] was scheduled for last week and did not occur due to the shutdown.”

Now I understand that there is a certain amount of conflict between the CSB and two members of the Working Group (EPA and OSHA) over a number of outstanding recommendations by CSB. And the public chastising that CSB regularly issues regarding those recommendations does not make anyone at those two agencies real happy. In fact, I have privately heard complaints from EPA officials about the failure of CSB to play nice.

This is, of course, one of the reasons that the President included the following paragraph in his Executive Order (EO 13650):

“Within 90 days of the date of this order, the Working Group shall consult with the Chemical Safety Board (CSB) and determine what, if any, changes are required to existing memorandums of understanding (MOUs) and processes between EPA and CSB, ATF and CSB, and the Occupational Safety and Health Administration and CSB for timely and full disclosure of information. To the extent appropriate, the Working Group may develop a single model MOU with CSB in lieu of existing agreements.” {§4(c)}

Now I do not know why the first meeting was not scheduled until almost 60 days into the 90-day deadline, but it certainly does not bode well for working out a solution to the conflicts between the CSB and the EPA, OSHA and the Justice Department. Writing a memorandum of understanding between cooperative agencies within the same department (see ISCD and the Coast Guard on CFATS-MTSA coordination) can be a time consuming process as the agencies try to work out methods of avoiding stepping on each other’s toes. Where the agencies have active and ongoing public conflicts that process would be difficult enough to complete in 90 days. Cutting out the first 60 days before discussions are even started is a recipe for failure.

I suspect that the Working Group and the CSB management all understand this and that the delay in scheduling this meeting has not been because of the deadline being overlooked. I suspect that there has been on-going negotiations about the ground rules for the meeting and behind the scenes negotiations about the scope of the MOU changes.

When the November 5^th deadlines are inevitably missed everyone will obviously point at the Congressional funding fiasco as the reason. With many of the other requirements to be completed by that date, that may be a legitimate blame-game operation. With this particular requirement Congress does really not deserve to be saddled with the responsibility; at least because of the current spending issue.

A lot of the conflict between the CSB and other federal agencies could have (should have) been foreseen when the agency was established by Congress. Instead of setting up a chemical version of the Transportation Safety Board, Congress half-stepped and set up a Transportation Safety Board Lite. The President’s EO is trying to correct those deficiencies by fiat and it just won’t work.

Without congressional action to restructure the relationships between the CSB and the other federal agencies responsible for chemical safety it is going to take concerted action by the White House to get these agencies to cooperate. A single paragraph in a related executive order is not going to get it done. And it certainly can't be fixed in 90-days.

Updates on Chemical Safety and Security WG – 09-27-13

While there still haven’t been any real public comments on the progress being made by the Chemical Safety and Security Working Group, I am hearing some unofficial information about the current status of the implementation of the President’s executive order (EO 13650).

Interagency Pilot Program

It still seems as if the most progress is being made on a program that was actually started before the EO was signed. The Effective Chemical Risk Management Project (ECRM2) is underway in the New York – New Jersey area and includes a variety of State, local and federal agencies trying to coordinate chemical safety and chemical security programs in that area. A couple of group meetings have been held and a variety of working groups established.

I’m hearing that the group, rather than trying to create a program out of whole cloth, is trying to leverage the Local Emergency Planning Committee (LEPC) structure already mandated under the EPAs Emergency Planning and Community Right-to-Know Act (EPCRA)[Updated 9-27-13, 12:20 CDT, in response to reader comment - see below]. Now I’ve commented on the short comings of the LEPC program a couple of times and the ECRM2 project seems to be running into some of the inherent problems with that program.

The EPCRA [Updated 9-27-13, 12:20 CDT, in response to reader comment - see below] program calls for the States to establish the LEPCs and only gives the broadest guidelines of how those committees are to be established and operated. Most importantly from my perspective is that there is no federal funding of these groups and no federal oversight. This means that there are 50 (or more) different implementations of the LEPC structure with varying degrees of effectiveness.

