ISCD Updates CFATS Web Site – 10-30-18

Yesterday the DHS Infrastructure Security Compliance Division (ISCD) updated their Chemical Facility Anti-Terrorism Standards (CFATS) program web site. Significant changes were made to the CFATS landing page and the CFATS Resources page. Actually, the changes to the landing page were mainly the removal of the ‘CFATS Announcement’ section that dated back to August.

CFATS Resources

The CFATS Resources page is basically a listing of links to publications about the CFATS program. A new category of documents (Industry-related Chemicals Fact Sheets) was added to the page and a new fact sheet (CFATS Resubmitting a Top-Screen Fact Sheet) was added to the existing Fact Sheets section of the page.

The new industry fact sheets section provides links to a number of industry specific fact sheets about the CFATS program. These fact sheets are part of the ongoing outreach effort that CFATS is undertaking to ensure that all facilities with holdings of DHS chemicals of interest (COI) know about their CFATS Top Screen reporting requirements. I have written about a number of these fact sheets as they have been published, but this new section provides links to fact sheets that I had not seen before. Nothing really new in the fact sheets, they are just targeting industries that had not yet been singled out for attention. The new industries include:

• Cosmetic Manufacturing Fact Sheet;

• Food Manufacturing Fact Sheet;

• Glass Production Fact Sheet;

• Laboratory Fact Sheet; and

• Meat Processing Fact Sheet

There is one minor problem with this new ‘fact sheet’ section on the page; all of the links take you to the same separate ‘Industry-related Chemicals Fact Sheets’ page where an identical list of industries provides links to the actual fact sheets. It would be less disruptive if that intermediate page were removed.

NOTE: These new fact sheets were also reported on the CFATS Knowledge Center.

Resubmitting a Top Screen

This new fact sheet (actually dated ‘November 2018’) addresses the issue of when facilities are required to resubmit Top Screens. In addition to the Tier-specific periodic resubmission specified in the CFATS regulations it mentions the ‘material modification’ requirements. ISCD has had a continuing problem with providing industry with a concrete definition of this slippery term. The major reason for this is that ISCD has not been willing to share the details of their risk assessment model so that industry could see exactly what type and scope of changes could result in a change of their facility tiering.

This new fact sheet does provide some new information. Along with the addition or deletion of a COI from the facility inventory, ISCD now lists “Changes to quantity, location, or packaging of a COI as previously reported on a Top-Screen” as a category of activities that could trigger a requirement to resubmit a Top Screen.

To limit the number of Top Screen submissions that a facility might have to submit, ISCD does offer this bit of advice:

“As a best practice, DHS recommends that a facility predict the highest expected quantity and concentration of COI it anticipates possessing at a given time over the lifecycle of the facility’s operations to ensure more efficient reporting.”

Unfortunately, following this advice will could also result in the requirement to maintain a security system for a Tier ranking higher than the facility deserves on a routine basis. It would be more helpful to facilities if ISCD were able to tell facilities what level of inventory for currently listed COI would trigger an increase in Tier ranking. That way facilities could put administrative controls into place to ensure that that inventory level was not reached without a specific consideration of the costs of added security measures.

Can Off-Site Changes Effect CFATS Tiering?

I have discussed the ‘material modifications’ reporting requirements {6 CFR 27.210(d)} of the Chemical Facility Anti-Terrorism Standards (CFATS) program on a number of occasions. Those discussions have centered around modifications made by the facility. What happens when the modifications are made off-site by someone other than the facility? This question is being raised in Buffalo, NY (see here and here).

The Problem

The issue in Buffalo is being raised because a developer is trying to reconfigure an existing facility in an industrial complex to a commercial rather than industrial facility. The proposed facility would be a “commercial office and flex space, with the possibility of space for a coffee shop or restaurant, primarily to serve tenants of the complex” according to one of the news reports.

The issue raised by the CFATS facility is two-fold. First, from the CFATS perspective, the additional people coming into the immediate vicinity (this is a six-acre industrial park) of the chemical facility could result in the DHS Infrastructure Security Compliance Division (ISCD) revisiting the risk tiering of the facility and potentially raising the security standards necessary for an approved site security plan. Those higher security standards would almost certainly cost the company more money.

The second part is the nuisance problem with people not used to working in an industrial environment complaining about the smells associated with chemical manufacturing (sulfuric acid manufacturing in this particular case) or the heavy truck and rail traffic transiting the area in support of that manufacturing.

On the other side, the owner of the property being redeveloped is concerned about his right to obtain the maximum financial return on the investment in the property. Apparently, this commercialization of an industrial property appears to be the best way to ensure that return.

Material Modification Reporting

The specific wording of §27.210(d) reads:

“If a covered facility makes material modifications to its operations or site, the covered facility must complete and submit a revised Top-Screen to the Department within 60 days of the material modification. In accordance with the resubmission requirements in §27.210(b)(2) and (3), the Department will notify the covered facility as to whether the covered facility must submit a revised Security Vulnerability Assessment, Site Security Plan, or both.”

