Review - CSB Publishes PES Refinery Investigation Results

Yesterday the Chemical Safety Board published their final report on the Philadelphia Energy Solutions (PES) accident that occurred in June 2019 and resulted in explosions, fires and a sizeable hydrofluoric acid release. The CSB reports that there were six relatively minor injuries on-site and no reported off-site effects. The report identifies the cause of the initial process leak and proposes recommended actions for the EPA, American Petroleum Institute, and ASTM International.

There are three additional final reports that the CSB plans to issue by the end-of-the year:

• Kuraray EVAL, Pasadena, TX,

• TPC Group, Port Neches, TX, and

• Husky Energy Refinery, Superior, WI

Recommendations

The CSB made the following recommendations in this Report (pgs 80-1):

• EPA - 2019-04-I-PA-R1 - Develop a program that prioritizes and emphasizes inspections of refinery HF alkylation units,

• EPA - 2019-04-I-PA-R2 - Revise 40 C.F.R. Part 68 (EPA Risk Management Plan) to require new and existing petroleum refineries with HF alkylation units to conduct a safer technology and alternatives analysis (STAA) and to evaluate the practicability of any inherently safer technology (IST) identified

• EPA - 2019-04-I-PA-R3 - Per the requirements in EPA Rule Procedures for Prioritization of Chemicals for Risk Evaluation Under the Toxic Substances Control Act, initiate prioritization to evaluate whether hydrofluoric acid is a High-Priority Substance for risk evaluation,

• API - 2019-04-I-PA-R4 - Update API RP 751 Safe Operation of Hydrofluoric Acid Alkylation Units to require protection of critical safeguards and associated control system components, as well as the installation of remotely-operated emergency isolation valves on the inlet(s) and outlet(s) of all hydrofluoric acid containing vessels, and hydrocarbon containing vessels meeting defined threshold quantities, and

• ASTM - 2019-04-I-PA-R5 - Revise ASTM A234 to incorporate supplementary requirements for piping used in HF service, as defined in HF supplementary requirements S9.1 through S9.7 in ASTM A106 version 19a.

Commentary

While I am a chemist and not a chemical engineer, it seems to me that the CSB failed to call out a seemingly obvious chemical engineering mistake made in the HF water spray system. I was taught in a manufacturing environment that it was important to consider the failure mode of systems early during the design process. At its most basic, consider a powered valve. If power to the valve fails, then one of two states can result the valve can ‘fail closed’ or it can ‘fail open’ depending on how the valve is configured. If safety requires flow through that valve in the event of an emergency, then it should fail open upon the loss of power, otherwise the valve should be configured to ‘fail closed’. In this case, it is apparent that when power failed to the valves controlling the HF Spray system, they failed closed and had to be opened manually. On the face of it, this was poorly considered in the design process.

Now there may have been (almost certainly were) other considerations involved, but the safety system with the highest criticality should be the controlling factor in safety design. Relying on a control system to continue working properly in a refinery during a major incident is just asking for problems.

One other comment, this incident included a major release of HF (5,289-lbs by PES estimate – page 6) and only a small part of it (1,968-lbs) was sequestered by the late functioning water spray system. And no one was injured by HF. Folks that are opposed to mandatory IST implementation might be tempted to point at this incident as an example of why IST is unnecessary, no one was hurt why spend that money? Those people, however, need to remember that this incident included a large, unplanned, hazardous-waste incineration event and that was almost certainly responsible for the neutralization of the released HF. No refinery operator wants to have to rely on a large conflagration to control an HF release.

 

For more details about the report, see my article at CFSN Detailed Analysis - https://patrickcoyle.substack.com/p/csb-publishes-pes-refinery-investigation - subscription required.

Sodium Hypochlorite Shortage Affects Water Treatment

I ran into an interesting article over at BoombergLaw.com (thanks to Fred Gossen on LinkedIn for pointing at the article) about the problems that a number of water treatment and wastewater treatment plants are having with getting ahold of adequate supplies of commercial grade sodium hypochlorite for their water disinfection processes. Many have, according to the article, petitioned the EPA for legal assistance in acquiring the needed chemicals.

The article pins at least part of the blame for this chemical shortage on a fire at a chemical plant last year that shutdown a major supplier of hypochlorite and a pandemic driven increase in the use of family swimming pools. Both of these have undoubtedly had an affect the availability of sodium hypochlorite, but that is not the root cause of this problem. That can be traced back to the ‘inherently safer technology’ push away from using chlorine gas as a water treatment disinfectant back in the middle 2000’s (see one of my 2008 blog posts on the topic here). A fear of a large chlorine gas release in a major city because of an industrial accident or terrorist attack caused a number of environmental activists to successfully push many treatment facilities to switch to ‘safer alternatives’ and the easiest was from chlorine gas to commercial grade liquid bleach also known as sodium hypochlorite.

The big problem with bleach is that it degrades in quality (read – decreasing concentration while releasing chlorine gas) fairly quickly, limiting how far it can practically be shipped by rail. That, combined with the NIMBY opposition to the construction of new bleach production facilities, set up a tight supply situation for commercial grade bleach that left the market susceptible to production upsets. There are a number of alternative disinfection processes available, but they are almost all more technologically challenging with lengthy lead times and high switchover costs.

