Supreme Court Declines to Hear HFC Case, EPA Proposes Removing HFC Leak Requirements

On January 18, 2019, President Trump signed legislation to extend the authority for the Chemical Facility Anti-Terrorism Standards (CFATS) program. CFATS, administered by the Department of Homeland Security (DHS), was set to expire on January 19th unless legislation was enacted to continue its authority. Industry and DHS called for reauthorization to prevent a lapse in authority. Both cited the importance of certainty for the regulated community and government in continuing efforts to secure chemical facilities.

The legislation extends CFATS authority for 15 months. There were efforts to provide a longer-term extension of authority for a period of two years, but Senator Ron Johnson (R-WI), Chairman of the Senate Homeland Security Committee, was reluctant to pass a longer reauthorization without including reforms to the program.

Sen. Johnson has questioned the effectiveness of the CFATS program. He has introduced legislation that would revise the program and address concerns raised about the operation of CFATS. Johnson’s proposed legislation would:

  • Reauthorize the program for five years
  • Require DHS to determine compliance costs for the government and industry
  • Make the personal surety requirements mandatory for Tiers 1 and 2 and optional for Tiers 3 and 4
  • Exclude cybersecurity as a performance standard
  • Provide incentives for facilities participating in a DHS-recognized industryrun security program.

Sen. Johnson agreed to the 15-month extension but has indicated his continued desire to reform the CFATS program for the future. The additional 15 months will enable Congress, stakeholders and DHS to consider these and other potential programmatic changes. IIAR will continue to engage with DHS, Congress and industry partners as the process moves forward.


The CFATS program was originally established in 2006 to enhance security at facilities with certain chemicals. The focus of CFATS is to reduce the risk of terrorist attacks targeting chemical facilities. The focus on security distinguishes CFATS from other regulations facing the ammonia refrigeration industry such as Process Safety Management (PSM) and the Risk Management Program (RMP), which are focused on human and environmental safety.

CFATS ensures high-risk facilities have security measures in place to reduce the security risks of certain chemicals that DHS has designated as “chemicals of interest” (COI). Ammonia is one of 300 chemicals of interest regulated by the program. Facilities that possess the threshold quantity of a chemical of interest are covered by the program. Covered facilities must file a Top Screen with DHS within 60 days of acquiring the threshold quantity. DHS then assesses the information provided in the Top Screen to determine the relative level of security risk present at the facility. Those facilities deemed to be high risk are placed into tiers and are required to develop site security plans to address 18 risk-based performance standards. According to the Congressional Research Service, as of June 2018, approximately 40,000 facilities had submitted Top Screens, with 3,367 of those being placed into high risk tiers.

The CFATS program has had a mixed history. During the first years of operation, the program was dependent on annual authorization through the Congressional appropriations process. DHS faced challenges in program administration that led to a significant backlog in processing facilities. CFATS was the subject of seven Government Accountability Office (GAO) reports since 2012. In addition, concerns have been raised about the accuracy of the data being used to evaluate and place facilities into risk tiers.

DHS has made progress in recent years, catching up on the backlog and moving forward with approvals of site security plans at the highest risk facilities. The last Congressional action to reauthorize CFATS included program improvements. In 2016, DHS also revised its risk tiering methodology.


Ammonia has been included as a chemical of interest since the beginning of the program. The threshold quantity to file a Top Screen is 10,000 pounds on-site. This is slightly different than threshold quantities for PSM and RMP, which are based on the quantity of a chemical present in a specific process. In August 2018, DHS issued a flyer to industry clarifying the reporting requirements for facilities with ammonia. The flyer was intended to increase industry awareness about the program and reduce confusion about what facilities need to file a Top Screen.

Historically, only a small number of ammonia facilities were deemed to be high enough risk to be placed into tiers 1-4. However, the recent change in methodology has had an impact on the number of ammonia facilities being placed into Tiers 1-4. Since the revision, a increasing number of ammonia facilities have been identified as higher risk and placed into tiers 1-4. This increased impact on ammonia facilities has raised questions about the new methodology and how ammonia being viewed by DHS. IIAR is in an ongoing dialogue with DHS to ensure that information related to ammonia facilities is being evaluated appropriately.

Facility security is a priority for IIAR and its members. While there have been some bumps in the road with CFATS implementation, IIAR has enjoyed a constructive relationship with DHS. The reauthorization of CFATS is a positive step in maintaining a consistent and predictable policy environment so facilities can make security decisions with a higher level of confidence. IIAR will continue to work with DHS, Congress and industry partners to ensure that future CFATS policies provide the needed framework for security while treating ammonia facilities fairly and appropriately.