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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 May 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
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.
-
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)
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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)
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