Chemical Facility Anti-Terrorism Standard (CFATS)

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Why DHS Should Remove Gasoline Terminals from CFATS Regulation

E. David Doane

President, ILTA

DHS has decided that its Chemical Facility Anti-Terrorism Standards (CFATS) should apply to certain “high-risk” gasoline terminals.  It arrived at this decision without the benefit of advice from experts on industrial fires and gasoline vapor cloud explosion risks.  During the rulemaking proceeding, DHS received industry comments on a proposed list of chemical substances to be covered by the rule.  Gasoline was not included in the list.  After the comment period was closed, DHS added language that had the effect of adding gasoline to the final list of chemicals covered by the rule.  There was no opportunity for industry comment on the change.  When asked to justify this expansion of its regulation, DHS officials essentially said, “The Buncefield accident demonstrates that large explosions at gasoline terminals can occur, so high-risk terminals in the U.S. should be subject to our security rules.”  But wait.  This is a fallacious conclusion.  The Buncefield terminal was not attacked by terrorists.  DHS should have assessed gasoline terminal explosion probabilities during a terrorist attack, the one essential scenario for applying the rule.

An explosion of a large gasoline vapor cloud during a terrorist attack on a gasoline terminal is an extremely low-risk event.  It is simply not plausible.  Here’s why.  Liquid gasoline emits vapor that readily burns when ignited, but the burning vapor does not explode.  A terrorist attack would ignite gasoline vapor in one or more tanks, and the fire would instantly consume any additional vapor produced by released gasoline.  The fire would prevent a large vapor cloud from forming within the terminal.  Without a large vapor cloud, there would be no explosion large enough to create a blast wave that would threaten nearby residents or workers on adjoining property.  As a practical matter, a Buncefield-type explosion during a terrorist attack is nothing more than a hypothetical event.  DHS should abandon its reliance on Buncefield and remove gasoline terminals from CFATS regulation.

Note:  This statement was first published as an article, entitled “CFATS and the Buncefield Fallacy,” in the June 2009 Issue of ILTA’s The Insider.

ILTA’s Position on the Regulation of Gasoline Terminals Under CFATS

ILTA Comments:  On March 15, 2010, ILTA submitted comments to DHS expressing the terminal industry’s opposition to the inclusion of gasoline under CFATS.

ILTA Petition: On May 12, 2009, ILTA submitted to DHS a Petition for a Declaratory Order, including exhibits, requesting that DHS declare gasoline to be exempt from CFATS.

 Legislation & Rules

Chemical Facility Anti-Terrorism Standards, Personnel Surety Program Request for Comment, Federal Register, April 13, 2010 This notice solicits additional comments on the June 10, 2009 information collection request to establish the CFATS Personnel Surety Program.  As part of its review, the Office of Management and Budget is soliciting comments on several information collection procedures as proposed by DHS.  This second request seems to indicate that DHS is planning to proceed with the PSP as initially proposed, which would require facilities to provide personal information on employees and unescorted visitors.  However, it would not provide these facilities with information to identify and prevent access of suspected terrorists.

On April 13, ILTA submitted comments highlighting problems with the PSP while concluding that facilities should be allowed to consider the use of elements of PSP in meeting RBPS-12, rather than requiring them.  ILTA remains concerned that the proposed PSP would not prevent individuals with known terrorist ties from gaining continued access to CFATS-regulated facilities.  Most significantly, the PSP requirements go beyond the scope of the information contained in the Risk Based Performance Standards Guidance published by DHS in May 2009.

Chemical Facility Anti-Terrorism Standards, Request for Comment, Federal Register, January 15, 2010 This notice seeks public comment on issues related to certain regulatory provisions that apply to facilities that store gasoline in aboveground storage tanks.  Specifically, DHS is seeking comment on:

• Inclusion of 6 CFR 27.203(b)(1)(v) and 6 CFR  27.204(a)(2) as they apply to gasoline terminals;

• Applicability of the modified vapor cloud explosion model to gasoline terminals;

• Whether a reasonable model exists or should be developed for estimating plausible worst-case consequences of an uncontained pool fire.

CFATS Reauthorization On November 6, the House approved the Chemical and Water Security Act of 2009 (H.R. 2868).  The bill reauthorizes and expands the Chemical Facility Anti-Terrorism Standards (CFATS), which are set to expire in October 2010.  The measure would require that chemical facilities deemed to be high-risk assess and, under some circumstances, adopt “inherently safer technologies.”  In addition, the bill would give DHS the authority to regulate maritime chemical facilities currently regulated by the Coast Guard. The bill was sent to the Senate, where it was referred to the Committee on Homeland Security and Government Affairs. 

Risk-Based Performance Standards (RBPS) Guidance, May 2009 This document provides DHS’s interpretations of the level of performance that facilities in each of the risk-based tiers created by CFATS.  It describes in greater detail the 18 RBPSs enumerated in CFATS by providing examples of various security measures and practices that could be selected to achieve the desired level of performance for each RBPS at each tier.

Appendix to Chemical Facility Anti-Terrorism Standards, Final Rule, Federal Register, November 20, 2007 This final rule revises the list of chemicals of interest, or COI, and their corresponding screening threshold quantity (STQ).  Any facility that possesses (or later comes into possession of) a COI that meet or exceed the STQ for any applicable security issue must complete and submit a preliminary screening assessment, referred to as a Top-Screen.

