Reader Comment – LEPC’s and CFATS

Yesterday, David Sahm published a comment on my ‘Hydrogen and CFATS’ post. He noted, in part, that: “Hopefully, Local Emergency Planning Committees will take note and sound alarm to their reps in Congress.”  LEPCs were established under the EPA’s Emergency Planning and Community Right-to-Know Act regulations and are supposed to be the local agency that oversees emergency planning activities for chemical facilities in a locality (typically county/parish/borough level).

In recent years, CISA, through the Chemical Facility Anit-Terrorism Standards (CFATS) inspectors have been reaching out to local LEPCs as part of their inspection process to ensure that covered facilities have been coordinating with those organizations on emergency response matters. Such coordination between emergency response planners and high-risk chemical facilities should be a cornerstone of both safety and security programs at such facilities.

To the best of my knowledge, this is the only government effort that is trying to ensure that chemical facilities are participating in the LEPC process. This is yet another reason that Congress should re-instate the CFATS program as quickly as possible.

Review - OMB Approves EPA SERC Survey ICR

Yesterday, the OMB’s Office of Information and Regulatory Affairs issued a new OMB Control Number for an information collection request from the EPA. Control Number 2050-0224 provides data collection authority for “Survey of State Emergency Response Commissions (SERCs)”. The new survey form will provide the EPA with a comprehensive look at the current state of SERCS and the Local Emergency Planning Commissions (LEPCs) established under §301 of the Emergency Planning and Community Right-To-Know Act of 1986 (EPCRA) (42 USC 11001).

I hope that the response rate from the State and Tribal SERCS is much closer to 100% than the EPA’s predictions. SERCS and LEPCs form a potentially important backbone for the emergency response planning for chemical emergencies. I think that that backbone is currently weak and needs additional support. A survey like this could provide both the EPA and Congress with the information necessary to identify the extent of the current weaknesses in this important program.

For more details on the survey and EPA’s IRC, see my article at CFSN Detailed Response - https://patrickcoyle.substack.com/p/omb-approves-epa-serc-survey-icr - subscription required.

EPA Publishes SERC Survey 60-day ICR

Yesterday the Environmental Protection Agency (EPA) published a 60-day information collection request (ICR) notice in the Federal Register (85 FR 71892-71893) for a new ICR for a survey of State Emergency Response Commitssions (SERCs). The proposed survey would be designed “to gather information on how EPCRA [Emergency Planning and Community Right-to-Know Act of 1986] is being implemented, best practices, challenges, and gaps in meeting the requirements”

The burden estimate provide in this ICR notice provides the following information:

• Number of expected respondents – 56,

• Frequency – 1 time,

• Burden hours – 4-hrs per response,

• Total burden hours – 224-hrs.

The EPA is soliciting public comments on this proposed ICR. Comments may be filed via the Federal eRulemaking Portal (www.Regulations.gov; Docket # EPA-HQ-OLEM-2020-0521). Comments should be submitted by January 11^th, 2021.

Commentary

I have frequently taken the EPA to task in this blog for their relative lack of oversight of the emergency planning requirements of EPCRA, particularly the establishment and operation of Local Emergency Planning Committees (LEPCs). Yesterday’s notice does not provide any information on the questions that will be included in the survey of LEPCs. I would, however, like to suggest that the following questions about LEPCs be included:

• How many counties, parishes or boroughs in the State do not have active LEPCs (active means having an appointed Chair and having conducted a public meeting within the last 12 months)?

• How many active LEPCs have had a public meeting within the last calendar quarter?

• How many facilities within the State are covered by the Chemical Facility Anti-Terrorism Standards (CFATS) program?

• How many of those facilities have had a written emergency response plan prepared by the responsible LEPC?

Additionally, I would like to suggest that this survey be changed from a one-time affair into an annual activity by the EPA.

A copy of this blog post will be submitted as a comment on this Docket.

