House Homeland Security Hearing on TSA

The Transportation Security Agency is not something that I cover much on this blog. Yesterday’s House Homeland Security Committee hearing on the first five years of TSA and where agency is going did briefly touch on a subject that is getting more coverage here, the transportation of hazardous chemicals.

TSA Testimony

In eleven pages of prepared testimony Assistant Secretary Kip Hawley dedicated just two paragraphs to security of toxic inhalation hazard (TIH) chemicals by rail. In the first paragraph (from page 9 of his testimony) he claimed that:

"To objectively measure success in reducing the risk associated with TIH rail transportation, TSA developed a program that will track and measure the standstill time of TIH cars in high threat urban areas (HTUA)s. Using a detailed set of tracking data and comprehensive field inspections, to date TSA has been able to document a 42.9% reduction in the overall risk."

I am not sure that many people would agree with the metric that TSA is using to measure "reduction in overall risk" is really the definitive measure of risk in this case. I still see graffiti on chlorine railcars; artwork that would take longer to complete than it would to place an explosive device on the same car.

In the second paragraph he noted that DHS had published a proposed rule on designed to strengthen "security of the Nation’s freight rail systems" and that the department intended to publish the final rule later this year. It is interesting to note that the proposed rule was published in December 2006, the same time that the proposed CFATS rule was published. The final interim rule for CFATS has been in force for almost a year now.

GAO Testimony

The only other testimony that touched on hazardous chemical transportation was the prepared testimony of Cathleen A Berrick, Director , Homeland Security and Justice Issues at the GAO. Actually, Director Berrick’s prepared testimony included a great deal more information about the TSA and DHS accomplishments in the area of freight rail security than did the TSA representative’s testimony.

.The GAO prepared testimony noted that "TSA shares responsibility for securing surface transportation modes with federal, state, and local governments and the private sector." (page 4) Even within DHS TSA shares responsibilities with FEMA (grant funding) and the National Protectionand Programs Directorate (facility risk assessments). The other major federal player is the Federal Railroad Administration of the Department of Transportation.

The testimony noted that TSA is responsible for conducting threat and vulnerability assessments for a variety of surface transportation assets. It specifically noted that "TSA has conducted vulnerability assessments of rail corridors in eight High Threat Urban Areas where toxic-inhalation-hazard shipments are transported." (page 13) It also noted that TSA representatives had visited:

"…almost 300 railroad facilities including terminal and railroad yards to assess the railroads’ implementation of 17 DHS recommended Security Action Items associated with the transportation of toxic-inhalation-hazard materials."

Director Berrick also commented on the proposed rule on railroad security and noted that TSA was currently working on another proposed rule "that high-risk rail carriers conduct vulnerability assessments and develop and implement security plans." (page 15)

Increasing Role in Freight Railroad Security

Both testimonies noted that while TSA had been focusing the bulk of their effort on airline security, for obvious reasons, that they had not totally neglected fright railroad security. They both noted that there would be an increased focus on that area as TSA progressed into their second 5 years in operation.

Tags: Chemical Facility Security, Freight Railroad Security, Transportation of TIH Chemicals, TSA

Two New Railroad Hazmat Security Rules

There were two new railroad security related postings in today’s Federal Register. Both dealt with the shipment of hazardous chemicals. The first is a notice of proposed rule making (NPRM) concerning appeal procedures for adverse rulings by the Federal Railroad Administration about the adequacy of proposed shipping routes for certain hazardous materials. The second is an interim final rule about the shipment of hazardous materials by rail, fulfilling the requirements of Section 1551 of the Implementing Recommendations of the 9/11 Commission Act of 2007.

Both of these documents are rather extensive and I have not yet had a chance to review them in detail. These are apparently the two security related rules note by Fmillar1 in a response to my earlier blog (see: "Response to Comment on 4-1-08 Blog") I am sure that I will be discussing them in future blogs.