CFATS excludes those terminal facilities covered under MTSA regulations.

6 CFR 27, Appendix A This rule imposes federal security regulations for high risk chemical facilities. Facilities that are currently regulated under the Coast Guard’s Maritime Transportation Security Act, (MTSA) Section 105, are excluded from this rule. Specifically, the rule requires owners of chemical facilities housing certain quantities of specified chemicals to complete a preliminary screening assessment. This assessment will be used to determine the level of risk associated with the facility.

Unlike the advanced notice of proposed rule making, the final rule does not pre-empt existing state laws. More information can be found on the DHS Web site.

Department of Homeland Security 2007 Appropriations Act, Title V: General Provisions, Section 550, October 4, 2006 This act provides the DHS with the authority to regulate the security of “high-risk chemical facilities.” It mandates the Secretary to issue an interim final rule that provides risk-based performance standards for the security of chemical facilities and it requires that this rule be proposed by the Secretary on or before April 4, 2007. The regulatory authority under this act expires the sooner of three years hence or once a permanent, comprehensive chemical facility security legislation is enacted.

Updates, Comments & Other Reports

November 2010 On November 30, members of the Chemical Sector Coordinating Council met with DHS representatives to propose an approach to implementing a personnel surety program that would meet the requirements under CFATS. The industry proposal was developed jointly by four members of the Chemical Sector Coordinating Council, including ILTA.  It was submitted on behalf of the Chemical, Oil and Natural Gas, and Transportation Sector Coordinating Councils.

September 2010 On September 16, the National Academy of Sciences (NAS) published its, Review of the Department of Homeland Security’s Approach to Risk Analysis, a study that was conducted in response to a congressional directive giving NAS authorization to review and assess DHS activities relating to risk modeling and analysis.　 In it, NAS concluded that only low confidence should be placed in most of the risk analyses conducted by DHS.

May 2010 On May 13, the Chemical Sector Coordinating Council (CSCC) submitted comments to the federal docket in response to a second information requires from the DHS on the proposed personal surety program for meeting risk-based performance standard no.12. In its comments, CDCC stated that: (1) the proposal is inconsistent with the CFATS statute because it is not a performance standard, (2) it is an expansion of the CFATS Interim Final Rule that requires formal rulemaking, and (3) is unnecessarily duplicative of existing credentialing systems.  CSCC further expressed concern that DHS failed to respond to significant comments submitted to the docket prior to publication of the current information collection request.  CSCC is comprised of representatives from 15 chemical industry trade associations, including ILTA.

March 2010 On March 15, 2010, ILTA submitted comments to the federal docket in response to a DHS Federal Register notice inviting comments on issues raised in ILTA’s May 12, 2009 Petition for a Declaratory Order, including its exhibits. In its comments, ILTA stated that: (1) application of the fuels mixture rule to gasoline terminals is arbitrary, capricious and without merit; (2) EPA’s vapor cloud explosion model is not readily adaptable for use with NFPA category 3 flammable liquids and (3) pool fire modeling is not applicable or relevant to the regulation of gasoline using the fuels mixture rule.

January 2010 On January 15, 2010, DHS issued a Federal Register notice inviting comment on: (1) its use of a fuels mixture rule to trigger the inclusion of gasoline; (2) its use of a modified vapor cloud explosion model to estimate the potential consequences of a terrorist attack against a gasoline terminal; and (3) the suitability of pool fire modeling to determine whether gasoline terminals pose a significant threat of off-site consequence resulting from a terrorist attack.  This notice specifically addresses the May 2009 petition submitted by the Roberts Law Group PLLC on behalf of ILTA.

RELATED ILTA ARTICLES

ILTA provides a monthly newsletter to its membership. Members may log in to the Member Resources page to access archived newsletters. The following is a list of articles ILTA has published in its newsletter relating to Chemical & Facility Security.

• Industry Representatives Question DHS Risk Analysis Capability, September 2011 (p.2)

• Oil and Chemical Groups Evaluate Findings on DHS Risk Analysis Methods, August 2011 (p.2)

• DHS Again Rejects Industry Input on Personnel Surety, July 2011 (p.3)

• ILTA Urges DHS to Repeal the Program for Regulating Gasoline Under CFATS, May 2011 Issue (p.3)

• ILTA Joins Coalition to Improve Personnel Surety Process at Chemical Facilities, December 2010 Issue (p.2)

• Government Study Concludes Low Confidence Should be Placed in DHS Risk Analysis, December 2010 Issue (p.4)

• ILTA and Chemical Sector Comment on Proposed DHS Personnel Surety Program, June 2010 Issue (p.4)

• ILTA Opposes DHS Inclusion of Gasoline as High-Risk Chemical Under CFATS, April 2010 Issue (p.2)

• ILTA Urges Key Senators to Exempt MTSA Facilities from CFATS Regulations, March 2010 (p.4)

• DHS Seeks Comment on the Regulation of Gasoline Under CFATS, February 2010 Issue, p.2

• DHS Provides CFATS Implementation Update at New Jersey Workshop, December 2009 Issue (p.5)