If your company uses any of several hundred chemicals deemed potential targets for terrorists, there is a new reporting requirement to the federal Department of Homeland Security. Many businesses, however, lack information about their obligation.
“Something is going on, and it’s not good. And it has the potential to get worse.” Danny Smith, a retired Secret Service agent who now works as a Department of Justice liaison to local law enforcement, made these introductory remarks at Midway College at a February forum on the little-known new federal requirement.
Failure to file those reports could provoke a $25,000 penalty, but most affected businesses don’t know about the new rules. Even now, months after the requirement went into effect, it’s difficult to get much information.
That was a prime reason for the gathering in Midway. It was one in a four-part program called Homeland Security and the Private Sector: The Midway Initiative. Alas, only a small group heard Smith speak at Midway College. And of the approximately 30 who attended, the majority were presenters or representatives from governmental agencies such as DHS, the FBI and local police who want to learn more themselves about the program; only a handful of members of the private sector who ultimately must comply with the reporting requirements were there.
That’s because there were no resources to publicize the meeting. “The government can’t do everything, and we are now forced to do more with less,” said Adam Edelen, executive director of the Kentucky’s Office of Homeland Security.
The Frankfort office oversees a limited number of homeland security priorities, using grant funding to do so, explained an employee at the office who fielded a phone query. Questions on the new Chemical Facility Anti-Terrorism Standards (CFATS) program have to be referred to federal offices, he said.
Basic information is available online at www.dhs.gov/chemicalsecurity. Specific questions, however, will require getting on the phone or e-mailing.
Businesses would be well advised to familiarize themselves with each aspect of the regulations regarding CFATS. Enacted in late 2007, the law is aimed at identifying and mitigating potential terrorism threats with respect to businesses and facilities that are producing, storing, using or transporting chemicals at or above certain quantities.
Applicable to almost all entities in possession of certain hazardous chemicals, the major intention of the rule is to prevent the misuse of these chemicals through theft, sabotage or attack. CFATS regulations require subject facilities to identify and quantify chemicals both in their possession as well as in transport. Additional provisions will address inspections, audits, recordkeeping, the development of site security plans and measures, training, and other actions.
The buzz is that DHS intends to be swift and rigorous in its use of this new authority and that certain facilities presenting a high risk factor will be visited regularly. Facilities deemed to be of even higher risk will be the first sites in line for inspection and will be visited more frequently. The DHS reportedly has been hiring, training and certifying many new site inspectors.
However, specifics about when enforcement might begin are difficult to come by.
The program’s purpose is to strengthen the security of America’s chemical facilities without undercutting an important part of the nation’s economy. In 2005 and 2006, the secretary of Homeland Security identified a need for legislation to give DHS authority to regulate security for U.S. chemical facilities. After President Bush endorsed it, Congress in October 2006 swiftly passed the Department of Homeland Security Appropriations Act of 2007. DHS issed an interim final rule that went into effect June 8, 2007, to enhance security of chemical facilities.
After a brief initial public comment period, DHS issued a proposed list of Chemicals of Interest (COI) known as Appendix A.
What businesses must take action?
The DHS definition of a chemical facility includes any establishment that possesses or plans to possess any chemical listed on Appendix A. Certain facilities that will be of primary interest to inspectors include chemical manufacturing, distribution and storage facilities, petroleum refineries and natural gas facilities. However, the new standards also affect commercial sites not typically considered to be part of the traditional chemical sector, and new businesses can be added to the DHS high-priority list at any time.
If an organization is holding or transporting a chemical of interest at or above threshold quantities, understanding this legislation is important. The act, including Appendix A, COI, and their screening threshold quantities (STQ), along with further protocols will govern if action must be taken.
Any facility with any listed chemical at threshold quantities must submit a report known as a Top Screen. The Top Screen, along with other information, will allow the DHS to determine the facility’s level of security risk. The threshold quantities for chemicals on Appendix A can range from 15 to 20,000-plus pounds, depending on the material. There are hundreds of chemicals listed, ranging from ammonia to zinc hydrosulfite.
DHS will periodically update Appendix A, subject to public notice and comment. Chemicals may be added or removed, and as new information filters in, DHS may also change screening threshold quantities.
The effect on businesses
Knowing which chemicals are listed on Appendix A is the first place to start, but it is important to bear in mind that the quantities of the chemical associated with a facility are not the sole factor for determining if a facility is considered a high-level security risk. The chemicals in Appendix A direct whether a Top Screen must be prepared. But the Top Screen is just the first of a set of DHS system of tools designed to assist facilities with CFATS. A Web-based system known as the Chemical Security Assessment Tool (CSAT) will provide a preliminary analysis of the damage consequences should a terrorist attack occur at a particular facility. The Top Screen process and information gathered from other sources will allow the DHS to place a facility in one of four risk-based tiers.
Facilities identified as a high security risk will have to prepare a Security Vulnerability Assessment, develop and implement a Site Security Plan, and more. Proposed security measures must meet the Risk-Based Performance Standards listed in the Federal Register.
Some Kentucky business leaders are concerned about adding another reporting burden, especially if a company is struggling financially. “While I understand the need to track chemicals, adding another burden to industries that are only on the fringe of a risk factor adds yet another cost to their product,” said Paul Nesbitt, of Nesbitt Engineering in Lexington.
Only a few industries are exempt. Examples include facilities that are already highly regulated by the Departments of Defense and Energy, any facility regulated by the Nuclear Regulatory Commission, and public water plants (as defined by the Safe Drinking Water Act). Colleges and universities are not exempt.
Information businesses report is protected. Designated as “chemical terrorism vulnerability information,” it is exempt from public disclosure under federal, state and local laws. Consultants assisting businesses with any portion of the new laws must be certified by the DHS Office of Infrastructure Protection as an authorized user of chemical vulnerability information.
At the Midway Initiative event, attendees were reminded of serious, devastating effects resulting from numerous domestic terrorist attacks. “What scares me the most,” said FBI agent Keith Carpenter, “is complacency.”
While state officials at the Kentucky Office of Homeland Security were very quick to respond to telephone inquiries, they have no official statements to make regarding CFATS. Requests for printed responses to inquiries regarding the new regulations need to be addressed at the federal level.
For immediate assistance on CFATS matters, businesses can contact Tony Deas, commander of Area 2, at [email protected] or (404) 519-9128. General inquiries to DHS in Washington can be made to [email protected] or (866) 323-2957.
For more detailed information, see the U.S. Federal Register notices referenced in the sources box below. The mailing address for DHS CFATS inquiries is: Department of Homeland Security Chemical Security and Compliance Division, Mail Stop 8100, Washington, DC 20528-8100.
Dr. Carl E. Heltzel is the director of
environmental chemistry and education at Environmental Risk Management Consulting Co. in Lexington. He can be reached at [email protected]
or (859) 381-1000 .