UAVs for CBRN Sampling

There is an interesting article over at I-HLS.com that describes the operation of the US Army’s new Stryker Nuclear Biological Chemical Reconnaissance Vehicle. The article highlights the operational capabilities of the relatively new vehicle system (including the carried CBRN reconnaissance UAV), while neglecting the shortcomings that the Army identified in their testing program. Still the idea of using a drone for conducting rapid chemical and radiological surveillance is a worthwhile concept.

How many times have we seen news footage of ominous dark clouds from fires at chemical facilities while the same news reports quote regulatory officials claiming that groundside atmospheric monitoring detects ‘no chemicals of concern’. If those officials were able to sample within that very large cloud, they might provide a very different and more complete description of the downwind hazard.

Emergency response managers with a significant number of chemical facilities (or even just one or two with particularly noxious toxic chemicals on hand) might find it worthwhile to invest in such UAVs to be launched from Fire Department chemical response vehicles. This would allow first responders to have real-time data about the location and concentration of airborne chemicals during incidents.

Review - PHMSA Publishes Train Consist Final Rule

Today, DOT’s Pipeline and Hazardous Materials Safety Administration (PHMSA) published a final rule in the Federal Register (89 FR 52956-52994) on “Hazardous Materials: FAST Act Requirements for Real-Time Train Consist Information”. This final rule implement the requirements of §7302(a)(1) of the Fixing America's Surface Transportation Act (49 USC 20103 Note) to require that Class I railroads provide a real-time train consist information to emergency response personnel that “are involved in the response to, or investigation of, an accident, incident, or public health or safety emergency involving the rail transportation of hazardous materials”. The notice of proposed rulemaking for this action was published [removed from paywall] on June 27^th, 2023.

This rulemaking addresses three major issues:

Definition of “Train Consist Information”,

Notice to Train Crews, and

Emergency Response Information Sharing Requirements.

Compliance Dates

The effective date for this rule is July 24^th, 2024.

The voluntary compliance date for this rule is June 24^th, 2024.

The compliance date for Class I Railroads is June 24^th, 2025.

The compliance date for Class II and Class III Railroads is June 24^th, 2026.

 

For more details about the provisions of the final rule, see my article at CFSN Detailed Analysis - https://patrickcoyle.substack.com/p/phmsa-publishes-train-consist-final - subscription required.

Review - EPA Publishes Accidental Spill Prevention Final Rule

Today, the EPA (finally) published a final rule in the Federal Register (89 FR 17622-17692) on “Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act; Safer Communities by Chemical Accident Prevention”. The notice of proposed rulemaking (NPRM) was published on August 31^st, 2022. The regulations will be effective on May 10^th, 2024. A large number of changes were made to the final rule based upon the comments that the EPA recieved on the NPRM.

Commentary

This rulemaking was long-time in the making. And coming this late in Biden’s first term, this is a rule that a Trump Administration will be quick to overturn. Since some of the compliance measures are going to require expensive capital change to facilities, I would expect many facilities to be slow to implement the changes required by this new rule. Planning will probably move forward, but budgeting for necessary changes will not be done until after the first Tuesday in November.

 

For more details about the changes made from the NPRM, see my article at CFSN Detailed Analysis - https://patrickcoyle.substack.com/p/epa-publishes-accidental-spill-prevention - subscription required.

OMB Approves OSHA Emergency Response NPRM

Yesterday, OMB’s Office of Information and Regulatory Affairs (OIRA) announced that it had approved a notice of proposed rulemaking from DOL’s Occupational Safety and Health Administration (OSHA) for “Emergency Response”. The rule was submitted to OIRA on October 30^th, 2023.

According to the Fall 2023 Unified Agenda entry for this rulemaking:

“OSHA currently regulates aspects of emergency response and preparedness; some of these standards were promulgated decades ago, and none were designed as comprehensive emergency response standards.  Consequently, they do not address the full range of hazards or concerns currently facing emergency responders, and other workers providing skilled support, nor do they reflect major changes in performance specifications for protective clothing and equipment. The agency acknowledges that current OSHA standards also do not reflect all the major developments in safety and health practices that have already been accepted by the emergency response community and incorporated into industry consensus standards. OSHA is considering updating these standards with information gathered through an RFI and public meetings.”

The OSHA Emergency Response Rulemaking page has been updated with a link to the Spring 2023 Unified Agenda page for the rulemaking (replacing the Fall 2022 Unified Agenda link). The Fall 2023 Unified Agenda page has been expanded to include sections (which provide little effective information) on:

• Summary of legal basis,

• Alternatives,

• Anticipated costs and benefits, and

• Risks

We could possibly see this rulemaking appear in the Federal Register this week, but I suspect that it will come after Christmas.

OSHA Sends Emergency Response NPRM to OMB

Yesterday the OMB’s Office of Information and Regulatory Affairs (OIRA) announced that it had received a notice of proposed rulemaking from DOL’s Occupational Safety and Health Administration (OSHA) on “Emergency Response”. This new standard would replace in entirety the existing 29 CFR 1910.156, Fire brigades.

According to the entry in the Spring 2023 Unified Agenda for this rulemaking:

“OSHA currently regulates aspects of emergency response and preparedness; some of these standards were promulgated decades ago, and none were designed as comprehensive emergency response standards.  Consequently, they do not address the full range of hazards or concerns currently facing emergency responders, and other workers providing skilled support, nor do they reflect major changes in performance specifications for protective clothing and equipment. The agency acknowledges that current OSHA standards also do not reflect all the major developments in safety and health practices that have already been accepted by the emergency response community and incorporated into industry consensus standards. OSHA is considering updating these standards with information gathered through an RFI and public meetings.”

According to the OSHA website’ slightly dated page for this rulemaking:

“The primary focus of the Emergency Response rule would be to protect workers who respond to emergencies as part of their regularly assigned duties. Examples include: fire brigades/workplace emergency response teams, industrial and municipal fire fighters, technical rescuers, emergency medical service providers, etc. OSHA does not intend to regulate those first responders solely engaged in law enforcement, crime prevention, or security.”

