Chemical Facility Anti-Terrorism Standards

May 24, 2007

On April 9, 2007, the U.S. Department of Homeland Security (DHS) issued an interim final rule with potentially broad applicability setting anti-terrorism standards for facilities determined to present a high level security risk based on the nature and amount of chemicals stored at their facility. 

Facilities that possess or plan to possess any listed chemical in an amount meeting or exceeding established threshold quantities will be required to submit an initial screening report to DHS.  A determination will then be made by DHS whether a terrorist attack could result in significant adverse consequences to human life, health, national security or critical economic interests and, if so, the facility will be deemed a “Covered Facility.”

A Covered Facility will be required to submit to DHS a Security Vulnerability Assessment which identifies critical assets, hazards, potential threats, security vulnerabilities, risks, and specifies countermeasures to reduce the risk of a successful attack.  DHS will then assign the facility to a risk-based tier (Tier 1 is the highest risk and Tier 4 the lowest) and notify the Covered Facility that it must prepare a Site Security Plan.

The Site Security Plan will address vulnerabilities, identify security measures, and state how the facility will meet or exceed performance standards.  Performance standards may include restricting perimeters, monitoring, screening, procedures for deterring, detecting and delaying attacks, shipping and storage requirements, theft and sabotage deterrents, emergency response plans, security training, criminal history and background checks. 

After preliminarily determining that the Site Security Plan is satisfactory, DHS will conduct an inspection to determine compliance with the Plan, including the performance standards.  If DHS determines that a facility is in violation of the rule, it may impose a civil penalty of up to $25,000 per day for each day the violation continues. 

The rule becomes effective June 8, 2007, however, facilities are not required to submit the initial screening report until a final list of chemicals and threshold quantities is published in the Federal Register.  The 30 day comment period regarding chemicals and threshold levels closed on May 9, 2007, so DHS will likely issue a final list in the near future.  Once the final list is published, facilities possessing listed chemicals meeting threshold quantities must submit their initial screening report within 60 days.  However, DHS need not wait until the final list is published to directly contact a facility and require compliance with the new rule. 

Frost Brown Todd LLC will continue to monitor developments pertaining to chemical facility anti-terrorism standards.  Businesses which possess or plan to possess a listed chemical substance are encouraged to familiarize themselves with the new requirements to determine whether they may be considered a high-risk facility under the new rule.  For more information or assistance contact Kevin McMurray at (513) 651-6160 (kmcmurray@fbtlaw.com) or Jeffery A. Culver at (513) 651-6122 (jculver@fbtlaw.com).

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