Avogadro Environmental Corporation

Department of Homeland Security publishes list of chemicals for security rule

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Courtesy of Courtesy of Avogadro Environmental Corporation

On November 1st The Department of Homeland Security (DHS) posted on the Internet (www.dhs.gov) a Final Rule and Matrix List (Appendix A) identifying chemicals of interest (COI) that define coverage pursuant to Section 550 of the Homeland Security Appropriations Act of 2007 (Section 550). The rule was also published in the Federal Register on November 20th. This Final Rule establishes three security issues related to chemicals whereby specific screening thresholds quantities (STQ) have been established for the list of COI. Based on the nature of the security threat one or more concentration and quantity threshold may apply to individual chemicals that may be stored or used in different ways at your facility.

These scenarios are:
-Release—Toxic, flammable, or explosive chemicals or materials that, if released from a facility, have the potential for significant adverse consequences for human life or health.

-Theft or Diversion—Chemicals or materials that, if stolen or diverted, have the potential to be misused as weapons or easily converted into weapons using simple chemistry, equipment or techniques, in order to create significant adverse consequences for human life or health.

-Sabotage or Contamination —Chemicals or materials that, if mixed with readily available materials, have the potential to create significant adverse consequences for human life or health.

On April 9th, DHS issued an interim final rule (IFR) pursuant to Section 550 of the Homeland Security Appropriations Act of 2007 (Section 550), which provided the Department with authority to promulgate “interim final regulations for the security of certain chemical facilities in the United States.” The rule, known as the Chemical Facility Anti-Terrorism Standards or CFATS can be found in 6 CFR Part 27.

This rule establishes risk-based performance standards for the security of our Nation's chemical facilities. It requires covered chemical facilities to prepare Security Vulnerability Assessments (SVAs), which identify facility security vulnerabilities, and to develop and implement Site Security Plans (SSPs), which include measures that satisfy the identified risk-based performance standards. It also allows certain covered chemical facilities, in specified circumstances, to submit Alternate Security Programs (ASPs) in lieu of an SVA, SSP, or both.

The rule contains provisions addressing inspections and audits, recordkeeping, and the protection of information that constitutes Chemical-terrorism Vulnerability Information (CVI). Finally, the rule provides the Department with authority to seek compliance through the issuance of Orders, including Orders Assessing Civil Penalty and Orders for the Cessation of Operations.

The rule has been in the works for a number of years now and follows similar state-based issues such as New Jersey’s Chemical Site Security regulations. However, one area of continued concern and confusion is in Appendix A that lists the substances and screening thresholds quantities (STQ) for coverage under the rule. It is the STQ that will be used to help DHS determine who must conduct a “Top Screen” registration providing a preliminary assessment of potential risks associated with a particular facility. Top Screens are required to be completed within 60 days of the published rule (by January 19, 2008).

There has been concern from a number of industry trade organizations that thresholds for some substances are too low or will include too many facilities into the screening process challenging DHS to be effective. For example, many in the food industry with ammonia refrigeration believed that too many of these systems with “insignificant potential terrorist threat” would be caught up in the registration, SVA, and SPP processes shifting focus away from the more important task of food safety. The “any amount” thresholds for some substances on the draft list along with inconsistent treatment of mixtures added confusion for many potentially covered facilities, again diverting resources away from food safety.

The Final Rule and Appendix A provides commentary on how DHS has addressed concerns from a variety of industries regarding thresholds. For the most part, DHS has adopted the EPA-RMP Rule toxics and flammables concentration and quantity thresholds with some notable exceptions. Aqueous and anhydrous ammonia thresholds are one such example. One such exception is propane which was deleted from the RMP Rule. DHS established a 60,000 pound facility-wide threshold for propane of units 10,000 pounds or larger.

Bill Barnes has been actively following these developing regulations and their potential impacts on industries Avogadro Environmental serves to provide clients with an understanding of expectations and actions to be taken to implement this rule. One such issue that we’re exploring at Avogadro Environmental is the ability of existing security plans such as those established under the Marine Transportation Security Act (MTSA) several years ago satisfy the Alternative Safety Plan (ASP) option provided by DHS. Please feel free to contact Bill with any questions or clarifications you may have that can benefit potentially covered facilities.

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