Plants that store deadly chemicals are a tempting target for terrorists, especially the literally dozens of facilities that are located near densely populated cities. The Department of Homeland Security (DHS) has recently established security performance standards for high risk facilities. This series will present an overview of the new Chemical Facility Anti-Terrorism Standards (Standards). First, let's discuss who the Standards affect.

Why the Standards Were Adopted

The threat posed by potential terrorist attack against chemical facilities has been well documented. Voluntary efforts by industry to deal with the threat have proven ineffective. According to the Agency for Toxic Substances and Disease Registry, security at chemical facilities ranges from "fair to very poor."

Media reports have also criticized the inadequacy of security measures at chemical plants. For example, a May 2002 series in the Pittsburgh Tribune-Review on security at 30 chemical plants in Baltimore, Chicago and Houston "found safeguards so lax that a potential terrorist can easily reach massive tanks of toxins that endanger millions of residents."

In December 2006, Congress passed a law requiring the DHS to develop security standards for high risk facilities. The DHS published a final rule on April 9, 2007. It took effect on June 8. But the Standards drew heavy criticism from industry and other groups. In response, the DHS issued some important modifications to the Standards on November 20.

Who the Standards Cover

The Standards apply to "chemical facilities" that "present high levels of security risk." A facility is considered a "chemical facility" if it "possesses or plans to possess, at any point in time," a chemical in a quantity that the DHS Secretary considers "potentially dangerous."

A facility is high risk if, in the DHS Secretary's discretion, its "attack, infiltration, compromise or exploitation" by terrorists would pose a high risk of "significant adverse consequences for human life or health, national security and/or critical economic assets." Generally speaking, "high level of security risk" facilities will include:

• Chemical manufacturing, storage and distribution facilities;
• Petroleum refineries; and
• Liquefied natural gas storage (peak shaving) facilities.

Who the Standards Don't Cover

There are also certain facilities that are exempt from the Standards, including:

• Facilities regulated under the Maritime Transportation Security Act of 2002;
• Public water systems;
• Treatment works;
• Facilities owned or operated by the U.S. Departments of Defense or Energy; and
• Nuclear facilities regulated by the Nuclear Regulatory Commission.

The DHS has also indicated that it has no current plans to regulate railroad facilities that store chemicals or long-haul natural gas pipelines.

Conclusion

Facilities that are covered by the Standards must meet certain security requirements. We'll explain what these requirements are next week in Part 2 of this series.

THE CANADIAN PERSPECTIVE

The Chemical Facility Anti-Terrorism Standards are a U.S. law. Here's an article of direct interest to our Canadian members.

'REASONABLE MISTAKE OF FACT'

The Flip Side of Due Diligence, Part 1 of 2

By: Glenn Demby

Remember the old vinyl .45 records? Side A contained a "Hit" and Side B a "Pop" song by the same singer. Although the Hit was the one most people knew, some of those Pop songs were just as good, if not better than the Hit on Side A.

Due diligence is a bit like the old .45s. It has two sides, or branches: The so called "reasonable care" branch is the one most people have heard of - Side A. The flip side is called the "reasonable mistake" or "mistake of fact" branch. Every once in a while, the mistake of fact branch of due diligence works just as well as reasonable care. Unfortunately, not all safety coordinators are familiar with this Side B of due diligence.

This series is designed to clear up the blind spot. It will explain what the mistake of fact defence is all about and what you as a safety coordinator need to do to give your company the best opportunity to use it.

The Legal Background

To explain what due diligence is all about, we're going to need to explain a few things about the history of the defence and its moral underpinnings. So brace yourself for a short - and we hope, painless - legal lesson.

Let's start with a simple question: What does a prosecutor have to prove to show that a person violated the law? The answer depends on what kind of law the defendant is charged with violating.

Mens Rea Offences: A lot of legal phrases come from Latin. "Mens rea" is one of them. It literally means "guilty mind." To convict a person of a mens rea offence - which includes most crimes - a prosecutor must prove two things beyond a reasonable doubt:

• An act, that is, that the defendant did something the law forbids or omitted to do something the law requires; and
• A state of mind, that is, that the defendant committed the act deliberately, knowingly, recklessly or with some other state of mind specified in the statute.

Absolute Liability Offences: Absolute liability offences require the prosecutor to prove only that the defendant committed the act, regardless of what was on the defendant's mind at the time.

Sault Ste. Marie and Due Diligence

Before 1978, violating an OHS law was considered an absolute liability offence. So, to establish liability, all the prosecutor had to do was show that the defendant didn't take the measures required by OHS laws.

Sault Ste. Marie changed the rules [R. v. Sault Ste. Marie, (1978) 85 D.L.R. (3d) 161 (S.C.C.)]. The Canadian Supreme Court decided that treating OHS violations as absolute liability offences was too harsh; but treating them as mens rea offences would be too lenient. So the Court carved out a new kind of offence falling between the two extremes: a strict liability offence. A defendant who doesn't follow the OHS law shouldn't automatically be guilty, according to the Court. What the Court essentially decided was to give defendants a chance to explain how the violation happened in the interest of fairness. If their explanation was satisfactory, they wouldn't be guilty.

More precisely, the Sault Ste. Marie Court said that once a prosecutor proves beyond a reasonable doubt that a violation has occurred, the defendant can avoid liability by proving "due diligence." To make out the defence, the defendant must prove one of two things on a balance of probabilities:

Reasonable care: The defendant took all reasonable steps to follow the law and prevent the incident. Justification: Employers aren't expected to guarantee safety; their legal obligation is to take all steps reasonable in the circumstances to protect against hazards. As long as employers do this, it's unfair to hold them liable if an accident occurs.

Mistake of fact. The defendant reasonably believed in a set of facts that turned out to be wrong, but if it had been right would have made the charged act or omission innocent. Justification: It's unfair to penalize employers if they reasonably thought they were following the law and had no good reason to suspect that they were actually putting workers in danger.

Conclusion

Next week, in Part of the series, we'll explain how to prove the reasonable mistake of fact branch of the due diligence defence.

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