DHS aims to lock down security rules

Expect a final ruling this summer on chemicals covered and some other key issues, warns Lynn Bergeson, regulatory editor.

By Lynn Bergeson, regulatory editor

A list of 344 “chemicals of interest” is included in Appendix A of the U.S. Department of Security’s (DHS) final anti-terrorism standards issued on April 11. The proposed list has many implications and key issues that will affect the chemicals industry.

DHS issued the interim final rule on anti-terrorism standards in response to Congress’ directive in Section 550 of the Department of Homeland Security Appropriations Act of 2007. Section 550(a) requires DHS to issue interim final regulations to assure the security of domestic “high risk” chemical facilities, or facilities that “in the discretion of the Secretary of Homeland Security,” may pose a “high risk of significant adverse consequences for human life or health, national security and/or critical economic assets if subjected to terrorist attack, compromise, infiltration, or exploitation.”

DHS will use “top-screen” risk analysis to determine if a facility presents a “high-risk” level. These determinations are to be based on available information and indicate the potential that a terrorist attack involving the facility could result in significant harm.

Covered facilities believed to pose the greatest potential risk will be addressed first. Each covered facility must conduct a Security Vulnerability Assessment (SVA), and then develop and implement Site Security Plans (SSP) designed to satisfy risk-based performance standards (RBPS) that DHS will develop later. Both the SVA and the SSP must be approved by DHS. Facilities may challenge SSP disapproval, a “high level of security risk” determination, and their DHS risk-tier placement. DHS intends to phase in the regulations “selecting certain chemical facilities for expedited initial processes under these regulations and identifying other chemical facilities or types or classes of chemical facilities for other phases of program implementation.”

Chemicals of interest

In identifying the chemicals of interest, DHS took into account chemicals regulated by the U.S. Environmental Protection Agency’s (EPA) Risk Management Program, the Chemical Weapons Convention (CWC), the Department of Transportation’s (DOT) hazardous materials regulations, and several criteria, including how the release of a chemical could adversely affect human health or the environment, whether the chemical could be used as or converted to a weapon and if it could be mixed with other materials and used for sabotage. DHS issued both the proposed list and a prospective “screening threshold quantity” (STQ) for each, ranging from “any amount” to 15,000 pounds, with lesser amounts identified for most chemicals on the list.

Commenters expressed the following concerns about the list.

Criteria — Many chemicals not on either the EPA or the CWC lists nonetheless appear in Appendix A. — Respondents argue that many of these chemicals don’t seem to pose the type of imminent risks to life or health contemplated by DHS but rather chronic exposure risks.

STQs — Commenters took issue with the proposed  thresholds, in particular the high number of “any amount” STQs. —  They also cited the confusion that would arise from the assignment of STQs that are inconsistent with RPM [Spell out since not defined before] and/or DOT threshold values.

Possess or Plans to Possess — Under the interim final rule, a facility that possesses or “plans to possess” chemicals of interest in amounts equal to or greater than the STQs is required to complete the initial Top-Screen electronic screening questionnaire. Respondents called the phrase “plans to possess” vague and asked DHS to clarify what it means.

Mixtures/Articles — Commenters said that the STQs for mixtures and articles [what is considered an article — something facbricated that contains the chemical?] lacks clarity. Many urged DHS to regulate under Appendix A only the pure “neat” form of the chemical substance.

Next steps

DHS intends to issue a final list of chemicals this summer. The department also likely will clarify many of the issues discussed in this column in the context of the preamble to the final rule. DHS is expected to eliminate all “any amount” STQs, and replace them with RPM or other thresholds; specify that only chemicals in their pure form are covered by the STQs; exclude articles; and clarify that chemicals incidental to transit are exempt. Until the final rule is issued, however, these issues remain unresolved.

By Lynn Bergeson, regulatory editor. She is managing director of Bergeson & Campbell, P.C., a Washington, D.C.-based law firm that concentrates on chemical industry issues. Contact her at lbergeson@putman.net. The views expressed herein are solely those of the author. This column is not intended to provide, nor should be construed as, legal advice.

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