S 2402 Introduced – Flammable Liquids by Rail

Last month Sen. Wyden (D,OR) introduced S 2402, the Crude Oil Advance Tracking (COAT) Act. The bill would establish notification requirements for flammable liquid rail shipments, insurance requirements for those shipments. It would also establish two grant programs for emergency response planning and training first responders for accidents involving those rail shipments.

Route Notification

Section 2 of the bill would amend 49 USC 20155, adding a new subsection (c). The bill would require railroads transporting railcars containing Class 3 flammable liquids to “notify all State and tribal emergency response commissions with jurisdiction along the path through which such liquids will be transported of such transportation not later than 24 hours after the shipment is tendered” {new §20155(c)}. The report would include:

• The number of gallons of each Class 3 flammable liquid;

• The city and State from which the tank cars departed and the date and time of such departure;

• The city and State to which the tank cars will arrive and the date and time of such anticipated arrival; and

• The location, date, and time of all crew changes between those two locations.

Insurance Reporting

Section 3 of the bill would amend 49 USC 20901, adding a new subsection (c). The bill would require railroads to perform annual reporting on their ability, “through insurance payments or other assets, to pay all costs of cleaning up a reasonable, worst-case spill, which shall be calculated by multiplying the reasonable anticipated per-barrel cleanup costs by the reasonable worst case spill volume” {new § 20901(c)(1)}.

Preparedness Training

Section 3 of the bill would amend 49 USC 5115(b)(1), inserting a new subparagraph (B). It would require DOT to “recommended course of study and emergency supplies to train public sector employees and contractors to respond to an accident or incident involving trains transporting at least 20 tank cars of flammable liquids or gases”.

Section 6 of the bill would amend 49 USC 5116, modifying the current requirements for State hazmat emergency response training grants. The bill would modify the current reference to ‘hazardous material’ in subsections (a)(1)(C) and (a)(2) to specifically include “flammable liquids or gasses”. It would then add a new subparagraph to §5116(a)(3)(C) requiring States and Indian Tribes accepting emergency response training grants to agree to make “at least 90 percent of the amount of the grant received to carry out the purpose described in subparagraph (B) [emergency response training] in fiscal years 2020, 2021, and 2022 to local emergency planning committees established under section 301(c) of the Emergency Planning and Community Right-To-Know Act of 1986 (42 U.S.C. 1101(c)) to develop emergency plans under such Act”. In subsequent years the amount would be 75%.

Emergency Response Planning Grants

Section 5 of the bill would also ament 49 USC 5116, adding a new §5116(a)(1)(D). This new subparagraph would require DOT to make grants to States and Indian Tribes to help them “develop, improve, and carry out emergency plans for communities through which railroads transport a train or trains transporting flammable liquids or gases”. It would also apply the LEPC provision described above to emergency response planning grants.

Track Relocation Grants

Section 7 of the bill would require DOT to establish a “grant program to provide financial assistance for local projects, activities, and personnel that mitigate the impacts of, and public health or environmental risks associated with, the transport of flammable liquids or gases by rail” {§7(b)}.

Authorization of Funds

Section 8 of the bill authorizes the appropriation of $15 million for the training and planning grants in 49 USC 5116(a), including the new grants described in this bill. It also authorizes $25 million for the track relocation grant program established by this bill.

Moving Forward

Wyden is not a member of the Senate Commerce, Science, and Transportation Committee to which this bill is assigned for consideration. This makes it unlikely that the bill will be taken up by that Committee. The spending authorizations included in the bill also limit the likely consideration of the bill. Finally, I would expect significant opposition from Committee Republicans to the notification requirements in the bill.

