INSIGHT: US safer technology trial balloon draws fire

15 July 2010 17:01  [Source: ICIS news]

By Joe Kamalick

WASHINGTON (ICIS news)--US officials have floated the idea of making inherently safer technology (IST) considerations a research requirement under current federal rules for chemical site security, but the trial balloon has drawn quick fire from industry.

Lawrence Stanton, a senior technical advisor on infrastructure protection at the Department of Homeland Security (DHS), told the recent chemical sector security summit that “we are working to develop a new approach that could be utilised regardless of whether legislation to require IST implementation is enacted”.

“By starting the process and research now,” he said, “we can adapt implementation to reflect a mandate from Congress if and when that decision is made.”

Legislation to expand the existing Chemical Facilities Anti-Terrorism Standards (CFATS) was approved by the US House late last year, including a mandate for IST measures as part of security precautions at high-risk sites.

No parallel legislation has been introduced in the US Senate, but the principal proponents of tougher security rules for chemical plants - Senators Joe Lieberman (Independent-Connecticut) and Frank Lautenberg (Democrat-New Jersey) - favour an IST mandate.

Such a mandate is widely opposed by the chemicals sector, whose officials fear it would give the department authority to force changes in a given facility’s feedstocks, processes or even end products.

Stanton noted that under existing law the department lacks authority to impose inherently safer technology terms on chemical facilities, but he also pointed out that “The CFATS regulation is constructed to encourage the application of IST-like measures to the question of security risk management”.

For example, he said, a facility can reduce its risk or “tier” level under the rules - or even avoid CFATS jurisdiction entirely - by reducing or changing its chemical holdings or consolidating multiple high-risk operations to a single site.

The new approach to IST as a security measure prior to a specific congressional mandate could help define a role for inherently safer technologies, Stanton indicated.

“A structured programme to ‘Consider, Document and Report (CDR)’ IST-type options would allow DHS to begin understanding the options and processes in context,” he said.

“Let’s postulate that any ‘IST Option’ could include any or all of the following,” Stanton said, outlining:

• A requirement to “consider” IST-style measures that may impact a facility’s security risk level and so contribute to the security risk management programme;
• A requirement to ‘document” that consideration, including measures considered, factors assessed and results of that consideration;
• A requirement to “report” that deliberative process and provide the documentation to DHS; and
• A requirement to “implement” those measures that meet a certain practicality test, or which are ordered by DHS to be implemented.

In his presentation at the security summit, Stanton suggested that this structured CDR programme could be made part of site security plans (SSP) that regulated facilities must submit to the department.

He also emphasised that the department does not plan to roll out an IST consideration requirement without obtaining input from the chemicals industry, and he invited executives at the summit and others in the chemicals sector to offer suggestions.

“We don’t think we can do this without industry input,” Stanton said, “so we are reaching out, we want to talk, we want to engage in dialogue with you.”

US chemical producers had been focused on fighting a possible IST mandate in pending legislation to replace and expand the CFATS rule, and the DHS proposal to introduce inherently safer technology under existing law caught some unawares.

“It was a surprise,” said Bill Allmond, vice president for government relations at the Society of Chemical Manufacturers and Affiliates (SOCMA), who heard Stanton’s proposal at the security summit.

“I question how much authority they have to do this” without a congressional mandate, Allmond said.

“Our position remains that we support the current CFATS, and our priority is to get the Collins five-year extension of the existing rules,” Allmond added, referring to the bipartisan bill authored by Senator Susan Collins of Maine, the ranking Republican on the Senate Homeland Security Committee.

The Collins proposal for a five-year extension of CFATS without substantive changes will be considered by the committee, along with the House-passed measure, later in July.

“We are much more interested in ensuring that the Collins bill gets passed and less interested in how to make IST do-able, whether in a dialogue with Congress or a dialogue with DHS,” Allmond added.

“It would be best for DHS, if they’re planning an IST provision, that they make it public, make a formal proposal and publish it in the Federal Register, so that people can weigh in on it,” he said.

The American Chemistry Council (ACC) also weighed in against any sort of interim IST requirements, saying in a letter to the department that it should not add a “Consider, Document and Report” element to the regulatory requirement for site security plans.

“The envisioned documentation and reporting steps would likely require information far beyond what DHS needs to evaluate whether an SSP satisfies risk-based performance standards,” said council president Cal Dooley.

“We believe that a burdensome CDR programme would actually slow the pace of security risk reduction in the chemical industry,” he added.

Like SOCMA’s Allmond, Dooley questioned whether the department “has the authority to implement an IST requirement without formal notice and comment rulemaking in the Federal Register”.

Jim Cooper, petrochemicals vice president at the National Petrochemicals & Refiners Association (NPRA), said he understood that DHS might ask his trade group about the proposed IST approach, “but we have not been approached formally”.

“The first thing is that our stance on IST hasn’t changed,” Cooper said. “We don’t think it is appropriate to regulate inherently safer technology because you can’t measure it.”

“The statute doesn’t provide that authority” for an IST consideration requirement, Cooper said, “but it doesn’t say that they can’t do something like that, and I think that’s the way DHS is looking at it.”

But, he added, “we don’t really know what they’re thinking about just yet.”

In response to questions about a possible IST consideration policy, a DHS official said this week that “There are no current plans nor is there a timeline to implement an IST consideration proposal or policy”.

Citing comments received thus far from industry “expressing concern about this issue,” the DHS official said the department will be clarifying its position in writing.

Department spokesman Chris Ortman said: “In an effort to enhance the security and resiliency of our nation’s high-risk chemical facilities, the department seeks to expand the understanding of inherently safer technology solutions in the context of risk management”.

He said DHS “continues to engage our chemical sector partners in a dialogue around this and other issues”.

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By: Joe Kamalick
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