Rules Committee to Consider Amendments to HR 2279

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

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

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

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

House to Consider Adding Explosive Reporting Requirement

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

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

Explosives Reporting Requirement

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

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

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

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

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

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

More than CFATS Coverage

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

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

Invisible Rule

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

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

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

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

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

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

CFATS – Emergency Response

There is an interesting article at LATimes.com about a complaint that Rep. Waxman (D,CA) has filed with Secretary Napolitano about a CFATS inspection in his District. The article is a little misleading in that it seems to indicate that Congressman Waxman is complaining about the CFATS failure to address chemical safety issues at a liquefied petroleum storage facility in Rancho Palos Verde, CA, a complaint more appropriately directed at the EPA. A reading of Waxman’s actual letter to the Secretary points a more disturbing if incomplete picture.

Waxman’s letter clearly acknowledges the different focuses of the EPA’s Risk Management Plan program and the DHS Chemical Facility Anti-Terrorism Standards program. The letter goes on to note that Waxman’s office had been informed by DHS that the Rancho Palos Verde facility “had just undergone a ‘successful CFATS inspection’”. Since no actual site security plant inspections have taken place yet (the first of those is not scheduled until later this year) what must have been meant was that either a pre-authorization or a pre-approval visit by Chemical Security Inspectors. In either case, it seems that DHS has either authorized or approved the submitted site security plan.

Emergency Response Plan

What raises concern here is the apparent level of detail that the inspectors relied upon in their review of the site security plan. According to Waxman’s staff who reviewed the inspection record (more about that later) the CSI relied on information provided by a “senior representative of the company’s management” to verify that an emergency response plan had been provided to local emergency responders while the EPA had verified that no such plan was on file with local emergency response personnel.

Now, if this was the pre-authorization visit, conducted to ensure that DHS had all of the necessary information necessary to properly review the site security plan, I can understand why an actual visit to the local fire station was not made, there is a lot of Congressional pressure on ISCD to complete the authorization of site security plans and these pre-authorization visits are not inspections in any stretch of the definition.

But, if this was the pre-approval visit, I would be very concerned if the site visit did not include a side trip to the local fire station to see what kind of relationship the facility had with local first responders. But, again, it must be made clear that this was not an inspection of the site security plan implementation, it was a check to see if the basis of the plan was adequate.

To be sure, Waxman’s staff does not appear to have actually checked with the local fire station either. The letter makes it clear that they are relying on an EPA report and it is not clear if the EPA report precedes or follows the ISCD site visit. If it precedes the visit, the facility may very possibly corrected the deficiency noted by providing a copy of the emergency response plan to the local first responders by the time the CSI arrived on the scene.

Congressional Confusion

This does go to show part of the problem between Congress and ISCD. Waxman is the Ranking Member of the House Energy and Commerce Committee, one of the two committees with some sort of oversight responsibility for CFATS. If he doesn’t understand the difference between a site security plan authorization, a site security plan approval, and a site security plan inspection, then ISCD has done a real poor job of explaining their program to one of the most important Congressional overseers of the CFATS program.

CFATS Disclosures

The fact that a facility is covered by the CFATS program, and their status within that program is information covered by the Chemical-terrorism Vulnerability Information (CVI) program. This information is only supposed to be shared with people that have a need to know and have been trained in the handling requirements for that information.

Now DHS is required to share such information with members of Congress, particularly senior members of the committees which oversee the program. And members of Congress are not required to undergo the CVI training. They are not held to the letter of the law when it comes to the disclosure of such information for obvious political reasons. But, they should obey the intent of the law; to protect vulnerable facilities from needless disclosure of their vulnerabilities.

I fully understand Congressman Waxman’s concern for the safety of his constituents that live and work near this facility. I understand his concern with the apparent shortcomings in the emergency planning associated with this facility. I applaud his directing this to the attention of the Secretary.

What I take exception to is the political grandstanding involved in the press release and publication of this letter. If there had not been a response in a reasonable amount of time, then yes, the glare of publicity would need to be shone brightly on the problem. That is patently not the case here. Particularly when it is apparent that the EPA, the agency responsible for chemical safety, is already taking steps to rectify the situation.

It is just this type of political grandstanding that make is difficult to convince people in the private sector to disclose any manner of sensitive information to the government; and who can blame them.

Interdepartmental Communications

The overlap between security and safety is definitely clear in this particular case. It is also clear that both the EPA and DHS need essentially the same information from this particular facility in regards to its emergency response plan. Sharing of such information will make both agencies for efficient and effective. This is a prime example of what the President’s new chemical safety and security executive order should be all about.

When one agency learns of a discrepancy in something like the emergency response planning for a covered facility, it should be immediately shared with the other. That is obvious. What is not so obvious is how to go about institutionalizing that information sharing while maintaining appropriate information safeguards. That will be one of the tough issues that the Chemical Safety and Security Working Group will have to work out.