HR 861 Introduced - Alerting Localities of Environmental Risks and Threats Act

Last month Rep Blunt-Rochester (D,DE) introduced HR 861, the Alerting Localities of Environmental Risks and Threats Act of 2021. The bill would amend the Emergency Planning and Community Right-To-Know Act (EPCRA) to require covered facilities to hold public meetings about any reportable release and annual meetings about reportable chemicals held on-site.

Post-Release Meetings

Section 2(a) of the bill would require facilities subject to the incident reporting requirements of 42 USC 11004, in the event of a reportable release, to hold a public meeting about the incident. Public notice of the meeting would be posted within 72 hours of the release. The meeting would provide the attending public with the reportable information set forth in §11004(b)(2).

Annual Meetings

Section 2(b) of the bill would add a new §306 to EPCRA that would require facilities subject to EPCRA reporting requirements to hold an annual public meeting to provide the attendees with information about the covered chemicals held on site. The information would include {new §306(2)}:

• The chemical name of each substance on the list published under section 302(a) [42 USC 11002(a)] that was present at such facility, in an amount in excess of the threshold planning quantity established for such substance under such section, at any time in the preceding calendar year,

• An estimate of the maximum amount of each such substance present at such facility during the preceding calendar year, and

• The details of the methods and procedures to be followed to respond to a release of such a substance pursuant to the applicable emergency plan prepared under section 303(c) [42 USC 11003(c)].

The section specifically allows the facility to maintain existing trade secret protections under §11042.

Moving Forward

Blunt-Rochester and three of her ten cosponsors {Matsui (D,CA), Schakowsky (D,IL), Soto (D,FL)} are members of the House Energy and Commerce Committee to which this bill was referred for consideration. This means that there should be sufficient influence for this bill to be considered in Committee. Republicans could be expected to oppose this bill because of ‘security concerns’ (see more in the Commentary section below). The bill would be expected to pass in Committee and on the floor of the House along mainly party lines.

Commentary

This bill addresses an on-going issue about the information that the public is entitled to know about the hazardous chemical inventories at local facilities. EPCRA was intended to ensure that the public was aware of the potential chemical threats in their communities. Up until 2001, the EPA maintained a searchable web site that made the information reportable under EPCRA available to the public. After the 9/11 attacks, however, that web site was taken down due to concerns that it provided potential terrorists with too much valuable information for planning their next attack. The information is still available to the public, but only in-person at a limited number of EPA Reading Rooms around the country.

I think that the very moderate language in this bill goes a long way to balancing those twin concerns, community right-to-know and security. Just as terrorists would not be expected to access this information via the Reading Rooms, they would probably no expose their interest by attending these public meetings.

My only concern is that the bill does not tie this reporting requirement in with the emergency planning requirements of §303 (§11003). Of course, individual facilities are not responsible for those requirements. That falls on the Local Emergency Planning Committee established under §301(c) {§11001(c)}. I would suggest that the following additions be made to the language in this bill to establish this relationship.

First under §2(a) I would add a paragraph (3)(C):

“(C) the facility will invite the Local Emergency Planning Committee to provide meeting attendees that would be prepared to provide a description of the emergency response plan (ERP) required under §303 (42 USC 11003) that was in effect when the incident occurred and any lessons-learned from the actual incident response that would be used to modify the ERP going forward.”.

Finally, under the proposed new §306 I would add a new §306(3):

(3) The facility will invite the Local Emergency Planning Committee to provide meeting attendees that would be prepared to describe the emergency response plan required under §303 (42 USC 11003).

Bills Introduced – 2-5-21

Yesterday, with just the House in session, there were 62 bills introduced. Of those bills one will receive additional coverage in this blog:

HR 861 To amend the Emergency Planning and Community Right-To-Know Act of 1986 to require an emergency notification meeting in the event of the release of an extremely hazardous substance from a facility, and for other purposes. Rep. Blunt Rochester, Lisa [D-DE-At Large]

It will be interesting to see how the bill defines an ‘emergency notification meeting’.

S 3416 – Emergency Response Information Sharing

This is part of a series of blog posts on the recently introduced S 3416, the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2020, which would modify and reauthorize the Chemical Facility Anti-Terrorism Standards (CFATS) program for five years. Other posts in this series include:

S 3416 Introduced – CFATS Reauthorization and Cybersecurity

Information Sharing Strategy

The strategy that I discussed in yesterday’s post is also intended to address “the sharing of information with the local emergency manager, the local emergency response provider, and any on site emergency response provider for a covered chemical facility” {§6(a)}. That strategy would include “guidance on further improving outreach to the local emergency manager, the local emergency response provider, and any on site emergency response provider for a covered chemical facility” {§6(b)(3)}. That guidance would include requirements for:

• A statement of the name or title, organizational affiliation, and phone number of a local emergency manager or local emergency response provider, and any on site emergency response provider, for the covered chemical facility;

• The documented policy of the covered chemical facility to coordinate access to the facility with the local emergency manager, local emergency response provider, and any on site emergency response provider described in sub-paragraph (A), for purposes of training and pre-incident planning; and

• Written documentation by the covered chemical facility that the owner or operator has provided the local emergency manager or local emergency response provider with need to know (within the meaning of 6 CFR 27.400(e), or any successor thereto) and appropriate chemical-terrorism vulnerability information credentials the name and amount of each chemical of interest held, stored, or manufactured at the covered chemical facility.

Information Sharing Requirements

Section 15(a) amends 6 USC 622(e) by adding a paragraph (6), Sharing Information with Emergency Response Providers. This new paragraph would require DHS to “make available to State, local, and regional fusion centers and State and local government officials, including officials of State or local law enforcement agencies and emergency response providers” {new §622(e)(6)(B)} information that DHS determines is necessary “to ensure that emergency response providers are capable to effectively prepare for, respond to, and mitigate chemical security incidents at covered chemical facilities”. That information will include:

• The name of the covered chemical facility;

• The address of the covered chemical facility;

• The phone number of the covered chemical facility;.