One potential long-term solution for larger facilities is the on-site generation of chlorine gas. The technology is well understood and requires water, salt (common NaCl), and electrical power as the major process feeds. It is still inherently safer than railcar loads of chlorine gas because it is produced as needed with relatively small amounts of process storage required. The biggest problem is getting rid of the byproduct sodium hydroxide (caustic soda). There are, however, lots of places that use that chemical as an important feedstock or process aid.

CFATS Program Oversight Hearing

Last week the Cybersecurity and Infrastructure Protection Subcommittee of the House Homeland Security Committee held an oversight hearing looking at the Chemical Facility Anti-Terrorism Standards (CFATS) program. According to the opening statement of the Chair, this is the first step in the reauthorization process for that program. The current authorization for the program ends on December 18^th, 2018.

Support for CFATS Program

Three of the witnesses were from chemical manufacturing organizations who represent CFATS covered facilities in a range of industries. The fourth witness was a well-known environmental advocate who has frequently addressed chemical manufacturing safety issues.

Generally speaking, all four witnesses supported the CFATS program and advocated for its reauthorization. All expressed concerns that the reauthorization should not take the form of year-to-year extensions of the program that were seen prior to 2014.

Suggestions for Reauthorization Changes

Chet Thompson, representing the American Fuel & Petrochemical Manufacturers, specifically recommended another medium-term extension of the program requiring specific congressional reauthorization, as was done in 2014. His other recommendations for the reauthorization were generally restrictive:

• Do not include an inherently safer technology mandate (in oral testimony);

• Continue to protect the confidentiality of site security information;

• Require changes in the Appendix A chemical of interest (COI) list to go through comment-response process;

• Avoid extending the anti-terrorist vetting program to Tier III and Tier IV facilities; and

• Avoid any major changes to the program.

Kirsten Meskill, representing the American Chemistry Council, had three recommendations in her written testimony for the reauthorization of the CFATS program:

• Improve transparency in DHS risk determinations;

• Reconsider the value of Terrorist Screening Database (TSDB) screening at low risk facilities; and

• Recognize industry stewardship programs.

Pete Mutschler, representing both the Fertilizer Institute and the Agricultural Retailers Association, included two reauthorization suggestions in his testimony;

• Continue to protect the confidentiality of site security information; and

• Recognize industry stewardship programs.

Paul Orum, representing the Coalition to Prevent Chemical Disasters, was the most detailed in his recommendations for reauthorization changes. In his testimony Orum addressed (with specific suggestions):

• Use all available options – not just management and control strategies;

• Exercise oversight – especially of the ability of CFATS standards to realistically ensure protection;

• Use available resources – especially make better use of employee input;

• To improve public confidence, respect community concerns; and

• Support other programs that improve chemical security;

Commentary

Readers will remember that I started the CFATS reauthorization discussion rolling last fall when I did two blog posts on my suggestions for changes to the program (here and here).

My first post addressed cybersecurity issues. None of the witnesses addressed cyber issues in their prepared testimony and there was only one question about cybersecurity during the hearing (52 minutes). The responses were fairly generic calls for information sharing. Thompson did note that the current Risk Based Performance Standard 8 of the CFATS program addresses cybersecurity.

One interesting topic that did come up during questioning (49 minutes) was the use of unmanned aerial vehicles (UAV) or drones. There was just one question (51 minutes) on the topic and the answers were very generic. Meskil pointed out that drones are a duel edged sword; they are useful in many inspection and maintenance operations at facilities, but weaponized drones are a potential threat that has yet to be addressed. While I will address specific recommendations for drone provisions of the CFATS reauthorization, I will note here that drone rules have to take into account two specific restrictions:

• Interference in the operation of a drone is a federal felony; and

• Tracking and intercepting a drone is technologically and operationally complicated.

Finally, on the topic of inherently safer technology (IST); there should be no mistake made, the CFATS regulations have had a positive impact on the application of risk reduction measures at a relatively large number of chemical facilities. This is clearly seen in the reduction in the number of facilities over the years that have left the CFATS program. Orum is correct that DHS and ISCD could further aid this legitimate risk reduction effort by being more forthcoming about the number and types of facilities that have exited the program by reducing and/or eliminating their COI inventories. As I have said on a number of occasions, requiring a specific IST review/implementation process ignores the complexity of the situation, but ISCD should be providing information gleaned (and anonymized) from former CFATS facilities to similar facilities to make the process somewhat less complicated.

RMP NPRM: Inherently Safer Reviews

This is part of a continuing series of blog posts about the EPA’s recently published notice of proposed rulemaking (NPRM) for revisions of their Risk Management Program. Earlier posts in this series include:

EPA Publishes RMP Revision NPRM

RMP NPRM: Accident Investigations Overview

RMP NPRM: 3^rd Party Audits

IST Discussion

There is a lengthy discussion in the NPRM preamble about the use of safer technology and alternative (STAA). It defines STAA as “risk reduction strategies developed through analysis using a hierarchy of process risk management strategies (or hierarchy of controls), which consists of those which are inherent, passive, active, and procedural.” The detailed discussion addresses topics like:

• Inherently safer technology (IST);

• EPA’s past approach to STAA;

• Public input on STAA;

• The pending petition on IST;

• NAS and CSB investigation findings;

• State and local IST programs; and

• Industry and trade association input;

STAA Revision Overview

In this NPRM the EPA is only proposing to make STAA revisions to Program 3 facilities in the following North American Industrial Classification System (NAICS) sectors:

• NAICS 322 - paper manufacturing

• NAICS 324 - petroleum and coal products manufacturing; and

• NAICS 325 - chemical manufacturing;

Changes would be made to the PHA requirements in §68.67 to require analysis of potential safer technology and alternatives that would include, in the following order of preference: IST or ISD, passive measures, active measures, and procedural measures. That analysis would include a requirement to evaluate the feasibility of implementing any of the measures considered.