Tags: Chemical Facility Security, Rail shipments of hazardous chemicals

Turnaround Security Issues

I really enjoy surfing the internet. It is amazing how many unusual places you can find mentions of security issues at chemical facilities. Yesterday I ran into a blog by "Duke of Earl", an HR guy at a chemical plant. His blog was about the current turnaround at that chemical plant. He shined the blog spot light on a security problem associated with those turnarounds; the large number of transient contractor personnel working on the site.

While the example that he wrote about in his blog dealt with pilfering of construction supplies (a not insignificant problem in its own right), the situation that he describes should make security planners cringe. Here is his description:

"We’re a small plant. Our normal staffing level is 140 employees plus about 50 permanent contract folks. Right now we have over 500 people in the plant all day and all night".

If this were a high-risk facility, how would you deal with 500 strangers scurrying around your facility? Are they escorted whenever they are working in or around a sensitive area in the facility? Are the tools they carry onto the site inspected; everyday? Who does the background checks, the facility owner, the contractor, or the sub-contractor? Has DHS checked each one against terrorist watch lists? Who controls the security badges?

I am willing to bet that most of these questions are overlooked or maybe winked at for most facility turnarounds. After all, the plant can only be shut down for a limited period of time, and speed is really the main point of the whole exercise. Who can afford to slow down a turnaround for tedious security rules?

High-risk chemical facilities that use this type of annual or semi-annual maintenance shut down are going to have to include the plan for that maintenance turnaround in their site security plan. The questions that I mentioned above are just a few of the questions that are going to have to be addressed by that plan.

Tags: Chemical Facility Security, Site Security Plans, Maintenance Turnarounds

Update on Green Scorpion Exercise

I ran across an interesting series of blogs this morning from an outfit called Stealthmode in Arizona. They are covering the ESS Expo that I wrote about two weeks ago (see: "Chemical Emergency Exercise to take Place at Expo"). The one that I find most interesting is the blog about the Green Scorpion Exercise. It was a live review of the exercise as it was happening. Please note that this outfit apparently has a financial interest in ESS so this is a bit of advertising, but it is interesting none the less.

The other two blogs from the same site are Practicing Disaster (a preview of the Expo) and LiveBlogging the ESS Expo (a commercial for ESS). I recommend all three for a quick read for anyone that is interested in running exercises.

Tags: Chemical Facility Security, emergency response exercises, Green Scorpion

Public Meetings about Proposed PIH Railcar Regulations

There was a notice in Monday’s Federal Register about public meetings that will be held next month about the recently released notice of proposed rule making (NPRM) about new construction standards for railcars used to transport Poison Inhalation Hazard (PIH) chemicals (see: "DOT Proposed Rule Touches on IST"). The meetings will be held May 14th and 15th and May 28th and 29th. To ensure that there is an adequate chance for people to be heard on all facets of the proposed rule, different portions of the rule will be covered on each day.

Most of this rule has little to do with Chemical Facility Security as opposed to transportation security. As I mentioned in my earlier blog, I felt that this would have an impact on discussions of IST implementation, particularly with respect to Chlorine and Anhydrous Ammonia. This feeling has been reinforced by the release of this notice.

 

Is PHMSA Calling for IST?

Two of the specific questions that the Pipeline and Hazardous Materials Safety Administration (PHMSA) wants to have answered during these meetings directly relate to replacements for Chlorine and Anhydrous Ammonia. Those questions are:

"How many governmental jurisdictions that meet the Small Business Administration's (SBA) definition of small entity own water treatment systems that utilize chlorine in their processing? What would be the expected impact of this proposed rule on such entities? Of small government jurisdictions currently utilizing chlorine in their water treatment systems, how many entities could feasibly substitute a non-dangerous or less lethal material (e.g., bleach) for chlorine?" (Italics Added)

"How many agricultural operations that meet the SBA definition of small entity utilize anhydrous ammonia in their operations? What would be the expected impact of this proposed rule on such entities? Of small agricultural operations currently utilizing anhydrous ammonia in their operations, how many entities could feasibly substitute less dangerous materials (e.g., urea, urea ammonium nitrate, or ammonium nitrate) for anhydrous ammonia?" (Italics Added)

The railroad industry has been very vocal in their support of mandatory substitution of safer chemicals for PIH chemicals where ever possible. It would not be unusual for a regulatory agency to look favorably on their regulated industry’s favored solution to a problem. It certainly looks like PHMSA is lining up with the railroad industry in this case. It will be interesting to see who has the bigger political guns; the railroads or agriculture.