• The name and Chemical Abstract Service number of each chemical of interest used, stored, or manufactured as specified in the Top-Screen submitted by the covered chemical facility;

• The quantity and concentration of each chemical of interest specified in the Top-Screen submitted by the covered chemical facility; and

• The name or title, organizational affiliation, and phone number of a local emergency manager or local emergency response provider for the covered chemical facility specified in the site security plan of the covered chemical facility.

The bill would require to DHS to use an existing “single information technology infrastructure, information technology platform, online platform, or website” {new §622(e)(C)(i)} for this required information sharing. Presumably this means the Infrastructure Protection Gateway that ISCD established in 2015.

DHS would be required to update this information every 90-days.

Emergency Responder Outreach

The new §622(e)(6) above would also require the Infrastructure Security Compliance Division (ISC) to conduct an outreach to local officials during compliance inspections or audits. Inspectors would be required to {new §622(e)(6)(E)}:

• Contact and notify the local emergency manager or local emergency response provider, and any on-site emergency response provider, identified by the covered chemical facility that there is a covered chemical facility in their response area; and

• Inform the response officials identified by the covered chemical facility of the available secure communications and information technology infrastructure platforms or other mechanisms to obtain additional information.

Commentary

I have two major concerns about the emergency response language in this bill; the lack of definition of key terms and the ‘need to know’ language used.

There are three new terms used in this bill about emergency responders that are unique to the bill and require definitions:

• Local emergency manager;

• Local emergency response provider; and

• On-site emergency response provider.

First-off, I think that the third term ‘on-site emergency response provider’ should be eliminated. If the facility management has not provided an on-site responder with necessary information about all of the chemicals on the site (not just those covered by the CFATS program), the facility has problems that need to be addressed by OSHA, not DHS.

Next, instead of the term ‘local emergency manager’ I would suggest that the terminology that should be used is “the head of the Local Emergency Planning Committee established under 42 USC 11001. Then, instead of ‘local emergency response provider’ the bill should use ‘the head of the fire department that provides coverage for the facility’. Actually, the second term is operationally redundant for most facilities as local fire departments are supposed to be represented on the local LEPC. But that is only true for ‘most’ facilities since there are a number of areas that have no LEPC or the LEPC is not really active.

The bill uses the phrase “with a need to know (within the meaning of section 27.400(e) of title 6, Code of Federal Regulations” to modify the term ‘emergency responders’ wherever there is a requirement to share information with those responders. Now, I understand the need to protect Chemical-terrorism Vulnerability Information (CVI) which is what §27.400 refers to, and ‘need-to-know’ is a key part of that protection.

The CVI information that DHS is required to share under the proposed §622(e)(6) is limited to:

• The name and Chemical Abstract Service number of each chemical of interest used, stored, or manufactured as specified in the Top-Screen submitted by the covered chemical facility; and

• The quantity and concentration of each chemical of interest specified in the Top-Screen submitted by the covered chemical facility

Both of these items of information should be available to the listed agencies via the Environmental Protection Agency. With that in mind, I would like to propose striking the phrase “with a need to know (within the meaning of section 27.400(e) of title 6, Code of Federal Regulations” wherever is used in §622(e)(6) and adding the following at the end of the paragraph:

(f) The information provided in (b) is presumed to be Chemical-Terrorism Vulnerability Information in accordance with 6 CFR 27.400. The individuals listed in (b) with whom that information is to be shared are deemed to have ‘need-to-know’ under §27.400(e)(i).

One final niggly bit; the inclusion of the requirements for the outreach to local emergency responders in §6 of the bill is more than a little confusing since the other part of that section deals with cybersecurity. The emergency response information share provision of § should have been included as part of §15 that proposes the addition of §622(e)(6) probably as part of §15(b).

COVID-19 Chemical Facility Shutdowns

Earlier today an interesting TWEET® from @Kulinowski, the Interim Executive Director of the Chemical Safety Board (CSB) pointed at a valuable document in the CSB archives; “Safety Digest: CSB Investigations of Incidents during Startups and Shutdowns”. It looks at three incidents investigated by the CSB where three major accidents that occurred during startups and shutdowns. Kulinowski noted in her TWEET that: “Should a facility determine it is safer to suspend operations due to coronavirus, extra care must be taken to do so safely.”

She is, of course, absolutely correct, but with COVID-19 shutdowns being for indeterminant periods, careful planning needs to be applied to the period between shutdown and startup. Specific attention needs to be paid to the safety and security of chemicals remaining at the facility during the shutdown. Emergency response planning, both onsite and off, also deserves special scrutiny.

Chemical Safety

Each chemical held on site will have its own unique storage requirements for safely holding the chemicals for an indeterminant length of time. Management needs to determine those needs for each chemical held on site and determine the safety critical and quality critical storage requirements for each. Detailed monitoring plans need to be put into place for safety critical storage conditions with specific response plans should conditions approach safety critical limits.

Monitoring quality critical requirements is not as important on a real-time basis, but quality control testing of materials that were stored outside of normal standards could be an important safety step in the facility startup process. This is very important when auto-reaction or decomposition products could affect the control of startup or production processes.

Plans for either on-site or remote monitoring will have to take into account personnel status changes due to either COVID-19 quarantine or illness of the individuals involved. While on-site isolation of the monitoring team might seem to be a way to avoid subsequent COVID-19 problems, managers need to remember that individuals may transmit the disease up to four-days prior to showing symptoms.

Chemical Security

Chemical security issues, either regulatory or otherwise, are not going to go away during an extended facility shutdown. In fact, criminals or terrorists might decide that shutdown facilities are easier targets due to the decreased number of personnel on site. The eyes and ears of employees moving about the facility during normal operations is a valuable part of the security surveillance system at any facility. The lack of the presence of those employees at the facility will have to be taken into account in a review of the post-shutdown security procedures.

The updated security plan is also going to have to take into account the changing COVID-19 status of personnel involved in on-site patrolling, off-site monitoring and security response. It is very important to ensure that new personnel being brought onto the site are fully briefed on the chemical safety requirements for the facility.

