The Department of Homeland Security (“DHS”) finalized its long-awaited chemical security regulations on November 2, 2007. The Chemical Facility Anti-Terrorism Standards are intended to prevent terrorists from releasing or otherwise using hazardous chemicals. The regulations require facilities with threshold quantities of chemicals listed in Appendix A to submit information about the chemicals at their facilities to DHS, analyze the potential security vulnerabilities, and develop a site security program.
The regulations will impose an entirely new set of requirements on chemical manufacturing facilities and refineries, many of which are under significant global competitive pressure. Facilities familiar with reporting under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), Emergency Planning and Community Right to Know Act (EPCRA), or the Clean Air Act’s Risk Management Planning requirements will find that the DHS list contains some different chemicals and threshold quantities. In addition to reporting requirements, the DHS regulations require covered facilities to develop compliance programs. As a result, facilities that are required to comply with OSHA’s Process Safety Management (PSM) standard and EPA’s Risk Management Plan (RMP) requirements will be required to develop and implement yet another new compliance program.
The regulations will also apply to some facilities that are not typically associated with security issues, such as food, beverage, mining, agricultural and pharmaceutical operations. Many of these facilities are not currently required to report under EPCRA and may not be covered by the PSM or RMP requirements. At a minimum, facilities covered by the DHS regulations will have to submit information about their processes, equipment and chemicals to DHS. The only facilities excluded from the regulations are:
- Facilities regulated pursuant to the Maritime Transportation Safety Act (MTSA);
- Public water systems, as defined in the Safe Drinking Water Act;
- Water treatment facilities, as defined in the Federal Water Pollution Control Act;
- Facilities owned or operated by the Department of Defense or the Department of Energy; and
- Facilities subject to regulation by the Nuclear Regulatory Commission (NRC).
DHS has announced that it does not intend to require railroads and long-haul natural gas pipelines to submit information. However, facilities otherwise covered by the regulations that have a pipeline within their boundaries must identify the pipeline as an asset and address it, as appropriate, in the Site Security Plan.
Is Your Facility Covered?
Appendix A lists Standard Threshold Quantities (STQ) for 325 chemicals. Facilities that possess or plan to possess any of these chemicals and are not in one of the excluded categories previously listed are covered by the regulations.
The STQs and methods of calculating them vary depending upon the risk scenario identified by DHS. Three general security issues are identified – release, theft/diversion and sabotage/contamination – and the STQs are set accordingly. For example, the STQ for substances that pose a release risk varies from 10,000 pounds for most flammables to higher or lower amounts for toxics and explosives. The STQ for sabotage/contamination substances is met if a facility ships the chemical and is required to placard the shipment pursuant to Department of Transportation regulations. The STQ for theft/diversion chemicals depends upon a variety of factors, and ranges from 100 grams to two hundred pounds. Some chemicals have STQs for more than one scenario. For example, hydrogen sulfide is designated as posing a toxic release hazard with an STQ of 10,000 pounds and a theft/diversion hazard with an STQ of 45 pounds. The regulations describe how facilities are to determine whether they have an STQ under a particular scenario for a substance.
What Are The Requirements?
Facilities with STQs are required to use the electronic Chemical Security Assessment Tool (CSAT) to submit a Top-Screen Survey, an online questionnaire that requires information about the processes, equipment and chemicals at a facility. DHS will use the results of the Top-Screen Survey to determine whether the facility poses a security risk.
If you determine that you have a chemical in quantities exceeding the STQ, then you will be required to submit a Top-Screen Survey within 60 days of the publication of Appendix A in the Federal Register. DHS may also direct a facility to complete a Top-Screen Survey even if it does not meet the STQs in Appendix A. DHS will publish a Federal Register notice or contact facilities directly if a Top-Screen is required under these circumstances.
Additional Information
For a more detailed discussion of this development, click here. Should you have any questions about these regulations and their ramifications, please contact the Ogletree Deakins attorney with whom you normally work or the Client Services Department at 866-287-2576 or via e-mail at clientservices@ogletreedeakins.com.
Note: This article was published in the November 7, 2007 issue of the National eAuthority.