Commentary

WOW, there are just so many things wrong with the crafting of this bill that I suspect that Wyden’s staff had little to do with its development. In §2(b) of the bill, for instance, there is a requirement for DOT to publish a report using information provided by State emergency response commissions that the bill never requires the States to compile or submit. Later in the same section DOT is required to share information provided in the new 49 USC 20155(c) with State and local officials that the new language requires to railroad to supply to State and local officials not DOT. The same information sharing requirement is applied to PHMSA for a pipeline safety code section that does not include the referenced subsection {49 USC 60108(f)}. And, the track relocation grants section of the bill references 49 USC 20154 that was repealed in 2015. This is just sloppy legislative craft.

Okay, now to the substance issues.

I kind of like the idea behind the notification requirements in §2 of the bill, but LEPC’s are not really set up to be agencies dealing with real-time hazard notifications; they are planning organizations. The requirements in §2 also show that Wyden has never dealt with railroads on an operational basis as it completely ignores the fact that long distance freight rail traffic is seldom scheduled this thoroughly especially when traffic has to transit rail lines owned by multiple railroads. And the big item missing in this section is any requirement to report delays enroute where the railcars are just sitting on rail sidings waiting for the next stage of their journey. While standing railcars are a minimal derailment threat, they are an easier target for terrorist attack than moving trains.

There have been a number of attempts over the last ten years or so to set up requirements for railroads to provide emergency response personnel with timely information about hazmat rail shipments. Beyond the problems on the railroad side of the equation about advanced knowledge of where a railcar will be along the entire length of its journey, there is a bigger problem caused by the fractured nature of emergency response agencies in this country. There are just too many fire departments and too many of them do not have the full time staffing necessary to handle the notification process. And, lets face it, railroads are generally safe enough that any notifications are going to end up being ignored in any case.

The provisions in this bill for the training and planning grants are a good starting point for future discussions about this issue. Having said that, I do not see any specific need to highlight flammable liquids and gasses when there is already a generic requirement for hazardous materials. The idea of funneling emergency response planning grants through LEPCs has a certain amount justification (since there is no existing federal funding mechanisms for these agencies), but the requirements in this bill ignore the fact that not all areas have LEPCs, especially rural areas that do not have significant chemical manufacturing facilities. Even where LEPCs do exist, they may not be the most appropriate local agency to conduct emergency response planning for rail incidents.

Fortunately, this poorly crafted bill is unlikely to do more that promote Wyden’s re-election campaign.

CFATS FY 2019 Outreach Plan

Today the DHS Cybersecurity and Infrastructure Security Agency (CISA) published their FY 2019 Chemical Facility Anti-Terrorism Standards (CFATS) Outreach Implementation Plan. This annual report was required by the 2014. This document provides a summary of activities undertaken in 2018 and planned for 2019 to implement the CFATS outreach requirements set forth in 6 USC 622(e)(1) and 6 USC 629. This is a follow-up to the FY 2018 report published earlier this year.

Outreach Program

Very little information in this 48-page pamphlet will be of direct interest to covered CFATS facilities; they are not really the target of this outreach effort. This effort is targeted at potential chemical facilities of interest (P-CFOI, facilities that may hold DHS chemicals of interest) to ensure that those facilities are knowledgeable of the CFATS reporting requirements for facilities that hold COI at or above the screening threshold quantity outlined in Appendix A to 6 CFR 27.

A quick read of the document does provide some interesting factoids.

As part of the roll-out of CSAT 2.0 in the fall of 2016, 3,013 facilities submitted first-time Top Screens, and of those, 335 have been added to the CFATS program as being high-risk facilities; a conversion rate of 11.1%.

In FY 2018, presumably as a result of the on-going outreach program, and additional 1,269 facilities submitted first-time Top Screens with 184 of those being added to the CFATS program; a 14.5% conversion rate.