 

Will Speed Restrictions Cause Increased PIH Inventories?

There is another question that the PHMSA would like to see addressed at these meetings. It deals with the consequences of marshaling PIH cars to limit speed restrictions to ‘key trains’. The actual question asked in the notice is:

"To the extent that tank cars containing PIH materials are not currently transported in `key trains,' but would be as a result of the proposed speed restriction (assuming carriers would marshal PIH cars into key trains to avoid the speed restriction on other trains), to what extent, if any, would this ``marshalling'' cause a delay in the delivery of PIH materials (or other hazardous or non-hazardous materials) in the train? What would be the cost of the delay?"

If only the railroads are answering questions at these meetings, the nearly inevitable answer to the last question would be that there would only be minimal costs associated with marshalling delays. Seldom do railroads guarantee delivery dates or times so full PIH tank cars sitting on sidings garner little extra cost.

There is currently an agreement with DHS to reduce PIH tank car hold time to avoid them becoming a terrorist target. This is a voluntary agreement that can easily be voided to meet a regulatory requirement. The question needs to be asked about the security costs of protecting PIH tank cars while they are waiting to be grouped into key trains.

The users of the PIH chemicals, faced with an increased uncertainty of delivery, will be forced to keep more inventory on site. Typically, the easiest way to do this is to park full PIH tank cars on a rail siding on the plant site. Security for these mobile storage tanks will be more costly because of the transitory nature of the potential target. The chemical industry needs to insure that the inventory carrying costs and increased security costs associated with uncertain delivery are taken into account during these public meetings.

 

These Regulations Will Encourage IST.

It certainly appears that these regulations are a reasonable response to the hazards of shipping PIH chemicals via railroads. If they go into force in their current form, they are certainly going to influence the IST debate. The speed restrictions on trains will increase the amount of marshalling of PIH train cars into key trains. This will increase supply chain uncertainty and probably increase inventory carrying costs (cost of inventory and cost of security will both increase).

Anything that increases the cost of using PIH chemicals will make it easier for companies to come to the financial decision to implement IST. Any time that it becomes financially beneficial to implement a lower risk process companies will start to switch to the lower cost alternative. Their shareholders will require it.

The meetings on the 14th and 15th will deal specifically with chlorine and anhydrous ammonia. As the notice mentions, these two chemicals account for about 80% of the PIH shipments by railroad in this country. These will probably be the two days with the biggest guns on either side of the IST debate showing up to make their points.

Tags: Chemical Facility Security, PIH rail transportation, IST

HR5577 Update 04-14-08

The progress of HR 5577, the Chemical Facility Anti-terrorism Act of 2008, has been delayed again in the House Committee on Energy and Commerce. They were again granted an extension for their review of the legislation; this time until May 30th. It is looking less and less like this will make it through this election-year-shortened congressional session.

Samuel Loewenberg, in a commentary earlier this year, pointed out that there was a great deal of opposition to both the IST provisions and the wording of the federal preemption provisions in the Commerce Committee. While that opposition is mainly from the Republicans on the committee it looks like a deliberate move on the part of the committee leadership to stall consideration of this bill.

One possible reason may be that the leadership realizes that a narrowly divided Senate could be a very large obstacle to the passage of this bill. They may be hoping that a reduction in the number of Republican held Senate seats this fall could make it easier to pass this bill in 2009. That would also make it difficult for DHS to keep the chemical facility security work flowing relatively smoothly since their authorization to regulate chemical facility security currently runs out in October 2009.

If this legislation does not clear the House before the summer recess, I think that Chairman Thompson is going to have to seriously look at trying to get a one year extension on the current Section 550 authorization attached to some relatively safe homeland security legislation during this Congress. That appears to be the only way to keep DHS in the chemical security business for the foreseeable future.

