Issue Date: June 4, 2007
Chemical Security Gone Awry?
Take a look at the photograph on this page. Then imagine having to inventory thousands of these small containers of chemicals in hundreds of laboratories in hundreds of buildings scattered across a vast campus. That's the specter facing institutions of higher learning if a proposed Department of Homeland Security rule on chemical security is not revised.
DHS's rule-making process on regulating security at chemical facilities has been a bit like sausage making: messy and with ingredients you really don't want identified. In all fairness, Congress took nearly five years after Sept. 11, 2001, to enact legislation authorizing DHS to issue the chemical security regulation but then gave the department a mere 180 days to do so.
Over those many years, industry and academic officials understood the intent of any eventual rule to be securing large chemical industry facilities against catastrophic terrorism. They based this perception on comments from legislators crafting the bill and from DHS officials charged with carrying out legislative mandates.
DHS issued a risk-based interim final regulation???interim because it expires in three years, on April 2???but without the list of chemicals and their amounts to be regulated (C&EN, April 9, page 13). These specifications would have signaled which facilities would have to comply with the rule's requirements. Lawrence M. Gibbs, Stanford University's associate provost for environmental health and safety, says DHS's "disjointed rule-making process" has turned out to have startling and, perhaps, unintended consequences for the academic community.
To understand why academia was taken by surprise means backtracking a bit. Before promulgating the final rule, DHS, as required by law, issued an advanced notice of proposed rule-making (ANPR) on Dec. 28, 2006. The preamble and language of the proposed rule as well as the department's estimate of the number of facilities affected—about 40,000—led universities and colleges to assume that DHS did not intend for the rule's requirements to apply to them, and so they didn't comment on the ANPR.
That turned out to be a mistaken assumption, which academics only realized when DHS released a proposed list of "chemicals of interest" on April 9, a week after the final rule was issued. The list, published for public comment as Appendix A, contains 342 substances in "screening threshold quantities" that trigger reporting to DHS by facilities possessing them. This reporting is the first step of a multiple-step process to help the department determine which chemical facilities present what level of risk from terrorism.
The problem is that many of the listed chemicals are commonly found in academic labs, especially in the screening threshold quantities specified by DHS. More than 100 of the 342 substances, for example, have thresholds of any amount, which means that almost all universities and colleges—and most hospitals and environmental and clinical labs as well—would have to inventory their labs and complete an online form called a Top-Screen.
"Unless revisions are made to Appendix A, virtually every college and university will share the cumbersome burden of inventory preparation and Top-Screen application," Samuel L. Stanley Jr., Washington University's vice chancellor for research, says in comments to DHS on Appendix A. Just how burdensome completing the Top-Screen will be is now only guesswork because DHS has yet to release it.
When DHS issued its rule in April, it estimated that it would take a facility 30 to 40 hours to complete the Top-Screen. That estimate may be accurate for large industrial facilities, but would be "an onerous task" for many academic institutions, says Michael St. Clair, senior director for environmental health and safety at Ohio State University. Because of the "unreasonably low" threshold quantities in the appendix, St. Clair estimates that his university possesses about "100 of the chemicals of interest, located in over 900 different buildings and over 2,000 laboratories." Completing the Top-Screen, he estimates, would take more than 5,000 hours of work.
To illustrate how burdensome the rule is, Stanford "reviewed just some of its chemical inventory against the chemicals listed in Appendix A," Gibbs says. Even this cursory exercise "took over 150 person hours to gather the limited data and analyze the results," and Stanford already has a comprehensive chemical inventory system in place, he adds.
Top-Screen information will be used by DHS to rank facilities into four tiers based on the risk level that a facility poses. Facilities will then have to perform vulnerability assessments, develop site security plans, and implement such security measures as perimeter fences, facility access control, and background checks on facility personnel to address their risk levels.
Gibbs points out that "a free and open environment" is a necessary condition for academic institutions to carry out their teaching and research functions. "Colleges and universities can secure the room or area where a significant quantity of a high-risk chemical is located," he says. But "facility-wide perimeter security, access control, background checks, and the other described security measures are antithetical to institutions of higher education."
"The impact on universities will be huge" even if they are determined by DHS to pose very low risks and are ranked in tier 4, says Peter A. Reinhardt, cochair of the Campus Safety, Health & Environmental Management Association's (CSHEMA) Government Relations Committee. "Even in this tier," Reinhardt says, "it will cost facilities more than $100,000 to comply with [DHS's performance-based] standards in the first year and $60,000 every year thereafter. And these are DHS's estimates."
In its comments to DHS, CSHEMA says Appendix A, the Top-Screen requirement, and possible additional security measures "are unnecessary and unduly burdensome for colleges and universities." CSHEMA recommends that DHS replace the "any amount" threshold "with a reasonable numeric quantity," but no lower than the quantity set for extremely hazardous substances under the Environmental Protection Agency's emergency planning and community right-to-know regulations.
