[Federal Register Volume 75, Number 10 (Friday, January 15, 2010)]
[Proposed Rules]
[Pages 2445-2448]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-738]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 75, No. 10 / Friday, January 15, 2010 /
Proposed Rules
[[Page 2445]]
DEPARTMENT OF HOMELAND SECURITY
6 CFR Part 27
[DHS 2009-0141]
Chemical Facility Anti-Terrorism Standards
AGENCY: Department of Homeland Security, National Protection and
Programs Directorate.
ACTION: Request for comments; withdrawal.
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SUMMARY: The Department of Homeland Security (DHS or the Department)
invites public comment on issues related to certain regulatory
provisions in the Chemical Facility Anti-Terrorism Standards (CFATS)
that apply to facilities that store gasoline in aboveground storage
tanks. In addition, we are withdrawing the version of this document
published in the Federal Register, at 75 FR 1552, on January 12, 2010,
because the footnotes in that document were misplaced. This document
supersedes the January 12 document.
DATES: Written comments must be submitted on or before March 16, 2010.
ADDRESSES: You may submit comments, identified by docket number DHS-
2009-0141, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments.
Mail: U.S. Department of Homeland Security, National
Protection and Programs Directorate, Office of Infrastructure
Protection, Infrastructure Security Compliance Division, Mail Stop
8100, Washington, DC 20528.
FOR FURTHER INFORMATION CONTACT: Todd Klessman, Office of
Infrastructure Protection, Infrastructure Security Compliance Division,
Mail Stop 8100, Washington, DC 20528, telephone number (703) 235-5263.
SUPPLEMENTARY INFORMATION:
Abbreviations and Terms Used in This Document
ASP--Alternative Security Program
CFATS--Chemical Facility Anti-Terrorism Standards
COI--Chemical(s) of Interest
CVI--Chemical-Terrorism Vulnerability Information
DHS--Department of Homeland Security
EPA--Environmental Protection Agency
RMP--Risk Management Program
SSP--Site Security Plan
STQ--Screening Threshold Quantity
SVA--Security Vulnerability Assessment
VCE--Vapor Cloud Explosion
I. Comments Invited
A. In General
DHS invites interested persons to submit written comments, data, or
views. For each comment, please identify the document number and agency
name for this notice. DHS encourages commenters to provide their names
and addresses. You may submit comments and materials electronically or
by mail as provided under the ADDRESSES section. DHS will file in the
public docket all comments received by DHS, except for comments
containing confidential information, sensitive information, or
Chemical-terrorism Vulnerability Information (CVI) as defined in 6 CFR
27.400(b).
B. Handling of Confidential and Sensitive Information and Chemical-
Terrorism Vulnerability Information (CVI)
Do not submit comments that include trade secrets, confidential
commercial information, Chemical-terrorism Vulnerability Information
(CVI) or other sensitive information to the public docket. Please
submit such comments separate from other non-sensitive comments
regarding this notice. Specifically, please mark any confidential or
sensitive comments as containing such information and submit them by
mail to the individual listed in the FOR FURTHER INFORMATION CONTACT
section. Any comments containing CVI should be marked and handled in
accordance with the requirements of 6 CFR 27.400(f).
DHS will not place any confidential or sensitive comments in the
public docket; rather, DHS will handle them in accordance with
applicable safeguards and restrictions on access. See, e.g., 6 CFR
27.400. See also the DHS CVI Procedural Manual (``Safeguarding
Information Designated as CVI,'' September 2008, located on the DHS Web
site at http://www.dhs.gov/chemicalsecurity). DHS will hold any such
comments in a separate file to which the public does not have access,
and place a note in the public docket that DHS has received such
materials from the commenter.
C. Reviewing Comments in the Docket
For access to the docket to read the public comments received and
relevant background documents referred to in this notice, go to http://www.regulations.gov.
II. Background
A. Chemical Facility Security Rulemaking
Section 550 of the Homeland Security Appropriations Act of 2007
(Pub. L. 109-295, Oct. 2006) required the Department to issue, within
six months, interim final regulations for the security of chemical
facilities that, ``in the Secretary's discretion, present high levels
of security risk.'' Under that authority, the Department promulgated
the Chemical Facility Anti-Terrorism Standards, 6 CFR part 27 (CFATS),
on April 9, 2007. See 72 FR 17688.
