House Passes HR 2279

This afternoon the House passed HR 2279, the Reducing Excessive Deadline Obligations Act of 2013, on a mainly party line vote of 225 – 188. Both amendments considered by the House failed by identical votes. With only five Democrats voting Aye it is clear that this bill has no chance of being considered in the Senate, much less passing there. This kills the ineffective explosive and flammable chemical reporting requirement added to the bill by Rep. Waxman (D,CA).

Rules Committee Structured Rule for HR 2279

The House Rules Committee met this afternoon to formulate the rule for the consideration of HR 2279. They adopted a structured rule where there will be limited debate and only two specific amendments may be offered from the floor. The amendments that are listed in the Committee Report (H. Rept 113-322) on H. Res. 455 do not include either of the amendments proposed by Rep. Connelly (D,VA) that I described in my earlier blog post.

This bill will come to the floor for debate tomorrow afternoon and sometime that evening or Friday morning the House will probably vote to pass the bill; generally along party lines. If it were to actually come to the floor in the Senate, it might pass.

Rules Committee to Consider Amendments to HR 2279

The House Rules Committee has published the proposed amendments that have been submitted for HR 2279, a bill that I discussed earlier (here and here). Two of the seven amendments that have been submitted for the Committee’s consideration deal with §106, Explosive Risks Planning Notification.

Both amendments (#4 and #5) were submitted by Rep. Connolly (D,VA). They both would change the one time reporting requirement currently in §106 to a repeating annual requirement. Amendment 4 adds a requirement to make the same report to the Administrator of the EPA and alternatively Amendment 5 adds a requirement to make the same report to the Secretary of DHS.

Neither amendment addresses the issue of this being a hidden requirement that most covered facilities will not readily be aware of. Nor do they address the fact that the wording of the amendment would not affect facilities that store fertilizer grade ammonium nitrate as that is not classified as either a flammable or an explosive under Appendix A, 6 CFR Part 27. Since the impetus for Rep. Waxman (D,CA) submitting the amendment that added what is now §106 was the West Fertilizer accident, this is more than a little surprising.

The Committee will meet this afternoon and determine if these or any other proposed amendments will be included in the rule for the consideration of this bill. That consideration is currently planned for tomorrow, though Waxman is trying to get that consideration postponed.

Rules Committee Announces Hearing for HR 2279

As expected, the House Rules Committee announced today that it would hold it hearing on HR 2279 on Wednesday at 3:00 pm EST. As I mentioned in my earlier post, this bill is an amalgam of three bills (HR 2279, HR 2226, and HR 2318) reported by the House Energy and Commerce Committee.

The provision that I was concerned about (§106) is still in the bill (the amendment process won’t start until the hearing on Wednesday). I haven’t heard if anyone has gotten interested in suggesting the amendment that I proposed as a way of getting accomplished what was putatively supposed to have been achieved by the language in §106.

Suggested Revision to §106 of HR 2279

In an earlier blog I took Rep. Waxman (D,CA) to task for his ineffective amendment to HR 2279. I know that it is easy to criticize but criticism without suggestions for corrective actions serve very little purpose. With that in mind, I have drafted replacement language for the current section 106 in the version of HR 2279 that the House Rules Committee will consider this week.

Section 106 Chemical Hazard Notifications

The Secretary of the Department of Homeland Security (the Secretary), acting through the Director of the Infrastructure Security Compliance Division (the Director) of the National Protection and Programs Directorate will ensure that:

(a) Each State or tribal emergency response commission is notified of each facility within that State or tribal area that reports on a Top Screen submission having a quantity of any release flammable, release toxic or release explosive chemical listed in Appendix A of 6 CFR Part 27 in a quantity in excess of the screening threshold quantity set forth in that Appendix for that chemical. The notification required will include, as a minimum:

(1) The facility name, address and the reported latitude and longitude of the facility;

(2) The name, telephone number and email address of the Top Screen Submitter; and

(3) The name and quantity of each release flammable, release toxic, or release explosive chemical reported on the facility Top Screen;

(b) That each Security Vulnerability Assessment submitted by facilities preliminarily determined by the Secretary to be at high risk of terrorist attack will include information about the Local Emergency Planning Committee (LEPC) for the county in which the facility is located. That information will include, as a minimum:

(1) The name and contact information for the Chair of that LEPC; and

(2) The latest date that the LEPC was contacted with information about the release flammable, release toxic and release explosives chemicals reported on the facility’s most recent Top Screen;

(c) That each Site Security Plan submitted by facilities determined by the Secretary to be at high-risk of a terrorist attack will include information about the coordination conducted by the facility with local police, fire and emergency response agencies concerning their responses to deliberate or accidental releases of release flammable, release toxic or release explosive chemicals from that facility; and

(d) That for the purposes of this section ammonium nitrate, solid (nitrogen concentration of 23% nitrogen or greater) will be considered a release explosive chemical.

This language ensures that there is a proactive effort made by DHS to ensure that each State and tribal emergency response commission knows about the release flammable, release toxic and release explosive chemicals located within its jurisdictions. Unfortunately, DHS will not know about such chemicals in facilities exempted from the CFATS reporting requirements. It would, however, cover each of the 40,000 + facilities that have submitted Top Screens under the current program.

I have expanded Waxman’s explosive notification to include the flammable and toxic chemicals covered in Appendix A as well. Each of these ‘release’ security issue chemicals have been determined by various government agencies to have potential off-site consequences in the event of a catastrophic release at quantities greater than the STQ. Those potential off-site consequences make them all of potential interest to emergency planners and responders.