The differences between the two programs in New York and New Jersey give a good perspective on this, especially when the ECRM2 is trying to overlay a new federal working group structure on top of the existing structure. In New York the LEPCs are run at the county level and are more closely controlled by the State so there is a certain level of homogeneity in the local programs. New Jersey takes more of a home-rule approach where the LEPCs are organized at the county, city or even neighborhood level and there is very little supervision. This leads to a wide variety of organizations and the effectiveness depends mainly on the drive of local personalities (a very common problem with the LEPC program).

If the ECRM2 is able to come up with a coordinated federal, State and local program that can be overlaid on these two different styles of LEPCs, they should be able to expand the program to a national level. I wish them the best of luck.

Working Group Progress

The Working Group and its sub-groups continue to slog away at the various problems set before them by the President. The biggest problem that they appear to be facing is the short deadlines included in the EO. As the various deadlines approach there is going to be more of distractive debate whether the Working Group should spend time ginning up some sort of report that ‘meets the deadline’ but doesn’t really accomplish anything or whether they should bite the bullet and tell the President, and the public, that they need more time to get something worthwhile done.

This is the same problem that NIST is going to face in a couple of weeks. Their October 10^th deadline to have a Preliminary Cybersecurity Framework published in the Federal Register is fast approaching. The work of the 4^th Workshop, by all reports, didn’t get them close enough to have a real document ready for the printers by that deadline. If the recently announced 5^th Workshop is really an effort to get the document into publication shape, then NIST will miss the deadline, but will have a better chance of having a workable Framework. I’m afraid, however, that this will just be a public meeting to try to fix a poorly prepared, but on-time document.

It will be interesting to see how the Working Group responds to this problem. I’m hoping that the lack of a public report on the ECRM2 project is a sign that the Working Group is waiting for concrete results instead of just going for the empty-accomplishment announcement route.

I will suggest to the Working Group, though, a lesson I’ve learned in a long professional life. If you have to miss a deadline, tell your boss (the President and the Public in this case) about it in advance with an explanation of what the problems are. The complaints and threats are not nearly as bad that way.

Chemical Safety and Security EO – First Deadline Passed

This is part of a continuing series of blog posts discussing President Obama’s recently signed executive order on “Improving Chemical Facility Safety and Security” (EO 13650). The other posts in the series are:

Chemical Safety and Security EO

Chemical Safety and Security EO – Improving Coordination

EO 13650 – The Clock Starts Ticking

Chemical Facility Safety and Security Working Group

More on Working Group Meeting

Chemical Safety and Security EO – DHS CFATS Actions

Chemical Safety and Security EO – Information Sharing

Chemical Safety and Security EO – Reactive Chemical Hazards

Reader Email – Reactive Chemistry

Water Facility Security

It has been a while since I’ve written on this EO and I thought that since the first deadline set by the President has passed it might be appropriate to look at where things stand.

45 Day Deadline

The first deadline set in the EO was a 45-day deadline that expired on September 21^st. As I noted in the ‘Clock Starts Clicking’ post this deadline was for the establishment of a pilot program that I described this way:

The Working Group shall deploy a pilot program, involving the EPA, Department of Labor, Department of Homeland Security, and any other appropriate agency, to validate best practices and to test innovative methods for Federal interagency collaboration regarding chemical facility safety and security.

While this requirement was technically met before the EO was signed I had really hoped for a press release from the Working Group on the progress on the pilot program. There has been nothing that I have seen publicly about this pilot program. I know that it exists and I know that at least initial organizational meetings have taken place, but this initial attempt at interagency cooperation on chemical safety issues is being oddly kept quiet.

Next Deadline

The next deadline set in the EO, the 90-day deadline, will arrive on November 5^th. There is a rather extensive set of requirements that the President set for achieving by that date; I’ll refer readers back to the ‘Clock Starts Clicking’ post for the whole list. I understand that the Working Group, its various sub-groups and the Departments involved are working on these projects and a lot of this must take place out of the public view.

