CFATS Sodium Chlorate Exemption

Yesterday I briefly mentioned the 2015 exemption letter from the CISA Infrastructure Security Compliance Division that ‘temporarily’ exempted certain products containing sodium chlorate (CAS# 7775-09-9) from Top Screen reporting requirement under the Chemical Facility Anti-Terrorism Standards (CFATS) program. Today I would like to take a little closer look at this issue.

Sodium Chlorate

The PubCHem website describes sodium chlorate (NaClO₃):

“Sodium chlorate appears as an odorless pale yellow to white crystalline solid. It is appreciably soluble in water and heavier, so may be expected to sink and dissolve at a rapid rate. Although it is not itself flammable, the solid product and even 30% solutions in water are powerful oxidizing agents. Contact with wood, organic matter, ammonium salts, sulfur, sulfuric acid, various metals, and other chemicals may result in fires or explosions, particularly if any solid materials are finely divided. Excessive heat, as in fires, may cause evolution of oxygen gas that may increase the intensity of fires and may also result in explosions. Mixtures with combustible materials are very flammable and may be ignited by friction. It is used for making herbicides, explosives, dyes, matches, inks, cosmetics, pharmaceuticals, defoliants, paper, and leather.”

Personal Note: I remember a high school chemistry class where the Dr. Dunston (yes, we had a PhD chemist teaching high school chemistry; he was mostly retired from industry and was ‘giving back’ to the science that he loved) placed some NaClO₃ crystals on some newspaper. He then placed an ice cube on the crystals and the newspaper burst into flames. No wonder I love chemistry. Anyway….

Sodium chlorate is listed in Appendix A to 6 CFR 27 (the CFATS regulations) as a Theft – EXP/IEDP security measure chemical. It has a 400-lb screening threshold quantity and it has a reportable concentration of ‘ACG’; a commercial grade. That was defined in the preamble to Appendix final rule as “any quality or concentration of a chemical of interest offered for commercial sale that a facility uses, stores, manufactures, or ships.”

The Exemption

In late 2014 or early 2015 someone apparently contacted ISCD about specific products that contained sodium chlorate in a commercial grade. They presented some sort of evidence to ISCD that convinced the agency that it would be significantly more difficult to produce explosive materials or improvised explosive devices from the sodium chlorate in these products than regular commercial grade sodium chlorate. The specific products were:

• Defol 5

• Defol 750

• Pramitol 5 PS

• BareSpot Monobor-Chlorate

• BareSpot Weed and Grass

• BareSpot Ureabor

• BareGround Ultra

ISCD looked at the evidence presented and agreed with the presenter that, at a minimum, the information merited more investigation and that ISCD was satisfied that the risk for these products being used by terrorists was low enough that they did not merit immediate consideration under the CFATS program. On April 20^th, 2015 ISCD Director Wulf sent the letter included in the CISA guidance document to every facility that had included the listed products in their Top Screen submission.

This letter was not made public in 2015. I assume that the reason for this was that, ISCD still wanted to know what facilities possessed these products in the event that they subsequently decided that they were no longer exempt from the Top Screen submission requirement. If that decision were made ISCD would have a list of facilities (with security contact information) available to send a new letter telling them that they would have to submit a new Top Screen listing these products that were on hand at over 400-lbs.

The Products

The products listed in the letter are all herbicides and they can be found (except 1) listed on Breenbook.net, a crop protection information site. That site provides links to EPA product labels and Safety Data Sheets. The SDS and product labels provide information and those, in turn, provide composition information. The table below shows some of that information. The product links are to either the SDS or EPA label from which I took the data.

Product	State	% NaClO3
Defol 5	Slurry	42.3%
Defol 750	Slurry	52.0%
Pramitol 5 PS	Solid	39.8%
BareSpot Monobor-Chlorate	Solid	30.0%
BareSpot Weed and Grass	Solid	30.0%
BareSpot Ureabor	Solid	30.0%
BareGround Ultra

I cannot find BareGround Ultra in a quick internet search. I suspect that it is no longer an authorized product for herbicide use.

The ‘solid’ material is described as pellets. Some of the products contain urea and/or Sodium Metaborate. Some also contain a variety of other pesticides. None of the products are regulated as hazardous materials by the DOT’s Pipeline and Hazardous Materials Administration. Sodium Chlorate is regulated (pg 289) as an Oxidizer, UN 1946, 5.2, PG II. With the other products not being regulated, it should mean that they have been tested against the oxidizer standard, 49 CFR 173.127. This would also suggest that these products could not be used as a direct substitute for sodium chlorate in the manufacture of explosives or IEDs.

ISCD would not only be concerned about direct substitution but would also want to take into account how easily the sodium chlorate portion of the mixture could be separated out from the product and then be used in the manufacture of explosives or IEDs. While an impossible separation would be the ideal case a more reasonable standard would find that a separation process that required the use of a significant chemical processing facility to accomplish would effectively prevent their use by terrorists clandestinely making explosives.

Commentary

There have been complaints from the start of the program about the way DHS established the minimum concentration of the chemicals on the chemicals of interest (COI) list (Appendix A), setting arbitrary limits that may not directly reflect the potential hazard. This is especially true for chemicals in the theft/diversion security issue. One of the concerns is that some mixtures are no longer able to be used by terrorists to develop weapons.

This concern was most recently addressed in the language of HR 3256. Section 14 of that bill would require DHS to “prescribe regulations to enact a process through which the Secretary can be petitioned to exclude a product or mixture”. Looking at this letter, it would seem that ISCD already has an informal procedure in place to address this issue. The question is why is this an informal process that has not been formally published, probably as a guidance document?

The way that Wulf handled the letter notifications in this case provides an insight into their though process. Since the letter was only sent out to facilities that had already submitted Top Screens, ISCD effectively had location information on all of the facilities that were subject to the exemption. If subsequent information (and I doubt that ISCD is actually looking for such information) turned up information showing that the products did actually present a real terrorist hazard, ISCD would be able to ensure that those facilities take appropriate efforts to protect those chemicals.

The public presentation of this guidance document changes that situation. New facilities coming into possession of these chemicals could reasonably expect that they are not required to submit a Top Screen. ISCD no longer has a reason to keep this process under wraps.