The initial phrase of that paragraph; ‘covered facility makes material modifications’; would not seem to be applicable in this instance since the modifications are being made by someone else. However, looking back to §27.200(a) we see that DHS specifically has the authority to “at any time, request information from chemical facilities that may reflect potential consequences of or vulnerabilities to a terrorist attack or incident”.

Taking both sections into account, it would seem reasonable that a facility has a responsibility to report to notify ISCD of changes near the facility that would affect those potential consequences. Initially filing a new Top Screen may not be required, however. I suspect that a phone call to the CFATS Help Desk {(866) 323-2957} would be the most appropriate first step.

Commentary

Conflicts such as these are not as uncommon a problem as one would like to think. Here in my current home town of Columbus, GA there is a day-care facility that shares a fence line with a chemical manufacturing facility. Another chemical facility in the same industrial park had to buy a piece of adjacent property to stop a milk processing facility from being built less than a hundred yards from hazardous material storage tanks.

Zoning issues, what gets built where, are a local matter for local governments to resolve. Unfortunately, many (most?) local governments do a less than stellar job of looking at the potential for industrial accidents on adjacent properties when making these types of decisions. The most obvious case in recent history is the ammonium nitrate explosion in West, Texas. The Chemical Safety Board report [.PDF download] on the incident includes an entire section on the land use planning problem.

It looks to me like the local Planning Board failed to take into consideration the potential for industrial accidents so close to a commercial facility in making its decision. At the very least it is setting up the community for a rising number of nuisance complaints being made to the local fire department and police department about ‘unusual odors’ and ‘chemical releases’.

Sulfuric acid fumes are irritating and easily detectable at very low levels; levels considered to be safe. Folks in an industrial setting quickly learn to ignore them due to frequent exposure and knowledge of what is going on. Customers periodically visiting the area are not going to have that level of experience and are certain to complain, particularly at eating establishments where smell is an important part of the experience.

Planning boards that fail to take problems like these into account when making zoning decisions in industrial areas are setting the municipal government up for future problems; problems that could be avoided by keeping reasonable separations between industrial operations and non-manufacturing concerns.

CFATS Knowledge Center Update – 07-01-13

Yesterday the folks at ISCD updated their CFATS Knowledge Center web site by adding two new frequently asked questions and their responses. Both questions/responses deal with the appropriate method of handling when a covered facility makes material modifications to its operations or site.

The ‘Latest News’ section of the page notes that the “Department has clarified and updated responses to two FAQs”; FAQ 1614 and 1663. This is not quite accurate since neither FAQ show up in the “CFATS Knowledge Center Issues” copied from the site on 6-24-13, the date of the previous FAQ revision. It would have been more appropriate to describe the situation as DHS has clarified the requirements for dealing with Security Vulnerability Assessments (SVA) and Site Security Plans (SSP) when the facility has made material modifications to their operations or site by adding two new FAQ and their responses.

SVA or SSP Requirements Continue

When a facility makes a material modification while it has either an SVA or SSP deadline pending, it should continue preparing the appropriate documents as if no material modifications had been made. Within 60-days of making the material modification {as outlined in 6 CFR §27.210(d)} the facility must submit a revised Top Screen and ISCD will determine if modifications need to be made to either the SVA or the SSP. The new notification letter will provide the facility with a new deadline for making the indicated changes.

Removing COI

For a couple of years now ISCD has been promising to provide guidance on what a facility needs to do to document the removal of a DHS chemical of interest (COI) from a facility. Since over 3,000 facilities have removed, reduced or modified COI holdings according to the latest (June 2013) CFATS Fact Sheet, it is about time for this guidance to be made available.

According to both of today’s new FAQ responses, “, the facility should provide supporting documentation to the Department, to include the following, as applicable:

• “Reason for the revised Top-Screen submission;
• “Description of removal of COI(s) (e.g., sold to customers, used in process, returned to vendor);
• “Receiving location(s) of COI(s);
• “Documentation for permanent change of process;
• “Documentation supporting closure/sale/end of lease;
• “Invoices/bills of lading/inventory control forms: Material Safety Data Sheet (MSDS)/product labels, planned future inventory of COI(s);
• “Substitute chemical and/or process;
• “Description of management controls for future quantities of COI(s); and,
• “Vendor information.

Both responses state that such information should be provided to the CFATS Help Desk (866) 323-2957, Fax (866) 731-2728, EMAIL: csat@dhs.gov. There should be a friendly reminder here that the submitted data should be protected and transmitted as Chemical-terrorism Vulnerability Information (CVI). It would be nice if there were a CSAT tool for making this submission so that the facility would not find it necessary to email or snail mail CVI material.

BTW: I have complained of late about ISCD making changes to FAQs and their responses and not providing clear notification that such changes have been made. I would like to reiterate that ISCD has made such notification in this case.