The EPA is not currently considering requiring facilities to implement feasible STAA measures. It notes:

“While EPA believes that sources should look for additional opportunities to increase safety, we believe that the facility owners or operators are in the best position to identify which changes are feasible to implement for their particular process.”

Definitions

The NPRM would add a number of new definitions to §68.3. Those definitions would include:

• Inherently safer technology or design;

• Passive measures;

• Active measures;

• Procedural measures; and

• Feasible

Process Hazard Analysis

Changes would be made to §68.67(c) by adding sub-paragraph (8) requiring covered facilities to “address safer technology and alternative risk management measures applicable to eliminating or reducing risk from process hazards”. Included in sub-paragraph would be language to:

• Specify that the analysis include, in the following order of preference: IST or design, passive measures, active measures, and procedural measures;

• Determine the feasibility of the IST or ISD considered

Guidance

The NPRM notes that there is already plenty of guidance in existence concerning how to evaluate STAA. These include:

• EPA/OSHA Chemical Safety Alert: STAA;

• CCPS, 2009. Inherently Safer Chemical Processes: A Life Cycle Approach, 2nd ed., American Institute of Chemical Engineers, CCPS New York, Wiley;

• Guidance for TCPA, IST Review;

• Contra Costa Hazardous Materials Program, 2011. ISS Checklist;

• OSHA, Transitioning to Safer Chemicals, a Toolkit for Employers and Workers.

Not Being Addressed in NPRM

In addition to not requiring STAA implementation in this NPRM there are two other areas related to inherently safer design that are not being addressed. They are:

• Stationary source location; and

• Emergency shutdown

The EPA is requesting comments on all three areas for potential consideration in future rulemakings.

Commentary

As I have mentioned on a number of occasions IST (or now STAA) is a very complex and technical topic. Many environmental and safety advocates have taken a relatively hard line that IST (in particular substitution of ‘safer chemicals’) should be mandated by the EPA and there is a petition (mentioned above) for the EPA to do just that. Industry, on the other hand, has taken an almost equally hardline that they are already doing IST analysis and any requirement to implement IST by bureaucrats could force them out of business.

The EPA is trying to tread an interesting line between those two semi-fixed positions. In not specifically requiring implementation they have acknowledged the very real basis for industry’s concern that requiring specific process changes is well beyond the EPA’s technical expertise. On the other hand requiring industry to identify IST and conduct a feasibility analysis could end up forcing more facilities to voluntarily adopt IST for business reasons.

If a facility has a catastrophic accidental release on a process where a facility has formally identified a feasible IST that was not implemented, they should certainly expect that the EPA would require that implementation in the inevitable consent agreement that would culminate the accident investigation. More importantly, any lawyer representing injured parties from such an accident would certainly point to the company’s assessment of a ‘feasible IST’ that was not implemented as proof that the company was derelict in their duty to operate a safe facility.

If adopted, this rulemaking will certainly result in a number of facilities that will make significant process changes; most with the surprised intent to increase the profitability of the facility by lowering process and/or insurance costs. There will be some number, one would hope that it would be small, that would look at the increased potential liability of not implementing a costly IST project as a reason to shut down the facility. Many people (probably not including the displaced workers) might argue that those facilities should be shutdown.

EPA Publishes RMP Revision NPRM

The EPA published a notice of proposed rulemaking (NPRM) in Monday’s Federal Register (available on-line today; 81 FR 13637-13712) for revisions to their Risk Management Program (RMP) regulations. The revisions are mostly in response to the President’s executive order on Chemical Safety and Security (EO 13650) and the EPA’s request for information (RFI) supporting that EO.

NPRM Overview

The major points of the NPRM address the following three areas:

• Accident Prevention Program Revisions

• Emergency Response Enhancements

• Enhanced Availability of Information

The NPRM proposed three changes to the accident prevention program. These include:

• Requiring all facilities with Program 2 or 3 processes to conduct a root cause analysis as part of an incident investigation of a catastrophic release or an incident that could have reasonably resulted in a catastrophic release (i.e., a near-miss);

• Requiring regulated facilities with Program 2 or 3 processes to contract with an independent third-party to perform a compliance audit after the facility has a reportable release; and

• Requiring selected facilities to conduct a safer technology and alternatives analysis (STAA) as part of their PHA, and to evaluate the feasibility of any inherently safer technology (IST) identified.

The NPRM proposed four changes to the emergency response enhancements. These include:

• Requiring all facilities with Program 2 or 3 processes to coordinate with the local emergency response agencies at least once a year to ensure that resources and capabilities are in place to respond to an accidental release of a regulated substance;

• Requiring all facilities with Program 2 or 3 processes to conduct notification exercises annually to ensure that their emergency contact information is accurate and complete; and

• Requiring all facilities subject to the emergency response program requirements of subpart E of the rule (or “responding facilities”) conduct a full field exercise at least once every five years and one tabletop exercise annually in the other years; and

• Requiring responding facilities that have an RMP reportable accident to conduct a full field exercise within a year of the accident.

