DHS FAQ Page Update – 06-19-08

DHS has added four new questions to their FAQ pages today. Two of the questions deal with Security Vulnerability Assessments and two deal with Top Screen issues. The questions are:

• 1432. What facilities will have to complete the SVA?
• 1433. When will I be notified if I have to complete a SVA?
• 1434. What is a sabotage/contamination chemical of interest (COI) for purposes of CFATS?
• 1435. What is the definition of A Commercial Grade (ACG) for the purposes of CFATS?

Security Vulnerability Issues

Recent news reports, both here (see: "Vulnerability Assessments are Underway") and else where, have brought the continuation of the CFATS process back into public view. That may be the reason for these two questions.

The simple answer to the first question is, of course, you have to complete an SVA if DHS tells you to. A more complete answer would be that if DHS determined that you were at high-risk for a chemical attack due to your Top Screen submission, you will be informed that you have to complete an SVA.

The DHS answer to the second question is just a little misleading. They say, in part, that: "DHS expects to review a facility's Top-Screen within 60 days of its submission. Upon completion of that review, facilities that are considered "high-risk" will be mailed a Preliminary Tier Determination letter". The implication is that the notification would be sent out within that 60 day period.

We all know that the letters have yet to go out for facilities that completed their Top Screen last December-January, much longer than 60 days ago. Realistically, DHS is still working out the bugs in their SVA module in CSAT. Live testing of that system is now being conducted by the Phase I facilities that completed their Top Screen last summer.

The answer also contains a reminder that Tier 4 facilities, the lowest-risk high-risk facilities, will have the option of submitting an alternative security plan document to DHS outside of the CSAT online tool. Tier 4 facilities that have already completed a vulnerability assessment using one of the industry standard tools may ask DHS to accept that analysis.

Top Screen Issues

The two Top Screen related questions have to do with the ‘odd balls’ of the Chemicals of Interest (COI) list, Sabotage/Contamination COI, and a definition, A Commercial Grade, used in determining a countable concentration for select COI. There is no new or interesting information in either of these answers.

Tags: Chemical Facility Security, FAQ Updates, SVA, Sabotage/Contamination COI, A Commercial Grade

CFATA Delays

There is an interesting article by Samuel Loewenberg on Politico.com blaming the chemical industry and DHS for the congressional delays in taking up the Chemical Facility Anti-Terrorism Act of 2008 (HR 5577). Unfortunately the article fails to explain how the failure of the House Committee on Energy and Commerce to take any action on a critical bill assigned to that committee for just over 3 months is the fault of anyone but Chairman Dingell and Congresswoman Solis, the acting chair of the Subcommittee on Environment and Hazardous Materials. Further culpability can be assigned to the Democratic Leadership of the House that allowed the committee two extensions on its time limit for taking up the bill.

Expressing Opposition Is Not Stalling

I do not understand why Mr. Loewenberg equates expressing concerns about a major change in regulatory requirements with a conspiracy to stall the passage of this legislation. The chemical companies are the ones that are going to have to deal with the consequences of the legislation, they deserve a chance to make their opinions known, right-up to the day the final vote is taken on the legislation. Proponents of the bill are certainly not being shy about expressing their views.

Inherently Safer Technology

Organizations like Greenpeace and the Center for American Progress do not make it any easier for industry to support this bill. Their rhetoric calls for the most radical implementation of inherently safer technology, something that management would have a legal obligation to oppose. Surrendering total control over economic decisions about their operations would be a violation of their fiduciary responsibilities to their stock holders.

Fortunately, the IST provisions crafted by the Homeland Security Committee in HR 5577 are a realistic balance between security and economics. They require industry to conduct and document a realistic evaluation of their ability to implement various IST projects to reduce the consequences of a terrorist attack (or accident). The Secretary can only then require the implementation of measures that are found to be technically and economically feasible.

Hopefully, industry will come to realize that some form of IST is going to be included in future chemical facility security rules. They have the choice of accepting the fairly realistic requirements of the current legislation or having a more radical version forced down their collective throats next year.