Closed Facilities

It is almost inevitable that there will be facilities that transition from shut-down to closed if the COVID-19 problem persists for very long. With some medical researchers saying that social isolation requirements may need to stay in place for as much as 18 months, there will certainly be companies that go out of business during their COVID-19 shutdowns. It is unlikely that these facilities will undergo an orderly closing process with the removal of unsafe chemicals or chemicals with security issues.

Local governments are going to have to plan for monitoring such facilities after they close and stop funding the shutdown operations. Security companies are likely to be the first reporters of the change in status at these facilities. Law enforcement and emergency responders will need to monitor chemical facilities in their jurisdictions for this potential transition.

Unpredictable Future

COVID-19 is providing an epidemic of proportions that have not been seen since the 1918 flu epidemic. The fact that COVID-19 is transmissible before symptoms show are causing response problems at all levels of society. Chemical facilities need to take this into account and be prepared to update their shutdown plan on almost a daily basis. Planning also needs to take into account the unthinkable; going out of business. Coordination with suppliers, customers and local officials needs to be close and continuous.

And one final item for consideration. The national supply of chemical-qualified truck drivers, particularly those with hazardous material endorsements is already too low. As COVID-19 starts to take its toll on that relatively small community, transportation issues will be an increasing burden on chemical facilities.

HR 3409 Introduced – FY 2020 CG Authorization

Last month, Rep. DeFazio (D,OR) introduced HR 3409, the Coast Guard Authorization Act of 2019. The bill contains one cybersecurity provision and one emergency response provision. The bill is currently scheduled to be considered in the House this week.

Cybersecurity

Section 414 of the bill would require the CG to expand its current Insider Threat Program to include monitoring of “all Coast Guard devices, including mobile devices”. No definition of terms ‘devices’ or ‘monitoring’ is provided.

Emergency Response

Section 309 of the bill would modify two separate sections of 46 USC:

§70107, security plan implementation grants; and

§70132, Credentialing standards, training, and certification for State and local support for the enforcement of security zones for the transportation of especially hazardous cargo

In both sections the term ‘emergency response providers’ would be substituted for the existing term ‘law enforcement personnel’ or ‘law enforcement agency personnel’ where they are used in those sections. The definition of ‘emergency response providers’ is taken from 6 USC 101(6) and still includes ‘law enforcement’ personnel.

Moving Forward

DeFazio is the Chair of the House Transportation and Infrastructure Committee to which this bill was assigned for consideration. That Committee has already amended and adopted the bill in a hearing last month, though the record of which amendments were adopted and the final committee action on the bill is missing from the Committees hearing page.

One of the amendments that was to have been considered (and apparently was, see below) was offered by Rep. Garamendi (D,CA) concerned the application process for the Transportation Workers Identification Credential (TWIC). It would require the CG to establish a pilot program where personnel applying for a merchant mariner credential could jointly apply for a TWIC.

The Committee Report has not yet been published, nor has the amended version of the bill. I suspect that we will see both later today as this bill is supposed to be considered tomorrow under the suspension of the rules process. That would limit debate and require a supermajority for passage. The fact that the leadership is scheduling the bill under this process generally means that they expect the bill to receive substantial bipartisan support.

It is a tad bit unusual for the bill to be considered without the official publication of the reported version of the bill, but the House is trying to get a lot of ‘routine’ measures taken care of before the adjourn for their summer recess at the end of the week. The Majority Leader has provided a link to a revised version of the bill on the current Weekly Leader page; presumably this is the version being reported by the Committee, though it looks like there are additional changes. That may be misleading because of the incompleteness of the Committee’s markup hearing page.

Revised Bill

The two original provisions discussed above remain in the revised bill as does the Garamendi amendment (now §429). Two of the newly added provision need to be addressed here, one is an additional cybersecurity provision and a change to the Maritime Transportation Security Act (MTSA) program.

The cybersecurity provision in §422 would establish a “a rotational research, development, and training program” {new §846(1)} within DHS that would allow Coast Guard Academy graduates and faculty to be detailed to the Cybersecurity and Infrastructure Security Agency (CISA) and allow cybersecurity personnel from DHS to be detailed to the CG Academy.

The MTSA provision is found in a relatively short §317. It would amend 46 USC 70103(b)(3), Maritime Transportation Security Plans. It would require the Secretary to review and approve updates to Area Maritime Transportation Security Plans where the current section only requires review and approval of the original plan. A similar requirement is also put into place for extending the current review and approval of Vessel and Facility Security Plans requirements under §70103(c)(4) to include the updates for those plans.

HR 251 Passed in House – CFATS Extension

Yesterday the House passed HR 251, the Chemical Facility Anti-Terrorism Standards (CFATS) Program Extension Act, by a strongly bipartisan vote of 414 to 3. The debate on the bill was even more one-sided as no one spoke in opposition. The only negative comments dealt with non-security related safety issues at chemical facilities.

It is looking more and more like emergency response and community communications are going to be major issues for the Democrats in the House in crafting a long-term extension of the CFATS program. Both of these issues are certainly related to security programs at these facilities, but the clamor from Democrats makes it clear that they are concerned about these issues at chemical plants that are not currently covered by the CFATS program.

While current EPA and OSHA regulations do address these issues, what is clear is that the proactive enforcement seen with the CFATS program ensures that processes are put in place to address regulatory issues and those processes

 are subsequently maintained. The active CFATS inspection process is much better at ‘enforcing’ regulatory compliance than either the EPA’s or OSHA’s reactive inspection process.

To be fair, both of these agencies cover a much larger (at least an order of magnitude larger) regulated community and neither agency has the budget or personnel available to implement an inspection scheme as effective as the CFATS process.

Perhaps it is time to look at modifying the EPA’s Risk Management Program to establish a special high-risk category of facilities that would be required to comply with a risk-based regulatory process like that seen in the CFATS program where a risk-analysis and risk-prevention planning process were required with an EPA approval of the risk prevention plan with subsequent periodic compliance inspections for plan compliance.