The NPRM proposed five changes to the enhanced availability of information. These include:

• Requiring all facilities to provide certain basic information to the public through easily accessible means such as a facility Web site or at public libraries or government offices;

• Requiring a subset of facilities, upon request, to provide the Local Emergency Planning Committee (LEPC) with summaries related to: compliance, emergency response exercises, accident history and investigation reports, and any ISTs implemented at the facility;

• Requiring all facilities to hold a public meeting for the local community within a specified timeframe after an RMP reportable accident;

• Proposing revisions to clarify or simplify the RMP submission; and

• Proposing technical corrections to various provisions of the rule.

EPA Seeking Guidance

In addition to the proposed changes in the NPRM, the EPA is also looking for public input on additional changes to the RMP that might be included in future rulemaking. For the accident prevention program, the EPA is looking for information on additional requirements for:

• Location of stationary sources (related to their proximity to public receptors); or

• Emergency shutdown systems

Public Comments

The EPA is soliciting public feedback on the NPRM. Comments may be submitted via the Federal eRulemaking Portal (www.Regulations.gov; Docket # EPA-HQ-OEM-2015-072). Comments should be received by May 13^th, 2016.

The EPA is currently planning one public hearing to allow personnel to provide oral comments about the NPRM. The hearing will be held on March 29^th, 2016 in Washington, DC. Advanced registration for a chance to speak at the hearing is strongly suggested. You are supposed to be able to register on-line here, but the site is not set up as of the time I’m writing this post (3-12-16 9:00 pm CST). I suspect that it will be set up sometime on Monday.

Commentary

While I have not had a chance to complete a detailed review of the extensive NPRM, it seems clear even at the broad overview provided here that no one is going to be fully satisfied with what the NPRM proposes or ignores. In general I think that that should be the mark of any good regulation, but we will have to wait and see if that is the specific case here.

The topic of inherently safer technology provides a good case in point. Environmental and many safety advocates have long pushed for the EPA to require RMP facilities to implement IST improvements to their chemical processes. While there is not a consensus definition of what an IST improvement would be, the more vocal advocates press for a replacement of toxic chemicals with safer alternatives where ever possible, while more moderate advocates would replace the ‘where ever possible’ with ‘where practical’.

Industry, on the other hand, maintains that it already has conducted IST analysis as part of their standard engineering practices and that the decision to implement a specific IST improvement is a risk-management decision that is only able to be made by facility owners and engineers based upon their unique knowledge of the process.

At first glance it looks like the EPA in this NPRM has taken a middle road or requiring companies to formally document their IST analysis process.  Business will most likely complain that this is bureaucratic make-work that will cost money without providing any safety improvement. The safety and environmental activists will certainly agree that the study provision will not provide any safety improvement; that such improvements can only come with mandatory IST implementation. It will take a detailed look at the IST process outlined in this NPRM (I’ll be doing this in some later blog post) to determine which is more nearly correct about their assessment.

As usual, readers of this blog can expect that I will be taking more detailed looks at the actual language of the proposed changes in a series of future blog posts. Two things that I can tell you at this point: first, I expect that multiple parties will petition for a longer comment period (90 days instead of 60); second, I expect that there will also be multiple requests for regional public hearings. I really expect that both requests will be honored.

EO 13650 Updates

As part of their ongoing efforts to comply with the President’s executive order on chemical safety and security (EO 13650) OSHA has updated their EO 13650 web site. The new information includes links to three new documents:

∙ Actions to Improve Chemical Facility Safety and Security Fact Sheet;

∙ Chemical Advisory: Safe Storage, Handling, and Management of Solid Ammonium Nitrate Prills; and

∙ Chemical Safety Alert: Safer Technology and Alternatives

Additionally, there is an announcement of a webinar to be conducted by the Chemical Safety and Security Working Group. The webinar will be conducted on June 19^th. The site provides an email address (eo.chemical@hq.dhs.gov) to sign up to participate in the webinar.

House Subcommittee Amends and Adopts HR 4007

Yesterday the Cybersecurity, Infrastructure Protection, and Security Technologies Subcommittee of the House Homeland Security Committee held a markup hearing for HR 4007, the Chemical Facility Anti-Terrorism Standards Program Authorization and Accountability Act of 2014. The Subcommittee adopted a number of amendments and then recommended amended the bill to the Full Committee by a voice vote.

The Amendments

In addition to the amendment in the form of a substitute that I covered in an earlier blog post, the amendments that were adopted included provisions to:

Include the newly authorized CFATS program as a provision in the Homeland Security Act of 2002 (agreed to by voice vote);

Provide requirements for non-governmental CFATS inspectors (agreed to by roll call vote);

Remove the proposed program termination language (agreed to by voice vote);

Add specific fiscal years covered by the authorizations in the newly renumbered §8 (agreed to by a voice vote);

NOTE: The last two provisions were included in a single amendment.

