Alert: Department of Homeland Security’s Chemical Facility Anti-Terrorism Standards Program Update

Any business that uses chemicals should by now be well aware of the Department of Homeland Security's (DHS) Chemical Facility Anti-Terrorism Standards (CFATS) Program.  This program has initial similarities with existing regulatory programs that review chemical safety from an environmental or occupational safety standpoint, such as EPA's Clean Air Act Section 112(r) rules and OSHA's Process Safety Management (PSM) program.  However, the CFATS program has a different purpose:  Assessing the vulnerability of a facility to deliberate acts of terrorism. 

"Top Screens" and "Chemicals of Interest"

The CFATS Program, which is codified in 6 CFR Part 27, requires that facilities possessing "chemicals of interest" above a specified regulatory threshold prepare and submit to DHS a "Top Screen" notice.  The deadline for submitting the Top Screen was January 22, 2008.  According to DHS, of an estimated 50,000 facilities expected to submit Top Screen notices, 40,000 met this deadline.  In other words, an estimated 10,000 facilities appear to have missed the deadline.

The determination of whether a facility possesses a chemical of interest above the screening threshold quantity is based on the maximum quantity of the chemical that may be present at the facility at any given time.  There is no minimum time limit for how long the chemicals are present at the facility, nor does it matter whether the chemicals are being used at several discrete locations at a facility.  This includes chemicals that are routinely stored in storage tanks or in warehouses, as well as those contained in process units or delivered on site for immediate consumption. 

High Risk Sites are Subject to Additional CFATS Requirements

Submitting the Top Screen to DHS will not end the process of complying with CFATS for many facilities.  DHS will advise each facility whether the facility is considered a "high risk site," meaning that it presents a high level of security risk that, based on its Top Screen and other available information, "indicates the potential that a terrorist attack involving the facility could result in significant adverse consequences for human life or health, national security or critical economic assets."  6 CFR § 27.205(a).  DHS will also assign high risk sites to one of four risk-based tiers.  An estimated 5,000 facilities are expected to be designated as high risk sites. 

Security Vulnerability Assessment

High risk facilities must prepare a Security Vulnerability Assessment (SVA) within 90 days of receiving written notice from DHS that they are a high risk site.  The SVA must address several topics, including asset characterization, threat assessment, security vulnerability, risk assessment and countermeasure analysis.  DHS may adjust the risk-based tier assigned to the facility following review of the SVA.

Site Security Plan

High risk sites must also prepare a Site Security Plan (SSP) within 120 days of receiving notice from DHS.  The SSP must address each security vulnerability identified in the SVA and identify measures to address each vulnerability.  In addition, the SSP must address as many as 19 categories of risk-based performance standards to the extent required based on the risk tier DHS has assigned to the facility. 

Control of Chemical-terrorism Vulnerability Information

DHS has also adopted regulations regarding identification and protection of a new category of protected information, referred to as Chemical-terrorism Vulnerability Information (CVI).  Facilities that are determined to be high risk sites, and therefore must prepare a SVA and SSP, must become familiar with the CVI rules and develop a program to ensure compliance. 

Missed the Top Screen Deadline?

Facilities that missed the January 22, 2008 deadline, but intend to submit a Top Screen based on the quantity of chemicals of interest they possess, can request an extension from DHS, which the agency may grant on a case-by-case basis.  There may also be facilities that missed the Top Screen deadline because they are not sure if they possess greater than the screening threshold quantity of one or more chemicals of interest.  These facilities should consider notifying DHS that they are still in the process of reviewing their chemical data and request an extension for a date to either submit a Top Screen or notify DHS that they do not possess any chemical of interest above the screening threshold quantities.  An additional option to consider is seeking assistance from DHS or a qualified consultant to determine whether the facility possesses any chemicals of interest above the screening threshold.  In any event, given that DHS has the authority to fine a facility up to $25,000 per day for missing the deadline, facilities should act with due speed to complete their inventory of chemicals of interest and submit their Top Screen if above the threshold quantity.

Getting Ready for Next Steps in CFATS Program

It is important to remember that the Top Screen is the beginning of the CFATS process, not the end.  Although many facilities will not be designated as high risk sites and will therefore not be required to continue on through the CFATS program, those facilities that are notified that they are covered by the program may have a significant amount of time-critical work ahead of them in the near future.  Therefore, managers of facilities that are expected to be designated as high risk sites by DHS ought to consider developing a plan of action in case this occurs.  Such a plan should include identifying key internal staff and outside advisers, such as consultants and lawyers, to assist with the development of an SVA, the SSP and protocols for managing CVI, as well as communicating with DHS.