DHS Opposition to HR 5577

Since I have not seen the contents of the Secretary’s letter to Chairman Thompson, I cannot comment on the details of the opposition that Secretary Chertoff expressed. Anyone that has been following the implementation of the CFATS regulations should be able to craft arguments about why these new regulations might "delay of compliance with current regulations".

First we must remember that Congress abdicated its legislative responsibility in October 2006 when it required DHS to convert a few paragraphs in Section 550 into a comprehensive set of chemical facility security regulations. At the same time DHS was required to develop tools to assess and quantify comparative risk levels at a very wide variety of industrial, agricultural, and educational facilities. Finally it had to assemble a regulatory enforcement team to oversee the implementation of those regulations. It is no wonder that DHS is still hammering out the details.

On top of this, while they are just now starting into the most time, manpower, and resource intensive portion of that implementation, Congress is finally stepping up to their task of defining all of the things that the legislature thinks the security measures should address. If HR 5577 is passed in anywhere near its current form, DHS will have to undertake a serious re-write of the regulations that it is still ironing out. The resources used to conduct this re-write will come out of the limited manpower available to implement CFATS.

Industry Opposition to HR 5577

Almost regardless of the actual provisions of any new chemical facility security regulations, industry is going to be wary of any significant revisions of the current CFAT regulations at this time. Industry is in the middle of trying to implement the requirements of a new regulation in a previously unregulated environment. While many facilities have made significant improvements to the security arrangements almost all high-risk facilities are going to have to put into place additional, expensive security measures to meet the CFAT requirements.

In the middle of this planning, implementing, and revising process Congress comes along and re-writes the rules. While the new rules will not go into effect, for the most part, until after the current requirements are put into place, industry will have to be worrying about the changes that will be required by the new rules. Is it any wonder that they are resisting the changes?

Move Forward on HR 5577

In words from my old infantry days, DHS and the chemical industry need to ‘suck it up and drive on’. The current CFAT regulations have too many holes in them resulting from the needless restrictions imposed on DHS by Congress in the Section 550 authorization. These are holes large enough to drive any number terrorist attacks through. They need to be closed quickly and definitively.

HR 5577 is not perfect, by any means. It is, however, reasonable legislation. It is well crafted and balanced enough to have a chance of passage. Industry needs to realize that their chance of getting a better bill next year are slim to none; worse if a terrorist attack happens at a chemical facility in the interim. The House Leadership needs to get this bill moving before the American public realizes who is holding up consideration of this legislation, and it certainly is not industry or DHS.

Tags: Chemical Facility Security, CFATS Implementation, CFATA, HR5577

CFATS Review

There is a good review of the CFATS process on SecurityInfoWatch.com. Written by Richard A. Michau, a VP at Allied Barton Security Services, it provides a good summary of action DHS has taken to date and what is planned for the future. My only complaint is that he overlooks the current exemptions for water treatment facilities, regulated nuclear facilities and DOD controlled facilities while mentioning the exemption for regulated maritime facilities.

SVA Date

He notes that the originally planned date for notifications for facilities to complete security vulnerability assessments (SVA) was April. The currently expected date he reports is now July. This would fit well with recent congressional testimony by Robert Stephans (see: "House Subcommittee Hearing on HR 5533 and HR 5577") who noted that the Phase I facility SVA filings were currently underway. This July date would allow time for DHS to revise some internal procedures to correct problems found during the Phase I filings.

Risk-Based Performance Standards Guide

Michau reports that DHS is planning on publishing a guide to their risk-based performance standards in August. I reported on the development of this guide in an earlier blog (see: "Security Forces at Chemical Facilities – Mission Definition") but did not have a publication date. This guide will certainly be helpful for facilities trying to develop their site security plans.

IT Security Issue

Michau tosses off an interesting comment that requires some amplification. Towards the end of the article he notes that site security plans "may also have to include the physical location of required records and IT security requirements, if they are housed at a different location, such as your corporate headquarters."

