New Chemical Security Rules Go Into Effect 6-8-07

On June 8th, 2007 the new Department of Homeland Security (DHS) regulations (6 CFR part 27) dealing with security requirements at chemical facilities go into effect. These new rules will be used to protect High-Risk Chemical Facilities from terrorist attack. These rules specify what organizations will be required to provide data to DHS to assist that agency in determining which facilities are declared to be High Risk Facilities.

One of the important parts of this regulation is the broad definition it uses for 'chemical facility'. Section 27.105 of the new regulation defines chemical facility this way:

"Chemical Facility or facility shall mean any establishment 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 criteria identified by the Department."

The important thing here is that the definition says nothing about chemical manufacturing, or chemical warehouse. Any establishment that uses hazardous chemicals, and that includes a wide variety of businesses, can be classed as a Chemical Facility under this regulation. The regulation gives an operational definition that covers anybody that possesses a dangerous quantity of a chemical and leaves the definition of dangerous to the Secretary of Department of Homeland Security.

Additionally, DHS has the discretion to define what a 'High-Risk Chemical Facility' is. Section 27.105 provides the following definition of High-Risk:

"...high risk shall refer to a chemical facility that, in the discretion of the Secretary of Homeland Security, presents a high risk of significant adverse consequences for human life or health, national security and/or critical economic assets if subjected to terrorist attack, compromise, infiltration, or exploitation."

To adequately determine which facilities are High Risk Facilities, the Department will have to collect a data from a larger number of facilities that might be high risk, conduct some analysis, and then make some decisions. Additionally, DHS intends to rank High Risk Facilities into four tiers of relative level of risk to prioritize which facilities get DHS attention. To make it easy to collect this data and then efficiently analyze the collected data DHS has established a web-based tool called the Chemical Security Analysis Tool (CSAT) with various modules into which designated facilities will be required input data.

The module that the largest number of facilities will be required to use will be the Top Screen Module. Facilities will be required to enter basic information about the chemicals on hand, location of facility, type of facility and surrounding area information. DHS will then take that information, do some analysis and determine whether the damage to the facility would cause any of thesignificant adverse consequences specified in the definition if successfully attacked by terrorist. If DHS provides an interim designation of being a High Risk Facility, then the facility would have to do more detailed security studies (a Security Vulnerability Assessment, SVA) and report that information to the SVA module of the CSAT. DHS would analyze that data and then make a final determination if the facility was indeed a High Risk Facility. High Risk Facilities would then be required to develop a Site Security Plan to be submitted to DHS for approval.

The question then becomes, how does a facility know if it should submit a Top Screen?

On April 9th of this year DHS published a draft of a list of specific hazardous chemicals (Appendix A, Chemicals of Interest, to 6 CFR part 27) and the quantity of each chemical that they were proposing to declare as dangerous. The comment period ended in early May and the final version will be published sometime in early to mid-June. Sixty days after that list is published, any establishment that possesses or plans to possess a chemical on that finalized list in excess of the Screening Threshold Quantity (STQ) listed for that chemical, will be required to submit information to the Top Screen Module.

The STQ amounts listed in the draft appendix were surprisingly low for many chemicals. It was clear from these amounts that DHS is interested in collecting data from a wide range of chemical producers and users to ensure that as many of the potential High Risk Facilities as possible are identified in this process. While this will require a large number of facilities to submit information to the Top Screen that will have no other contact with DHS, it should capture all of the reasonable targets of a terrorist attack.

While the vast majority of facilities that will have to complete the Top Screen will do so based on their possession of chemicals listed in Appendix A, DHS has two other methods to direct facilities to complete the Top Screen. These two methods, Direct Letter Notification, and Public Notification through the Federal Register, allow DHS to contact specific facilities starting on June 8th and requiring these facilities to complete the Top Screen before Appendix A officially goes into effect sometime in August. These methods are expected to be used for two types of facilities.

The first type, the facilities that would receive individual letter notification, would be facilities that have already been tentatively identified by DHS to be at high risk for terrorist attack. These would be large chemical manufacturing or storage facilities that are in close proximity to large population concentrations. High on this list of facilities would be oil refineries, fuel storage facilities, and large manufacturing facilities of big name chemical companies. Most of these facilities will have already been working with DHS on security matters, but are the facilities that would be considered most likely targets by the public. It would be surprising if these facilities did not already know that they would be receiving one of these letters from DHS.

The second type, the facilities being notified by notices in the Federal Register, would be used to notify classes of facilities. These would be facilities that manufacture or store significant amounts of chemicals that pose specific dangers of toxicity, or could be used to easily manufacture toxic chemical weapons. Any facility that manufactures or stores quantities of chemicals that are classified as Inhalation Hazards (Chlorine, Bromine, and Anhydrous Ammonia among others), or chemicals that are used as chemical weapons or identified as precursors to chemical weapons by the Chemical Weapons Treaty, can expect to see a notice in the Federal Register to complete a Top Screen.

We can expect that DHS will not make public the names of companies to whom it sends letter notifications. DHS has no interest in publicizing potential terrorist targets if it does not have to. Likewise, while the Federal Register Notices will be public, the companies that respond to those notices will not be identified. Nor can we expect to see names of companies that do not respond to these notifications within the required sixty days, at least until DHS has the opportunity to make personal contact and do some political arm twisting to get compliance.

What we can expect to see is that DHS will announce in early August that they have made an initial assessment that a number, and they will probably announce a specific number, of facilities had been designated High Risk Chemical Facilities and were working their way through the Security Vulnerability Assessment. Meanwhile, a much larger number of presumably less high risk facilities were submitting information to DHS for determination if they are high risk facilities.