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All Chemical Facilities Must Submit a Top Screen Assessment to DHS by January 19, 2008

November 20, 2007

The Department of Homeland Security (DHS) regulations require all "chemical facilities" to submit a report referred to in the regulations as a "top screen assessment." A chemical facility is any facility that possesses chemicals determined by DHS to be "chemicals of interest" in a quantity at or aboved a "screened threshold quantity" (SQT).

DHS regulations require facilities to complete the top screen within 60 days of the publication of Appendix A of the DHS regulations implementing this rule in the Federal Register. Appendix A was published in the Federal Register on November 20, 2007, meaning all chemical facilities must submit a top screen assessment to DHS by January 19, 2008.

This requirement is likely to apply to a broad spectrum of facilities, including facilities that do not consider themselves to be "chemical facilities," much less to be "high-risk chemical facilities." Godfrey & Kahn clients are advised to carefully determine whether they are required to submit a top screen analysis in accordance with these new regulations. Detailed directions for accessing the Chemical Security Assessment Tool (CSAT) and completing the top screen are available on the DHS website: http://www.dhs.gov/xprevprot/programs/gc_1169501486197.shtm.

Top Screen Requirement Applies to a Broad Spectrum of Facilities
A list of chemicals of interest and an SQT for each chemical is provided in Appendix A to the new regulations. Appendix A currently includes more than 300 chemicals of interest, many of which have a very low SQT. For example, possessing nitrous oxide or phosphorous in "any amount" triggers the top screen requirement.

With such low thresholds for such a wide variety of chemicals, the likelihood that many facilities will be required to submit a top screen assessment increases. Accordingly, DHS is in the process of developing a web-based tool referred to as the CSAT for collecting top screen assessments and other reporting requirements of the new regulation.

In order to complete the top screen assessment, facilities will first be required to register to use CSAT, designate facility personnel to prepare, submit, and authorize the top screen and provide general information about the facility such as location, type, owner/operator, and number of employees. The top screen assessment consists of questions regarding the types and quantities of chemicals on the facility site, questions about risk potential and economic loss, locations of chemical storage areas including the main storage area (area of highest quantity), topography of the facility (urban or rural), and full production capabilities. CSAT will provide on-screen help, answers to frequently asked questions, and a helpdesk.

Top Screen is the First Phase of Comprehensive Security Regulations
The top screen assessment is only the first phase of the comprehensive security requirements imposed on high-risk chemical facilities under the new regulations. The purpose of the top screen assessment is to determine whether a facility is a high-risk chemical facility. Facilities that are determined by DHS to be high-risk chemical facilities will then be required to complete and submit a security vulnerability assessment (SVA). As part of the SVA, high-risk chemical facilities must identify security threats, conduct a risk assessment particular to that facility, and identify potential countermeasures. The requirements for the SVA are set forth in the regulations and all SVAs are subject to DHS approval.

Based on the SVA, DHS will assign the facility to one of four risk-based tiers. The specific factors upon which DHS will base this decision are considered to be sensitive, anti-terrorism information and will not be made available to the public.

Once a high-risk facility has been assigned a risk tier, the facility must develop and implement a site security plan. The site security plan must address all of the vulnerabilities identified in the SVA. In addition, DHS will promulgate risk-based performance standards for each risk tier. Each facility's site security plan must address the performance standards for the applicable risk tier. Site security plans are subject to DHS approval, which is based on an inspection and audit of the facility by DHS.

G&K Clients Should Identify and Quantify Chemicals of Interest at Their Facilities
DHS has developed guidance materials for the implementation of many of the new regulations, including performance standards for each risk tier. In the meantime, it is important for facilities to determine whether they are required to conduct a top screen assessment by identifying any chemicals of interest in quantities above the SQT for that chemical. Considering the low threshold for many of these chemicals and the spectrum of chemicals included in Appendix A, all facilities should investigate their chemical inventory, even if they would not consider themselves a high-risk chemical facility.

Please contact Kevin Boyle (414-287-9428 or kboyle@gklaw.com) or Arthur Harrington (414-287-9414 or aharrington@gklaw.com) or any member of the Environmental/Energy Strategy Team if you would like to learn more about these requirements.

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