This summer, the department will begin conducting site inspections and audits, focusing first on the 300 to 400 facilities considered to be of the highest concern.
If a company has even the smallest amount of some chemicals, such as carbon monoxide, hydrogen cyanide and methyl bromide, on-site, it must do a screening assessment. The list of "Chemicals of Interest" specified under the rule is online here.
High risk facilities must develop and implement Site Security Plans that meet the risk-based performance standards.
Facilities will be required to achieve specific outcomes, such as securing the perimeter and critical targets, controlling access, deterring theft of potentially dangerous chemicals, and preventing internal sabotage.
The new rule gives the Department of Homeland Security, DHS, authority to seek compliance through the imposition of civil penalties of up to $25,000 per day and the ability to shut noncompliant facilities down.
"The safety and security measures that we take need to be tough and balanced," said Homeland Security Secretary Michael Chertoff. "We will significantly reduce vulnerability at high-consequence chemical facilities, taking into account important efforts in certain states."
Some states have existing laws for regulating chemical facilities. Only state laws and requirements that conflict or interfere with the new regulations will be preempted, Chertoff said. Currently, the department has no reason to conclude that any existing state laws are applied in a way that would impede the federal rule, he said.
On March 30, just two days before the new interim final rule was issued, U.S. Senators Barack Obama and Dick Durbin of Illinois, and Frank Lautenberg and Bob Menendez of New Jersey, all Democrats, introduced legislation to improve security at chemical plants. Their bill, the Chemical Safety and Security Act of 2006, has many of the same feature as the DHS new interim final rule.
"There may be no greater failure of our government than the fact that we have done almost nothing to secure one of America's most vulnerable targets -- the 15,000 chemical plants in America," said Obama. "These chemical plants represent some of the most attractive targets for terrorists looking to cause widespread death and destruction. Despite this, security at our chemical plants is voluntary -- left to the individual plant owners. While many chemical plant owners have taken steps to beef up security, too many have not."
Citing media reports of Chicago chemical plants with "dilapidated fences, insufficient guard forces, and unprotected tanks of hazardous chemicals, Obama said "these plants are basically stationary weapons of mass destruction. Their security is light, their facilities are easily entered, and their contents are deadly."
There are 111 facilities in the United States where a worst-case scenario attack on a chemical plant could threaten more than one million people, according to the U.S. Environmental Protection Agency. Two of these facilities are within Chicago's city limits.
Illinois has at least 11 facilities where a large-scale chemical release could threaten more than a million people.
"Chemical plant security is a serious problem and the combination of lax security and deadly chemicals is a toxic mix," said Durbin. "Illinois has more facilities that store extremely hazardous materials then any other state -- with over 100,000 pounds of hazardous substances stored in over 600 facilities. It is unacceptable that we have chemical plant facilities in our state and in other parts of this country that anyone can stroll onto. This bill puts a lock on the door and real fencing in the yard."
Before issuing its interim final rule, the Department of Homeland Security sought and reviewed comments from state and local partners, Congress, private industry, and the public to develop the guidelines.
Covered facilities contacted by the department will have 120 days from the publication of the regulation in the Federal Register to provide information for the risk assessment process. Other requirements follow that time period. Additional facilities will follow a similar timeframe after future Federal Register publications, the agency said.
The department will provide technical assistance to facility owners and operators as needed.
Representing chemical companies, the American Chemistry Council, ACC, supports the new interim rule.
"The nation is safer today, thanks to landmark federal regulations that will drive enhanced security protections for America's chemical industry," the Council said in a statement Monday. "This rule is the culmination of years of hard work by members of Congress, the Department of Homeland Security and industry leaders working cooperatively to improve national security."
"For the first time, a federal agency is authorized to enforce national risk-based performance standards to ensure that chemical facilities assess security vulnerabilities and implement security plans to address them," the Council said. "Equally important, DHS has clear authority to inspect these facilities and apply strong penalties, including facility shutdowns, for those that fail to act."
"These new regulations will complement existing state programs and the significant security enhancements already undertaken voluntarily by our members to protect the chemical industry and the nation," the Council said.
The Council says that since the terrorist attacks of 9/11, in total its members have invested over $3.5 billion upgrading security.
The ACC has planned a workshop later this month where DHS will brief members on their regulatory obligations so that they can hit the ground running when the rule becomes effective in June.
Greenpeace criticized the measure because it does not require chemical plants to switch to safer alternatives or to keep smaller quantities of hazardous chemicals on-site.
The Center for American Progress, CAP, a progressive think-tank based in Washington, DC, issued a report Monday faulting the new interim rule for failing to cover rail shipments of toxic chlorine gas to water and wastewater utilities across the country.
"These massive railcars traverse some 300,000 miles of freight railways, passing through almost all major American cities and towns," the CAP report says. "A rupture of one of these railcars could release a dense, lethal plume for miles downwind, potentially killing or injuring thousands of people."
The Department of Homeland Security and other security experts have warned that terrorists could use industrial chemicals as improvized weapons of mass destruction. "Terrorists recently attacked and blew up several trucks carrying chlorine gas in Iraq," said CAP Monday in a statement.
CAP is urging drinking water and wastewater facilities to switch to a less hazardous disinfectant, such as liquid bleach or ultraviolet light, so that rail transport of chlorine gas will not be necessary.
Only 24 drinking water and 13 wastewater facilities still use rail shipments of chlorine gas. These facilities endanger more than 25 million Americans who live nearby, and millions more near railways that deliver the chlorine gas, said CAP.
At least six drinking water and 19 wastewater facilities have eliminated rail shipments of chlorine gas since 1999 by switching to a less hazardous disinfectant, the group said.
The Department of Homeland Security, DHS, responds by saying, "Regulating chemicals in the railroad system is a complex issue, and DHS continues to evaluate it."
The DHS says it "presently does not plan to screen railroad facilities" for inclusion in the regulatory program, and therefore will not request that railroads complete the Top-Screen risk assessment methodology.
The DHS says it may re-evaluate the coverage of railroads in the future and would issue a rulemaking to consider this matter.
The Transport Safety Administration, an agency within the DHS, has initiated some recent efforts to address rail security, including voluntary agreements with the rail industry and a Notice of Proposed Rulemaking on Rail Transportation Security issued last December.
The DHS interim final rule will be published later this week in the Federal Register, and is online here.
The public is welcome to submit comments, identified by docket number 2006-0073, online at the federal eRulemaking portal.
Comments are welcome now, but once the rule is in place, information to the public will be limited. The DHS does not intend to provide a means of notifying the public about the status of local chemical facilities.
"We will continue to consider this issue as the program progresses, however, and issue a subsequent notice if necessary," the agency said in the interim rule.
Nor has DHS incorporated specific whistleblower protections into this rule, saying the authorizing legislation did not provide for protecting whistleblowers.
"The Department does, however, value frank information concerning security vulnerabilities," the interim rule states, adding, "Employees with daily involvement at high-risk facilities can certainly be a valuable source of information."
To allow a channel for public reporting, the DHS intends to establish a telephone line through which individuals, including employees of chemical facilities, can submit report concerns. Callers will have the option of remaining anonymous.
Environment News Service and reprinted by special permission
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