DHS and State Action on Chemical Plant Security

May 16, 2007
by BRETT SLENSKY
Client Alert Newsletter May 2007

On April 9, the Department of Homeland Security ("DHS") published an interim final rule, effective June 8, giving DHS authority to regulate U.S. chemical plants presenting the highest level of security risk. The rule establishes risk-based performance standards and requires, among other things, covered facilities to prepare security vulnerability assessments and develop and implement site security plans. The rule also includes a proposed Appendix A listing of Chemicals of Interest and corresponding Screening Threshold Quantities ("STQ") which, if exceeded, would trigger additional preliminary screening requirements. According to DHS, the STQ is not the threshold quantity for determining whether a facility is high risk. Rather, the STQ sets the threshold at which a facility must submit an initial screening questionnaire to help DHS assess what level of damage could occur in a terrorist attack and determine the facility's risk classification. Representatives of certain industries have raised concerns over Appendix A's implementation and signaled that the rule will change business procedures at affected chemical facilities. DHS accepted comments on the interim final rule and proposed Appendix A until May 8.

At the state level, recently announced proposed amendments to New Jersey's Toxic Catastrophe Prevention Act ("TCPA") rules would broaden the applicability of TCPA’s requirement to analyze the potential for adoption of inherently safer technologies to new classes of facilities including waste water treatment plants, petroleum refineries, drinking water suppliers, major food distributors, some power plants, pulp mills, fertilizer makers, and manufacturers of pesticides and other agricultural chemicals. Under the proposal, facilities would not be required to implement the alternatives identified in their reviews, but would be required to explain any determination that inherently safer technology is impractical. The New Jersey Department of Environmental Protection ("NJDEP") is accepting written comments on the proposal until June 15.