Facilities that have SCADA or other electronic systems identified as critical security resources in their SVA will have to document protections for those systems in their site security plans. With many corporate computer systems becoming more interconnected, protections for off-site systems will have to be documented in the site security plan.

CFATS Staff Expansion

Michau also provides some new details for the expansion of the DHS staff supporting the implementation of the CFATS regulations. He reports that DHS plans to establish 10 field offices with 160 personnel supporting the CFATS effort. All of this based on a 26% budget increase for the effort in 2009.

All in all this is a good review of the CFATS implementation to date. One would not expect any less from a VP at one of the larger security companies in the United States. For my review of CFATS implementation see my blog "Vulnerability Assessments are Underway".

Tags: Chemical Facility Security, CFATS Implementation

Comments on Rail Security and Safety Rules – 6-16-08

There are currently three rules recently published in the Federal Register dealing with the security and safety of rail transportation of various hazardous chemicals. The comment period for all three rules has ended. Generally speaking the comments made on each of these rules are posted on the Regulations.gov web site. The last review was posted on 6-16-08 (see: "Comments on Rail Security and Safety Rules – 6-06-08 Cont").

PIH Tank Car Rule

Comments were to be submitted by June 16, 2008. Comments were received from:

The Honorable John Cornyn

• Senator Cornyn (TX) suggests that the CPC-1187 standard be included in the rule with grandfathering provisions.

The Honorable Ralph M. Hall

• Congressman Hall (R, TX) suggests that the CPC-1187 standard be included in the rule with grandfathering provisions.

The Honorable Kay Granger

• Congresswoman Granger (R, TX) suggest that the CPC-1187 standard be included in the rule with grandfathering provisions.

Solvay Chemicals

• Solvay is a manufacturer and shipper of anhydrous hydrogen fluoride (AHF).
• Solvay notes that the sandwich design proposed in the rule would make it difficult to inspect the shell for corrosion, a critical failure mode for AHF tank cars. Solvay strongly opposes this design for AHF tank cars.
• Solvay expresses their concern that they are not able to modernize their AHF fleet because of the phase out provisions of the rule. By the time the first time new standard production car becomes available over half of Solvay’s fleet will be out of date and out of service.

DOT/FRA posted information from public meetings held on the rule. The documents posted are lengthy (100+ pages), too lengthy to review in detail for this blog. The meetings were held on the following dates:

May 14, 2008

• Meeting dealt with issues surrounding the shipment of chlorine
• Prepared statements were received from:

• The Chlorine Institute,
• PPG,
• U.S. Magnesium,
• OxyChem, and

• Dow Chemical
• Also represented at the meeting were:
• Union Tank
• Association of American Railroads
• American Chemistry Council

May 15, 2008

• Meeting dealt with issues surrounding the shipment of anhydrous ammonia.
• Prepared statements were received from:

• TFI
• CF Industries
• Agrium Wholesale
• PotashCorp
• Terra Nitrogen
• J.R. Simplot Company
• Specialty Process Consulting
• Also represented at the meeting were:
• Transport Canada
• Union Pacific

May 28, 2008

• The morning meeting dealt with issues surrounding PIH chemical other than chlorine and anhydrous ammonia.
• The afternoon session dealt with railroad specific issues with the rule.
• Prepared statements were received from:
• E. I. Du Pont de Nemours and Company
• Honeywell International
• Solvay Chemicals, Inc.,
• Arkema
• James Connelly
• Association of American Railroads
• Also represented at the meeting were:
• Transport Canada
• PPG Industries
• Union Tank Car
• Lionel Frissell Industries
• AIR
• RAI Tank Car Safety Research Project

May 29, 2008

• This final meeting provided a forum for general comments on the rule.
• Prepared statements were received from:
• Association of American Railroads
• The Chlorine Institute
• American Chemistry Council
• American Association for Justice

Route Security Analysis Rule

Comments were to be submitted by May 16, 2008. There were no new comments posted since my blog of 5-28-08.

