The 109th Congress is considering how to address the risks and consequences of potential terrorist attacks on chemical facilities. This report compares and analyzes two bills in the Senate that would address these issues: S. 2145, as reported, and S. 2486 , as introduced. S. 2145 was reported, amended (without written report), by the Committee on Homeland Security and Governmental Affairs on June 26, 2006. For background information on chemical facility security and summaries of other legislative proposals, see CRS Report RL31530 , Chemical Facility Security . For more information about alternative legislative approaches, see CRS Report RL33043 , Legislative Approaches to Chemical Facility Security . S. 2145 would direct the Secretary of the Department of Homeland Security (DHS) to issue rules designating chemical facilities subject to regulation, assigning them to various risk-based tiers, and establishing performance-based standards for each tier. Designated facilities would include facilities selected from those required to complete risk management plans under the Clean Air Act (CAA), Section 112(r)(7), and facilities handling more than specified quantities of ammonium nitrate or any other substance designated by the Secretary. Facilities would be required to submit to DHS vulnerability assessments, security plans, and emergency response plans for terrorist incidents. Plans would have to be "sufficient to deter, to the maximum extent practicable, a terrorist incident or a substantial threat of such an incident," and "include security measures to mitigate the consequences of a terrorist incident." To oversee implementation, S. 2145 would establish regional DHS security offices and area security committees and plans. DHS, other federal agencies, and state and local agencies would be prohibited from releasing to the public "protected information." S. 2145 expressly prohibits any private civil actions against an owner or operator to enforce provisions of the Act. S. 2145 also requires regulation of ammonium nitrate sales. S. 2486 addresses security and safety at "stationary sources," as defined by the CAA Section 112(r)(2), and other facilities holding substances of concern that the DHS Secretary, in consultation with the Administrator of the Environmental Protection Agency, designates as "high priority." For all stationary sources, S. 2486 would establish a general duty to identify hazards; ensure safe facility design, operation, and maintenance (including use of use of inherently safer technology); and reduce the consequences of a criminal release. Employees would assist owners or operators in these tasks. Each high-priority facility would be required to submit to DHS a vulnerability assessment, hazard assessment, and prevention, preparedness, and response plan. S. 2486 would exempt DHS from public disclosure requirements of the federal Freedom of Information Act for "all documents provided to the DHS Secretary under this Act, and all information that describes a specific vulnerability or stationary source derived from those documents." S. 2486 establishes Employees' Safety and Security Committees and mandates employee training with respect to the Act's requirements. This report will be updated as warranted by congressional activity.
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The 109th Congress is considering how to address the risks and consequences of potential terrorist attacks on chemical facilities. This report compares and analyzes two bills in the Senate that would address these issues: S. 2145, as reported, and S. 2486, as introduced. S. 2145 was reported, amended (without written report), by the Committee on Homeland Security and Governmental Affairs on June 26, 2006. For background information on chemical facility security and summaries of other legislative proposals, see CRS Report RL31530, Chemical Facility Security. For more information about alternative legislative approaches, see CRS Report RL33043, Legislative Approaches to Chemical Facility Security.
S. 2145 would direct the Secretary of the Department of Homeland Security (DHS) to issue rules designating chemical facilities subject to regulation, assigning them to various risk-based tiers, and establishing performance-based standards for each tier. Designated facilities would include facilities selected from those required to complete risk management plans under the Clean Air Act (CAA), Section 112(r)(7), and facilities handling more than specified quantities of ammonium nitrate or any other substance designated by the Secretary. Facilities would be required to submit to DHS vulnerability assessments, security plans, and emergency response plans for terrorist incidents. Plans would have to be "sufficient to deter, to the maximum extent practicable, a terrorist incident or a substantial threat of such an incident," and "include security measures to mitigate the consequences of a terrorist incident." To oversee implementation, S. 2145 would establish regional DHS security offices and area security committees and plans. DHS, other federal agencies, and state and local agencies would be prohibited from releasing to the public "protected information." S. 2145 expressly prohibits any private civil actions against an owner or operator to enforce provisions of the Act. S. 2145 also requires regulation of ammonium nitrate sales.
