One would not think rendering and food processing facilities would be considered chemical plants, but the definitions in a Department of Homeland Security (DHS) interim final rule on chemical security released in April may require compliance by renderers depending on the materials in a plant. For example, firms with as little as 7,500 pounds of anhydrous ammonia will be required to comply.
In response to this interim final rule, the National Propane Gas Association and 14 other trade associations, including the National Renderers Association (NRA), formed a joint coalition to respond to the new DHS chemical security regulations.
“These rules have a disproportionate impact on agricultural businesses and farmers,” said Jim Thrift, vice president for the Agricultural Retailers Association. “The agricultural community not only has to comply with the new rules on propane but a number of other common agricultural chemicals used in food production and farming.”
Agricultural associations such as the American Corn Growers Association, National Cotton Council, American Farm Bureau, American Feed Industry Association, National Pork Producers Council, Agricultural Retailers Association, U.S. Poultry and Egg Association, and nine others sent representatives to the coalition’s July meeting.
Prepared by Hogan and Hartson law firm on behalf of the Food Industry Environmental Council, of which NRA is a member, an analysis of the key aspects of the final rule and proposed chemical list include the following:
• Risk tiers. The rule maintains the risk-based approach outlined in DHS’ advance notice of rulemaking, establishing four tiers of covered facilities ranging from high (tier 1) to low (tier 4). The higher a facility’s risk tier, the greater the applicable requirements.
• Ammonia threshold. Ammonia is listed on the DHS list of “chemicals of interest” with a 7,500 pound screening threshold quantity. If this proposed threshold is finalized, any facility that possesses 7,500 pounds of ammonia will be required to comply with the rule’s screening requirements.
• Risk analysis. Any facility that possesses a “chemical of interest” on the DHS list at the designated threshold quantity (which in some cases is any amount) must complete and submit a “top screen” consequence analysis. Results of this analysis will determine a facility’s risk tier and whether additional requirements apply. DHS also retains the authority to require other facilities without threshold amounts of listed chemicals to complete the top screen analysis.
• Security vulnerability assessments. Facilities determined to be high risk must complete a vulnerability assessment, including asset characterization, threat assessment, and countermeasures analysis.
• Site security plans. High-risk facilities also must prepare and implement site security plans. The types and intensity of security measures required in the plans will depend on a facility’s risk tier.
• Timing. The final rule sets time frames for submission of required information: 60 days from the date of finalization of the chemicals list for the top screen analysis; 90 days from the date of notification by DHS for the security vulnerability assessment; and 120 days from the date of DHS notification for the site security plan. In addition, for facilities in the highest risk tiers (1 and 2), the required information will have to be updated every two years; for facilities in lower risk tiers (3 and 4), it will have to be updated every three years.
• Technology. Inherently safer technologies are not required, although facilities are free to consider them as security measures.
• Alternative security measures. The final rule retains the provision allowing use of alternate security programs, but specifies that DHS must find that the alternate program “provides an equivalent level of security” to that required under the regulations. In addition, low-risk facilities (those in tier 4) may rely on alternate programs in lieu of vulnerability assessments or site security plans, while those in higher tiers may only use alternate programs for their site security plans.
• Enforcement. The final rule maintains DHS’ ability to issue orders for any noncompliance with the regulations, and adds a provision allowing for adjudication of certain DHS determinations, such as disapproval of a site security plan or issuance of an order.
• Preemption. The rule only preempts state laws that directly conflict with federal requirements, and DHS does not believe that any currently applicable state measures present such a conflict.
• Fees. Although the rule does not impose fees, DHS states in the preamble that it is considering fees for filing, inspections, and screening, and may propose such fees in a future rulemaking.
• Guidance. DHS intends to issue guidance on risk-based performance standards, inspections, and recordkeeping in the near future.
Congressional opponents of the DHS regulation, most notably Senator Charles Grassley (R-IA), have expressed interest in supporting the coalition’s position. DHS is on a fast-track to complete these regulations, so the coalition is urging its members to become informed about this emerging compliance crisis and contact their senators to limit the department’s reach.
Tech Topics – August 2007 RENDER | back