The CFATS interim final rule sought public comment on Appendix A, a
tentative list of over 300 chemicals of interest (COI) with the
potential to create significant human life or health consequences if
released, stolen or, diverted, or sabotaged. Section 27.200(b)(2) of
the CFATS regulation requires any chemical facility that possesses any
COI at or above the applicable screening threshold quantity (STQ)
specified in Appendix A to complete and submit an online data
collection (the Top-Screen) to DHS. The Department uses the facility's
Top-Screen and, where applicable, other available information to
perform a preliminary assessment of the facility's capacity to cause
significant adverse consequences if targeted for a terrorist attack.\1\
DHS uses that preliminary
[[Page 2446]]
consequence assessment to make an initial high-risk determination for
the facility. See 6 CFR 27.200-27.210.
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\1\ In this notice, the terms ``consequence'' or
``consequentiality'' refer to the potential adverse effects on human
life or health from a successful terrorist incident at a chemical
facility. See generally 72 FR 17696, 17700-17701. DHS also has
authority to determine that a facility is high-risk based on
potential consequences to national security or critical economic
assets. See 6 CFR 27.105; 72 FR 17700-17701.
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The Department assigns each facility that is initially determined
to be high-risk to a preliminary risk-based tier level (Tiers 1-4, with
Tier 1 representing the highest risk) and notifies the facility that it
must submit a Security Vulnerability Assessment (SVA) to DHS. The
Department uses the SVA to make a final high-risk and tiering
determination. Only those facilities that are finally determined to be
high-risk are subject to the full scope of the regulations and required
to submit, for DHS approval, Site Security Plans (SSPs) or Alternative
Security Programs (ASPs) that satisfy the risk-based performance
standards specified in the CFATS regulations. See 6 CFR 27.220-27.225.
DHS issued the final Appendix A on November 20, 2007. See 72 FR
65396. The November 2007 rule clarified that chemicals of interest
listed in Appendix A due to potential risks related to ``release'' are
classified as Release-Explosives, Release-Flammables, or Release-
Toxics, according to the type of potential harm they may cause. See 72
FR 65397. In response to comments on the tentative Appendix A, DHS also
added provisions to CFATS to clarify under what circumstances \2\ and
in what manner facilities must calculate the quantities of certain
types of COI under Appendix A to determine if they are required to
submit Top-Screens. See 72 FR 65397-65398.
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\2\ Among other things, the November 2007 rule provided
additional criteria related to the physical state (liquid, gas, or
solid), concentration levels, and forms of packaging applicable to
various chemicals of interest that must be counted under Appendix A.
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B. Special Provisions for Counting COI in Mixtures
Among other clarifications made in November 2007, DHS added Sec.
27.203, which instructs facilities on when and how to calculate the STQ
for certain types of chemicals of interest. With respect to chemicals
in gasoline, Sec. 27.203(b)(1)(v) requires facilities to count
release-flammable COI (such as butane and pentane) contained
in gasoline, diesel, kerosene or jet fuel (including fuels that have
flammability hazard ratings of 1,2, 3 or 4, as determined by using
National Fire Protection Association (NFPA) [standard] 704 * * * )
stored in aboveground tank farms, including tank farms that are part
of pipeline systems.
In response to comments requesting that DHS clarify whether and how
facilities should count COI in mixtures when calculating whether a
facility meets or exceeds the applicable STQ under Appendix A, the
November 2007 rule also added Sec. 27.204. That section specifies how
to calculate the amount of Release-Toxic, Release-Flammable and
Release-Explosive COI (as well as Theft-COI) in chemical mixtures. See
72 FR 65399, 65416. In particular, Sec. 27.204(a)(2) (the ``flammable
mixtures rule'') clarified how to calculate the quantity of Release-
Flammable COI contained in chemical mixtures, including gasoline \3\
and the other fuels specified in Sec. 27.203(b)(1)(v), for purposes of
Appendix A.
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\3\ There is no single chemical composition for the mixture
typically called ``gasoline,'' which varies in content and blending
components from company to company, region to region, and season to
season. All formulations of gasoline, however, contain a significant
percentage of certain release-flammable chemicals (e.g., pentane,
butane) and typically have a National Fire Protection Association
(NFPA) flammability hazard rating of 3.