The amendments that were rejected by the Subcommittee included provisions:

Allowing CFATS inspections to be conducted by “another government entity” (rejected by voice vote);

Expanding the requirements of the CFATS program to include (rejected by voice vote):

- Assign covered facilities to risk-based tiers,

- Require covered facilities to submit vulnerability assessments and to develop and implement site security plans,

- Approve or disapprove the security vulnerability assessments and site security plans submitted by such facilities,

- Audit and inspect covered facilities, and

- Enforce compliance with the requirements of this Act;

Removing the exceptions for MTSA covered facilities, water and waste water treatment facilities, DOD owned/operated facilities, and NRC regulated facilities (rejected by voice vote);

Inserting a new section dealing with Personnel Surety Program (rejected by roll call vote);

Requiring the Secretary (in conjunction with the facility) to conduct an  assessment of inherently safer technologies (rejected by voice vote);

Requiring facilities to include worker participation in the conduct of security vulnerability assessments and site security plan development (rejected by roll call vote);

Providing whistleblower protections;

Important Changes

Two of the three adopted amendments are politically important and those were both introduced by Rep. Clarke (D,NY), the ranking member. The first was the one that makes the provisions of sections 2 thru 9 a new section of the bill the Homeland Security Act of 2002. This makes the requirements for the CFATS program part of the U.S. Code, providing a whole new level of political certainty to the program.

Combine that with the removal of the automatic termination provisions that were an integral part of the original bill (and only slightly extended in the substitute language) and CFATS would become a program of the Federal government that would have to be actually removed by a formal act of Congress, not just a program that could be allowed to lapse. This gives industry their long asked for certainty in the program.

Rejected IST Provision

 As I have noted in a number of posts about a permanent CFATS program, the only way that a permanent CFATS program bill will pass in the current political environment is for it to include some sort of IST provision. The provision that was included this week was simply a requirement to conduct an IST assessment; it provided no requirement for any facility to actually implement any IST changes at the facility.

The thing that caused this provision to be rejected by the Republican majority of the Subcommittee (beyond just the general reluctance of industry to have any IST language in the bill) was the requirement for the Secretary to conduct the assessment under the guise of helping the facility. Beyond the fact that DHS does not have any in-house expertise to conduct such an assessment, there was a simple knee-jerk rejection of any direct assessment of the efficacy of company operations by a government agency.

There will almost certainly be another IST provision when the full committee marks up the bill. If Democrats really want one to pass, they are going to have to craft one that the Republicans and business can accept. And the Republican are going to have to remember that if they want this bill to pass in the Senate (or even just be considered in the Senate) there will have to be some sort of IST language included in the bill.

Employee Participation

Another must have for this bill to be considered by the Senate is a provision requiring facilities to include first line employees in the security processes. Unfortunately, the amendment offered by Rep. Horsford (D,NV) included language requiring ‘bargaining unit’ participation. This was sure to inspire another knee-jerk Republican no-vote. If the amendment had stopped after “at least one non-supervisory employee of the covered chemical facility” there may have been enough Republican votes to allow passage.

Removing CFATS Exemptions

There have been a number of people in both parties over the years that have had problems with the lack of chemical security coverage at water treatment and waste water treatment facilities. The EPA security program for those facilities is rightly focused on the protection of drinking water safety and the safety of water being discharged to the environment. The protection of the water treatment chemicals from release into the atmosphere by a terrorist act is not even on the EPA security agenda. When many of these facilities use chlorine gas there is more than a little concern about the security of that material that is not currently being addressed by regulators.

The amendment this week went way beyond removing the water treatment facility exemption. It removed all of the exemptions including the exemptions for:

• MTSA facilities (security being addressed by the Coast Guard);

• DOD facilities (being addressed by DOD); and

• Nuclear facilities (being addressed by NRC).

While the chemical security programs at these other facilities is at least somewhat lacking in technical expertise in specifically chemical security matters, all of these programs have strong physical security coverage with inspections being conducted by the regulating agency. Lumping these programs in with the weaker EPA security program doomed this amendment to failure.

Just removing the exemption without considering the special place that water treatment facilities have in protecting the populous and the environment from biological threats (particularly the much more common unintentional threats) also made this amendment difficult to endorse. No local politician will gladly allow DHS the authority to shut down a local water treatment facility because of perceived regulatory non-compliance that does not directly affect water quality issues.

The Full Committee could take this issue up again during markup it the proposed amendment were more tightly focused on the water treatment facility exemption and addressed the local control issue.

Moving Forward

It will be interesting to see how soon the full committee holds a markup on this bill. There have been a number of media reports (here for instance) that the House Energy and Commerce Committee Staff helped to write the bill. If that is so, and there is no E&C CFATS bill that has been introduced this session, then this bill may be able to make it to the floor of the House late this month or early May. If that is the case, and some sort of IST and worker participation amendments are adopted, then this bill may be able to make its way to the Senate floor before the summer break.

It the bill is not passed by the Senate before August, it will probably not get passed.

Homeland Security Committee Announces HR 4007 Markup Hearing

The House Homeland Security Committee announced this morning that their Cybersecurity, Infrastructure Protection and Security Technologies Subcommittee will be holding a markup hearing Thursday for HR 4007, the Chemical Facility Anti-Terrorism Standards Program Authorization and Accountability Act of 2014.

No details are available yet, but Rep. Meehan (R,PA) will be offering an amendment in the form of a substitute. Any additional amendments will be made to that language.

It will be interesting to see if the staff has worked out a compromise on the two issues that have kept the Republicans and Democrats on the opposite sides of the fence on the CFATS issue. I expect that we will see some sort of IST amendment and a worker participation amendment offered by Rep. Clarke (D,NY). If either of those amendments gets Republican support then there is a chance that this bill could actually get considered in the Senate. Passage in the House is not a big issue.

