The Executive Order on Chemical Security: A Closer Look

On August 1st, President Obama announced the signing of an Executive Order entitled “Improving Chemical Facility Safety and Security.” The Executive Order came in response to the explosion at a fertilizer plant in West, Texas earlier this year and aims to enhance the federal government’s ability to prevent such accidents in the future. The order places a strong emphasis on improving communication and collaboration between federal agencies, and reflects the belief that better collaboration could have made a difference in the West incident.

The order identifies the following four major goals to improve chemical safety and security:

  • improve operational coordination with state and local partners;
  • enhance Federal agency coordination and information sharing;
  • modernize policies, regulations and standards, and;
  • work with stakeholders to identify best practices.

Since the signing, a chemical facility safety and security working group has been be formed to direct the federal government’s efforts to implement the executive order. The working group is co-chaired by representatives from the Department of Homeland Security, the Environmental Protection Agency and the Department of Labor (OSHA). Other representatives on the working group include officials from the Department of Justice, Department of Agriculture and Department of Transportation.

The working group is directed to meet no less than quarterly to discuss the status of efforts to implement the executive order, and is tasked with providing a status report to the President within 270 days of the signing of the order. The executive order provides additional details on the timeline of activities proposed for implementation. While the deadlines will most assuredly be moved back as a result of the recent government shutdown, the following timeline gives an indication of the actions federal agencies will be taking over the coming months.

SEPTEMBER 15, 2013 (45 days after signing)

Deploy a pilot program to validate best practices and test methods for interagency collaboration regarding chemical safety and security.

  • Agencies involved: Department of Homeland Security (DHS), Department of Transportation (DOT), Environmental Protection Agency (EPA) and Department of Labor (DOL).

OCTOBER 30, 2013 (90 days after signing)

Develop an analysis on improving information collection and data sharing to track non-compliant chemical facilities.

  • Agencies involved: DHS, DOT, EPA and DOL
  • The Executive Order also directs the agencies involved to discuss options to improve chemical risk management with key stakeholders within 90 days of completing the analysis on information collection.
  • Develop options for improved chemical facility safety and security and identify improvements to existing risk management practices.
  • Agencies involved: DHS, DOT, EPA and DOL
  • Consult with the Chemical Safety Board (CSB) and determine what changes are required to existing memorandums of understanding and processes between EPA, ATF, OSHA and CSB for disclosure of information.
  • Agencies involved: DHS, DOT, EPA, DOL and CSB
  • R=The relations between the CSB and regulatory and law enforcement agencies can be challenging, particularly when there is a criminal investigation. CSB is an independent non-regulatory agency with the mission of investigating industrial chemical accidents. Their goal is to determine the root cause of accidents, but not to assign criminal or regulatory culpability.
  • Oftentimes, agencies conducting criminal investigations seek information from the CSB, including witness statements. This creates a chilling effect that can make CSB’s job more difficult, as witnesses may be hesitant to speak with the CSB, for fear of criminal repercussions. Given this context, it will be interesting to see what, if any changes are made to the way CSB interacts with DHS, EPA and OSHA.
  • Develop a list of regulatory and legislative proposals to improve safety and security around ammonium nitrate.
  • Agencies involved: DHS, DOL and USDA
  • Review the Risk Management Program (RMP) and Process Safety Management (PSM) and determine whether they should be expanded to address additional regulated substances and types of hazards.
  • Agencies involved: EPA and DOL
  • Assess data sharing related to  shortage of explosive materials through ATF with State Emergency Response Commissions (SERCs), Tribal Emergency Planning Committees (TEPCs) and Local Emergency Planning Committees (LEPCs).
  • Agencies involved: DOJ
  • Identify changes that need to be made in retail and commercial exemptions to the PSM standard and issue requests for information to identify ways to modernize PSM related to major chemical accidents.
  • Agencies involved: DOL
  • Identify a list of chemicals that should be considered for addition to the Chemical Facilities Anti-Terrorism Standards program (CFATS) Chemicals of Interest List.
  • Agencies involved: DHS
  • Assess data sharing related to CFATS with SERCs, TEPCs, and LEPCs

DECEMBER 14, 2013 (135 days after signing)

Develop a plan to support and further enable efforts by state regulators, state, local, and tribal emergency responders, chemical facility owners and operators, and local and tribal communities to work together to improve chemical facility safety and security.

  • Agencies involved: DHS, DOT, EPA and DOL

JANUARY 28, 2104 (180 days after signing)

Recommend changes to streamline data collection to minimize duplication and lessen the reporting burden on regulated industries.

  • Agencies involved: DHS, DOT, EPA and DOL

Produce a proposal for a coordinated, flexible data sharing process between agencies to track data submitted about chemical facilities.

  • Agencies involved: DHS, DOT, EPA and DOL

Within 90 days after completion of this item, the executive order directs agencies to develop a plan for implementing practical and effective improvements to chemical risk management.

APRIL 28, 2014 (270 days after signing)

Create a set of comprehensive and integrated standard operating procedures to provide for a unified federal approach to identifying and responding to risks in chemical facilities.

  • Agencies involved: DHS, DOT, EPA and DOL

The executive order lays out an ambitious number of activities on an aggressive timeline. These activities were essentially on hold during the government shutdown, so many, if not all, of the deadlines will slip. For example, plans to move forward with the pilot program to develop and test best practices on interagency collaboration have been pushed back. In addition, IIAR was scheduled to participate in a listening session regarding implementation of the executive order in early October. This session was cancelled and IIAR is awaiting news about rescheduling.

Of the activities in the executive order, potential changes to PSM and RMP may be of most interest to IIAR members. There are no indications at this time that anhydrous ammonia will be singled-out, or that major changes will be made to the underlying PSM and RMP regulations. However, there is some speculation that the Obama Administration may use this opportunity to advocate for the use of inherently safer technologies, or IST. The concept of IST is to reduce or eliminate hazards by adopting alternative technologies to make a given process safer.

Requiring companies to conduct IST assessments and adopt inherently safer technologies has been under consideration for several years. While many believe that using IST can be useful in appropriate settings, applying a regulatory mandate for IST is controversial and the practical implications can be very complex. DHS endorsed the concept of mandatory IST policies during debates regarding the future of the CFATS program, and IST was included in several legislative drafts to reauthorize CFATS. However, Congress is split on the issue of requiring mandatory IST, so using regulatory authority is seen as a more likely way for proponents to advance IST policy changes.

IIAR will continue to actively monitor the implementation of the executive order on improving chemical facility safety and security, and will keep members informed of any policy changes that may impact the industrial refrigeration industry.