This risk prevention plan would certainly be expected to address the emergency response and community communication concerns that have been expressed by Democrats in their discussions about the CFATS program. Those processes would probably be better covered under the EPA’s mantle of protecting the environment and local communities from accidental chemical releases than under the DHS anti-terrorism standards.

HR 4 Further Amended and Passed in House – FAA Authorization

Today the House finished consideration of the amendments cleared by the House Rules Committee for HR 4, the FAA Reauthorization Act of 2018. They then passed the bill by a strongly bipartisan vote of 393 to 13; the No votes were nearly evenly split between Republicans and Democrats.

There were two remaining amendments from those I described earlier left to be considered today. Amendment #111 (FEMA emergency response plan support) was passed by a voice vote as part of en block amendment 4. Amendment #98 (FAA artificial intelligence report) was not offered during the consideration of the bill either today or yesterday.

The Senate will probably take up the bill with a substitute language amendment that will address a number of different issues with some language in common. This typically would lead to a conference committee to work out the differences between the two bills.

Rules Committee Approves Rule for HR 4, FAA Reauthorization Act

Last night the House Rules Committee held their scheduled meeting to formulate the rule for the consideration of HR 4, the FAA Reauthorization Act of 2018. The rule approved is a structured rule that will allow for consideration of 114 amendments from the floor during the debate on the bill. These included amendments on unmanned aircraft systems (UAS), cybersecurity and FEMA emergency response coordination.

UAS Amendments

There were 14 amendments approved that dealt with UAS operations and regulations. Of those there were five that may be of specific interest to readers of this blog:

# 25 - §3XX. Special rules for model aircraft;

# 26 - §45509. Exception for limited recreational operations of unmanned aircraft;

# 47 - §543. Prohibition regarding weapons;

# 80 - §XXX. Applications for designation;

Amendments # 25 and # 26 address issues related to the non-commercial operation of hobby UAS. They would provide for similar limitations on rulemakings on such hobby aircraft; updating the existing limitations provided by §336 of the FAA Modernization and Reform Act of 2012 (PL 112-95). Both would specifically authorize the existing FAA rule on registering operators of hobby UAS.

Amendment # 47 would prohibit the operation of “an unmanned aircraft or unmanned aircraft system that is equipped or armed with a dangerous weapon” {§543(a)}. The definition of the term ‘dangerous weapon’ is taken from 18 USC 930(g)(2). That definition is very expansive and could be argued to include a UAS if used in an attack. Violation of the provisions of this amendment would be subject to a $25,000 civil penalty.

Amendment # 80 would amend §2209 of the FAA Extension, Safety, and Security Act of 2016 (PL 114-190; 130 STAT. 634). It would add “railroad facilities” {§XXX(1)} to the list of facilities in §2209(b)(2)(c) that can petition to have the FAA restrict the operations of UAS near their facility. It would also require the FAA to initiate a rulemaking to implement §2209 by the end of this year and to complete the rulemaking within one year.

Cybersecurity Amendment

There are two cybersecurity amendments that were approved for floor consideration, neither would be of specific interest to readers of this blog. I will, however, mention one in passing; amendment #97 #98 [Corrected 4-26-18, 2357 EDT] This amendment would require the FAA submit to Congress “a report that contains a cybersecurity and artificial intelligence standards plan for Federal Aviation Administration operations that takes into consideration the influence of cybersecurity on artificial intelligence and of artificial intelligence on cybersecurity”.

Emergency Response Coordination

There are a couple of amendments that would modify Title VI, the Disaster Recovery Reform Act, of the bill. One of those may be of specific interest to readers of this blog. Amendment # 111 would add a new section to the bill: §637 - Guidance and training by FEMA on coordination of emergency response plans.

This new section would require FEMA to “provide guidance and training on an annual basis to State, local, and Tribal governments, first responders, and facilities that store hazardous materials on coordination of emergency response plans in the event of a major disaster or emergency, including severe weather events” {§637(a)}. That guidance and training would include:

• Providing a list of equipment required in the event a hazardous substance is released into the environment;

• Outlining the health risks associated with exposure to hazardous substances to improve treatment response;

• Publishing best practices for mitigating further danger to communities from hazardous substances

Moving Forward

The resolution approving the rule will probably be considered today. The actual consideration of HR 4 could begin this evening. With the number of amendments being considered (even with some en bloc groupings) the bill will not be completed any earlier than tomorrow evening. I expect that the bill will pass with substantial bipartisan support.

Commentary

The two ‘model aircraft’ amendments are going to be problematic for the FAA if adopted. Individually they add a probably necessary level of complexity to the current regulation of UAS. I am surprised that the Committee allowed for the consideration of both of these amendments. While not contradictory, they do take different approaches to regulatory scheme. If both pass (a distinct possibility) the FAA will have additional problems (on top of the complex problems associated with regulating UAS operations) meeting the requirement of both amendments.

Amendment #80 presents an interesting look at one of the specific levels of complexity in the regulation of UAS. The §2209 provisions enacted over two years ago allow the FAA to designate air space around certain types of critical infrastructure as restricted air space. Unfortunately, the tools available to monitor (much less than control) access to that airspace are ineffective at best. Furthermore, enforcement of that restriction (even the basic identification of the offenders) would run afoul of a number of other federal laws and regulations that have yet to be addressed (see my discussion here).

The FEMA amendment is an excellent example of congresscritters trying to do something good but failing miserably because of a total lack of comprehension of the complexity of the problem being addressed. I would certainly love to see FEMA address the issue of coordination of emergency action plans for hazardous material facilities, but this amendment is not the way to accomplish that goal.

Since each class of hazardous substances (and frequently each specific hazardous substance) requires a different type of response and mitigation response, it is effectively impossible for FEMA to complete the requirements of the proposed §637 in any detail. A document already exists that provides general guidance (the PHMSA Emergency Response Guidebook), but as anyone familiar with the document knows, the guides provided are very generic and lack any real specificity.