I refer readers back to my proposed IST compromise language.

EO13650 and IST: A Look Back at Proposed Solutions

There has been an interesting undercurrent in the EO 13650 Working Group about the inevitable discussions about inherently safer technology that have come up in the public listening sessions being held by the Working Group. The environmental and worker’s rights advocates are predictably pushing EPA, OSHA and DHS to adopt some form of IST mandate as a way to reduce the hazards from accidental or deliberate releases of industrial chemicals. Just as obviously, industry groups continue their adamant stance against any such proposal.

The regulators that sit on the dais at these listening sessions, acting as the ears of the agencies, are placed in an unenviable position. Some level of IST commitment is almost certainly going to come out of this process as a proposal for regulations, but the regulatory community is not going to get any additional manpower or funding for implementing such a regulation because this is an Executive Order, not Congressional authorization.

Complicated Topic

All sides of the disagreement do acknowledge that inherently safer technology techniques do offer a way to reduce the hazards associated with dangerous chemicals. The two sides, however, vehemently disagree on how such a program should be implemented or how much of a role the government should have in such an implementation.

Unfortunately, neither side really listens to (or even trusts) the other side. As with most complex problems this is not a black/white issue that can be resolved by simple means. Over the last six+ years writing this blog, I have taken a hard look at the IST issue and have offered suggestions on how to effectively deal with many of the issues involved.

I have a great deal of self-confidence and think rather highly of my ideas, but I know that I am not the source of all knowledge. But I have tried to look at IST from the point of view of a professional in the chemical manufacturing industry who has spent many years making things work. Some of the ideas that I have written about could be used to form the basis of a workable IST regulatory scheme.

IST ISSUES Page

I have just put up a new page on this site that compiles a list of the IST posts that I have written over the last six years. They are not indexed; they are just listed chronologically. I have added a listing of the sub-headings from those posts (or at least the ones with such sub-headings) to give people some insight as to what is being discussed.

There are a couple of specific series of blog posts that I would like to call special attention to because they do an in-depth look at various aspects of a practical IST regulatory system. I will list the last post in these two series here as those posts will provide links to the earlier posts in the series. Those two series were:

What Standard to Apply for IST – Cost Estimates

IST Questions – Active Mitigation

Formatting Issues

I do have to apologize for the readability of some of those earlier posts. In transferring posts from the original site on AOL Communities to Google, much of the formatting disappeared. From time to time I do go back and re-edit the formatting of some of those earlier posts to make them more readable. That is a time consuming (and very boring process) so some of those posts can be more challenging to read than others. I will give priority to fixing these IST posts over some of the others, but it will still take time.

Update on West Fertilizer Hearing

The Senate Environment and Public Works Committee has updated their web site with additional information about tomorrow’s hearing on “Oversight of Federal Risk Management and Emergency Planning Programs to Prevent and Address Chemical Threats, Including the Events Leading Up to the Explosions in West, TX and Geismar, LA”.

The witness list is now up on the web site. Witnesses include:

• Rafael Moure-Eraso, Chemical Safety Board;

• Barry Breen, Environmental Protection Agency;

• Randall Sawyer, Contra Costa County, CA;

• Rick Webre, Ascension Parish, LA;

• Paul Orum, Coalition to Prevent Chemical Disasters;

• M. Sam Mannan, Mary Kay O'Connor Process Safety Center; and

• Kim Nibarger, United Steelworkers International Union

Well, this hearing is certainly not going to be about the West Fertilizer explosion; no one (with the exception of Mr.Moure-Eraso) has anything to do with the regulation of West Fertilizer, the emergency response to the accident, or the investigation of the incident. It’s not even about the Geismar, LA explosion; the sole Louisiana representative on the witness list is from the State Department of Homeland Security, mainly an emergency response agency.

As I noted in an earlier blog post about this hearing this is going to be a hearing about inherently safer technology (IST). Both Orum and Mannan have a long history of being very intelligent advocates for the implementation of IST; Orum more from a political point of view and Mannan from a chemical process point of view. Contra Costa County has an effective regulatory program stongly encouraging IST implementation. The United Steelworkers have also been long time political advocates for the mandatory implementation of IST programs.

I certainly believe that a coherent discussion of IST as part of a chemical safety program is important. The use of these two particular incidents, however, seems to be particularly inappropriate particularly where IST is a code-word for chemical substitution. There is no substitute chemical for ammonium nitrate fertilizer for a distributor whose customers want ammonium nitrate fertilizer. Propylene and ethylene (we are still not sure which was at root cause of the Geismar explosion) are a basic chemical feedstocks for which there is not viable substitute.  

Sen. Boxer (D,CA), the Committee Chair, has also been a long-time proponent for mandatory IST implementation. Given that there are no IST opposition voices included on the witness list and no chemical industry representatives, I expect that this will be a very one-sided hearing that will conclude that IST is the be-all and end-all of chemical/environmental safety. That is a shame as it will only contribute to the polarization of what should be a cooperative debate on the subject.

S 68 Introduced – Comprehensive CFATS Authorization

As I mentioned in an earlier blog post Sen. Lautenberg introduced S 68, the Secure Chemical Facilities Act. This bill would be the type of comprehensive chemical facility security legislation envisioned when Congress authorized the interim CFATS program in 2006. The language is nearly identical to S 709 in the 112^th Congress and S 3599 in the 111^th Congress; both authored by Lautenberg.

