Reader Reply 10-18-09 IST Changes

A continuing conversation on the recent IST changes made by Chairman Markey of the Energy and Environment Subcommittee in their markup hearing last week. Earlier posts in this conversation can be found at: HR 2868 IST Changed Reader Comment 10-16-09 IST Changes Reader Reply – 10-17-09 IST Changes Anonymous replied to the last posting, stating that: “Actually, materials circulated prior to the markup stated that the number of facilities covered BEFORE the change was made was 659. After the change, the number was reduced to 107.” If those numbers came directly (or reliably indirectly) from DHS, then we can proceed with a reasonable discussion of the issue. If DHS was not the source, there would be no one with reasonably complete information to produce reliable numbers. Individual facilities are not supposed to share that information, but I would suspect that they would report general Tier level assignments to the primary industry association that they would belong to, but no single organization represents more than a fraction of the covered facilities. Since I know that DHS ISCD has been working closely with the Committee staff on reworking HR 2868, I would assume that the numbers came from them and are thus reliable. The difference between the 659 number provided to the Committee and my 873 number is simply due to changes in facility status caused by downsizing, closings, and changes in chemicals and processes (yes industry does do voluntary IST where it is practical). Sue Armstrong alluded to this decrease in number of covered facilities and changes in tier rankings when she testified before the subcommittee on October 1st. Now, there is absolutely no way that DHS has ranked 552 Theft/Diversion facilities in Tier 1 and Tier 2, especially if there were only 650 facilities to start with. What I am forced to conclude is that most of the facilities removed from the Tier 1 and Tier 2 listing of facilities were facilities with Release Flammable and Release Explosive chemicals of interest (COI), this would leave 107 facilities that had significant amounts of Release Toxic COI that could possibly be required to implement IST changes to their operations. The only problem is that I see absolutely nothing in the wording of §2111(b)(1)(A) that would allow DHS to distinguish between Release Toxic COI and Release Flammable or Release Explosive COI. The wording of that section describes the facilities to which the authority to require IST implementation applies as being those Tier 1 and Tier 2 facilities that are assigned to that tier ranking “because of the potential extent and likelihood of death, injury, and serious adverse effects to human health, the environment, critical infrastructure, public health, homeland security, national security, and the national economy from a release of a substance of concern at the covered chemical facility”. If the wording of that statement had been restricted to ‘human health, public health or the environment’, one could make the argument that it would only apply to toxic materials. But including the terms ‘critical infrastructure’, ‘homeland security’, and ‘the national economy’ certainly seems to me to include flammable and explosive COI. The only other way around this dilemma would be to change the description of the category for Flammable and Explosive COI to something other than ‘Release’. It did always seem to me to that the term ‘Release’ with respect to Flammable and Explosive COI did not adequately describe the danger associated with these chemicals. It would not be sufficient with these chemicals to simply release them from their containment for it to be a successful terrorist attack. Conditions would have to be established to ensure their ignition under appropriate circumstances to result in a catastrophic explosion for the maximum effect of these chemicals to be felt. Release Toxic chemicals, on the other hand simply need to be released into the environment to do their nasty work. Unfortunately, there is nothing in the published record that indicates that DHS will be changing the categorization of flammable and explosive COI as release chemicals. So we can only read the written record and apply our judgments to that information. Based upon the written record, I stand by my opinion stated in my reply to the original comment by Anonymous; that the ‘concession’ on the types of facilities covered by the IST implementation rule under §2111(b)(1)(A) of the marked up version of HR 2868 is actually a nearly inconsequential change to that regulation, affecting to few facilities to be of any major impact.

Reader Reply – 10-17-09 IST Changes

On Friday I responded to a reader comment about changes made to the IST provisions of HR 2868 in the Energy and Environment Subcommittee markup. The comment from Anonymous was that I had missed a significant change made in my earlier discussion. That change reduced the potential coverage of IST mandates to Tier 1 and 2 facilities with Release COI. I acknowledged (and detailed) that change, but opined that it wasn’t really significant because of the small number of facilities that it could potentially effect. On Saturday morning Anonymous posted the following reply to that opinion:

“The debate indicated that reducing the IST implementation universe of facilities to those in tiers 1 or 2 because of a risk of release (as opposed to theft or sabotage) greatly reduces the numbers of facilities that would be covered. Basically it means that the IST implementation authority would apply ONLY to the facilities that have large quantities of COI AND are located in areas where a release of the COI could hurt alot of people. This was a significant compromise on the part of Chairmen Markey and Waxman.”

