In June 2007, the Department of Homeland Security (DHS) finalized its Chemical Facility Anti-Terrorism Standards and within the next several months, DHS is expected to finalize its list of Chemicals of Interest, which will trigger significant reporting consequences for a myriad of businesses that manufacture, use, store, or transport a wide-range of chemicals, including some of the most commonly used chemicals in manufacturing, processing, construction, and printing.

DHS' efforts are paved with good intentions, but may yield unintended consequences for many small and medium-size businesses that do not even consider themselves "Chemical Facilities." This article summarizes the Chemical Facility Anti-Terrorism Standards (CFATS), their applicability, and what businesses can do now to determine if they will be covered by DHS' regulations.

The Need to Regulate Access to High-Risk Chemicals

On April 19, 1995, the U.S. witnessed the devastating effect of the combination of ammonium nitrate fertilizer, nitro-ethane, and some explosive charges when Timothy McVeigh detonated a homemade truck bomb outside the Alfred P. Murray Federal Building in Oklahoma City. Until the September 11, 2001 attacks, it was the deadliest act of terrorism on U.S. soil. Since that attack, Congress has been concerned about the identification, protection, and monitoring of so-called "high-risk" chemicals that could be used by either foreign or domestic terrorists to create explosives or poison gases.

However, the Congressional debate consistently bogged down on striking a balance that effectively regulated the safekeeping of "high-risk" chemicals without unreasonably disrupting commerce. Twelve years later, as part of the 2007 DHS Appropriation Act, Congress delegated to DHS the responsibility of striking this balance while identifying, assessing, and ensuring effective security at "high risk" chemical facilities.

DHS Provides an Interim List of the Chemicals of Interest

In April 2007, DHS issued interim regulations governing its Chemical Facility Anti-Terrorism Standards. Under these interim regulations a "chemical facility" is any business that possesses a threshold quantity of chemicals designated by the DHS to be potentially dangerous. Those potentially dangerous chemicals are identified in DHS' "Proposed Appendix A: DHS Chemicals of Interest," which is found at www.dhs.gov/xprevprot/laws/gc_1175537180929.shtm.

 The Proposed Appendix A identifies over 300 chemicals, many of which are commonly used in manufacturing, processing, construction and other industries. Some of these commonly-used chemicals identified by DHS include: acetone, ammonia, ammonium perchlorate, chlorine, ethylene, methane, nitric acid, nitric oxide, propane and sodium nitrate. Given the breadth and nature of the chemicals identified in the Proposed Appendix A, DHS has estimated that as many as 50,000 facilities will probably be subject to an initial screen to determine if they are a "high-risk facility."

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