Tags: Chemical Facility Security, HR5577 Status,

Protected Information under HR 5577

This is part of a continuing series taking a detailed look at the provisions of the new Chemical Facility Anti-terrorism Act of 2008 recently introduced in Congress (HR 5577IH). Today’s entry looks at Section 2108 that deals with information that is protected from public disclosure under CFATA of 2008.

Previous blogs in this series include:

• CFATA of 2008 Introduced as HR. 5577
• Personnel Background Checks and HR 5577
• Ranking of Chemical Facilities by HR 5577
• General SVA and SSP Requirements under HR 5577
• Minimum SVA Requirements under HR 5577
• Minimum SSP Requirements under HR 5577
• Risk Based Performance Standards under HR 5577
• Alternative Security Programs under HR 5577
• Record Keeping and Site Inspections under HR 5577
• DHS Review of SVA’s and SSP’s under HR 5577
• Whistleblower Provisions of HR 5577
• Penalties allowed under HR 5577
• Federal Preemption Rules under HR 5577

The current Chemical Vulnerability Information (CVI) rules are derived from a single sub-paragraph in the Section 550 authorization for CFATS. The provisions of Section 2108 in this legislation are much more extensive and explicit than those found in Section 550.

Prohibition of Public Disclosure

The Secretary is tasked with ensuring that the protected information described in this section is protected from public disclosure. He is specifically directed to ensure that it is not disclosed by any Federal agency nor under any State or local law or regulation. While not prohibited from applying the same rules to contractors, facility personnel, or employee representatives, nothing in this section requires the prohibition of disclosure by any of these personnel.

Regulations

The Secretary is authorized by this section to issue the necessary rules, regulations and orders necessary to protect the described information. Those regulations will limit access to that information to "to persons designated by the Secretary" and insure that the information is "maintained in a secure location".

The regulations must include provisions for the sharing of information between facility personnel (personnel with security, operational, or fiduciary responsibility for the facility) and law enforcement personnel (at all levels of government) and emergency response personnel. This is done to allow for coordination of security measures and emergency response plans.

The regulations must also provide for "the confidential use of protected information" in administrative and judicial proceedings. This includes sealing of protected documents or information that would normally become part of the public record of those proceedings.

Exceptions to Prohibited Disclosure

This section recognizes that there are three classes of disclosure that cannot be prohibited by the regulations to be developed by the Secretary. The most obvious is that nothing in the rules or regulations may authorize "the withholding of any information from Congress". This is done to protect the responsibility of the Congress to exercise over sight of the Executive Branch.

Nothing in the regulation may allow chemical facilities to withhold information required to be submitted or shared by with other Federal, State or local "government agency under, or otherwise to comply with, any other law." This includes any requirements to share information with facility employees or employee organizations.

Finally, these rules and regulation will have no affect on the information disclosure by any other Federal agency of "any record or information that the Federal agency obtains from a chemical facility under any other law". This was included to allay the concerns of some environmental organizations that the current CVI rules might be used to circumvent various community right-to-know rules.

Protected Information

This section describes four general classes of data that would be considered to be protected information under this legislation. They include tier assignment data, security evaluations and plans, security performance standards and finally any data collected by government agencies during the enforcement or implementation of these regulations at a designated facility.

The tier assignment data not only includes the risk tier assigned by the Secretary, but also the information provided by the facility to allow the Secretary to assess the risk of terrorist attack and the methodology used by the Secretary to make that assessment. Any of this information would be valuable to a terrorist looking for potential targets.

There are three types of information that are expressly excluded precluded from being designated as protected information:

• "information that is publicly available;"
• "information that a chemical facility has disclosed other than in accordance with this section; or"
• "information that, if disclosed, would not be detrimental to the security of a chemical facility."

CVI and Section 2108

There does not appear to be anything in this section that will require any major revisions of the current CVI rules outlined in the current Chemical-terrorism Vulnerability Information Procedures Manual. Section 27.400 of the current CFATS regulations will require substantial modifications to accommodate requirements of this legislation.

Tags: Chemical Facility Security, CFATA of 2008, HR5577, CVI, Protected Information