It would appear that Anonymous (in this particular case any way) is someone that is close to the debate in the Energy and Commerce Committee, possibly even a committee staffer. While I lack any way of verifying that assumption, I will make that assumption for this discussion and will accept that someone told Waxman and Markey that such a change would ‘greatly reduce the number of facilities that would be covered’ by the provision while not limiting the practical effectiveness of the change. Having made clear my assumptions, lets look at the practical effect of this change. Tier 1 and Tier 2 Facilities First we have to understand that DHS has been very tight lipped about the procedure they use for making the decision to make a Top Screen reporting facility into a high-risk facility actually covered by CFATS and how those facilities are ranked into the four risk-based tiers. Chairmen Waxman and Markey may have been briefed on that decision making process, but I certainly haven’t. I can, however, make some reasonable guesses. The only publicly available information on the Tier rankings is the number of facilities that have been placed in each Tier. While those exact numbers change frequently as chemical inventories and processes change, for the purposes of this discussion I think we can safely use the figures that DHS briefed at this year’s Chemical Security Summit. According to slide number 4 of the DHS Chemical Facility Anti-Terrorism Standards Overview presentation there are 195 Tier 1 facilities and 678 Tier 2 facilities out of a total of 6,400 covered facilities. This means that there are 873 facilities out of the more than 30,000 facilities that submitted Top Screens that present the highest risk of terrorist attack. Presumably a successful attack on these facilities would wreck a savage toll on the surrounding communities, causing inconceivable amounts of death and destruction. Types of COI There are three categories of chemicals of interest (COI) that DHS uses in classifying threats to chemical facilities; Sabotage, Theft/Diversion, and Release. Of these three categories it is only the Release COI that poses an immediate danger in the event of a successful terrorist attack. The other two categories will be moved to another location where additional work must be done to make them into terrorist weapons. Most of the Theft/Diversion COI, for instance, are precursors to making chemical warfare agents or improvised explosives. The balance of that category are those chemicals that are themselves CW agents or explosives and are also listed, in larger quantities, as Release COI. Release COI are those toxic, flammable, or explosive chemicals that if released on site pose a great danger to the facility and local community. Of the three types of Release COI, arguably the most dangerous to the largest area are the toxic release chemicals. There are some of these toxic release COI that have potential calculated casualties in the hundreds of thousands. While the flammable and explosive release COI will probably not be responsible for anywhere near the number of casualties, the damage they can produce will be much more visibly impressive and produce longer term consequences due to their damage of critical infrastructure. Consequences of Successful Terrorist Attacks If we were to look at the almost 900 facilities that make the Tier 1/2 list of facilities, I would be willing to bet that DHS only included facilities that, if successfully attacked, would have immediate consequences on the largest number of people. This would require that the facilities would be near significant population centers and house large amounts of release COI. The other types of COI give DHS and law enforcement additional time after a successful attack to stop significant loss of life. That significantly reduces their risk. Furthermore, I would be willing to bet that the largest majority of Tier 1 facilities are those with significant amounts of Release Toxic COI. These toxic chemicals have a significantly larger area of lethal effect, pound for pound, than do Release Flammable COI or Release Explosive COI. The only way facilities with these chemicals would have a chance of making it to the small list of Tier 1 facilities is to have such large stores of these chemicals that, if successfully attacked, would produce an explosion of cataclysmic proportions. Limiting COI Requiring IST Now, back in February of this year I wrote that: “Restricting the mandatory IST provisions to just Release Toxic COI will undercut some of the industry opposition to IST since it will severely curtail the number of facilities that will face the prospect of implementing the IST provisions.” I also noted that the environmental and labor groups pushing hardest on the IST issue were focusing on toxic chemicals like chlorine, anhydrous ammonia, and hydrogen fluoride; focusing on Release Toxic COI would specifically satisfy their demands. If the people making the arguments to Chairmen Waxman and Markey were attempting to reduce the number of facilities that were exposed to the IST provisions, then they did not read my blog closely enough. Whatever political price they paid for the Waxman/Markey concession on this matter was much too high a price for what little they achieved. Messrs. Waxman and Markey, however, come out of this deal smelling like a rose. They made, practically speaking, a small concession covering a limited number of facilities and now look like statesmen. That is the stuff of politics played in the big leagues. I’m sorry that I had to blow their cover.