S. 2486 addresses security and safety at "stationary sources," as defined by the CAA Section 112(r)(2), and other facilities holding substances of concern that the DHS Secretary, in consultation with the Administrator of the Environmental Protection Agency, designates as "high priority." For all stationary sources, S. 2486 would establish a general duty to identify hazards; ensure safe facility design, operation, and maintenance (including use of use of inherently safer technology); and reduce the consequences of a criminal release. Employees would assist owners or operators in these tasks. Each high-priority facility would be required to submit to DHS a vulnerability assessment, hazard assessment, and prevention, preparedness, and response plan. S. 2486 would exempt DHS from public disclosure requirements of the federal Freedom of Information Act for "all documents provided to the DHS Secretary under this Act, and all information that describes a specific vulnerability or stationary source derived from those documents." S. 2486 establishes Employees' Safety and Security Committees and mandates employee training with respect to the Act's requirements. This report will be updated as warranted by congressional activity.
The 109th Congress is considering how to address the risks and consequences of potential terrorist attacks on chemical facilities. Competing bills, S. 2145 and S. 2486, have been introduced in the Senate. Other legislation has been introduced in the House, including a companion to S. 2145 (H.R. 4999). H.R. 5695 is similar to S. 2145, while two other bills, H.R. 1562 and H.R. 2237, are similar to proposals in the 108th Congress. This report focuses on legislation in the Senate. For background information on chemical facility security and summaries of other legislative proposals, see CRS Report RL31530, Chemical Facility Security, by [author name scrubbed]. For more information on alternative legislative approaches, see CRS Report RL33043, Legislative Approaches to Chemical Facility Security, by [author name scrubbed].
S. 2145 and S. 2486 direct the Secretary of the Department of Homeland Security (DHS) to designate "substances of concern" and high-priority facilities for regulation. Both bills require assessments of vulnerability for designated facilities and preparation and implementation of security plans. Beyond these basic provisions, however, the bills would mandate facility actions, federal oversight mechanisms, and other requirements that differ in significant and often controversial ways. The purpose of this report is to summarize key provisions of the two bills, highlighting selected areas of disagreement and agreement.
Senator Collins, Chairman of the Homeland Security and Governmental Affairs Committee (HSGAC), introduced S. 2145, the Chemical Facility Anti-Terrorism Act, on December 19, 2005, following four full Committee hearings on the subject.(1) Co-sponsors on introduction included Senator Lieberman (the HSGAC Ranking Member), Senator Coleman, Senator Carper, and Senator Levin, all members of the HSGAC. The HSGAC reported an amended bill (without written report) on June 26, 2006.
Chemical Sources and Substances of Concern. S. 2145 would direct the DHS Secretary to promulgate rules for designating chemical facilities (referred to in the legislation as "chemical sources") that would be subject to regulation, assigning these facilities to various risk-based tiers and establishing performance-based security standards for each tier. Facilities would be considered for designation if they produced, used, or stored a substance of concern in a quantity equal to or greater than a threshold quantity. To assist DHS in identifying facilities, the bill would establish a duty to report to DHS for facilities handling more than a threshold quantity of a designated substance of concern. Substances of concern would be those that trigger risk management planning requirements under the Clean Air Act (CAA), Section 112(r)(7),(2) as well as ammonium nitrate and any other substance designated by the Secretary. A decision to designate a substance would be based on the potential extent of death, injury, or serious adverse effects to human health and safety or the environment, or the potential impact on national or economic security or critical infrastructure caused by a terrorist incident.
Vulnerability Assessments and Planning Requirements. Designated facilities would be assigned to risk-based tiers and required to complete and submit to DHS vulnerability assessments, security plans, and emergency response plans for terrorist incidents. DHS would be required to review these submissions within five years of their date of submission and to provide a written determination to approve, disapprove, or modify facility assessments and plans, as well as implementation of plans. DHS would be prohibited from disapproving a site security plan based on the presence or absence of a particular security measure, if the plan satisfied the performance standards established for the applicable risk-based tier.