As part of the FY 2019 outreach program, CISA will be targeting a slightly different set of industries that it believes may be under-represented in Top Screen submissions. This year the shorter list includes (pg 13):

• Glass and glass products manufacturing;

• Propane distribution;

• Plastics manufacturing;

• Grain and oilseed milling;

• Frozen food manufacturing;

• Dairy product manufacturing;

• Animal slaughtering and processing;

• Agriculture co-ops; and

• Soap, cleaning compound, and cosmetics manufacturing

LEPC Outreach

One interesting new addition to this outreach program document this year is found in Appendix B, Local Emergency Planning Committee (LEPC) Focused Outreach. This part of the outreach program is not directed at identifying new P-CFOI. Rather it is an attempt to answer a recommendation of the latest Government Accountability Office (GAO) report on the CFATS program about increased sharing of information with Local Emergency Planning Committees (LEPCs) and emergency response personnel.

Appendix B lists the 95 LEPCs receiving specific outreach efforts from the Infrastructure Security Compliance Division (ISCD) of CISA. It notes that these 95 LEPCs in 45 counties represent 870 existing CFATS facilities. Three counties account for the bulk of these LEPCs;

Middlesex County, MA (13), Middlesex County, NJ (25), and Harris County, TX (13).

With the concentration of chemical manufacturing and shipping in Harris County, TX it is heartening to see the substantial number of LEPCs in that country. In contrast, Los Angeles County, CA, with a much higher population and more diverse chemical manufacturing environment has only a single LEPC. This will make ISCD’s outreach effort simpler, but it makes me wonder how effective that LEPC can be.

All Hazards CFATS and Emergency Response

While DHS-ISCD is understandably reticent about detailing just how they make the decision to include, or not include, a facility in the list of High-Risk Chemical Facilities covered under the CFATS regulations, it does not take any regulatory genius to realize that the off-site consequences of a successful terrorist attack must be an important part of the consideration process. With than in mind, it is quite surprising to the novice observer of Federal Government operations, that the CFATS program pays practically no attention what so ever to the actual off-site consequences of a successful attack in the security planning process.

No CFATS ERP Requirement

The reason is not that DHS-ISCD believes that the security plans developed will absolutely prevent all successful terrorist attacks; no one with any background in security would think for a second that any security program would be capable of stopping all determined terror attacks. No, I’m sure that everyone connected with ISCD is well aware that there will likely be a successful terrorist attack on a high-risk chemical facility (and ISCD will be unfairly blamed by Congress and the media for the failure to stop the attack).

No the reason that effective emergency response planning is ignored in the CFATS (and the OSHA/EPA chemical safety) regulations is two-fold. The first is that the facilities that will be attacked will have no authority to plan and/or direct the emergency response efforts beyond the boundaries of their facility. The second is that no one in Congress or the Executive Branch wants to be responsible for placing a dreaded ‘unfunded mandate’ on a State or local government body.

Inadequate EPA ERP Requirement

Actually, there are provisions in EPA regulations for emergency response planning under the Emergency Planning & Community Right-to-Know Act (EPCRA, 40 CFR 355). For the covered facility the requirements are quite simple; notify the Local Emergency Planning Committee (LEPC) that the facility is covered, appoint an Emergency Coordinator to work with the LEPC, and provide the LEPC with information they request. Finally, facilities must report significant releases of covered chemicals to local emergency response agencies..

Unfortunately, the LEPCs have little funding beyond some FEMA grant monies, their members have little or no training in emergency response planning, and no one is responsible for ensuring that they are doing the job for which they were intended. While there are a few activist LEPCs that are well known within their communities, most people wouldn’t know if their community even had an LEPC (many communities with high-risk chemical facilities do not), much less what evacuation plans had been put into place for their protection.

Actually, it is quite surprising that DHS did not take the easy way out when they were developing the CFATS program and simply piggy-back an emergency response planning requirement for a terrorist attack on top of the LEPC program requirements for an accidental release. The EPA has been getting away with it for years.

All Chemical Hazards ERP

Actually, consolidating all emergency response planning for chemical release incidents does make a certain amount of sense. It doesn’t make much difference if the release is due to an industrial accident or a terrorist attack, most of the emergency response actions will be the same. Since FEMA is the all hazards emergency response agency for the Federal Government it would make sense that they would be the agency that should be responsible for overseeing the ERP efforts supporting both EPCRA and CFATS programs.