Overview

In many ways this bill mirrors the bill (HR 2868) that passed in the House in the 111^th Congress. It does not specifically mention the current CFATS program, but much of the bill affirms what has been currently done and makes modifications to that program. It specifically amends the Homeland Security Act of 2002 adding Title XXI.

It adds a provision that addresses employee participation in the security vulnerability assessment process and the development of the site security plan. It requires that such activities must include at least:

• One supervisory employee {§2103(a)(1)(B)(iii)(I)}

• One non-supervisory employee {§2103(a)(1)(B)(iii)(II)}

• One employee representative from each bargaining agent {§2103(a)(1)(B)(iii)(III)}

It obliquely addresses the current delays in the SSP approval process by requiring that the Secretary must “review and approve or disapprove the security vulnerability assessment or site security plan” within 180 days of their submission {§2103(a)(1)(G)(i)}. It also specifically addresses the sharing of information on the assessment and security plans with the local emergency planning and response personnel requiring the provision of “appropriate information to any local emergency planning committee, State emergency response commission, local law enforcement officials, and emergency response providers to ensure an effective, collective response to terrorist incidents” §2103(c)(9).

It affirms the current risk based performance standards (RBPS) set forth in 6 CFR §27.230, including nearly identical language found in that section. It does add three new ‘security performance standards’:

• Assessing and, as appropriate, using methods to reduce the consequences of a terrorist attack; {§2103(c)(19)}

• Methods to recover or mitigate the release of a substance of concern in the event of a chemical facility terrorist incident; {§2103(c)(20)}

• Methods to mitigate the risks of exposure to chemical agents by maintaining an adequate supply of equipment and products to provide for decontamination procedures designed to neutralize the chemical agents; and {§2103(c)(21)}

The bill would expand the coverage of the CFATS program to include facilities regulated under the Maritime Transportation Security Act (MTSA){§2103(g)(1)} and those regulated by the Department of Justice under the Alcohol Tobacco and Firearms people {§2103(g)(2)}. Those resulting regulations would have to be coordinated with Commandant of the Coast Guard and the Attorney General to ensure that there is no unnecessary duplication or conflicts.

One of the more controversial parts of this legislation is the inclusion of inherently safer technology (IST) provisions under the heading of ‘methods to reduce the consequences of a terrorist attack’ {§2111}. This section deserves more detailed coverage, but it would establish a ‘best technology’ standard for determining what is feasible {§2111(a)}. It would also essentially exempt agricultural retailers and end users {§2111(d)} and small chemical facilities {§2111(e)} from the IST requirements by adding additional requirements before implementation of IST could be mandated.

The personnel surety mandate {§2115} would be expanded by requiring the Secretary to clearly identify the offenses {§2115(b)(2)(A)(i)} and the elapsed time from those offenses {§2115(b)(2)(A)(ii)} that would disqualify a person from working in critical areas of covered chemical facilities; the process would be similar to the TWIC procedures. It would also require the establishment of a redress procedure {§2115(d)} and an appeals process {§2115(e)} for a determination of security risk.

Two other controversial topics address the involvement of non-facility personnel in the chemical facility security processes. Section 2116 would allow private citizens to sue the Secretary to ensure compliance with the provisions of this act and §2117 would allow citizen petitions to raise issues of compliance at individual facilities.

The current Infrastructure Security Compliance Division would get revamped under this bill. It would be upgraded to the Office of Chemical Facility Security, presumably still in the National Protection and Programs Directorate in DHS. It sets some pretty stiff requirements for the Director; a demonstrated knowledge of {§2114(b)(1)}:

• Physical infrastructure protection;

• Cybersecurity;

• Chemical facility security;

• Hazard analysis;

• Chemical process engineering;

• Chemical process safety reviews; or

That ‘or’ at the end is the erasure of those requirements as it sets the alternative as “other such qualifications that the Secretary determines to be necessary” {§2114(b)(1)}.

There are two provisions for the obligatory reports to Congress. Section 2120 provides for an annual report on the status of the chemical facility security program under this legislation with specific details about what that report would entail. It would also include a one-time report on a study of emergency response capabilities for responding to a catastrophic release from terrorist attacks on covered facilities.

As is to be expected from a bill authorizing a comprehensive program like this it does include appropriations authorization. It provides for $300M for 2013 & 2014 and $275M through 2017. Of that $150M is for grants to support the IST program with $3M earmarked for grants supporting that program in the agricultural community.

Moving Forward

In the past I have dismissed the earlier incarnations of this bill as dead upon introduction. Since the bills were of necessity referred to the Senate Homeland Security and Governmental Affairs Committee for action, these bills never stood a chance of being considered because the bills sponsored by then Sen. Collins (R,ME) would take priority in consideration. Without the Collins and Lieberman team present, it is not clear that there will necessarily be an in-committee bill that would pre-empt the consideration of this bill. If Sen. Levin (D,MI) had, for instance, been a co-sponsor of this bill I would have been nearly certain that it would have been considered by the Committee. As it is, we’ll just have to wait and see.

In any case, I doubt that this bill would make it to the floor of the Senate because of the opposition to the IST and citizen action provisions. It will certainly not get considered in the House.

