ANPRM Issued for Chemical Facilities

IMPACT:The Department of Homeland Security (DHS) is proposing more stringent regulation of “high-risk chemical facilities.” DHS is asking for review and comment on several specific topics. If you wish to comment, a link is provided.


Section 550 of the DHS Appropriations Act of 2007 provides the Department with the authority to regulate the security of high-risk chemical facilities. To implement this authority, DHS issued the Chemical Facility Anti-Terrorism Standards (CFATS) regulation in 2007.


This ANPRM provides an opportunity for DHS to hear and consider the views of regulated industry and other interested members of the public on its recommendations for program modifications. Written comments must be submitted on or before October 17, 2014. Read the proposed rule in its entirety and submit your comments.

Since the CFATS program was created, DHS has engaged with industry to identify high-risk chemical facilities to ensure that they have security measures in place to reduce the risks associated with possession of the chemicals of interest. The progress made in the CFATS program over the last several years has significantly enhanced the security of the nation’s chemical infrastructure; however, to more fully mature the program, DHS is initiating this rulemaking process to help it identify how to make the CFATS program more effective in achieving its regulatory objectives.


In particular, DHS is interested in comments on:

  1. General regulatory approach–comments on how DHS could continue to improve its current approach toward identifying CFATS-covered facilities and ensuring their compliance with CFATS requirements.
  2. Treatment of nontraditional chemical facilities–DHS recognizes that a one-size-fits-all approach may not be optimal for such a diverse regulated community, and requests comments regarding the applicability of existing CFATS requirements and processes to nontraditional chemical facilities covered under CFATS, such as agricultural product manufacturers and mines.
  3. Clarification of terminology–comments regarding the utility, clarity, and accuracy of definitions currently found in the regulations, such as (but not limited to) the definition of “A Commercial Grade” and “A Placarded Amount.”
  4. Risk Based Performance Standards (RBPS)–comments on whether and how DHS should clarify or modify the 18 RBPS, whether DHS should combine and/or eliminate any of the existing RBPS, and whether DHS should adopt any additional RBPS. (Note: CFATS established 18 RBPSs that identify the areas for which a facility’s security posture will be examined, such as perimeter security, access control, personnel surety, and cyber security.)
  5. Considerations for small businesses–comments regarding considerations specific to small businesses.
  6. Alignment with other regulatory programs–comments regarding how DHS might be able to better align CFATS and other existing chemical facility regulations, including comments on any duplication or overlap that may exist between CFATS and other regulatory programs.

In addressing these topics, DHS encourages interested parties to provide specific data that document the potential costs of modifying the existing regulatory requirements pursuant to the commenter’s suggestions; the potential quantifiable benefits, including security and societal benefits of modifying the existing regulatory requirements; and the potential impacts on small businesses of modifying the existing regulatory requirements.

New Fracking Study Released

IMPACT: Any AWT members who supply products to the fracking industry should be aware of this research calling for more data on toxicity and chemical properties.  


A new study on the contents of the fluids involved in the hydraulic fracturing (or “fracking”) process has raised concerns about several ingredients used during the procedures. Fracking involves injecting water with a mix of chemical additives into rock formations deep underground to promote the release of oil and gas. It has led to a natural gas boom in the United States, but it has also stimulated major opposition and troubling reports of contaminated well water, as well as increased air pollution near drill sites.


The Lawrence Berkeley National Laboratory and University compiled a list of substances commonly used in fracking, including biocides to keep microbes from growing. What their analysis revealed was that both supporters and doubters can claim a little truth to their respective arguments–but with big caveats. Fracking fluids do contain many nontoxic and food-grade materials, as the industry asserts. But if something is edible or biodegradable, it does not automatically mean it can be easily disposed of, the University noted in its study. The research team also found that most fracking compounds will require treatment before being released, and biocides raised a red flag as being particularly toxic to mammals.


In addition, for about one-third of the approximately 190 compounds the scientists identified as ingredients in various fracking formulas, they found very little information about toxicity and physical and chemical properties. “It should be a priority to try to close that data gap,” the report concluded.

Final Rule Issued on Hazmat and

Civil Penalties

IMPACT: The Department of Transportation (DOT) has issued a final rule that limits transportation of hazardous materials if civil penalties have not been paid in a timely manner.


The DOT’s Pipeline and Hazardous Materials Safety Administration (PHMSA) has issued a final rule prohibiting a person who fails to pay a civil penalty as ordered, or fails to abide by a payment agreement, from performing activities regulated by the Hazardous Materials Regulations until payment is made. This final rule became effective on September 8, 2014.


Section 33010 of the Moving Ahead for Progress in the 21st Century Act (MAP-21) prohibits a person from engaging in business operations involving the transportation of hazardous materials if that person has failed to either pay a civil penalty assessed under Chapter 51 of title 49 or failed to arrange and abide by a payment plan, beginning on the 91st day after the payment due date specified by the order or payment plan, unless the person has filed a formal administrative or judicial appeal of the penalty.


Section 33010 of MAP-21 does provide an exception to the prohibition on hazardous materials operations after nonpayment of penalties for debtors in Chapter 11 bankruptcy. The exception states that the prohibition “shall not apply to any person who is unable to pay a civil penalty because such person is a debtor in a case under Chapter 11.”


PHMSA believes that Congress, in creating the bankruptcy exception, did not intend to exempt all Chapter 11 debtors from the prohibition on hazardous materials operations after nonpayment of penalties. PHMSA interprets the statutory language as requiring the agency to seek a determination from the bankruptcy court of a debtor’s ability to pay a civil penalty claim prior to imposing the prohibition on hazardous materials operations after nonpayment of penalties.


Section 33010 also does not address or instruct DOT to prohibit hazardous materials operations by those persons who have not paid penalties assessed prior to the granting of this authority. Without specific instructions on retroactivity, the presumption against retroactive application prevents PHMSA from applying section 33010 to a respondent whose final order was issued prior to the issuance of a final rule. Consequently, provisions of this final rule will apply to all final agency orders that assess penalties issued on or after the effective date of the final rule.


More Legionnaires’ Disease Cases Reported



An Erie, Pennsylvania, man is being treated at Saint Vincent Hospital for Legionnaires’ disease, a life-threatening bacterial infection. This is Erie County’s fourth reported case of the disease in 2014. Also, Mendocino County, California, health officials are investigating three recent cases of the disease contracted by individuals who had all stayed at the Discovery Inn in north Ukiah. Two have been released from the hospital; the third remains hospitalized.


The Legionella bacteria that causes the disease is naturally found in the environment, usually in water. People can get sick when they breathe in the mist or vapor from contaminated water, such as in hot tubs that are not adequately disinfected.