Vital Signs

On April 9, 2007, the U.S. Department of Homeland Security (DHS) issued the Chemical Facility Anti-Terrorism Standard (CFAT). Congress authorized an interim final rule under Section 550 of the DHS Appropriations Act of 2007, directing the DHS to identify, assess, and ensure effective security at high risk facilities that use, store, manufacture, or ship a listed regulated chemical under this law.

On November 20, 2007, the Department of Homeland Security (DHS) released the final version of the Chemical Facility Anti-Terrorism Standard’s Appendix A list of chemicals and their associated Screening Threshold Quantities (STQ). Every company whose chemical inventory consists of one or more chemicals exceeding specified STQs has a deadline of JANUARY 19, 2008 to comply with the so-called “Top Screen Registration” requirement.

The final Appendix A further sub-divides chemicals into specific threat categories, namely Release Threat, Theft/Diversion Threat and Sabotage/Contamination Threat. Thus, the list of 344 chemicals are arranged to be screened against specific security issues associated with each chemical, including:

Acetone Cyanohydrin (stabilized), Acetylene, Anhydrous Ammonia, Ammonia (conc. 20% of greater), Ammonium Nitrate, Butane, Carbon Disulfide, Chlorine, Difluoroethane, Ethane, Ethylene Oxide, Hydrogen, Methane, Nitric Acid, Nitric Oxide, Various forms of Phosphorus, Prophylene Oxide, Various forms of Sulfur, Various forms of Toluene and many more.

Depending upon which sub-category and security issue each chemical falls into will depend upon how a facility will count its chemicals of interest toward the Screening Threshold Quantities listed. Selected facts regarding the final version of Appendix A are as follows:

The Department of Homeland Security merges the capability to anticipate, preempt and deter threats to the homeland whenever possible under one roof, and the ability to respond quickly when such threats do materialize.

The Container Security Initiative (CSI) allows U.S. Customs and Border Protection (CBP), working with host government Customs Services, to examine high-risk maritime containerized cargo at foreign seaports before they are loaded onboard vessels destined for the United States. There are currently 48 foreign ports participating in CSI.

The National Infrastructure Protection Plan (NIPP) provides a coordinated approach to critical infrastructure and key resource protection roles and responsibilities for federal, state, local, tribal, and private sector security partners.

The Chemical Security Assessment Tool (CSAT) is the Department of Homeland Security's system for collecting and analyzing key data from chemical facilities. The CSAT is comprised of three tools:

Any facility that manufactured, used, stored or distributed chemicals listed in “Appendix A: Chemicals of Interest” at or above the Screening Threshold Quantity (STQ) must complete and submit a CSAT Top-Screen. The Department may also notify facilities – either directly or through a Federal Register notice – that they need to complete and submit a CSAT Top-Screen.

Initial CSAT Top-Screens are due within 60 calendar days of the effective date of a final "Appendix A: DHS Chemicals of Interest" or within 60 calendar days of coming into possession of any such Chemical of Interest at or above the STQ.

Non-Compliance Penalties: Fines, Audit/Inspections or “Cease and Desist Op’s!”

Failure to complete a CSAT Top-Screen within the timeframe provided may result in civil penalties, a Department of Homeland Security audit and inspection, or an order to cease operations. DHS reports that it is committed to meeting the letter and spirit of CFATs to enhance and ensure the security of the Nation’s Industry where listed chemicals are used as a part of any given company’s operations, as the Nation’s companies represent the infrastructure for productivity and economic strength.

Chemicals of Interest (COI) now have “Minimum Concentrations” associated with each entry, listed in either a percent (%) form or with the acronym “ACG”, which stands for “A Commercial Grade”. Quoting from DHS, “ACG refers to any quality or concentration of a COI offered for commercial sale that a facility uses, stores, manufactures or ships.”

o Contained in food, drugs, cosmetics or other personal items used by employees;

o In process water or non-contact cooling water as drawn from environment or municipal sources;

o In solid waste (including hazardous waste) regulated under RCRA except for waste described in 40 CFR § 261.33; and

o In naturally-occurring hydrocarbon mixtures prior to entry of the mixture into a natural gas processing plant or a petroleum refining process unit. This includes condensate, crude oil, field gas, and produced water.

§ Facilities need not include propane in tanks of 10,000 pounds or less when calculating whether that facility has a total inventory of 60,000 pounds (the STQ for propane).

§ DHS has set the Theft level for chlorine (9.77 % minimum concentration ) at 500 pounds (only counted if it is in transportation packaging) and the Release level for chlorine at 2,500 pounds.

