New chemical facility safety rules kick in

OK, so this is not quite as epochal as slouching toward Bethlehem to be born, but it is inching a step closer toward chemical plant safety. DHS, prompted by a congressional mandate, has finalized interim rules to regulate security at any facility possessing a threshold quantity of a rather long list of chemicals. The rules were finalized on 9 April 2007, and they require any facility which possesses one of these chemicals to submit a Top-Screen questionnaire. If the facility is a high risk, it will also be required to prepare a security plan. Foley & Lardner’s Katherine Lazarski and Richard Stoll offer the gist of the ruling:

* The rules contain a list of 300 chemicals (called Appendix A), and any facility which stores an Appendix A chemical in greater than a threshold quantity (also listed on Appendix A) is considered a chemical facility.

* All chemical facilities are required to complete, within sixty days of the date that DHS publishes the final version of Appendix A, an on-line questionnaire called a Top-Screen. Since DHS has just published the final Appendix A, this means that the Top-Screens will be due in early August 2007.

* DHS estimates the Top-Screen will take between thirty and forty hours to complete. The Top-Screen must be submitted by an officer of the corporation, or by someone designated by an officer, and that person must attest to the accuracy of the information.

* DHS may also contact certain facilities directly and ask them to submit a Top-Screen according to a schedule provided by DHS.

* After completing the Top-Screen, a facility may be notified to take further actions, including submission of a Security Vulnerability Assessment and a Site Security Plan. Chemical facilities may be subject to inspection by DHS officials. Inspectors may review records, take photographs, and talk with employees.

* Unlike EPA inspections, the materials DHS obtains will remain in a confidential file and not subject to FOIA requests from the public.

Note that there is some overlap between the new rules and the Tier Two Hazardous Chemical Inventories which are provided to state and local governments each March, and with the hazard communication program required by the Occupational Safety and Health Administration (OSHA). Still, note also that Appendix A contains different chemicals and different thresholds than the U.S. Environmental Protection Agency (EPA) and OSHA requirements, so all chemical facilities should review the new rules carefully.

Because these regulations are interim final, DHS may make additional changes to the requirements. In the meantime, these regulations are applicable now. View Appendix A and the online submission tool for the Top-Screen Questionnaires (called the CSAT system).