In fact, we could expand the ERP requirements to include high-risk chemical transportation releases due to potential terror attacks or accidents. We would probably want to limit that to those rail shipments of security-sensitive materials covered under rail route security and safety assessment requirements since there are no current efforts to regulate other hazmat routes at the Federal level.

Under such a program, there would be a Federal requirement for the establishment of an LEPC in every county potentially affected by a chemical release from an EPCRA or CFATS covered facility or a rail-line identified as a primary or alternative route for security-sensitive materials. This would require the establishment of a Chemical Emergency Response Office (CERO) in FEMA to which EPCRA and CFATS covered facilities and railroads would report the physical area affected by a potential release of a covered chemical.

To ensure that LEPC’s were actually established, the chair of each LEPC would be a CERO employee. Additional federal staffing would depend on the number of covered facilities that were potentially affecting the LEPC county and the number of residents of that county. The assistant chair would be from the appropriate State emergency response agency and the deputy chair would be a member of the local county government. Additional LEPC members would represent each emergency response agency within the county and each covered facility and/or railroad affecting that county.

CERO would also be responsible for providing routine funding for and the oversight of the chemical emergency response planning efforts of the affected LEPCs. The ERPs would be required to be submitted to CERO for review and approval. CERO would also ensure that ERPs are routinely exercised through periodic table top exercises and drills. The CERO would also be responsible for establishing and enforcing the regulatory aspects of the ERP program, including establishing the minimum standards for ERPs.

Reader Comment 04-01-10 LEPC Response

Jim Lupacchino, from Day & Zimmermann Security Services, responded to a blog posting from last week that had been continuing the discussion of hazard communication. Jim wrote: “I respect the spirit of your commentary. Recognizing that wind speed, humidity and dispersion rates impact the spread of a "threat cloud", I would suggest that there are companies that work with chlorine and anhydrous ammonia that are in close communication with LEPCs'.“Perhaps the LEPCs' could stand up and recognize the companies that share the risks of onsite poison inhalation hazards and demonstrate corporate citizenship in their respective communities.” I agree that there are almost certainly companies out there that do a good job of keeping their neighbors informed about their on-site chemical hazards. Unfortunately those companies seldom make the news for their communications skills. This is the reason that I wrote the posting that started the original discussion; they do deserve recognition, both from their communities and others in the industry. When I see news reports about this type of pro-active community outreach, I will certainly recognize it. It does seem to me that most companies seem to be trying to take the tack of remaining invisible. They do everything that they can to stay below the level of public perception. A lot of this has to do with the bad press that the chemical industry gets when individual facilities do a bad job of handling information sharing during incidents. Bayer CropScience got a lot more bad press for their handing of their Aug 2008 incident than Barton Solvents got good press for the proactive way they handled the results of their catastrophic fire in Kansas City in July 2007. Having said that, every company that holds significant quantities of release toxic COI has a legal and moral obligation to keep their potentially affected neighbors fully aware of the potential hazards from those chemicals and how to respond to potential releases. Trying to educate the public during a catastrophic release is a waste of time and could get hundreds of people killed. Hunkering down and ignoring the press when outsiders point out the hazards in ways that are designed to get people upset only ensures that the public gets a one-sided presentation of the hazard. And it certainly won’t do anything to help prevent a panic in the event of a significant yet non-catastrophic event. I agree with Jim that local LEPC’s should let the public know when facilities are cooperative and proactive in providing emergency response planners with the necessary information needed to get their jobs done properly. They also need to blow the whistle when that cooperation is not forth coming, the point made by Fred Millar in his earlier comment. What we really need is a spirit of cooperation and communication between high-risk facilities and their neighbors. After all, they are inexorably tied together; that is what makes the facility at high-risk of being a terrorist target and what puts the community at risk for the consequences of a terrorist attack.