A Closer Look at the Heritage Foundation Report – More Regulations

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

A Closer Look at the Heritage Foundation Report – CFATS Description

A Closer Look at the Heritage Foundation Report – Four Principles

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

She opens her discussion by stating:

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

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

Regulation of Exempted Facilities

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

She starts off her argument by stating that:

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

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

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

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

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

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

Inherently Safer Technology Mandate

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

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

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

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

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

EPA Authority Under the Clean Air Act

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

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

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

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

Almost to the End

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

No Longer Covered by CFATS

The other day a long time reader asked me what I thought about the claims by DHS that as many as 1300 facilities has essentially opted out of the CFATS program by removing listed DHS Chemicals of Interest (COI) from their facility inventories. This seems like one of those no-brainer questions with an obvious answer of "It’s a good thing". I learned a long time ago that obvious answers frequently hide unintended consequences. So let’s look at this in more detail.

The Requirement

Let’s start by looking at the CFATS requirement for what facilities are covered by the CFATS regulations. Initially it depends on whether or not facilities have (or have had within the last 60 days) more than a screening threshold quantity (STQ) of a listed COI on site. Those facilities have to submit a Top Screen which allows DHS to determine if the chemicals combined with the location and some other undisclosed factors place the facility at high-risk for being a terrorist target. High-risk facilities are then covered by CFATS (okay it’s a tad bit more complicated than that, but it will suffice for this discussion).

Essentially a chemical makes the COI list if it has the potential for a severe off-site consequence if it is released in quantity, or it may be used to make explosive devices or chemical weapons; concentrations of the COI in mixtures and solutions matter. The STQ is set by determining the amount necessary to be a ‘severe consequence’ or a large enough explosion or CW weapon release; details and politics alter cases.

Reduce or Eliminate the Risk

It would seem obvious that if a facility sufficiently reduced their risk of terrorist attack there would be no need for them to remain under the CFATS regulation. It would also seem clear that eliminating the use of a COI or reducing the inventory of a COI still used to below the STQ should by the definition of the CFATS rules removes the facility from the high-risk category.

What is less clear is that since the vast majority of facilities that filed a Top Screen were notified that they were not at high-risk even though they had one or more COI at or above the STQ, there is an amount of a COI that constitutes a high-risk quantity (HRQ) that is equal or greater than the STQ. One would assume that the HRQ would apply only to release type COI  (flammable, explosive, or toxic) and would vary depending on the relative location of local population concentrations and other potential terrorist targets.

Theoretically then a facility could reduce their inventory of their COI to below the HRQ for that chemical at that facility and the facility would no longer be at high-risk of a terrorist attack. Unless (or until) DHS is willing to share that theoretical HRQ with the facility there is no practical way of reducing the facility risk below the high-risk threshold beyond trial and error.

Practical Aspects of Risk Reduction

The most obvious way of eliminating a COI is to find a substitute chemical for your process that is not on the Appendix A list of chemicals. This is certainly what the folks at Greenpeace and any number of other environmental organizations are expecting to see if they achieve their goal of including an inherently safer technology (IST) mandate in the CFATS program. Eliminate the most dangerous chemicals and the terrorist threat goes away.

Unfortunately, there are a number of ways that a COI can be eliminated from inventory without materially affecting the risk profile of the facility. For example, I know of at least one chemical supplier that encouraged their customers to switch from 20% ammonium hydroxide to 19%; 20% is covered in CFATS, 19% is not. Does this decrease risk? Probably not since inventory levels will probably be increased because the underlying process still needs the same amount of active ingredient, ammonium hydroxide. BTW: the 20% concentration was picked because that was the standard industrial concentration; the next lower standard commercial concentration was significantly lower and safer.

Another way to effectively eliminate a COI is to reduce the maximum amount in inventory below the STQ. Amounts below that level are not reportable to ISCD on the Top Screen. If the manufacturing process still requires the same level of COI consumption (or production) this becomes a bothersome inventory management issue. With most of the release COI having STQ’s in the 10,000 lb range this would typically result in switching from bulk shipments to smaller packages with more shipments. This, in turn, leads to more handling requirements and increasing the risk of accidental releases; which much more common already than release due to terrorist attack.

Less ethical inventory games are also possible. A manufacturer may want to schedule a year’s worth of production of a product to get in a single week. The greater than STQ inventory quantity (say a rail car) of methyl isocyanate (MIC) arrives on site and is consumed within 7 days. A Top Screen is filed showing the maximum inventory and DHS starts to process the information. Then 60-days after the last MIC is consumed a new Top Screen is submitted shown 0 lbs of MIC. Sometime later the railcar load of MIC is ordered again and the submission cycle is repeated.

ISCD Management of Changing Inventory

Since the CFATS Chemical Security Assessment Tool (CSAT) does not yet have a tool specifically designed to handle the opting-out process (it’s coming in December 2011; hold your breath) ISCD doesn’t really have a way of handling these issues comprehensively. So apparently they just continue to process the new and revised Top Screens from these facilities.

So, ask me again what I think about the 1300 facilities that have disappeared from the CFATS program and I’ll ask a not so simple question in return. How many of them have legitimately reduced their risk of terrorist attack without transferring their risk somewhere else and how many of them have simply gamed the system to avoid the cost of having to install security measures to reduce their risk.

I’ll bet you even money that ISCD can’t legitimately answer my question.