Homeland Security Rule to Affect Many Facilities with Listed Chemicals

On November 2, 2007, the U.S. Department of Homeland Security (DHS) released a final list of chemicals under its chemical facility anti-terrorism standard (CFATS) that will determine which facilities will be subject to the Department’s new chemical security rule.  The list of Chemicals of Interest (COIs) provides establishments throughout the country with a basis for determining whether or not the establishment will need to coordinate with the DHS in conducting further security analyses.  In addition to the name and chemical abstract service (CAS) number of COIs, the list identifies security issues and screening threshold quantities (STQs) for each listed chemical.  If your facility possesses any COI at or above the STQ, you must submit a completed questionnaire to the DHS through its secure website.

Even establishments that do not consider themselves to be “chemical facilities” may be subject to the rule. For example, colleges and universities may be regulated because of laboratory chemicals; farms may be regulated because of propane, fertilizers or pesticides; food processing facilities may be regulated because of refrigeration chemicals; and any facility handling and storing fuels in above-ground or underground storage tanks may be regulated because of the flammability or explosive nature of those fuels.

In April of this year, DHS published the new chemical security rule that set forth standards for facilities to meet in terms of preparing initial security questionnaires (known as the Top-Screen), assignment of facilities to one of four high security risk tiers, completing Security Vulnerability Assessments (SVAs), and completing and implementing Site Security Plans (SSPs).  Although that April rule technically became effective in June of this year, many aspects of the rule were dependent upon the final COI list, so the majority of affected facilities had no actual obligations under that earlier rule. Once the COI list has been published in the Federal Register, all establishments that are impacted by the rule (i.e., have listed COIs at their facilities at or above the STQs) must submit initial Top-Screen information within 60 days. The rule is currently scheduled to be published in mid to late November, so the obligations will be effective in mid to late January.

Some of the chemicals on the list include: ammonia, ammonium nitrate, chlorine, propane, hydrogen peroxide, hydrochloric acid, and hydrofluoric acid. The DHS incorporated many of the chemicals from other Federal agencies’ lists, such as U.S. EPA’s Risk Management Plan (RMP) list, the U.S. Department of Transportation’s hazardous materials list, and the Department of Commerce’s Chemical Weapons Convention list. For example, all of Department of Transportation’s Division 1.1 explosives are included in the list except those with the generic shipping name suffix N.O.S. However, facilities should be aware that the DHS rule is more inclusive than these other programs’ rules because it has its own specific method for calculating quantities. In other words, if you have calculated quantities at your facility under the RMP program and determined that you do not meet EPA’s threshold quantity, you may still meet or exceed the DHS threshold quantity because you are required to count more of the substance or mixture than you did under the RMP rule. In that instance, you might be covered by the DHS rule even if you had earlier determined that you were exempt from the RMP rule.

Ice Miller and the Indiana Chamber of Commerce are holding a half-day seminar on December 11^th covering a number of emergency planning and homeland security issues. A large part of this seminar will be devoted to the new CFATS rule. The Chamber’s new publication “Disaster Planning and Homeland Security for Indiana Business” will also be available at a discounted price to attendees of the seminar. Register for the seminar or order the new Chamber publication and enter Priority Code 4236.

You can see a copy of the new rule, "The Final Chemicals of Interest List", or find out when the rule is published in the Federal Register. If you need assistance in determining whether or not your facilities are subject to this new regulation, please call Ryan McCabe Poor or Ellen D. Gregory.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.