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DHS Chemical Security Rule (CFATS) finalized, implications for NMSU

Some of you may have heard of the new chemical security rule from the Department of Homeland Security (DHS) called Chemical Facility Anti-Terrorism Standards (CFATS). The initial (preliminary) standards were published in April (see Chemical Rule: regulatory framework) but the scope of the law (as determined by Appendix A, the chemical list), was delayed and revised due to numerous comments. Appendix A and several modifications were finalized on November 20. EH&S is the lead department for NMSU on this matter and as institutional representative to DHS will determine the reporting for all NMSU facilities. The following is a review of the rule and its initial implication for those in charge of affected NMSU facilities.

Background
On April 9, 2007, DHS published the interim Chemical Facility Anti-Terrorism Standards (CFATS). The Chemicals of Interest (COI) in Appendix A covered a list of almost 400 including 132 chemicals with a threshold quantity of ‘any amount’. In addition the rule was not clear regarding the definition of a facility, i.e. if the threshold quantities were applied to those chemical areas under one roof or spread out over the hundreds or thousands of separate locations throughout a major research university.

Consequently NMSU EH&S joined the Campus Safety Health and Environmental Managment Association (CSHEMA) with thousands of other entities in providing written comments to DHS on this rule. NMSU EH&S like most other universities requested that DHS reconsider, noting most University chemicals are in minor amounts in separate secured labs and buildings, and suggested revisions to exempt university areas. General discussion and highlights on this effort are posted on CSHEMA’s website.

DHS received many comments with some questionable press. DHS indicated that they were taking the comments very seriously and would delay finalizing Appendix A.

On November 20, 2007 DHS published the final version of Appendix A in the Federal Register. Per their website “With the publication of a final Appendix A, all provisions of 6 CFR Part 27, including § 27.210(a)(1)(i), are operative and in effect”. The scope of final Appendix A affects all NMSU labs, shops, warehouses and farms and at a minimum, requires that those in charge of these areas review and update their chemicals inventories.

The Rule: Chemical of Interest
In review, DHS has revised the chemicals of interest list (reduced the number to 328 chemicals, changed many of the threshold minimums) and provided some leadway in defining a facility. The final version now gives a threshold for almost all chemicals and excludes several chemicals commonly found on campus-such as acetone, carbon monoxide, and urea-and establishes higher threshold quantities for others. A quick list of the chemicals of interest with synonyms, CAS numbers, and minimum concentrations in mixtures is available in htm and a spreadsheet format on the NMSU website (LINK).

Any institution (facility) that possesses (or has had in last 60 days or expects to have) any chemical listed in Appendix A in an amount greater than the screening threshold quantity must complete a Top-Screen - A report that DHS uses to assess the facility’s vulnerability and to determine whether additional steps need to be taken. The time frame for compliance is tight. Per the DHS website “The deadline in the Chemical Facilities Anti-Terrorism Standard (CFATS) interim final rule for submission of “Top Screens” required by 6 CFR § 27.210(a)(1)(i) will be 60 calendar days from the date of publication of Appendix A in the Federal Register” (January 18, 2008).

DHS acknowledged that colleges and universities may need to inventory hundreds of laboratories and other campus sites, and will allow academic institutions to request up to an additional 60 days to complete the Top-Screen, if requested by the institute president, provost, dean, or other senior official.

Appendix A also categorizes the chemicals by the type of hazard they present. The three main categories are: Release, Theft/Diversion, and Sabotage/Contamination. Threshold quantities were based on the type of threat posed. So several chemicals appear under more than one category with different thresholds. Instructions for determining quantities of chemicals sometimes vary by the security issue faced. Also DHS added an exemption for certain laboratory quantities of chemicals that are of concern for release because they are toxic, flammable, or explosive.

The November 20 Rule also discusses the definition of a “facility” and clarifies that an entity may decide how to define one for the purposes of completing the Top-Screen. The guide notes that “if appropriate, an institution of higher learning can submit a Top-Screen on a building-to-building basis or a campus-wide basis.” How an institution defines its facilities will affect the number of Top-Screens to complete-or perhaps none. The defines of the facility will then affect the scope of the institution’s vulnerability assessment and security plan, if required.

Implication for NMSU labs, shops, warehouses, and farms
In view of the 60 day deadline (potential $25,000/day penalty for non compliance), it is vital that the chemical inventories for all NMSU chemical areas, labs, shops, warehouses, etc, be reviewed and up dated now. EH&S will need the inventories from each area in advance to determine if the facility is under the threshold or if a Top Screen will need to be filed before the deadline.

  • If you have inventoried your chemicals please navigate to the HazCom Inventory section at http://safety.nmsu.edu and sign-in to the inventory system. Make sure your inventory is accurate, and if not, update it. Please check the DHS chemical list and mark any entry that is or contains a DHS chemical (see COI list). If it is a COI then enter the CAS number (see list: LINK) and provide the approximate total weight of the material (in pounds). If it is not a DHS COI you need not change the existing entry unless there has been a significant change in quantity. Before you finish, update/change the inventory date in the contact section to the current date.
  • If you have not inventoried your chemicals, you are hereby reminded that you are required by NMSU policy, OSHA law and now by DHS law to keep a current chemical inventory. The inventory need to be completed and entered in the NMSU hazcom chemical inventory system. The OSHA requirements and NMSU Policy has been in existence for nearly 20 years. The Hazcom web-base inventory system has been a requirement and in use since 2000. Details on the procedures and links to the database entry forms are provided on the safety website.
  • At a mininium, we need to know (via the inventory system) if you have any of the chemicals of interest listed in Appendix A (see list & spreadsheet on EH&S website: LINK) . If your area contains these materials, you need to enter chemical name, CAS number, total quantity (lbs), and location (campus, building, room) for each storage location in the inventory system. Details on the procedures and links to the database entry forms are provided on the safety website (http://safety.nmsu.edu/).

Top Screen Report
Once the materials are entered in the inventory system for each location, EH&S will determine whether they exceed the threshold limit for the COI and, if needed, file a Top Screen report with DHS for the specific facility. DHS may require additional security and/or other measures as they determine necessary. Again the 60 day requirement (& potential fines per day) means that the chemicals at all NMSU areas and facilities need to be reviewed and reported ASAP.

More information on this topic:

Main points for inventory update:

    1) check the DHS COI list for each chemical;
    2) if it is a DHS material:
          a) mark as such,
          b) use DHS chemical name,
          c) add CAS, and
          d) give weight of COI in pounds;
    3) change inventory date (Dec 15 2007 to Jan 15, 2008) in contact information section.

Additional information on NMSU internal procedures will be posted as they are made available. If you have questions, please email or call NMSU EH&S 575-646-3327

Thank you

David Shearer
Environmental Health and Safety
New Mexico State University,
Las Cruces, NM
575-646-3327

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