For facilities in the higher-risk tiers, S. 2145 would require a preliminary DHS review of facility assessments and plans within nine months of the date when DHS issues regulations concerning assessments and plans. At that time, DHS would have to provide notice and compliance assistance to facilities for which an assessment or plan may not be approved. Three months later, (within one year of the date when DHS issues regulations concerning assessments and plans), S. 2145 requires a written determination by DHS to approve, disapprove, or modify facility assessments and plans, as well as implementation of plans for higher-risk facilities.
S. 2145 would require intergovernmental coordination, and requires facility owners or operators to specify in their plans "steps taken by the chemical source to coordinate security measures and plans for response to a terrorist incident with Federal, State, and local government officials, including law enforcement and first responders." Plans would have to be "sufficient to deter, to the maximum extent practicable, a terrorist incident or a substantial threat of such an incident," and "include security measures to mitigate the consequences of a terrorist incident."
Enforcement. S. 2145 would provide administrative, civil, and criminal penalties for facility owners or operators who fail to submit assessments or plans or to implement plans adequately. DHS would be authorized to issue an order for the chemical source to cease operation if the facility persisted in noncompliance with the requirements established under S. 2145.
Coordination. The bill would mandate coordination with existing security and emergency response planning, including planning under the Maritime Transportation Security Act (MTSA). To ensure coordination, S. 2145 establishes regional security offices and area security committees and plans. State and local laws would not be preempted unless they were inconsistent with federal law.
Information Disclosure. DHS, other federal agencies, and state and local agencies would be prohibited from releasing to the public "protected information." That term is defined to include vulnerability assessments, site security plans, security addenda to emergency response plans, area security plans, or materials developed or produced exclusively in preparation for assessments or plans. S. 2145 also includes in the definition of "protected information" any document obtained by DHS or a state or local government from a chemical source in accordance with this Act, and any document prepared by or provided to a federal agency or state or local government, to the extent that the record contains information that (1) describes a specific chemical source or the specific vulnerabilities of a chemical source; (2) was taken from a vulnerability assessment, site security plan, addendum to an emergency response plan, materials produced by a chemical source exclusively in preparation of such documents, or a copy of such record in possession of the chemical source; and (3) would, if disclosed, be detrimental to the security of a chemical source.
The introduced bill would have required public disclosure of written certifications of compliance by facility owners/operators, DHS certificates of compliance issued for individual sources, DHS orders issued for noncompliance, and lists of facilities for which DHS has issued an approval or disapproval, unless the Secretary determined that release of a particular record would increase security risk. An amendment to S. 2145 was approved during markup that reverses this provision, such that certifications and orders could not be disclosed unless the Secretary were to determine that release of a particular record would increase security risk. Even if the Secretary determined an absence of increased risk, the Secretary would be authorized, but not required, to disclose the record.
Judicial Review. As introduced, S. 2145 was silent with respect to judicial review. However, S. 2145 was amended during markup to permit any person to file a petition with the U.S. Court of Appeals for the District of Columbia for judicial review of a rule within 60 days of promulgation. The reported bill directs the court to review rules in accordance with the Administrative Procedure Act (i.e., 5 U.S.C. §701 et seq.).
The amended bill would allow only an owner or operator whose facility is affected by a final agency action to file a petition for judicial review of the action with an appropriate U.S. district court. (The standard of review would remain that in the Administrative Procedure Act.) Only the owner or operator and the Secretary could participate in such civil actions. In addition, the bill expressly prohibits any private civil actions against an owner or operator to enforce provisions of the Act.
Other Accountability Measures. Other provisions of S. 2145 would require reports by DHS and GAO, establish a process by which any person might submit a report to DHS regarding vulnerabilities of a chemical source, and protect whistle-blowers from retaliation. During markup, an amendment was approved that would prohibit GAO from releasing to the public any "protected information" in its reports.
Ammonium Nitrate. S. 2145 directs the DHS Secretary, in consultation with the Secretary of Agriculture, to regulate the production and sale of ammonium nitrate to prevent misappropriation or use in violation of law. The bill would require registration of facilities and purchasers, and restrict sales to registered producers, sellers, and purchasers.
Senator Lautenberg, a member of the HSGAC, introduced the Chemical Security and Safety Act of 2006 (S. 2486) on March 30, 2006. Co-sponsors on introduction included Senator Obama, Senator Kerry, Senator Menendez, Senator Durbin, and Senator Biden.
