On September 25, 2003, the Environmental Protection Agency (“EPA”), along with the Office of Homeland Security, put into effect a Federal regulation requiring every corporation, person or entity that either offers for transportation or transports in commerce hazardous materials that require placarding must develop and adhere to a “security plan.” In simple layman’s language, if a corporation, person and/or other entity generates hazardous materials and either directly transports these materials or arranges for their transportation through a third party, it must develop and adhere to a “security plan” which would prevent the hazardous materials from being used by terrorists.

This is a new requirement that seems to have slipped under the radar screen of most corporate officers and even environmental attorneys. The Office of Hazardous Material Standards Research and Special Programs Administration and the U.S. Department of Transportation (“USDOT”) recently indicated that although the regulation is presently in effect, USDOT considers itself to currently be in an “information and communication mode” until the end of the 2003 calendar year. In other words, USDOT is providing a short window of opportunity for a responsible party to comply with this recent regulation. Therefore, it appears that those who have not fully complied with these regulations may do so before the end of the year.

The process of developing a security plan is not difficult; however, complexity of the plan is a function of the relative hazards of the materials in question and the ability of a terrorist to use these hazardous substances as a tool of destruction and/or terror. For example, a security plan for a transporter or offeror of radioactive materials would be considerably more complex than for one who simply ships a low hazardous material or regulated materials such as paint solvents.

Kemp Klein is working in conjunction with an environmental consulting firm to create a spreadsheet format for the necessary analysis and development of a security plan which will be specifically tailored to the individual client.

Generators and transporters of hazardous materials would never consider themselves to be producing materials that could be used by terrorists; however, the language of this new act is extremely broad for it incorporates any hazardous materials defined under Part 111 of Act 451, as amended. Because of its broad and sweeping nature, USDOT and the EPA are providing the various corporations and entities an opportunity to comply with the September 25 statute. However, after December 31, 2003, these governmental agencies will, more than likely, begin a serious enforcement effort. To avoid finding yourself the target of enforcement by the United States government, we strongly suggest that you review all hazardous materials that you are generating and if those materials are being transported or offered for transportation then you should immediately contact this office to determine what needs to be done to make sure you are in compliance with this new regulation.

For further information on these matters, please contact Mr. Morrow at 248.740.5663 or click here to send an email.