§ DHS has divided ammonium nitrate into two forms: the DOT Division 1.1 explosive (with >.2% combustible substances) and ammonium nitrate fertilizer (nitrogen concentration of 23% or greater).

The time frames listed by DHS (after the publishing of Appendix A in the Federal Register) are critical:

One note regarding the dissemination/use of any information regarded by DHS as Chemical-terrorism Vulnerability Information (CVI): anyone who completes a Top-Screen registration, or who has access to information used in completing a Top-Screen registration, (persons with a “Need To Know), must complete on-line training and receive a unique Authorized User number from DHS before being allowed to access this information. Some examples of CVI are:

Management of waste aerosol cans (WAC) is often a confusing issue for commercial and industrial operations. For household use, WACs may simply be discarded with other household waste. One exception is California; homeowners in this state may not dispose of non-empty WACs as solid waste. Within commercial/industrial operations, it is often unlawful for these cans to be included with general industrial refuse, even if the product was used in the same fashion and amount that would be typical of a household. The question of whether these WACs are properly defined as hazardous waste is an important component of the facility environmental management program.

In general, management of WACs is governed on a state-by-state basis. However, there are some aspects of WAC management that are common throughout the United States. WACs generally contain two fluids – the primary product and the propellant. If both of these components have been completely discharged from the can, the WAC may normally be disposed of in the general waste stream.

What is “Empty”

Hazardous waste managers often speak of “RCRA-empty” containers, i.e., containers which have been rendered empty by triple rinsing. While the aerosol can might have all its contents removed using practices commonly employed to remove materials from an aerosol can, the generator must demonstrate that the WAC also has no more than one inch of residue or no more than 3% by weight of the total capacity remaining. If the WAC is RCRA empty, but still contains propellant (i.e., remains under pressure), then the WAC should be categorized as a D003 (characteristic reactive) hazardous waste and be disposed of as such.

Universal Waste

Two states have designated WACs as Universal Waste; this classification relaxes the requirements for managing WACs. As of January 1, 2002, in California non-empty WACs may be managed as a Universal Waste. With proper notification, the non-empty WACs may be punctured, drained, and disposed of as Universal Waste. In Colorado, non-empty WACs may be treated directly as Universal Wastes. Alternatively, they may be punctured and drained; with this option, the RCRA empty cans may be disposed of as solid waste, while the collected product must be managed as hazardous waste. The State of Texas is the only state that includes paint and paint-related waste in the category of Universal Waste. In Texas, a generator of used aerosol paint cans may dispose of WACs as Universal Waste, as long as they are not characteristic waste (i.e., D003, or reactive).

Recycling

An early memo from the USEPA states that “As long as an aerosol can being recycled does not contain significant liquids, the can is exempt as scrap metal. “ The issue of reactivity is moot when WACs are managed for scrap metal. Recycling spent aerosol cans offers a simple and environmentally responsible alternative to disposal, and is perhaps the simplest strategy, when the WACs are RCRA-empty. Non-empty WACs may be managed as scrap metal, but offsite transport must be coordinated with the recycler that is able and willing to receive non-empty WACs.

If you purchase your training materials such as tapes, DVDs or written programs, are you aware that virtually all mass marketed training programs leave your company open to citations?

The following excerpts from OSHA’s documentation express OSHA’s view of computer-based and video based training programs:

“Interactive computer-based training can serve as a valuable training tool in the context of an overall training program. However, use of computer-based training by itself would not be sufficient to meet the intent of most of OSHA's training requirements. Our position on this matter is essentially the same as our policy on the use of training videos, since the two approaches have similar shortcomings. OSHA urges employers to be wary of relying solely on generic "packaged" programs in meeting their training requirements.”

“Equally important is the use of hands-on training and exercises to provide trainees with an opportunity to become familiar with equipment, personal protective equipment, and safe practices (e.g. glove removal) in a non-hazardous setting. It is unlikely that sole reliance on a computer-based training program is likely to achieve these objectives.” Standard Interpretations - 06/11/1997 - Appropriateness of computer-based interactive training programs to satisfy required OSHA training.

Many OSHA standards require that employees receive training so that work will be performed in a safe and healthful manner. Some of these standards require "training" or "instruction," others require "adequate" or "effective" training or instruction, and still others require training "in a manner" or "in language" that is understandable to employees. It is OSHA’s position that, regardless of the precise regulatory language, the terms "train" and "instruct," as well as other synonyms, mean to present information in a manner that employees receiving it are capable of understanding. This follows from both the purpose of the standards - providing employees with information that will allow work to be performed in a safe and healthful manner that complies with OSHA requirements - and the basic definitions of training and instruction. Training and instruction mean imparting information, a definition that implies the information is presented in a manner the recipient is capable of understanding.