A few, however, should certainly involve some serious public discussion. They include:

The Working Group shall develop options for improved chemical facility safety and security that identifies improvements to existing risk management practices through agency programs, private sector initiatives, Government guidance, outreach, standards, and regulations

The Secretary of Homeland Security, the Secretary of Labor, and the Secretary of Agriculture shall develop a list of potential regulatory and legislative proposals to improve the safe and secure storage, handling, and sale of ammonium nitrate and identify ways in which ammonium nitrate safety and security can be enhanced under existing authorities.

The Administrator of EPA and the Secretary of Labor shall review the chemical hazards covered by the Risk Management Program (RMP) and the Process Safety Management Standard (PSM) and determine if the RMP or PSM can and should be expanded to address additional regulated substances and types of hazards.

The EPA and the Department of Labor shall develop a plan, including a timeline and resource requirements, to expand, implement, and enforce the RMP and PSM in a manner that addresses the additional regulated substances and types of hazards.

The Secretary of Homeland Security shall identify a list of chemicals, including poisons and reactive substances, that should be considered for addition to the CFATS Chemicals of Interest list.

The Secretary of Labor shall identify any changes that need to be made in the retail and commercial grade exemptions in the PSM Standard.

I would have expected to see at least a couple of requests for information published in the Federal Register by now on these topics by now. With the deadline approaching it is probably too late for a formal public comment period to initiated and still have time for the agencies to read, review and incorporate the information in their response to the President. And that is too bad as there are certainly a wide variety of ideas available to look at for ways of addressing these issues.

I think it would be beneficial for the Working Group to look at the public participation that has been the hallmark of the response to the President’s cybersecurity EO. That would be a very good working model for continued work on this complex and important issue.

Chemical Safety and Security EO – Improving Coordination

This is part of a continuing series of blog posts discussing President Obama’s recently signed executive order on “Improving Chemical Facility Safety and Security”. The initial post in the series was:

Chemical Safety and Security EO

Existing Programs

There are a number of chemical safety and security programs already in place at the federal level. The White House press release that accompanied the initial publication of the Executive Order outlines some of those programs and I am including some that the White House ignored/missed. The federal chemical safety and security programs include:

• EPA’s Risk Management Program (RMP);

• EPA’s Emergency Planning and Community Right to Know Act (EPCRA);

• OSHA’s Process Safety Management (PSM) standard;

• OSHA’s Chemical Plant National Emphasis Program (NEP);

• DHS/NPPD’s Chemical Facility Anti-Terrorism Standards (CFATS) program;

• DHS/NPPD’s Ammonium Nitrate Security Program (ANSP), under development;

• DHS/CG’s Maritime Transportation Security Act (MTSA) program;

• DOJ/ATF’s Federal explosives regulations;

• DOC’s Chemical weapons convention program;

• DOT’s HAZMAT rail shipping security requirements; and

• DOT’s HAZMAT truck shipping security requirements.

Additionally, there are a couple of programs that deal with chemical security issues as part of their larger security program (and are specifically exempted from the CFATS program).

• EPA’s Water treatment facility security program;

• EPA’s Waste water treatment facility security program;

• DOE’s Nuclear weapons security programs;

• NRC’s Nuclear power plant security program;

• DOD’s Facility security programs;

All of these programs operate completely independently of one another, with little or no communications between program administrators. Many chemical facilities fall under multiple programs that require completely separate record keeping and reporting requirements.

On the other side of the equation, there is little if any information sharing between the different programs. Not only is there no mechanism for coordinating efforts, but even if there were the information collection and retention systems are not designed to share information between programs. It is not even clear that the different organizations have the capability to search the information data bases of the other organizations.

This is further complicated by the fact that OSHA and the EPA typically administer many of their programs through administrators of state programs. Those programs will share specific information with the associated federal program, but typically no more than is absolutely necessary.