Chemical Sources and Substances of Concern. S. 2486 addresses security and safety at "stationary sources," which are defined by reference to the CAA Section 112(r)(2),(3) but also to include other facilities that produce, process, handle, or store any "substance of concern" and which the DHS Secretary designates as "high priority." Substances of concern are defined as substances listed under the CAA Section 112(r)(3) in a threshold quantity or any other substance designated by the Secretary under section 5(d) of the Chemical Security and Safety Act in a threshold quantity.
The DHS Secretary, in consultation with the Administrator of the Environmental Protection Agency (EPA), would be directed to designate by rule at least 3,000 facilities handling substances of concern as "high priority categories." In designating high-priority facilities, the Secretary would be directed to consider potential severity of harm; proximity to population centers; threats to national security; threats to critical infrastructure; threshold quantities of substances of concern that pose a serious threat; and other safety or security factors that the DHS Secretary, in consultation with the EPA Administrator, determines to be appropriate. S. 2486 also would require the Secretary to identify the 600 highest priority stationary sources.
General Duty to Ensure Safe Design, Operation, and Maintenance. For all stationary sources, S. 2486 would establish a general duty to --
Owners or operators of stationary sources would be required to involve employees in ensuring the "design, operation, and maintenance of safe facilities," an obligation that is defined to include use of inherently safer technology (IST) "to the maximum extent practicable." S. 2486 defines IST as the "use of a technology, product, raw material, or practice that, as compared to the technology, products, raw materials, or practices currently in use ... significantly reduces or eliminates the possibility of the release of a substance of concern, and ... significantly reduces or eliminates the hazards to public health and safety and the environment associated with the release or potential release." This definition includes such actions as "chemical substitution, process redesign, product reformulation, and procedural and technological modification."
Vulnerability Assessments and Planning Requirements. Each owner or operator of a high-priority facility would be required to submit to DHS a written report that would include a vulnerability assessment, a hazard assessment, and a prevention, preparedness, and response plan that would incorporate the results of the assessments and meet requirements established by DHS. Each plan would have to include discussion of the practicability of implementing each element of "safe" facility design, operation, and maintenance. The bill also requires consultation with employees at the facility in developing the assessments and plan.
S. 2486 would require the DHS Secretary to review each submitted report to determine whether it complied with DHS regulations, and to certify approval for compliant facilities. In addition, the bill directs the DHS Secretary to notify any owner or operator who submits a plan that is disapproved. S. 2486 would establish an information clearinghouse to assist facilities in complying with requirements.
Enforcement. S. 2486 would provide administrative, civil, and criminal penalties for facility owners or operators who failed to comply with a compliance order or directive issued by the Secretary. If a threat of a terrorist attack is beyond the scope of a submitted prevention, preparedness, and response plan, or current implementation of the plan is insufficient, DHS would be authorized to issue a compliance order. If a facility persisted in noncompliance, the Secretary would be authorized, after notifying the facility of that fact, to seek judicial relief to abate the threat. Such judicial relief could include an order to cease operation and such other orders as would be necessary to protect public health or welfare.
Coordination. S. 2486 mandates coordination of implementation for the Chemical Security and Safety Act with the MTSA and directs the DHS Secretary to minimize duplication of requirements for risk assessment and response plans under other federal law.
Information Disclosure. S. 2486 would protect DHS from public disclosure requirements of the federal Freedom of Information Act (FOIA) for "all documents provided to the DHS Secretary under this Act, and all information that describes a specific vulnerability or stationary source derived from those documents." A few documents are excepted from this protection, such as compliance certifications by the DHS Secretary. In addition, information derived from the protected documents may be disclosed if it would not divulge trade secrets, not identify any particular stationary source, and "is not reasonably likely to increase the probability or consequences of a criminal release." No protection is provided for information at other federal agencies, but state and local government agencies are protected from disclosure requirements of all federal, state, and local laws. As for DHS information protection, a few documents are excepted from protection at state and local government agencies.