Reader Comment – 10-14-08

A reader, ThomKay, took exception to the blog I wrote early yesterday where I wrote that a recent letter to Congress was ‘nothing but a fund raising publicity stunt’. Though I did partially retract that comment in a later blog when I learned that there were serious discussions of a post-election session of Congress, his comments do deserve consideration and a reply. I’ll look at each of his three points in turn. Donations ThomKay writes “You think people donate their own money because they like the letters we write? Donors care about results, and that's what all of these groups are working towards.” Fund raising certainly is more prosperous if you can show results, everybody likes a winner. Lacking results, a good fight is the next best thing and an honest effort will keep the base activated. That is what I thought this letter to Congress was; an effort to show the base that these organizations were still working this issue even when Congress obviously isn’t. I certainly was not involved in the discussions that led to the issuance of these letters, so I do not know the motivation behind them. All I can do is report what it looks like to me. A letter that appears to be completely ineffective politically probably has other motives. Fund raising is a legitimate objective for these organizations. I probably should have omitted the word ‘stunt’ from my original post. 90% of Congress Will Return ThomKay writes “’This’ congress is going to be about 90% the same as next congress. We have to continue our fight through recess if we're going to get these provisions passed by next October.” I think that the 90% figure may be a little high this year, but the point is legitimate that most of those letters are going to people who will be in Congress next year. The only problem is that the memory of politicians is exceedingly short. Letters going out now, just before the election will be ancient history by the time the next Congress gets together in January. Politically, this is a meaningless exercise at this time. The Blame Game ThomKay writes “The letter does not blame Republicans or Democrats. It doesn't emphasize fault at all. Its emphasis is on the importance of passing the provisions.” I’ll bite the bullet here and admit that I blew it. My blog posting clearly implies that these organizations blame the Republicans and the industry for opposing HR 5577 this year. Since I haven’t actually seen the letter and the article did not quote anyone from the organizations in assigning that blame that inference is unfair. I apologize. An Ineffective Response I do stand by the original intent of my blog posting. This letter (again, I have not actually seen it) appears to be an ineffective and ill timed attempt at supporting what I believe is a crucial piece of legislation. While I do not agree with all of the provisions, I think that HR 5577 was a well-crafted, politically-possible solution to the problems inherent in the CFATS authorizing legislation. This is the type bill that should have been passed two years ago. Where was this letter back in July when this bill was bleeding to death waiting for action by the Energy and Commerce Committee? Where was this letter when Speaker Pelosi granted extension after extension? Senator Collins (R,ME) was petitioned by a 10,000 card campaign to support this bill (see: “http://chemical-facility-security-news.blogspot.com/2008/08/groups-press-sen.-collins-on-hr-5577/2973”), where were the cards for Speaker Pelosi and Chairman Dingell asking them to bring the bill to a floor vote? If I missed any of those, I greatly apologize. I certainly would have given them what little publicity I can manage. While I am criticizing the effectiveness of the effort, I believe that we want essentially the same thing. I think that the chemical industry needs this bill, whether they like it or not. I want to see security at high-risk chemical facilities increased before we have the terroristic equivalent of Bhopal here in this country. Moving Forward If Congress does come back into session after the election, I think that the groups that were involved in this letter need to be aggressively and proactively involved in bringing HR 5577 to a floor vote. The ‘opposition of industry and DHS’ will be at its weakest then. Honest politicians will be less beholden to special interests and many of those retiring (voluntarily or otherwise) can be convinced to do something for the good of the country. DHS will be more interested in getting a smooth transition started than fighting a final battle. A Personal Point ThomKay writes “I get that you're a former, and hope to be a future, industry employee.” Yes, I am a former chemical industry employee and that does color my opinion as does my former membership in some environmental organizations. I have no plans to return to direct employment in the chemical industry, so I do not need to curry favor with anyone in the industry. Anyone that knows me personally knows that I have always spoken my mind; I always will. But I do accept that others will disagree, and I will always listen to opposing ideas. And my opinions can and do change. Please keep the responses coming.