CSHEMA also suggests that, for academic labs, the screening threshold quantity for each listed chemical be applicable to a specific location such as an individual lab or building and not campus-wide. In other words, to accurately determine risk, CSHEMA argues that DHS should define a chemical facility subject to the rule as a discrete storage location because chemicals are so widely distributed in academic institutions.
The association also asks DHS to regulate only reagent-grade chemicals of interest but not these same chemicals if they are part of a commercial product or formulation or are in dilute solution. This approach would eliminate, for example, chemicals of interest in dilute aqueous solutions or in inert gases "that pose no significant chemical security risk," CSHEMA says.
Ultimately, CSHEMA calls on DHS to exempt academic labs from Appendix A requirements because the small amounts of chemicals of interest in a supervised lab pose no "significant security risk." Supervised academic labs already receive exemptions from some EPA, Occupational Safety & Health Administration, and other regulations, the association notes.
CSHEMA acknowledges "that hazardous materials are present on campus." But it stresses that "the safety and security of these chemicals are closely regulated by OSHA, EPA, National Fire Protection Association, building codes, the Centers for Disease Control & Prevention, and other federal and state standards."
The American Council on Education (ACE), which, in its comments to DHS, supports CSHEMA positions, also notes that "EPA, OSHA, and others have long recognized that the circumstances under which hazardous chemicals are present and handled on a college campus are qualitatively and quantitatively different from the manufacturing, chemical, and industrial sectors." Unfortunately, ACE says, by using the proposed list of chemicals to trigger Top-Screen applications, DHS "fails to account for these differences." Consequently, ACE says, "colleges and universities now face the same threshold burdens and obligations as large chemical companies."
Erik A. Talley, director of environmental health and safety at Weill Cornell Medical College and chair of the American Chemical Society's Laboratory Environment, Health & Safety Task Force, insists "there is lots of security built into academic labs." Weill Cornell, for example, "has a police force and security guards at the entrances to buildings. To enter, you need to show photo identification," he says. These are "normal security cautions people take to protect possessions like expensive equipment."
The academics' arguments do not satisfy Lawrence M. Stanton, acting director of DHS's chemical security compliance division. He tells C&EN that building and fire codes as well as federal regulations issued by "EPA and OSHA are aimed at ensuring the safety, not the security, of chemicals."
Stanton's DHS colleague Marybeth Kelliher, deputy chief of programs and policy in his division, suggests "there may be an opportunity for colleges and universities to come up with a security program that would enable them to comply with our program yet would reflect the academic environment under which they operate." DHS's regulation allows for such alternative security programs.
Kelliher met with Talley, Reinhardt, and ACS staff to hear the concerns of academia. Unfortunately, the meeting occurred after DHS drafted Appendix A and put it out for comment. Talley described the meeting as amicable and "saw DHS as open and wanting to understand the rule's impact on academic labs so it could take that into consideration when revising the rule."
DHS was interested in which chemicals should not be on the list and the particular reasons why they should not, Talley explains. He says DHS stressed that it wasn't interested in reinventing the wheel and "asked for examples of other regulations that exempted similar groups of labs or people, and any regulations that already provided for security in labs." DHS emphasized that it was "looking at threats that would have catastrophic impact, so by that definition," the small quantities of chemicals found in academic labs "can't have catastrophic impact," Talley says.
According to Reinhardt, DHS also was interested in knowing "how we would vet teaching assistants who would have access to chemicals of interest" and was told "this would be extremely difficult."
Reinhardt adds that "one of the upshots of the meeting is that ACS's task force is going to continue to work with DHS to maybe change the threshold quantities, and remove chemicals from the list, if justified." DHS, Reinhardt says, wanted risk data on individual chemicals, which was supplied on May 23. "DHS wants Appendix A to be accurate and reflect risks accurately," he adds.
The meeting also accomplished something else. "DHS received enough information from us to recognize or be made aware that many or most research institutions would be greatly impacted by this rule without necessarily enhancing security," Talley says. And Kelliher says the ACS task force gave useful insights into Appendix A.
Most of the more than 1,000 comments DHS received on the proposed appendix focused on the screening threshold quantities for listed chemicals of interest, Stanton says. He says DHS "fully intends to adjust Appendix A" to reflect the concerns raised in the comments. "It is fair to say that Appendix A will be significantly revised before its final release" early this month, Stanton says.
"How the revised appendix will affect universities, I really can't say at this point," Stanton adds, "It's certainly possible that screening threshold quantities will be high enough so colleges will be screened out."
"Stanford is very concerned that DHS did not consider the impact of this proposed regulation, nor the impracticality and cost of implementation and negligible benefit to chemical security that this proposed rule poses" for the academic sector, Gibbs says. As proposed, the appendix "would create a new and significant burden for colleges and universities and would divert scarce resources from actualized safety and security needs, as well as from research and teaching programs," he adds.
Barbara Ray, coordinator of hazardous materials in the University of Rhode Island's department of safety and risk, concurs. She says DHS would be better served by giving colleges and universities grants "to provide educational materials for the public and to conduct research on topics of interest to national security rather than require them to devote limited resources to collect data that other federal agencies already require."
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