Appeal of Adverse Rail Routing Decisions Rule

Comments are to be submitted by June 16, 2008. The following comments were submitted:

Association of American Railroads

• The AAR believes that the information in the route selection analysis should be restricted to a small number of agency enforcement personnel with a need to know.

The Dow Chemical Company

• Dow believes that the shipper needs to be consulted during the process where the FRA reviews a railroads appeal of a notification of deficiencies in a hazmat route selection.
• Dow believes that FRA should not restrict the statutory appeal rights of shippers aggrieved by an FRA routing decision

Mayo Clinic

• The Mayo Clinic is located immediately adjacent to the DM&E rail line.
• The Mayo Clinic believes that the FRA should be aggressive in review route selections to be able to make a determination that the route selected has the least overall safety and security risks.
• The Mayo Clinic believes that the rule should include provisions for local jurisdictions to request an FRA review of a specific route selection.
• The Mayo Clinic believes that local jurisdictions should be included in the notification process when the FRA conducts a review of a route selection decision.

Commentary

The comment period for all three proposed rules is now closed. The FRA and PHMSA now begin the often lengthy process of revising theirrules to reflect the facts provided in the comments or justifying why they intend to overlook the opinions provided.

In the case of the PIH Tank Car rule this deliberative period will exacerbate the already poor state of affairs associated with the lack of a defined means for updating the aging fleet of PIH tank cars. The proposed rule has effectively stopped the design and production of new railcars.

As cars continue to reach their mandatory retirement dates they will be removed from service without available replacements. This may be a good time to have an economic downturn, reducing the number of shipments required of PIH chemicals. Otherwise shippers would be forced to ship more of these chemicals by road. That would only compound the problems that currently exist in the trucking industry.

It is interesting to note that the three congressional comments seen in this blog show a complete lack of understanding about the relationship between AAR and the FRA. The AAR is not the "FRA’s standard setting organization". The CPC-1187 standard developed by the AAR is not an FRA standard or even a proposed FRA standard. It is an industry standard that exceeds the current requirements of the FRA for the construction of a PIH railcar.

The problem with the CPC-1187 standard is that it is embarrassing to the FRA to have a readily (read currently) achievable improved-safety standard available while the government is still trying to get its design act together. The typical ‘not invented here’ reaction prevented the FRA and PHMSA from allowing the CPC-1187 standard cars from being grandfathered in to avoid the phase out schedule included in the current rule.

The inclusion of the Mayo Clinic in the list of commenters on the proposed rule on establishing an appeal process for the FRA overturning a route selection appears to be unusual. Readers of this blog (see: "Hazmat Rail Routes and the Mayo Clinic") will remember that this is not the first time that the Clinic has involved itself in the railroad rule-making process.

Actually, I expected a whole host of local government agencies and NGO’s to chime in with comments like those that the Mayo Clinic submitted. In many ways it is a shame that a ‘mere’ hospital has to be the voice for this set of views. While federal supremacy in this area of regulation is long standing and well documented, it is somewhat disappointing not to hear the voices of Washington, Baltimore and Contra Costa County chiming in on this issue.

The Mayo Clinic arguments are well thought out and reasonably presented. The FRA is going to have to ignore them, unfortunately. Acceding to the suggestions presented by the Mayo Clinic would make an already unworkable route selection rule a complete administrative nightmare in trying to identify, contact, and listen to the arguments of all of the jurisdictions along a questioned route.

Allowing local jurisdictions to petition to review a route selection decision would completely paralyze the FRA in paperwork and hearings. Legitimate reviews would never get initiated by the FRA due to the time and effort spent responding to jurisdictional appeals.

Tags: Chemical Facility Security, Rail safety and security rules

IST Oversimplification

There is an interesting guest blog today on SecurityDebrief, a collection of security related blogs at Adfero.com. The guest blog, by L. Vance Taylor, is titled "IST – Inherently Stupider Technologies?" Seeing that title you might think that it was a diatribe against IST. Well, it really isn’t. After all how can one really be inherently safer technology?