FEMA already has a number of training programs available that address bits and pieces of the requirements in the amendment. To completely comply with even a basic interpretation of the broadly writing requirements would, however, break the bank at FEMA and endanger their entire training program. To meet these requirments FEMA would need a massive infusion of funds and personnel.

ISCD Publishes CFATS Emergency Response Fact Sheet

Today the DHS Infrastructure Security Compliance Division (ISCD) posted a new fact sheet on the Chemical Facility Anti-Terrorism Standards (CFATS) Knowledge Center.  The fact sheet deals with the implementation of Risk-Based Performance Standard (RBPS) #9, Response in developing a site security plan (SSP) for a CFATS covered facility.

Generally speaking, there not much new here that is not already covered (in slightly more detail) in the RBPS Guidance Document. The one exception is that the fact sheet stresses that there are differences between Security Response Plans and Emergency Response Plans, but that both are required portions of the response planning necessary for site security plans.

One piece of discussion is glaringly missing from the Fact Sheet, the need to plan for backup power, communications and process safeguards. Physical attacks (and natural disasters) are very likely to have negative affects upon these critical areas and any response or recovery plan is going to have to address those necessities.

Both documents fail to completely address coordination with State and local authorities. While they do mention fire, police and emergency medical services, they fail to discuss the role of Local Emergency Planning Committees (LEPCs) in emergency response planning. While not every community has an active LEPC, CFATS facilities should make a positive effort to reach out to whatever LEPC is active in their community to ensure that adequate coordination is made between all effected and affected agencies.

Finally, local hospital emergency departments (with an emphasis on multiple facilities) in the area need to be notified of any chemicals held on site that could require specific (and/or unusual) medical technologies to treat exposed individuals. Where expensive and/or short-shelf-life kits (see my discussion about cyanide kits, for example) the local medical community needs to be aware of these measures so that they can either ensure there is a local stockpile available or that  appropriate sharing agreements are initiated.

Updated DHS Chemical Sector Information

This week DHS, acting as the Chemical Sector-Specific Agency (SSA) supporting the National Infrastructure Protection Plan (NIPP), published a new website that provides information to support the security and safety of small and medium sized chemical facilities. This new page serves as a landing page for chemical facilities to find the resources and information available from the US government and its chemical sector partner agencies.

Information Links

The new page provides links to:

• Chemical Sector Regulatory Authorities (5-26-17);

• Chemical Sector (5-27-17);

• Chemical Sector Resources (04-07-17);

• Chemical Security Analysis Center (no date);

• Chemical Risk Management Self-Assessment Model (08-15);

• Chemical Sector Publications (02-06-17); and

• Chemical Sector: Partnering to Enhance Security and Resilience (04-05-17)

Cybersecurity Support

Chemical manufacturing, warehousing, and transportation companies have specific cybersecurity concerns that extend beyond the standard IT cybersecurity issues with which all public and private sector organizations have to contend. With that in mind, the above listed page have many references to cybersecurity resources. They include:

• DHS Critical Infrastructure Cyber Community (C³) Voluntary Program Small and Midsize Businesses (SMB) Toolkit;

• Stop.Think.Connect.™ Toolkit;

• Cybersecurity for Small Businesses (training exercise);

• Federal Communications Commission Small Biz Cyber Planner 2.0;

• Federal Trade Commission: Protecting Small Businesses;

• Internet Essentials for Business 2.0;

• White Paper: Every Small Business Should Use the NIST Cybersecurity Framework;

• Chemical Sector Cybersecurity Framework Implementation Guidance;

• Protecting Critical Infrastructure

None of the above titles specifically addresses industrial control system security issues. There are references to the topic on two of the pages listed above (Chemical Sector Publications and Protecting Critical Infrastructure). The last only provides a link to arguably the most important DHS ICS cybersecurity site, ICS-CERT. The former provides a section on ICS security which describes a worthwhile DVD resource available upon request from DHS. There is only a passing reference to the ICS-CERT Cybersecurity Evaluation Tool (CSET).

Emergency Response Planning

What is sadly lacking from the resources listed is any significant reference to emergency response planning. The only information provided is a link to a FEMA site that provides generic small business emergency planning guidelines. That information is very limited and provides no mention of chemical emergency response planning.

While emergency response planning is important for all businesses, it is arguably much more important for chemical facilities, especially those with hazardous chemicals on site. The failure of emergency response planning for most businesses will not have significant off-site consequences, but that is not true for many (most?) chemical facilities. While the EPA is vaguely responsible for emergency response planning requirements at the most dangerous facilities, one would think that the Federal Emergency Management Agency (FEMA) would be much more proactive in this area.

HR 2223 Introduced – Rail Spill Fund

Last month Rep. DeFazio (D,OR) introduced HR 2223, the Community Protection and Preparedness Act of 2017. The bill would establish a Rail Account within the Oil Spill Liability Trust Fund (OSLTF). The bill is similar to HR 5786 that was introduced in the 114^th Congress, but significant changes were made to increase the chances of this bill being considered.

Changes

Section 3 of the earlier bill that added new requirements for rail track inspections has been removed from this version. In its place, DeFazio added §5 that would require DOT to report to Congress on rail track inspections. That report would include an assessment of current {§5(1)}:

• Railroad track inspections, including the frequency of inspections;

• Training provided to railroad track inspectors and related railroad personnel;

• Railroad compliance with Federal track safety regulations; and

• Federal oversight of railroads with respect to track safety

Another change is the addition of a new §3 that would require the DOT’s Pipeline and Hazardous Material Safety Administration (PHMSA) to complete their rulemaking on “Oil Spill Response Plans and Information Sharing for High-Hazard Flammable Trains”.

Moving Forward

DeFazio is the Ranking Member of the House Transportation and Infrastructure Committee and thus should be in position to move this bill forward to consideration by that Committee. The earlier bill drew too much opposition from railroads due to the costly track inspection requirements for the Committee to approve the bill. This was almost certainly the reason that the bill was not considered in the last session.