Chemical Facility Safety and Security Working Group

Section 2 of the Executive Order establishes the Chemical Facility Safety and Security Working Group, referred to throughout the EO as the Working Group. Three agencies will co-chair the Working Group; the Department of Homeland Security, The Department of Labor and the Environmental Protection Agency. The head of each of the agencies (or their designated representative at the Assistant Secretary level) will act as the co-chairs.

Representatives from a similar level at the following agencies will fill out the membership of the Working Group.

• The Department of Justice;

• The Department of Agriculture; and

• The Department of Transportation.

To aid them in their efforts, the Working Group will consult with {§2(b)}:

• The Council on Environmental Quality;

• The National Security Staff;

• The Domestic Policy Council;

• The Office of Science and Technology Policy;

• The Office of Management and Budget (OMB);

• The White House Office of Cabinet Affairs; and

• Such other agencies and offices as the President may designate.

The Working Group will report to the President through the Chair of the Council on Environmental Quality and the Assistant to the President for Homeland Security and Counterterrorism.

Improving Coordination

One of the main reasons for the establishment of the Working Group is to improve the coordination of the various chemical safety and security programs at the federal level. Section 4 of the EO outlines three specific actions the Working Group is supposed to undertake to improve that coordination. They include:

• Deploying a pilot program, involving the EPA, Department of Labor, Department of Homeland Security, and any other appropriate agency, to validate best practices and to test innovative methods for Federal interagency collaboration regarding chemical facility safety and security within 45 days {§4(a)}.

• Creating comprehensive and integrated standard operating procedures for a unified Federal approach for identifying and responding to risks in chemical facilities (including during pre-inspection, inspection execution, post-inspection, and post-accident investigation activities), incident reporting and response procedures, enforcement, and collection, storage, and use of facility information within 270 days {§4(b)}.

• Determining what, if any, changes are required to existing memorandums of understanding (MOUs) and processes between EPA and CSB, ATF and CSB, and the Occupational Safety and Health Administration and CSB for timely and full disclosure of information within 90 days {§4(c)}.

Fortunately, the activity with the shortest time frame was actually begun last Tuesday. An interagency working group put together a pilot program called the ‘Effective Chemical Risk Management Project, Federal Region 2’ (ECRM2). The team held their first meeting last Tuesday. It consisted of representatives from:

• EPA Region 2 – Co-Chair

• USCG District 1 – Co-Chair

• DHS (OIP) Region 2

• TSA Region 2

• ATF Region 2

• OSHA Region 1

• DOT (PHMSA) Region 2

• NJDEP (NJ Dept of Environmental Protection)

• NYS DEC (NY Dept of Environmental Conservation)

• NYC OEM (NYC Office of Emergency Management)

It will take longer than 45 days to see significant action from this group, but it is certainly a first start. Besides the EO only calls for the group to be stood up in 45 days and that has effectively been done. It would be interesting to see if the other two deadlines are also met.

Chemical Safety and Security EO

Today the President signed an new executive order (number will be published when this goes to the Federal Register, probably next week) addressing the improvement of safety and security at chemical facilities. Most of the plan deals with increasing cooperation and coordination between all levels of government and between all government agencies that have at least some responsibility for chemical safety and security.

There are a couple of specific issues that call for action by the CFATS folks (ISCD/NPPD at DHS). They include:

Within 90 days of the date of this order, the Secretary of Homeland Security shall assess the feasibility of sharing Chemical Facility Anti-Terrorism Standards (CFATS) data with SERCs, TEPCs, and LEPCs on a categorical basis. §3(c)

Within 90 days of the date of this order, the Secretary of Homeland Security shall identify a list of chemicals, including poisons and reactive substances, that should be considered for addition to the CFATS Chemicals of Interest list. §6(d)

There are a wide variety of other safety and security actions that will have to be undertaken by the Chemical Facility Safety and Security Working Group (CFSSWG). That group will be co-chaired by the Secretary of DHS, Secretary of Labor, and the Administrator of the Environmental Protection Agency; the three groups with primary legal responsibility for chemical safety and security laws. The CFSSWG will also include representatives from the Department of Justice, Agriculture and Transportation.

I’ll have more on this later today.