What the blog actually does is to take on the people that want to insist on the replacement of chlorine with bleach, or ozone in the water treatment process. And in this, I have to agree with Mr Taylor. The people who should decide what type of disinfection process (as long as the selected process adequately disinfects) to use at a particular facility are the people who will be held responsible for the facility failing to disinfect the water supply; the facility management.

Unfortunately, this discussion is degrading into the all too typical Washington political battle. Two sides argue the extremes of an issue while some poor politicians are actually trying to get something worthwhile accomplished. In this case, Mr. Taylor needs to get past the rhetoric of the testimony and look at the bill under discussion, HR 5577.

In this case the politicians are Chairman Thompson and the House Homeland Security Committee. They have done a pretty good job in hammering out, what appears to be a workable way of dealing with the IST issue. First, the bill only mandates that the highest-risk chemical facilities evaluate the IST alternatives for their facility. This formal assessment will become part of the Site Security Plan.

If, and only if, that assessment shows that the facility can practicably switch to an alternative safer process or chemical, can the Secretary of DHS require the facility to do so. Even then, there are a number of bureaucratic roadblocks that can be thrown up to avoid switching to questionably safer and more secure technology.

The testimony at the same hearing of Brad Coffee from the Metropolitan Water District of Southern California shows how a realistic assessment can be made against switching from chlorine to bleach. Interestingly enough assessments by the same team did show that a number of the water treatment facilities in that organization should (and did) switch away from chlorine gas.

We need to stop building fortresses on hilltops and actually look at where the battle is being fought in the valley. The politicians have crafted a workable solution to a complex problem. They are simply requiring what everyone should agree is the job of the owner of any chemical facility handling dangerous chemicals; try to find the safest way to make the product while still staying in business.

In most cases, reputable companies have already done this analysis as part of the EPA and OSHA required safety review processes. Companies that have not done so owe it themselves, their owners, their employees and their communities to do so as soon as possible.

Tags: Chemical Facility Security, Inherently Safer Technology, HR5577

Chemical Incident Review – 6-17-08

Once again, since there have been no reported terrorist incidents at chemical facilities reported in the press, we will look at chemical accidents and incidents that have been reported. It has been a busy couple of weeks according to news reports, so we have lots to choose from. Remember, this is not being done to review safety, but rather to look at such incidents to see what they can teach us about security and mitigation.

Railroad Derailment: Lafayette, LA

More than 3000 people were evacuated when 2 of six hydrochloric acid rail cars begin leaking after a train derailment. Police officers had to go door-to-door in the evacuation zone to notify people to leave the area.

One problem that cannot be overlooked in a chemical evacuation is the protection of people making the notification and the civilians actually evacuating. The closer these personnel are to the release, the more important it is that they be able to determine their exposure to the chemicals involved. When PIH chemicals are involved personal chemical detectors are a must for emergency personnel conducting evacuation notifications.

While it is easier to plan for a release at a fixed chemical facility, transportation related chemical releases can happen anywhere. This means that simple broad-spectrum chemical-detection equipment is a must for all emergency response personnel.

Water System; Las Lomas, CA

Vandals caused a serious disruption of local water service when mercury was discovered in water samples. Water samples were taken after it was discovered that an access hatch to a water storage tank was found forced open. No mercury was detected in any of the water sources feeding the tank, so it appears that vandals contaminated the tank. Subsequent testing of additional water samples only showed mercury at detectable levels in 1 of 10 samples.

None of the press reports mention the levels of contamination, but it is unlikely that the levels would be immediately toxic. This has always been one of the positive aspects of preventing terrorist attacks on water works; it is very hard to get enough chemicals into the system to cause serious harm to people in the short term. Early detection of contamination is the key.

It must be noted that if the vandals in this case had been politically motivated this would have been a successful terrorist attack. While it appears that no one has been hurt, the water service to the community was disrupted. Doubt was also raised in the local population about the safety of their water supply.