The removal of those track inspection requirements should remove the opposition of the railroads. In fact, there could be a quiet endorsement of this bill by the railroads as it would increase the costs to shippers of flammable liquids thus potentially reducing some of those shipments. This would help reduce railroad liability for accidents involving these hazardous materials. The presence of the Rail Fund in the OSLTF to help fund response training would also reduce calls for additional railroad funding of such training.

The main thing holding up consideration of this bill remains the opposition of the flammable liquid shippers to having to pay for the Rail Fund. That opposition is not as organized as the railroads were in their earlier opposition. That combined with the general Republican opposition to federal regulations may be enough to derail this bill. If the bill is considered by the Committee, the chances of it passing in the House would be much higher than I currently expect it to be.

Commentary

From a hazmat transportation safety perspective, the main problem with the OSLTF remains the limitation of consideration of spill response as a water contamination issue. Continuing to ignore the fire and explosion hazard related to these spills means that this fund will have little or no effect on the planning for, and spending on, responding to the biggest hazard for flammable liquid accidents in or near urban areas.

From a legal point of view, the easiest way to do this would be to either create a new hazardous chemical spill liability fund that would be completely separate from the current OSLTF. That way the new fund could be more appropriately targeted in the scope of emergency response planning and support. From a political point of view that is not going to happen absent a really huge hazmat transportation incident.

This bill tries to take the more politically expedient approach of adding a more generalized hazmat response under authority of 49 USC 5116 for a subset of the OSLTF established as the Rail Fund. The problem with this is that the folks currently administering the OSLTF are experienced and focused on the issues of protecting water from oil spills, not responding to fires and explosions. This involves two completely different sets of planning and response activities.

Having said that, I think that this is probably the most expedient method of dealing with an expensive and complex issue. It is not going to be really effective, but it will be more effective than what we currently have. We have to remember that politics is, at its heart, the art of the possible.

PHMSA Publishes Train Consist ANPRM

Earlier this week the DOT’s Pipeline and Hazardous Material Safety Administration (PHMSA) published an advance notice of proposed regulation (ANPRM) in the Federal Register (82 FR 6451-6456) concerning electronic train consists for Class 1 railroads that transport hazardous materials. This rulemaking supports a congressional mandate from the Fixing America's Surface Transportation (FAST) Act of 2015 (§7302, PL 114-94).

Section 7302 required the DOT Secretary to issue these regulations within one year of the passage of HR 22 which occurred on December 4^th, 2015. This would authorize DOT to go directly to a final rule. Instead DOT is publishing this ANPRM to gather data to support the Regulatory Impact Analysis (RIA) of this rulemaking.

PHMSA is asking four categories of questions to provide the requisite information. The categories are:

• Affected entities questions, 3 questions;

• Baseline questions, 11 questions;

• Implementation questions, 8 questions;

• Costs questions, 8 questions; and

• Benefits questions, 3 questions.

 PHMSA is requesting public comment on this ANPRM. Comments may be submitted via the Federal eRulemaking Portal (www.Regulations.gov; Docket # PHMSA-2016-0015). Comments should be submitted by April 19^th, 2017.

Political Note: While President Trump has issued a directive to all Federal agencies to suspend rulemaking activities pending approval of his appointees, that should not be expected to stop this rulemaking. The FAST Act was passed by a Republican-controlled Congress that mandated that this rulemaking should proceed. The Trump administration is unlikely to stop this rulemaking and is legally obligated to proceed with this action.

Flammable Liquid Spill Response

Earlier this week there was a chemical spill at a manufacturing facility in in the Pittsburgh, PA area. News reports (here and here) did not name the flammable liquid chemical involved, but did note that nearby businesses and a local college were evacuated in response to the spill of an estimated 200 gallons.

Were the evacuations an expensive over-reaction? Without knowing the chemical involved and what information was initially available to the local emergency response agencies I really cannot say. But, there are certainly situations where even such a small spill might require at least this level of response.

Flammable Liquids

The term ‘flammable liquids’ covers a wide variety of chemicals with a significant spread of potential hazards. The US Department of Transportation, for instance describes a flammable liquid as any liquid with a flash point of less than 140°F. Flashpoint describes the temperature above which a liquid will ignite if an ignition source (open flames, sparks, or electrical arcing) is placed above the liquid surface.

Generally speaking, the lower the flashpoint, the lower the energy needed in the ignition source sources to ignite the flammable liquid. For some liquids, an actual flame source will be required, while others only require a static electricity discharge to ignite the liquid.

So the most obvious concern with the spill of a flammable liquid is the potential for a fire. In a situation where the liquid is confined within a diked area and there are no ignition within that contained area, the risk of a fire is relatively low; unless….

Another area of concern with flammable liquids is the evaporation rate and the ‘explosive limits’ for the vapors. As the liquid evaporates it forms a gas cloud above the liquid surface. The size of that gas cloud varies with the local wind speed and obstructions around the spill site, but unless it is in an enclosed and sealed area, the gas cloud will spread generally downwind from the spill site.

The gas cloud is also flammable and could burst into flames if it comes into contact with an ignition source. The likelihood of it bursting into flames is determined by its explosive limits, the range of concentration of the chemical fumes in air at which those fumes ignite. These limits are called the ‘lower explosive limit’ (LEL) and the ‘upper explosive limit’ (UEL) and are expressed as percent of the chemical fumes in air. Generally speaking, the wider the spread between the LEL and UEL, the more of a potential ignition problem that you have.

The reason that this range of concentrations is called the ‘explosive limits’ is that when a gas cloud ignites, almost the entire content of the cloud (within those limits) burns at the same time, releasing all of the energy of combustion in one explosive event. The effects of that explosion can be felt over a much wider area than that of a liquid spill fire. Those effects can include spreading the fire by igniting other flammable materials or just the overpressure shock wave causing physical damage surrounding surfaces and structures.

Other Chemical Effects

All chemicals can potentially have varying negative effects on living organisms, depending on the way the chemical is introduced into those organisms and the amount of the chemical introduced. The degree of the hazard of these negative effects can grossly be described as the toxicity of the chemical.

