APRIL 11, 2007

On Monday, April 9, the Department of Homeland Security (DHS) published regulations increasing domestic chemical facility security. The interim final rule (6 C.F.R. Part 27), can be found in the Federal Register (72 F.R. 17687-17745).

Chemical facilities that are at high risk for terrorist attacks will have to prepare and submit a site security plan, as well as an assessment of security vulnerabilities to DHS. DHS defines a chemical facility as, “any establishment that possesses or plans to possess, at any relevant point in time, a quantity of a chemical substance determined by the Secretary to be potentially dangerous or that meets other risk-related criterion identified by the Department.” DHS estimates that between 1,500 and 6,500 high-risk facilities will be identified after the completion of a preliminary screening assessment (referred to as a Top-Screen), which is required for all chemical facilities housing certain specified chemicals (noted in Appendix A of the new rule) to determine the level of risk for the facility.

Using submitted and available information, the Secretary may determine at any time that a facility “presents a high level of security risk.” DHS estimates that over the next 10 years, costs to the chemical industry may amount to $8.5 billion, which assumes that 5,000 facilities will be identified. Based upon the preliminary screening assessment and the level of risk bestowed upon the facility, DHS will implement a tiered level of scrutiny, so when the level of risk increases, DHS correspondingly increases its scrutiny.

Appendix A contains a number of chemicals [such as Ammonium Nitrate (nitrogen concentration of 28%-34%-2000 pounds) and Propane (7,500 pounds)] that mining and mineral processing facilities may possess in quantities that will trigger the need to go through the screening process to determine the level of risk for the facility. Every company should review Appendix A to determine if they possess any of the materials in quantities at or above those set out.

The final rule also outlines standardized security measures that must be implemented at high risk facilities, such as restricting area perimeter, establishing a controlled access, preventing internal sabotage, and preventing the theft of potentially dangerous chemicals. DHS has the authority, under these rules, to inspect facilities and to assess penalties, including facility closures for violations.

States, such as New Jersey, that implemented tighter security rules for chemical plants, expressed concern over the loss of state sovereignty when stronger state regulations conflict with new rule. DHS assured them that DHS will work with states before making any determination (and issuing opinions) on whether the federal rule preempts any state law on chemical security issues

The regulations go into effect on June 9, 60 days from the publication of the final rule.

For further information, please contact John Austin (jaustin@pattonboggs.com or 202-457-6167), or Henry Chajet (hchajet@pattonboggs.com or 202-457-6511).

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The Patton Boggs Health and Safety Law Group consists of attorneys who have resolved client problems in environmental, energy, natural resource, and safety and health law since the late 1960s. With lawyers in Washington, D.C., Alaska, Colorado, Texas, New Jersey, New York, and Northern Virginia, we have experience with EPA, OSHA, MSHA, NIOSH, DOT, OPS, Coast Guard, NTSB, FAA, FDA, CSP, the Chemical Safety Board, and almost every other federal and state government health and safety agency in the United States and throughout the world. We speak a variety of languages; have backgrounds in business, science, engineering, industry, and government; and combine preventive law counseling with courtroom and lobbying expertise to achieve results. For more information go to: http://www.pattonboggs.com or contact Henry Chajet (hchajet@pattonboggs.com) at 202-457-6511, Mark Savit (msavit@pattonboggs.com) at 202-457-5269, Cole Wist (cwist@pattonboggs.com) at 303-894-6159, John Austin (jaustin@pattonboggs.com) at 202-457-6167 or Willa Perlmutter (wperlmutter@pattonboggs.com) at 202-457-5223.

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