> 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 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.
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