The important thing to remember is that the degree of toxicity is related to the amount of the chemical entering the body (dose). For chemical vapors the dose is related to the concentration of the chemical in the air and the time of exposure. For toxic inhalation hazard (TIH) chemicals very small/short exposures to the chemical vapors can be life threatening. For most chemicals, however, vapor concentrations have to be very high to be life threatening.

For non-TIH chemicals the potential negative effects of exposure to chemical fumes are quite wide and are often variable for different people. More importantly, those effects will be reduced as the concentrations decrease as the vapor cloud disperses downwind. The further away you are from the initial release the lower the chance that there will be a noticeable negative effect. The safe distance downwind will vary according to the size of the vapor cloud, the wind speed, and, of course, the chemical involved.

Emergency Response

From the discussion above, it is quite obvious that emergency response personnel have to know a lot of information about the chemical involved in a release situation to know what precautions have to be taken to protect both themselves and the public. Simply knowing that a ‘flammable liquid’ has been released does not provide enough information. Unfortunately, knowing the ‘name’ of the chemical may not provide sufficient additional information because you can commercially name a chemical product anything that you want.

The Federal government has established a requirement that every manufacturer of chemicals must produce and make available a Safety Data Sheet (SDS) for every chemical they manufacture. The requirements for a SDS are fairly detailed, but, suffice to say, they are required to provide information on flammability and toxicity that would allow emergency response personnel to understand the hazards associated with a spill. This is the reason that businesses are required to provide copies of SDS to local fire departments for all chemicals stored on site.

The idea behind providing SDSs to local fire departments was that those departments could then plan their responses to incidents at these businesses. Unfortunately, for all but the smallest fire departments, the number of SDS that should be provided to them would number in the hundreds or thousands. I would be surprised if more than a cursory glance is given to any of these SDSs.

No one should expect a local fire department to have a response plan for every chemical that is stored in their area of responsibility. There are just too many chemicals involved and most of them are relatively innocuous without any special hazard.

Even for chemicals with a known hazard (‘flammable liquid’) most fire departments are going to rely on tools like the DOT’s Emergency Response Guide (ERG) to provide the information for the initial response to chemical spills. Only the largest chemical inventories or most hazardous chemicals are going to draw the attention required for advance emergency response planning.

An Over-Reaction?

So the question remains, was this an over-reaction? Maybe a little. Lacking detailed information about the chemical involved and the size of the leaking storage tank one should probably turn to page 194 of the 2016 ERG and equating a storage tank with the guide’s “tank, rail car or tank truck”, a half-mile evacuation would be recommended for a flammable liquid fire. For a spill the recommended ‘initial downwind evacuation’ is only 1000 feet.

Having said that, it is never really a good idea to second guess the people who are making on-the-scene decisions, especially when they are erring on the side caution. Nothing happened this time; no fire and no injuries. If something had happened and there were off-site consequences the decision would have provided more maneuver room for the emergency response personnel.

HR 4765 – HHFT Response Grants

This week Rep. Herrera (R,WA) introduced HR 4765, the Fire Department Proper Response and Equipment Prioritization Act. The bill would require FEMA to give high priority to grants for incident response training for crude oil and ethanol train accidents.

Assistance to Fire Fighters Grants

The bill would amend 15 USC 2229(c), Assistance to firefighters grants, by adding a new paragraph (4) that would require FEMA to “give high priority consideration to grants providing for planning, training, and equipment to firefighters for crude oil-by-rail and ethanol-by-rail derailment and incident response”.

No additional funding is provided.

Moving Forward

Herrera is not a member of the Science, Space and Technology Committee to which this bill has been assigned. Thus it is unlikely that she would be able to influence the Committee to take up this bill. The alternative would be to use this language as a floor amendment to either a FEMA authorization bill or the DHS spending bill. In either case it would be unlikely that there would be any substantial opposition to the amendment.

Commentary

I can sympathize with any congressman that has oil or ethanol trains transiting communities within their district. While there have been a number of high-profile crude oil train accidents in the last couple of years, the actual threat to any given community is quite remote. But if an accident did occur the community would rely on their emergency response personnel to be trained and equipped to handle such a situation.

Many (if not most) communities do not have the spare training and equipment funds to finance operations of such low potential occurrence. This is where local communities tend to turn to the deep (relatively) pockets of the federal government for assistance. Those pockets are not deep enough, however, to fund every community for every year for such training and equipment. And training, if not repeated or practiced frequently, becomes stale and ineffective.

For low frequency, high-impact events like these rail catastrophes would probably be more effectively served by training and equipping a fast acting state or regional response team. The equipment costs for each team would be higher due to having to be able to respond quickly over longer distances (probably require air transport), but it would be lower than training and equipping each fire department along the train routes.

The other problem with this bill and others like it that expand grant uses or influence the grant funding process without providing additional funds it that they really only serve to dilute the limited money available for these grants. Particularly for low frequency events like this, grants to one community will mean that another community with a more likely occurrence that needs grant money will not get it.

Bills Introduced – 03-16-16

Yesterday with both the House and Senate in session there were 40 bills introduced. Of those, two may be of specific interest to readers of this blog:

HR 4765 To provide first responders with planning, training, and equipment capabilities for crude oil-by-rail and ethanol-by-rail derailment and incident response, and for other purposes. Rep. Herrera Beutler, Jaime [R-WA-3] 

S 2694 A bill to ensure America's law enforcement officers have access to lifesaving equipment needed to defend themselves and civilians from attacks by terrorists and violent criminals. Sen. Toomey, Pat [R-PA]

It will be interesting to see how comprehensive (expensive) HR 4765 will be and if it includes a funding source.

Unless this bill includes some mention of chemical protective equipment, it will probably not receive future coverage in this blog.

Note: There is a bill of personal interest that I would like to mention here:

HR 4752 To require the National Aeronautics and Space Administration to investigate and promote the exploration and development of space leading to human settlements beyond Earth, and for other purposes. Rep. Rohrabacher, Dana [R-CA-48] 

It will not be covered in this blog, but if there are positive developments I would expect to write about them on LinkedIn.