NAICU Washington Update

Troublesome Regulation Coming from Homeland Security

May 15, 2007

NAICU and several other associations sent a joint letter to the Department of Homeland Security (DHS) on May 9, warning of the unintended and adverse consequences that new chemical risk assessment requirements will have on colleges and universities.

The letter notes that the recent Interim Final Regulation "imposes a multi-step process intended to give DHS information it needs to determine which chemical facilities present what level of risk from terrorist concerns." In the letter, the associations urged the department to consider the differences between colleges and chemical plants, and to mitigate the effects of the regulation. The new regulation was published on April 9, and would be implemented in 180 days.

DHS plans a multi-phase, comprehensive implementation strategy. The first step requires that any "chemical facility" must determine whether they possess any of 342 listed chemicals. For some of those chemicals, there is a threshold for reporting. However, for 104 of the chemicals, any amount must be reported. If a facility has chemicals to be reported, it must complete a more detailed analysis, called a "Top Screen." That analysis will be used by DHS to assess relative risk of facilities, and to prepare site security plans for them, starting with those at highest risk.

The new regulations define "chemical facility" as "any establishment that possesses or plans to possess, at any relevant point in time, a quantity of a chemical substance determined by the Secretary to be potentially dangerous or that meets other risk-related criteria identified by the Department." Because nearly all colleges and universities fall within the definition, they will all have to complete at least the first step in this risk-assessment and preparedness strategy.

Given that they are likely to have some of the 342 chemicals, colleges and universities will have to search thousands of classrooms and laboratories to inventory their presence. Many colleges and universities already report hazardous chemicals through EPA and OSHA regulations. The associations are encouraging DHS to give special consideration to colleges and universities because, as these other regulatory agencies have recognized, they differ in significant ways from a true chemical facility. So far DHS has not been sympathetic to that argument.

Clearly, if not changed, this fast-track regulation will be time-consuming and costly for colleges and universities. This is especially troublesome given that the institution could face significant civil and criminal sanctions, including prison terms, for submitting incorrect information.

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