Advance Notice of Rulemaking (ANR) on anti-terrorism standards for chemical facilities was issued December 22, 2006, by the U.S. Department of Homeland Security (DHS). Following is a summary of this important initiative, 71 Fed. Reg. 78276.
Public comment sought
The ANR implements Section 550 of the DHS Appropriations Act of 2007, signed into law on October 4, 2006. The Act requires that DHS issue interim final regulations establishing risk-based performance standards for security of chemical facilities and requiring vulnerability assessments no later that April 4, 2007. The regulations are to apply to chemical facilities that present high levels of security risk. Importantly, DHS states that the Act doesnt require prior notice and comment on the interim final regulations, but emphasizes its belief that public comment will be very helpful in formulating the interim final rule and structuring the program. The ANR therefore discusses items related to issuing the regulations and invites comments on these issues.
What to expect
The term chemical facility would be defined in pertinent part to mean any facility that possesses or plans to possess, at any relevant point in time, a quantity of a chemical substance determined by the Secretary to be potentially dangerous or that meets other risk-related criterion identified by [DHS]. DHS would have discretion in determining those chemical facilities that present a high level of security risk, which would refer to a facility found to present a high risk of significant adverse consequences.
DHS proposes to use a top-screen risk analysis process to determine whether a facility presents a high level of security risk that could result in significant adverse consequences for human life or health, national security and/or critical economic assets. DHS seeks comments on: 1) the risk assessment process; 2) whether facilities subject to the U.S. Environmental Protection Agencys (EPA) Clean Air Act Risk Management Program (RMP), certain facilities subject to the Chemical Weapons Convention, and other types of facilities should have to complete the process; and 3) appropriate sources of information or methodologies for evaluating chemical facility risks and, to the extent DHS considers the nature of particular chemicals to classify facilities, whether classifications should be based on a hazard-class approach.
Chemical facilities for which a high level of security risk determination has been made would be required to perform a Vulnerability Assessment, which DHS describes as an examination of how a covered facility would address specific types of possible terrorist threats, and then develop and implement a Site Security Plan that meets the applicable risk-based performance standards. Both the Vulnerability Assessment and the Site Security Plan must be approved by DHS, and procedures are included for a facility to object to any Site Security Plan disapproval (as well as to a high level of security risk determination and the DHS risk-tier placement).
DHS would conduct audits and inspections to assess compliance with the regulations and have the discretion to issue compliance orders. Importantly, failure to comply with a DHS compliance order may result in civil penalties of up to $25,000 per day, and extraordinary instances may lead to the issuance of an order to cease operations.
Once promulgated, DHS proposes to implement the regulations in a phased manner. Phase 1 would address a selected number of facilities identified from data in EPAs RMP and other sources as potentially posing the most significant risk. While Phase 1 is ongoing, DHS would commence a broader Phase 2 by publish[ing] criteria identifying an additional group or type of facilities that should complete the Top-screen process. While Phase 2 is underway, a third implementation phase could be initiated for facilities not covered in the earlier phases.
Congressional response was swift and somewhat negative. Both Democrats and Republicans have expressed concern about the regulations apparent preemptive effect on more stringent state and local chemical security requirements (see Washington targets plant security). Chemical facilities likely to be affected by the rulemaking will want to watch for developments in this regard.
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 [email protected]. The views expressed herein are solely those of the author. This column is not intended to provide, nor should be construed as, legal advice.