OSHA has a long and consistent history of interpreting its standards and other requirements to require employers to present information in a manner that their employees can understand. If the employees receive job instructions in a language other than English, then training and information to be conveyed under the [hazard communication standard] will also need to be conducted in a foreign language"); letter from Russell B. Swanson to Chip MacDonald (1999) ("instruction that employers must provide under §1926.21 must be tailored to the employees' language and education...."). And courts and the Commission have agreed with OSHA that an employer may not take advantage of "an adequately communicated work rule" when it did not communicate that rules to a non-English speaking employee OR in a language that employees could understand.

In practical terms, this means that an employer must instruct its employees using both a language and vocabulary that the employees can understand. For example, if an employee does not speak or comprehend English, instruction must be provided in a language the employee can understand. Similarly, if the employee's vocabulary is limited, the training must account for that limitation. By the same token, if employees are not literate, telling them to read training materials will not satisfy the employer's training obligation. As a general matter, employers are expected to realize that if they customarily need to communicate work instructions or other workplace information to employees at a certain vocabulary level or in a language other than English, they will also need to provide safety and health training to employees in the same manner. Of course, employers may also provide instruction in learning the English language to non-English speaking employees.

OSHA's training provisions contain a variety of specific requirements related to employee comprehension. For example, §1910.147(c)(7)(i) (Lockout/Tagout) requires the employer to verify that the employees have "acquired" the knowledge and skills which they have been trained; §1910.134(k)(5)(ii) (Respiratory Protection) requires retraining when "inadequacies in the employee's knowledge or use of the respirator indicate that the employee has not retained the requisite understanding or skill;" §1910.1030(g)(2)(vii)(N) (Bloodborne Pathogens) requires "[a]n opportunity for interactive questions and answers with the person conducting the training session;" and many other standards have analogous requirements. Employers need to examine the standards applicable to their workplaces to be familiar with these specific requirements.

In addition, the following problems apply to any method of training, but particularly to web-based, tapes and/or DVD media:

Virtually all purchased training programs utilize a “Cookie Cutter” approach and do not address OSHA requirements that training be site-specific and based on the hazards present in your workplace.
Regardless of how training material is procured and/or presented, the burden of fulfilling training requirements is still placed on the employer. These methods of training do not satisfy OSHA requirements and places the legal responsibility on your company not the company selling the training service.
Training requirements vary widely and it is unlikely that an employee or employer would be cognizant of all the requirements within the regulation, effective teaching methods and the legal liability issues such as court interpretations, OSHA Compliance Officer Directives, Letters of Interpretation or internal guidance documents.
Many of the training topics purchased on web-sites or through catalogs are not required. Others, such as Incident Investigation should be delivered in a classroom not on a computer. Improper Incident Investigation training could result in an increased legal liability.
Many training programs address the program topic but do not address the specific procedures or documentation required for complete compliance.
If an employee initiates legal proceedings, one of the first topics attacked by legal representatives will be the trainer’s qualifications and the training material. Three major weaknesses are inherent in computer/video training models:
1. Web-based training does not satisfy OSHA requirements. This has been addressed in numerous OSHA internal documents.
2. Neither trainee nor trainer will have the technical background or experience necessary withstand scrutiny in court. This fact alone will make the company automatically liable.
3. Purchased training programs do not generally provide a method to confirm that learning actually took place. Even with training records, all an employee would need to say is that he/she did not understand and the company would be automatically liable.

The safety training/programs presented on-line or via mail-order utilize a standard industry “Shotgun” approach. It takes time to establish exactly what a company needs, determine the most effective approach, design, deliver and evaluate quality training, and satisfy both the client’s regulatory and legal liability issues. Time cost money!

Vanguard Environmental, Inc.’s extensive, national, regional and state/local exposure to OSHA enforcement actions, interpretations and regional court interpretations allows our organization the knowledge needed to guide your company in a manner that provides 100% compliance.

There is an additional, frequently overlooked benefit to using a live, professional Vanguard trainer; your employees will generally accept information better if it is presented by someone outside your company.

When you let Vanguard Environmental, Inc. worry about your OSHA compliance, you don’t need to. We will evaluate your specific needs and develop a plan based on your facility that will guide you and provide the “Defensible Documentation” your company needs to exceed all regulatory requirements. No wasted time, no wasted energy and no money wasted on training that is not required or already meets regulatory guidelines.

Whether you decide to use Vanguard’s computer-based training, or choose to utilize one of our on-site, professional trainers, your company will receive the 100% “Turn-Key” service that is Vanguard’s trademark of excellence.

Robert Breslin, Director

OSHA Compliance & Education

Vanguard Environmental, Inc.

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