Again, fertilizer grade ammonium nitrate is not legally considered to be an explosive under any current definition. As we saw in West, TX, however, fertilizer grade ammonium nitrate can have explosive consequences if not stored or handled properly. Thus is should be included in this notification process. The language in paragraph (d) takes care of that.

Paragraphs (b) and (c) expand on Waxman’s original intention by ensuring that there is contact between the facility and their local LEPC and first responders. Without violating the current inane restrictions in the CFATS authorization language, these paragraphs will at least ensure that some level of communications exists between the covered CFATS facilities and the local planning and response agencies.

I hope that some Congressperson steps up and offers something like this language as an amendment to HR 2279. I will not be upset if the one that does ‘steals’ this language with or without attribution.

Of course, I’m not going to hold my breath. While I know that a large number of congressional staffers read this blog, I haven’t seen anyone in Congress take one of my suggestons yet. That’s okay; that allows me to criticize with impunity and allows me to employ my favorite phase; “I told you so…”

House to Consider Adding Explosive Reporting Requirement

A notice posted on the House Rules Committee web site provides instructions for the filing of possible amendments to HR 2279, the Reducing Excessive Deadline Obligations Act of

2013 as the Committee plans on meeting the week of January 8^th to formulate a rule for the floor consideration of that bill. While this bill mainly concerns administrative amendments to the RCRA and CERCLA rules an amendment was made during the approval of this bill by the House Energy and Commerce Committee that would add specific State reporting requirements to some facilities covered by the CFATS regulations.

Explosives Reporting Requirement

Section 6, Explosive Risks Planning Notification, was added to the bill as the result of an amendment offered by Rep Waxman (D,CA). That section states:

“Not later than 180 days after the date of enactment of this Act, the owner or operator of each facility at which substances listed in appendix A to part 27 of title 6, Code of Federal Regulations [Link Added], as flammables or explosives are present above the screening threshold listed therein shall notify the State emergency response commission for the State in which such facility is located that such substances are present at such facility and of the amount of such substances that are present at such facility.”

Actually the terminology used in §6 is not quite accurate; it should read “… listed as having a Release Flammable, or Release Explosive, Security Issue in Appendix A…..”. It is clear from the language in §6 that the Theft EXP/IEDP Security Issue materials are not included in the language ‘or explosive’ since they are not themselves explosive, just precursors to making explosives or improvised explosives.

Since Waxman’s comments in the Dissenting Views section of the Committee Report (pgs 20-21) specifically refer to the ammonium nitrate explosion at the West Fertilizer facility in Texas, one would might assume that the ammonium nitrate stored at the facility would have been covered by this Section, but since that was fertilizer grade material it was not covered under the Release Explosive category [Defined as: Ammonium nitrate, (with more than 0.2 percent combustible substances, including any organic substance calculated as carbon, to the exclusion of any other added substance)] in Appendix A.

It would have been covered under the Theft EXP/IEDP as it is a precursor chemical to making explosive grade ammonium nitrate [Defined as Ammonium nitrate, solid (nitrogen concentration of 23% nitrogen or greater)]. So, under the requirement proposed here the West Fertilizer facility would not have had any obligation to report their ammonium nitrate to the Texas emergency response commission.

It is also not clear why Waxman failed to include chemicals with a Release Toxic Security Issue in this notification requirement; the possible effected area/population may be quite a bit larger for some of the toxic chemicals than for the flammable or explosive release chemicals.

More than CFATS Coverage

The wording of this section would apply to many more facilities than just those covered by the CFATS program. Many facilities with more than a screening amount of the chemicals listed in Appendix A (DHS chemicals of interest, COI) are not covered by CFATS because the DHS Infrastructure Security Compliance Division (ISCD) determines, after reviewing their Top Screen data submission, that they are not at high-risk of terrorist attack and thus not covered by CFATS.

The requirement of §6 would also apply to facilities specifically exempted by Congress from coverage under the CFATS regulation. This would include water and waste water treatment plants, MTSA covered facilities, nuclear facilities regulated by NRC and DOD facilities.

Invisible Rule

There is an even more basic problem with this reporting requirement; it is added to a bill that most facilities would never hear about. This largest portion of this bill is addressed to actions to be taken by the EPA in establishing regulations. This is the only portion of the bill that applies directly to the private sector. Thus, a very large proportion of the facilities that would be required to take actions based upon this bill would never know of the requirement.

Moreover, there is no way that anyone in the Federal government would know if a covered facility made the required reports as the reports are to be made to unnamed State agencies with no feed back to the regulatory agencies at the Federal level who might (or might not) be aware of the existence of the covered chemicals.

This is one of those congressional requirements that are made without thought as a knee jerk reaction to a real problem. In this case it does not even come close to addressing the issue it was made in response to as the chemical in question does not meet the definition of the chemical hazard referred to in the bill.

Congressman Waxman almost certainly realizes that this section was added in contravention of House rules prohibiting unrelated information being included in a bill. He should also be aware of the problems with the ammonium nitrate definition as he has been involved with the CFATS business almost since its inception well before the 2006 addition of the §550 authorization to the Homeland Security spending bill.

The only thing that I can conclude is that Waxman is taking the easy way out and pushing a completely ineffective requirement because it is easy to get passed rather than trying to do something effective and complex in dealing with the way that the EPA and OSHA deal with explosive chemicals. And that is one of the reasons that we are in the chemical dilemma that we are currently facing, no one in Congress is willing to do the hard work to get real chemical safety legislation passed.

NOTE: The actual bill that the House Rules Committee will be considering is a mash up of three separate bills reported by the House Energy and Commerce Committee; HR 2279, HR 2226 and HR 2318. The §6 language discussed above will actually be in §106 of the new version of HR 2279.