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DHS Issues List Of Chemicals

February/January - 2008
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Department of Homeland Security Issues List Of Chemicals And Associated Screening Threshold Quantities As Part Of Its Implementation Of New Regulations Governing Site Security at Chemical Facilities

The Department of Homeland Security (DHS) has posted Final Appendix A to DHS's Chemical Facility Anti-Terrorism Standards (CFATS) on its website. CFATS is a new, comprehensive regulatory program governing security at chemical facilities. The regulatory program's scope is large because the definition of "chemical facility" is broad and encompasses many facilities that would not traditionally be considered chemical facilities. CFATS covers any establishment that possesses or plans to possess a quantity of any of the 344 chemical substance determined by DHS to be potentially dangerous ("chemical of interest").

DHS's list of chemicals of interest and associated screening threshold quantities, posted as Appendix A, became effective when it was published in the Federal Register on November 16, 2007. Publication in the Federal Register will trigger the start of a 60-day window for chemical facilities with quantities of chemicals of interest exceeding the screening thresholds to submit "Top Screen" questionnaires to DHS. Because Top Screen questionnaires must be submitted to DHS within 60 days of Appendix A's publication in the Federal Register, it is important to determine whether submittal will be required and, if so, to begin gathering the information needed to complete Top Screen. Submittals are due January 22, 2008. DHS will use the Top Screen questionnaires as a screening device to determine which facilities are subject to CFATS.

Chemical facilities determined to be subject to CFATS by DHS through Top Screen submittals are required to:

  • prepare and submit security vulnerability assessments and site security plans to DHS for approval
  • update security vulnerability assessments and site security plans
  • comply with record keeping requirements
  • protect chemical terrorism vulnerability information
  • conduct background checks
  • DHS may enforce the program through: audits and inspections
  • compliance orders
  • cease operations orders
  • administrative penalties of up to $25,000/day for non-compliance

Chemical facilities that are determined to be subject to CFATS by the screening process will be classified into one of four risk-based tiers, with more stringent requirements for each successively higher risk tier. It is anticipated that costs and administrative burdens between tiers will be substantial. Moreover, the characterization from the screening process and the appropriate application of the risk-based tier classifications to specific chemical facilities will be the subject of debate and enforcement actions, with potentially significant expenses to comply with the risk-based performance standards and/or enforcement penalties hanging in the balance. With so much riding on the facility's tier classification, expert advice on the Top Screen submittal is advisable in order to optimize the chances of securing the appropriate tier classification.

DHS's new regulations do not prevent states or localities from creating their own regulatory programs. If, however, states or localities enact laws or issue regulations on site security that are incompatible or conflict with the DHS regulations, then chemical facilities subject to the conflicting programs may challenge the applicability of the conflicting state or local program. For more information or assistance with complying with this complex new regulation, call Ivan Cooper at WPC, Inc. at 704-927-4000 or at icooper@wpceng.com.