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Department of Homeland Security Releases Final List of Chemicals to Implement Chemical Plant Security Rule

Beveridge & Diamond, P.C., November 5, 2007

On November 2, 2007, the Department of Homeland Security (DHS) released a final version of Appendix A of the Chemical Plant Security Rule, 6 CFR Part 27. Appendix A identifies chemicals of interest to DHS and corresponding screening threshold quantities (STQs) that may trigger regulation.  

Within 60 days of publication of Appendix A in the Federal Register, facilities possessing chemicals identified on Appendix A in quantities that meet or exceed the STQs will need to complete and submit to DHS a so-called “Top-Screen” consequence assessment in accordance with the requirements of 6 CFR Part 27.  As of the date of this announcement, the final rule has been issued but not yet published in the Federal Register.

DHS published the Interim Final Rule containing the requirements of the Chemical Plant Security Rule on April 9, 2007, and this rule became effective as of June 8, 2007, except for Appendix A.  We have previously described the Interim Final Rule in a separate summary, which can be accessed at http://www.bdlaw.com/news-154.html

The self-implementing Top-Screen submittal requirements of the Interim Final Rule were stayed pending publication of a final version of Appendix A. With the publication of Appendix A, any facility that possesses (or later comes into possession of) the identified chemicals of concern in quantities that meet or exceed the STQ will need to complete and submit a Top-Screen assessment to DHS to allow DHS to determine whether the facility presents a high level of security risk.

Appendix A proved to be a somewhat controversial document. Following publication of the draft version in April of 2007, DHS established a thirty day comment period and received approximately 4,300 comments; nearly 4,000 of those comments were related to the listing of propane as a chemical of interest.

The final version of Appendix A contains approximately 300 chemicals of interest, and for each chemical a corresponding STQ and the security concerns associated with the chemical.  Propane remains covered, although the STQ has been established at the relatively high level of 60,000 pounds.  The security concerns for which chemicals are listed are grouped into three categories: (i) potential to create significant adverse consequences if intentionally released or detonated (release category); (ii) potential to be used as or converted into weapons if stolen or diverted (theft and diversion category); and (iii) potential to create significant adverse consequences if mixed with other readily available materials (sabotage and contamination category). Each chemical contained in Appendix A presents at least one of these security concerns.

In determining whether a chemical of interest is present at or above an STQ, a facility must reference the security concern(s) for which the chemical has been listed. As an example, for certain release category chemicals that present toxicity concerns and that are present as mixtures, the chemicals are counted toward the STQ only if the amount of the listed chemical in the mixtures equals or exceeds one (1) percent by weight. In addition, for certain release category chemicals that present flammability concerns and that are present as mixtures, the chemicals are counted only if the amount of the listed chemical in the mixtures equals or exceeds one (1) percent by weight and the mixtures have a National Fire Protection Association (NFPA) rating of 4. See 6 CFR § 27.204.

Facilities may also exclude from their STQ calculations propane that is stored in tanks of 10,000 pounds or less, and certain other listed chemicals in a variety of specific uses, including structural components, products for routine janitorial maintenance, chemicals occurring in air (either as compressed air or as part of combustion), chemicals contained in articles, and chemicals contained in solid or hazardous waste.  See 6 CFR § 27.203.

There are numerous exemptions for chemicals listed solely in the release category.  For example, facilities should only include in STQ calculations for release category chemicals of concern those chemicals that are present in certain conditions, including inside of vessels, underground facilities and magazines, in transportation containers used for storage, present as process intermediates, by-products, or in materials produced incidental to product production, in natural gas or liquefied natural gas stored at certain power production facilities, and in certain petroleum fuels stored in aboveground tank farms. See 6 CFR § 27.203(b).

Starting with the publication date of Appendix A in the Federal Register, facilities that possess any of the chemicals listed in Appendix A at or above the STQ for any applicable security issue have 60 calendar days to complete and submit a Top-Screen to DHS. Facilities that later come to possess such chemicals at or above the STQ for any applicable security issue must also complete and submit a Top-Screen within 60 calendar days. See 6 CFR § 27.210(a)(1)(i). In addition, facilities that are subject to the rule have an ongoing obligation to complete and update the Top-Screen, and to submit a revised Top-Screen within 60 days if they make a material modification. See 6 CFR § 27.210(d).

To view a copy of the Appendix A final rule, please click here.

For more information about the Chemical Plant Security Rule, please contact Stephen Richmond at srichmond@bdlaw.com or Aaron Goldberg at agoldberg@bdlaw.com