The Agricultural Retailers Association has submitted a letter to the Department of Homeland Security (DHS) asking for numerous changes and clarifications to the “Chemicals of Interest” list that accompanied DHS’s Chemical Facility Anti-Terrorism Interim Final Rule.
Under the new rule, which was issued on April 2 to monitor and enhance security at the nation’s highest risk chemical facilities (GM April 9, p. 11), all sites that store a listed chemical of interest in a threshold quantity will be required to complete a DHS web-based screening program. Any facility that qualifies as “high risk” based on the amount and type of chemicals present will then be subject to new regulations, which include initial categorization into four tiers of escalating risk, the completion of a DHS-approved vulnerability assessment, and the submission of a site security plan to DHS for approval and monitoring.
DHS’s chemicals of interest list is a composite list from EPA’s Risk Management Program, the Department of Transportation’s HAZMAT rules, and Transportation Security Administration rules. Interested parties had 30 days to comment, and ARA submitted a May 9 letter to DHS’s Dennis Denziel in which ARA questioned the inclusion of several commonly used agricultural fertilizers and asked for clarification on how the regulations apply to agricultural businesses.
“ARA supports DHS having the discretion to determine which chemicals merit review and listing as a chemical of interest as a result of careful review of scientific data, economic impact and industry input,” the letter states. “However, it is unclear why several commonly used agricultural products were included on the proposed list as they do not pose the same danger or threat of use by terrorists as other more hazardous products. It is important for any regulation and final list of agricultural chemicals issued by DHS to adequately reflect the practical uses and needs of America’s agricultural industry and rural communities.”
Noting that agricultural retailers and farmers will possess some of the chemicals of interest only for “short time frames during peak usage periods of the year,” ARA said DHS should reconsider its definition of “chemical facility” to allow for more flexibility. ARA said DHS should include a minimum 30-day time frame for chemical possession, rather than encompassing all facilities that possess these chemicals “at any relevant point in time,” as the rule currently states.
ARA also requested that DHS remove urea fertilizer from the chemicals of interest list. Noting urea’s widespread use as a “primary source of dry nitrogen” in the U.S., ARA argued that urea cannot be used as an explosive material on its own, but must be mixed with products such as nitric acid and hydrochloric acid (both of which are already listed as chemicals of interest by DHS) to become explosive.
“Hundreds of thousands of agricultural businesses, which include most agricultural retailers and distributors, would unnecessarily be impacted by these DHS regulations if urea is included in the final list of chemicals of interest,” ARA said. “Including urea will cause significant time and money for the industry and use up scarce DHS resources to focus on low risk chemical facilities, thus preventing DHS officials from concentrating their efforts on real and serious threats posed by terrorists against truly high-risk facilities.”
ARA also recommended that DHS drop aqua ammonia from the list, claiming the product is “not a terrorist tool and is not flammable or explosive.” Noting its use as a nitrogen source for fertilizer, ARA said aqua ammonia “would only pose a danger to a surrounding community if exposed to a fire or significantly elevated temperatures as it may decompose, releasing ammonia gas. The likelihood of this occurring is extremely low and thus should not be considered a high terrorist target.”
ARA argued that the screening threshold quantity for certain chemicals, such as anhydrous ammonia, should be changed to mirror the threshold quantities established under EPA’s Risk Management program (RMP) regulations. ARA said DHS’s proposed screening threshold quantity (STQ) for anhydrous of 7,500 pounds is lower than EPA’s RMP regulation of 10,000 pounds, and would “unnecessarily capture many agricultural businesses that do not pose a high level of risk. It will also create regulatory inconsistency with EPA regulations and confusion within the industry,” the letter said.
ARA said it supported the inclusion of ammonium nitrate on the chemicals of interest list, and highlighted its support, along with The Fertilizer Institute, of the Secure Handling of Ammonium Nitrate Act of 2007.
ARA did ask, however, that DHS clarify whether or not blended fertilizer products should be included on the list. ARA also asked that DHS exclude from the list any chemical product that is a mixture of an active ingredient with another common chemical compound.
“ARA agrees with DHS that pure chemical products, not mixtures or blends, are the primary focus of these new chemical regulations,” the letter states. “Agricultural retailers would not be able to identify all of the chemicals listed at their facilities if mixtures of products are included.” ARA cited several examples of chemicals used in agricultural products in mixture form that it said should be removed from the list, including acetaldehyde, acetone, acetylene, acrolein, dimethylamine, formaldehyde solution, and isopropylamine.
ARA also asked for more consistency between federal agencies when determining security regulations and chemicals of interest. In addition, ARA urged DHS to treat agricultural retailers similar to farms in terms of chemical regulations, noting that some large farming operations had the capacity to store chemicals in greater screening threshold quantities than some agricultural retailers.
“We do not want to see uneven regulatory treatment of agricultural facilities located in the same community that store the exact same chemical of interest in the same screening threshold quantity as it could lead to unfair competitive advantages within industry segments,” ARA said. “For purposes of these security regulations, any agricultural business that stores a listed chemical product – whether for sale or end use – at the DHS screening threshold quantity should be regulated the same.”
If retailers and farmers do not receive the same treatment under these regulations, ARA warned, DHS could “cause new distribution systems to emerge within the agricultural industry or create other unintended consequences that could take advantage of potential security loopholes created as a result of exempting some agricultural businesses over other agricultural businesses.”
ARA concluded by asking for more than the allotted 30 days for comment, claiming DHS’s current proposed list of chemicals “needs to be more focused and limited to high risk, hazardous products, as DHS, industry and consumers will not realistically be able to fully protect all potential targets against all possible terrorist threats.” ARA added, “Unnecessarily including hundreds of thousands, perhaps several million facilities, in the initial Top-Screen process would cause significant time and money for the nation’s agricultural industry and DHS.”
DHS’s chemicals of interest list is available at http://www.dhs.gov/xprevprot/laws/gc_1175537180929.shtm.