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The CFATS flammable mixtures rule generally parallels the rules
previously adopted by the U.S. Environmental Protection Agency (EPA)
under the Clean Air Act's Risk Management Program (RMP) for counting--
or excluding--flammable chemicals contained in mixtures that may be
inadvertently or accidentally released.\4\ See 72 FR 65402. As
explained in the preamble to the November 2007 rule, however, given the
different purposes, scope, and applicability of CFATS and the EPA RMP
rules, there are several important differences between the CFATS and
RMP mixture regulations. See 72 FR 65398-65399, 65401-65402.
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\4\ See 40 CFR Part 68.
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One such difference is that the CFATS flammable mixtures rule
requires that Release-Flammable COI (such as butane or pentane)
contained in gasoline (and other fuels specified in Sec.
27.203(b)(1)(v)) must be counted under Appendix A, even though EPA does
not count the flammable chemicals in gasoline under the terms of the
RMP ``mixtures rule,'' 42 CFR 68.115(b)(2).\5\ See 72 FR 65399 and n.
8. The November 2007 rule explained that, while EPA's RMP rules are
premised solely on accidental releases of chemicals, the COI in these
flammable mixtures, including gasoline, should be counted under
Appendix A because of the potential consequences to human life or
health of an intentional terrorist attack. See 72 FR 65399.
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\5\ EPA's exclusion of flammable chemicals in gasoline from the
RMP rules was mandated by the Chemical Safety, Information, Site
Security and Fuels Regulatory Relief Act, Pub. L. 106-40. Cf. 72 FR
65410 (EPA RMP program excludes flammable fuels). In addition, EPA
agreed to delete gasoline from the original version of the RMP
mixture rule, which had included gasoline, in settlement of
litigation with the gasoline industry. See 63 FR 640 (Jan. 6, 1998).
The RMP exclusion for gasoline and other flammable fuels was
codified by EPA at 40 CFR 68.126.
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C. Implementation of CFATS
Over 36,000 facilities have submitted Top-Screens to DHS and about
6,500 of those facilities were preliminarily determined by DHS to be
high-risk and required to submit SVAs. DHS is now in the process of
notifying those facilities that, based on review of their SVAs, DHS has
finally determined to be high-risk and thus required to submit SSPs. On
June 29, 2009, DHS issued final high-risk notifications to 10
aboveground gasoline storage tank facilities (i.e., terminals).\6\
Subsequently, DHS extended the SSP due dates for those facilities to
allow the Department to coordinate further actions regarding terminals
as a group. This extension is indefinite, pending the Department's
consideration of certain technical issues and questions raised during
the initial high-risk determination process for those facilities, as
discussed below.
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\6\ This notice will refer to all facilities with aboveground
gasoline storage tanks, including facilities (such as petroleum
refineries) that may possess other chemicals that trigger the Top-
Screen requirement, as ``gasoline terminals'' or ``terminals.''
Approximately 4,000 terminals submitted Top-Screens and DHS
initially identified 405 of those facilities as high-risk.
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III. Issues Raised by the Gasoline Terminals Industry
A. Petition From International Liquid Terminals Association
Soon after promulgation of the November 2007 Appendix A final rule,
several trade associations representing gasoline terminals raised both
technical and procedural issues related to the applicability of
Appendix A and the Top-Screen requirement to those facilities.
Procedurally, those associations claimed that DHS did not provide
advance notice and opportunity to comment on the provisions of
Sec. Sec. 27.203 and 27.204 related to aboveground fuel storage
facilities that DHS added to CFATS in November 2007. Technically, the
industry associations claimed that DHS had overestimated the potential
consequences of a terrorist attack on gasoline terminals by relying on
a model that calculates the impacts of a ``vapor cloud explosion'' from
release of flammable liquids from aboveground storage tanks, which the
industry asserted is unrealistic for gasoline terminals.
On May 13, 2009, the International Liquid Terminals Association
(ILTA) submitted a petition to DHS under the Administrative Procedure
Act requesting that DHS exempt gasoline
[[Page 2447]]
from CFATS and remove all references to gasoline terminals from Sec.
27.203(b)(1)(v) and the CFATS flammable mixtures rule (Sec.
27.204(a)(2)).\7\ Through this notice, DHS invites comments on certain
technical issues related to the applicability of CFATS to gasoline
terminals.
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\7\ The ILTA petition is included in the public docket for this
notice and available for review at http://www.regulations.gov.
