The Department of Homeland Security (DHS) on April 2 issued its Chemical Facility Anti-Terrorism Standards Interim Final Rule – final regulations designed to monitor and enhance security at the nation’s highest risk chemical facilities.
Under the new regulations, all chemical facilities 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 the new rules. These facilities will be categorized into four tiers of escalating risk, but all will be required to complete vulnerability assessments and submit site security plants to DHS for approval and monitoring.
DHS’s “Chemicals of Interest” list is available at http://www.dhs.gov/xprevprot/laws/gc_1175537180929.shtm, and includes anhydrous ammonia, ammonium nitrate, urea, urea nitrate, phosphorus, and potassium nitrate, as well as numerous pesticides. The proposed list is a composite list from EPA’s Risk Management Program, the Department of Transportation’s HAZMAT rules, and Transportation Security Administration rules, and will be subject to a 30-day public comment period.
Kathy Mathers of The Fertilizer Institute referred to it as a “pretty broad list,” adding that “clearly this is something we will be engaged in for awhile working with [DHS].” Mathers said TFI’s Security Task Force will determine whether “we want to provide any comment to DHS on the different chemicals, and then work through the rules from there.”
At an April 2 press conference in Washington, D.C., DHS estimated the number of high-risk plants at about 7,000 nationwide. As part of the new regulations, DHS Assistant Secretary Robert Stephan said roughly 70 regulators from the department will begin this summer to carry out audits and site inspections. “Security standards will be required to achieve specific outcomes, such as securing the perimeter and critical targets, controlling access, deterring theft of potentially dangerous chemicals, and preventing internal sabotage,” DHS said.
DHS said it “sought and reviewed comments from state and local partners, Congress, private industry, and the public to develop consistent guidelines using a risk-based approach.” The rules also allow the department to go after plants with lax security, either by issuing civil fines of up to $25,000 per day for security violations or, in the most extreme cases, by shutting a plant down.
The final rules do not require chemical facilities to use inherently safe technologies, a provision that was advocated by environmental groups and some legislators, but vigorously opposed by the chemical and fertilizer industries. The regulations do, however, allow existing state security laws to remain in effect as long as they do not conflict or interfere with the federal rules. DHS said that it “has no reason to conclude that any existing state laws are applied in a way that would impede the federal rule.”
The final regulations also enforce safeguards to keep sensitive and proprietary information classified by labeling it Chemical-terrorism Security and Vulnerability Information (CVI). Access to information marked as CVI will be limited to “covered persons who have a need to know,” DHS said.
The American Chemistry Council (ACC) on April 2 issued a statement in support of the regulations. “The nation is safer today, thanks to landmark federal regulations that will drive enhanced security protections for America’s chemical industry,” ACC said. “For the first time, a federal agency is authorized to enforce national risk-based performance standards to ensure that chemical facilities assess security vulnerabilities and implement security plans to address them. Equally important, DHS has clear authority to inspect these facilities and apply strong penalties, including facility shutdowns, for those that fail to act.”
ACC said the new regulations “will complement existing state programs and the significant security enhancements already undertaken voluntarily by our members to protect the chemical industry and the nation.” ACC added that it has planned a workshop later in April in which DHS officials will brief ACC members on their “regulatory obligations so that we can hit the ground running when the rule becomes effective in June.”
The Agricultural Retailers Association said on April 3 that it was in the process of reviewing the rule and the proposed list of high-risk chemicals “to determine its potential impact on agricultural retailers and distributors.” According to ARA, DHS is expected to issue guidance documents in three weeks to assist covered chemical facilities to better understand the regulations.
The final regulations are available at www.dhs.gov, and were scheduled to be published late in the week in the Federal Register. Covered facilities contacted by DHS will have 120 days from that publication date to provide information for the risk assessment process.
ARA provided more specifics on the timeline, saying said that as of June 1, chemical facilities will have 60 days to complete the “Top Screen” web-based DHS program, which will provide the facility with its initial tiering level, ranging from Tier 1 (highest risk) to Tier 4 (lowest risk). Upon completion of the screening program, ARA said chemical facilities will receive written notification from DHS on whether it is considered a “high risk” facility and is therefore subject to the new security regulations.
Designated high-risk facilities will then have 90 days to complete a Security Vulnerability Assessment (SVA) program. Facilities in Tiers 1, 2, or 3 will need to complete an SVA program developed by DHS, while Tier 4 facilities can submit an alternative, private sector SVA program (such as that developed by the Asmark Institute) that has been previously approved by DHS.
Facilities receiving notification of their final tiering level by DHS will then have 120 days to complete a site security plan for submission and review by DHS, ARA said, with inspections carried out on a regular basis – every one to three years, depending on level.
The DHS regulations were unveiled less than a week after more prescriptive and aggressive security rules were included in the fiscal year 2007 emergency supplemental appropriations bills approved by the House and Senate Appropriations Committees (GM April 2, p. 12). The fertilizer and agrichemical industries voiced their opposition to those security changes, saying they opened up the agricultural industry to “frivolous lawsuits from anti-chemical activist groups” and compromised DHS’s authority to set and enforce security regulations for chemical facilities.
TFI’s Mathers told Green Markets that President Bush has threatened to veto the supplemental appropriations bill due to the inclusion of a timetable to withdraw U.S. troops from Iraq over the next 18 months. “Our sense is that even if this gets vetoed, the next time we have a supplemental we will be right back with this again,” Mathers said, referring to the chemical security provisions.