> From this week's C&EN:

June 4, 2007
Volume 85, Number 23
pp. 29-31
http://pubs.acs.org/isubscribe/journals/cen/85/i23/html/8523gov1.html

Chemical Security Gone Awry?

Academics say their labs should not be regulated under a new DHS rule

Lois Ember

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.
Weill Cornell Medical College

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 regulation­interim because it  
expires in
three years, on April 2­but 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 affected­about 40,000­led 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 colleges­and most  
hospitals and
environmental and clinical labs as well­would 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.
Craig Barney/Stanford

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."

Chemical & Engineering News
ISSN 0009-2347
Copyright © 2007 American Chemical Society

Previous post   |  Top of Page   |   Next post