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B. Modeling of Potential Consequences From Aboveground Gasoline Storage
Tanks
In deciding to add provisions to CFATS for counting chemicals of
interest in aboveground gasoline storage tanks, DHS considered several
possible methods for modeling the potential consequences of terrorist
incidents directed at such facilities--i.e., the vapor cloud explosion
(VCE) model and the ``pool fire'' model.
1. Modified VCE Model for Gasoline Terminals
In essence, a VCE model calculates the maximum distance at which a
vapor cloud produced by release of flammable chemicals would be harmful
or lethal to persons in or near the cloud (the ``distance to
endpoint''), based on the amount of flammable liquid chemical
available, the estimated amount of the liquid that would convert to
vapor, and the distance the vapor cloud could spread before becoming
too ``lean'' to explode when exposed to an ignition source.
Since EPA had already developed a VCE model for estimating the
consequences of accidental releases of flammable chemicals, including
flammable mixtures, under the RMP regulations, DHS used the EPA VCE
model as a starting point for modeling potential VCE consequences for
all Release-Flammable COIs, including those at gasoline terminals.\8\
DHS modified the EPA VCE model, however, to account for certain
differences between gasoline and other flammable liquids mixtures, as
explained below. DHS believes the modified VCE model reflects a
plausible worst-case scenario for terminals and is an appropriate tool
for assessing the potential consequences of a terrorist attack against
gasoline terminals.
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\8\ EPA's VCE model is available in Appendix C of EPA's ``RMP
Guidance for Offsite Consequence Analysis'' (April 1999) at http://www.epa.gov/OEM/docs/chem/oca-all.pdf.
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Specifically, DHS refined the EPA VCE model to provide an even more
plausible estimate of the potential consequences of a terrorist attack
on gasoline terminals in particular. While EPA's VCE model assumes that
(up to) ten percent of a given amount of a flammable liquid will
participate in the explosion (the ``yield factor''), DHS assumes that
only one percent of gasoline will participate, based on gasoline's
combustion properties and its storage at ambient conditions.\9\ This
modification results in a reduction of the potential consequences
calculated by the model, as compared to EPA's model, and appears to be
consistent with the consequences from prior vapor cloud explosions
involving gasoline, as discussed below. Therefore, the modified VCE
model allows DHS to reasonably estimate the number of plausible worst-
case casualties resulting from a successful attack on a gasoline
terminal.
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\9\ See Letter dated December 10, 2008, from Sue Armstrong, DHS,
to Robin Rorick, American Petroleum Institute, et al., which is
available in the public docket for this notice.
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DHS understands that the formation of a gasoline vapor cloud with
the potential to cause significant harm to human life and health
requires that a number of natural and man-made circumstances combine in
a certain way, and that accidental gasoline vapor cloud explosions are
therefore uncommon. DHS has determined, however, that those necessary
conditions are more likely to exist in the event of an intentional
terrorist incident than in the context of an accident, and thus, that
it is reasonable and within the Secretary's discretion under Section
550 to apply the modified VCE model to gasoline terminals. See
generally 72 FR 65399.
For example, in 2005 (long after EPA excluded gasoline from the RMP
rule, see n. 5, supra), a vapor cloud explosion resulting from an
unintentional overflow of a gasoline storage tank at the Buncefield Oil
Storage Depot in Hertfordshire, UK caused significant injuries and
other damage. Several gasoline storage trade associations have asserted
that the combination of specific circumstances resulting in the
Buncefield incident--e.g., accidental but prolonged and undetected
overflow of the tank, failure of detection devices, congestion from
nearby obstacles, weather conditions favoring accumulation rather than
dispersal of the vapor cloud \10\--are so rare that DHS should
disregard the possibility of such explosions at gasoline terminals.\11\
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\10\ The ignition of such a vapor cloud, and the resulting
explosion, would be relatively easy to cause once the other
circumstances were in place.
\11\ See ``Buncefield Major Incident Investigation Board: The
Buncefield Incident,'' 11 December 2005 Final Report (2008),
available at http://www.buncefieldinvestigation.gov.uk/reports. DHS
does not believe that it is necessary or appropriate to detail all
the circumstances of that incident, or to respond to every facet of
the gasoline terminals industry analyses of those circumstances, in
this notice.