Reader Comment 03-24-10 LEPC

Earlier this week Fred Millar responded to my blog on Greenpeace and Sen. Collins with a comment that looked at how fast a toxic cloud would spread after a catastrophic release. Fred’s entire comment is worth reading. I would like to discuss, however, Fred’s closing comment about the effectiveness of Local Emergency Planning Committees: “This is one more piece of evidence on how dismally our two federal Right to Know laws have been thwarted by those who want to keep the public in the dark.” With only a little bit of nit-picking about word choice, what Fred is surely trying to say is that 1) LEPCs do a poor job of communicating the full details of potential chemical risks from (both deliberate and accidental) chemical releases, and 2) that they are prevented from communicating these risks by the chemical companies. Emergency Response Planning Since I have next to no personal experience with LEPC’s (as far as I can tell there are no local LEPC’s in the areas where I live or work), I am going to have to be careful in how I respond to this. I have read enough news reports about chemical incidents to assume that in general Fred is correct in his first point. I have heard of very few situations where it was apparent that local first responders were well aware of the hazards at local facilities, much less the public. I have read of a number of exceptions, but have seen too many reports where police and fire personnel making evacuation or shelter-in-place announcements drove into a chemical cloud and were injured as a result. Fortunately, I haven’t heard of any deaths attributed to this kind of response. The second point is even harder to refute. There have been too many news stories of chemical facility management failing to give adequate information to emergency response personnel during an incident. The outsider would find it easy to assume that there was a conspiracy trying to hide the deadly information (actually information about potentially deadly situations) from the public. I don’t think that this failure to communicate is always (or even usually) caused by deliberate desire to keep the public in the dark. Based upon my experience working in the chemical industry, these communication lapses are often (certainly not always) caused by two things. First and foremost, during an incident the facility management is too busy trying to define and respond to the incident on-site to think about providing good information to outsiders. Now this is short sighted and self-defeating, but it comes from the best motivations not the worst; they are trying to solve an immediate and difficult problem, the ‘stupid questions’ from ‘ignorant outsiders’ are not helping. The second problem actually aggravates (and actually may cause) the first problem. This is the very real failure on the part of many engineers to really consider the ‘worst case scenario’ as actually being possible. I have heard too many ‘that can’t happen here’ comments over the years about the EPA/OSHA worst case tank failures. First off, those types of failures are really rare, and they are usually caused by poor maintenance procedures; something that no one will admit to having. All of this leads to facility management, which is nearly always engineers, putting the emergency response planning well down on their priority list. If it ‘can’t happen here’, then why should I waste my valuable time on an effective emergency response plan? Unfortunately, without a good plan in place, practiced and updated there is no way that there will be an effective response to a real emergency. Lack of Oversight Now these reasons (both mine and Fred’s) are what caused the Federal Government to step in and require community hazard communication and emergency planning for all facilities with substantial quantities of selected hazardous materials. Unfortunately, there was a major flaw in those laws; there were no provision for outside review/approval of emergency response plans. Nor was there any outside review/approval of the information communicated to neighboring communities. This lack of oversight effectively told facilities that it wasn’t really important. It wasn’t that the requirements weren’t important; no the reason for lack of oversight was that proper oversight would be too difficult to do. DHS is finding out how hard it is to get an adequate response to difficult planning requirements. They have been working for months on getting a few Tier 1 SSP’s brought up to the level where they can be physically inspected. There is no telling how long it will take to get inspection discrepancies corrected to the point where DHS can give final approval to these SSPs. It will be interesting to see how closely DHS inspectors will look at the emergency response plans associated with the site security plans for these high-risk facilities. If they start talking to LEPC’s and local first responders, there might be some movement to make these plans workable. If they don’t, then we will continue to see LEPC’s and emergency response personnel who are left in the dark. And that’s a bad place to be when there are toxic clouds approaching.