Water Systems; Galt, CA and Wichita Falls, TX

Two water systems recently had chlorine leaks. The leak at the Jasper Water Treatment Plant in Wichita Falls was detected by safety equipment. Emergency scrubbing equipment went into operation and no chlorine escaped the room where the tank was stored. A similar incident happened at the wastewater treatment plant in Galt, CA.

Most water treatment facilities that use portable chlorine tanks can house those cylinders in separate rooms. This will allow for the isolation of a leak, and scrubbers to remove the chlorine from the atmosphere. This will increase the security of the tanks as well as the safety.

Larger chlorine storage tanks can also be housed in buildings to limit the threat of leaks or terrorist attack, but it will require significantly more capital. There is no technical reason that chlorine railcars could not also be parked in such a building.

Tags: Chemical Facility Security, Incident Reviews, Chemical Detection Equipment, Attacks on Water Systems, Chlorine Security

Extent of the PIH ‘Problem’

There have been a number of discussions on this blog about the problems posed by the rail shipments of Poisonous by Inhalation Hazard (PIH) or Toxic by Inhalation Hazard (TIH) chemical (different names for the same thing). There has been input by readers and I have not been shy about expressing my opinions. Recently I have been reviewing comments on a new proposed rule for improving the safety of railcars used to ship PIH chemicals (see: "Comments on Rail Security and Safety Rules – 6-06-08"). Reading all of these comments has been very instructive.

Number of Shipments

There does not seem to be a single authoritative number on the shipments of PIH chemicals. Looking at the statements from the varying producers of chlorine, anhydrous ammonia and other PIH chemicals, the number is much larger than even I imagined. And to make matters more interesting, not all of the manufacturers have filed comments, relying on industry groups to represent their views on this rule.

Where PIH Chemicals are Used

Many advocacy groups have rallied around the inherently safer technology (IST) banner, demanding that users shift from PIH materials to safer chemicals. Their standard example has always been the water treatment plants switching from chlorine to bleach. Looking at the statements filed shows that the wide variety of uses of PIH chemicals makes the IST look like a very long-term project.

Agriculture uses huge amounts of anhydrous ammonia. One producer, CF Industries, reports that their 26% of market share in the Corn Belt states alone accounts for 850,000 tons of anhydrous ammonia. While their individual customers are probably low-threat targets, their manufacturing plants, 10 terminals and 550 railcars may be high-risk targets. Additionally, they use anhydrous ammonia in their own production of phosphate fertilizers and ship anhydrous ammonia to coal fired power plants where it is used to scrub exhausts of a variety of potential pollutants.

Other PIH uses are reported:

• BASF Corporation reports that they have 228 Ethylene Oxide railcars in service. EO is a chemical intermediate used in the production of a wide variety of industrial and commercial chemicals.
• The Institute of Makers of Explosives reports that their member companies maintain a 1500 rail car fleet for shipping anhydrous ammonia, used in making ammonium nitrate, a component in 85% of all commercial explosives.
• E.I. du Pont de Nemours and Company ships ten different commodity PIH chemicals. These include chlorosulfonic acid (CSA), dimethyl sulfate (DMS), anhydrous hydrogen fluoride (AN HF), anhydrous hydrochloric acid (AN HCl), hydrogen cyanide (HCN), oleum, sulfur trioxide (SO3), and titanium tetrachloride (TiCl4).
• Arkema, Inc. ships 1000 rail cars of methyl mercaptan ever year. Methyl Mercaptan is used to make methionine, a component of animal feeds.
• US Magnesium produces chlorine as a byproduct of their magnesium production process. If they were unable to ship chlorine they could not produce magnesium.
• Occidental Chemical Corporation reports that they make 10,000 annual shipments of chlorine.

Pervasiveness of PIH Chemicals

These comments provide a window into how pervasive PIH chemicals are in industrial chemistry. Simplistic attempts to solve the problem by mandating shifts to ‘safer’ chemicals ignore the complexity of the problem. One thing in life is certain; a simple solution for a complex problem leads to too many more problems, and usually aggravates the original problem.

Tags: Chemical Facility Security, PIH Chemicals