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DHS has concluded, however, that a terrorist seeking to cause such
an explosion could target a facility where the necessary physical
conditions exist (or are likely to occur at some point in time). In
order to maximize the consequences of the explosion, such a terrorist
could attempt to cause gasoline to leak or overflow from the targeted
tank(s) in such a way as to make formation of a vapor cloud more likely
than it would be in an accident like the Buncefield explosion.
Nonetheless, DHS invites public comment on the modified VCE model
and on any alternatives to the specific modification made by DHS to the
yield factor in the model.
2. ``Pool Fire'' Models
DHS considered other options for evaluating the potential
consequences of a release from such facilities. Specifically, DHS
considered an existing model that calculates the potential consequences
from the radiated heat of a ``pool fire'' caused by ignition of liquid
gasoline suddenly released from one or more aboveground tanks, but that
implicitly assumes the pool fire is confined within dikes or other
secondary containment surrounding the tank(s).\12\ The gasoline
industry asserts that this ``contained pool fire'' scenario is more
realistic for terrorist incidents involving gasoline terminals (e.g.,
attacks using explosive devices or weapons) than the VCE scenario. The
industry also asserts that the potential consequences of such contained
pool fires do not warrant subjecting terminals to any CFATS
requirements.
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\12\ The pool fire model is described in EPA's ``RMP Guidance
for Offsite Consequence Analysis'' (April 1999) at http://www.epa.gov/OEM/docs/chem/oca-all.pdf. As is true for the VCE model,
EPA's RMP pool fire model reflects assumptions that may be
appropriate for worst-case accidental release scenarios but that are
not necessarily appropriate for plausible, worst-case intentional
release scenarios.
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DHS did not rely on the ``contained pool fire'' scenario, however,
because any model that assumes the effectiveness of secondary
containment does not represent a plausible, worst-case terrorist
scenario, since an adversary seeking to maximize the consequences of
attacking a terminal would also attempt to breach the secondary
containment.\13\
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\13\ See letter dated December 10, 2008, from Sue Armstrong,
DHS, to Robin Rorick, American Petroleum Institute, et al.,
available in the public docket for this notice. The mitigating
effects, if any, of secondary containment may be taken into account,
however, during the Department's determination as to whether a
covered facility's Site Security Plan satisfies the CFATS risk-based
performance standards.
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[[Page 2448]]
DHS is currently considering, however, and seeks comments on,
whether it is feasible to refine existing models or develop a new model
for uncontained pool fires (i.e., where the contents of one or more
gasoline storage tanks escape from secondary containment),\14\ so that
such a model could be used for future consequence assessments for
gasoline terminals--in lieu of or in addition to the modified VCE
model.
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\14\ Models currently available for calculating the consequences
of an uncontained pool fire include assumptions that may be
appropriate for releases from certain small sources (e.g., a
gasoline tank truck) but that are not realistic or appropriate for
worst-case modeling of large-scale releases (e.g., a sudden release
from an aboveground gasoline storage tank). For example, the current
EPA RMP model assumes that the surface upon which the gasoline has
been released is perfectly flat and non-permeable. See EPA's ``RMP
Guidance for Offsite Consequence Analysis'' (April 1999) at http://www.epa.gov/OEM/docs/chem/oca-all.pdf.
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IV. Issues for Commenters
Comments that will provide the most assistance to DHS should
address the following issues and questions. Commenters should include
explanations and relevant supporting materials with their comments
whenever possible.
a. Comments on the inclusion of 6 CFR 27.203(b)(1)(v) (counting of
Release-COI in gasoline, diesel, kerosene, or jet fuel in aboveground
storage tanks) and 6 CFR 27.204(a)(2) (the flammable mixtures rule), as
they apply to gasoline terminals.
b. Comments on the applicability of the modified VCE model to
gasoline terminals, including: Whether the reduction of the vapor yield
for gasoline from ten percent (as in EPA's VCE model) to one percent
reasonably reflects the potential consequences for a vapor cloud
explosion from gasoline (as compared to other liquid flammable
chemicals); and whether a different yield factor adjustment might
better reflect the potential consequences for a vapor cloud explosion
from gasoline.
c. Comments on whether a reasonable model exists or should be
developed for future use that would allow DHS to estimate the plausible
worst-case consequences of an uncontained pool fire resulting from a
successful attack on gasoline terminals.
Dated: January 12, 2010.
Rand Beers,
Under Secretary for National Protection and Programs.
[FR Doc. 2010-738 Filed 1-14-10; 8:45 am]
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