Judicial Review. S. 2486 is silent with respect to judicial review of DHS actions. That means that final actions by DHS, whether rules or orders, would be subject to judicial review as provided by the generally applicable Administrative Procedure Act (APA; 5 U.S.C. §501 et seq.). The APA permits any person the right to petition a federal district court for review of a final agency action. Under the APA, an agency rulemaking can be held unlawful or set aside if it is found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law."(4) The court can also "compel agency action unlawfully withheld or unreasonably delayed."
Other Accountability Measures. S. 2486 would establish Employees' Safety and Security Committees at stationary sources with at least 15 employees, and mandates employee training at all stationary sources with respect to the Act's requirements. In addition, the bill would require notification and involvement of employees in facility inspections and investigations. Protection is provided for employees who might report problems at their facilities to authorities.
Ammonium Nitrate. S. 2486 does not authorize additional regulation regarding sale or purchase of ammonium nitrate.
Chemical Sources. Both bills would direct the Secretary to focus on chemical sources regulated under the CAA §112(r). However, S. 2145 provides the Secretary discretion with respect to designating and requires only that the Secretary consider "any facility that is a stationary source ... for which the owner or operator is required to complete a risk management plan...." Facilities required to complete a risk management plan are those at which a regulated substance is present at a quantity greater than a threshold quantity (CAA §112(r)(7)). In contrast, S. 2486 would apply to all stationary sources, which the bill defines with reference to the CAA §112(r)(2). That definition includes "any buildings, structures, equipment, installations, or substance-emitting stationary activities" (arguably a wider category than "facilities") "(i) which belong to the same industrial group, (ii) which are located on one or more contiguous properties, (iii) which are under the control of the same person (or persons under common control), and (iv) from which an accidental release may occur."
In addition, both bills would authorize designation of additional facilities for regulation. S. 2145, but not S. 2486, exempts facilities owned or operated by the Department of Energy, the Department of Defense, or a licensee or certificate holder of the Nuclear Regulatory Commission.
Substances of Concern. S. 2145 would define "substance of concern" as a chemical substance present at a chemical source in a quantity equal to or exceeding the threshold quantity, as established under the CAA §112(r)(3) and (5); ammonium nitrate, in a quantity to be determined by the Secretary; or any other chemical substance above a threshold quantity designated by the Secretary. S. 2486 would define "substance of concern" similarly, but does not include ammonium nitrate in its definition.
General Duty. S. 2145 would not impose a general duty on stationary sources that produce, process, handle, or store any "substance of concern," as does S. 2486. The latter would require owners or operators of stationary sources (1) to identify hazards that may result from a criminal release; (2) to ensure the "design, operation, and maintenance of safe facilities"; and (3) to eliminate or minimize the consequences of any criminal release.
Inherently Safer Technology. S. 2486 would require owners or operators of stationary sources to ensure the "design, operation, and maintenance of safe facilities," which the bill defines to include the use of IST "to the maximum extent practicable." Higher priority stationary sources are required to consider use of IST, implement IST to the maximum extent practicable, and document consideration in security and response plans. S. 2145 does not require consideration or implementation of IST, although it explicitly allows consideration and use of technologies that would reduce potential consequences of any successful terrorist attack as a security measure in a site security plan. During markup of S. 2145, the committee approved an amendment that would prohibit the Secretary from disapproving a security plan because it failed to incorporate a particular security measure. This provision was adopted to ensure that the Secretary would not require IST.
Information Protection. Both bills would exempt DHS from FOIA requirements for public disclosure of agency documents. S. 2145 would prohibit disclosure of "protected information" (see definition above). In addition, it prohibits disclosure of certifications and orders that might reveal the compliance status of regulated facilities. Certifications (but not orders) may be released only if the Secretary determines that release of such information would not increase the risk to a facility. S. 2145 directs the Secretary to develop protocols to ensure, to the maximum extent practicable, that protected information will be maintained in a secure location and that access will be limited to persons granted access for the purpose of carrying out the Chemical Facility Anti-Terrorism Act. The bill also mandates that any officer or employee of a federal, state, or local government agency who knowingly discloses any protected information be imprisoned for up to one year, fined under chapter 227 of title 18, United States Code, or both, and if a federal employee, removed from office or employment.
S. 2486 would exempt DHS from FOIA requirements with respect to "all documents provided to the DHS Secretary under this Act, and all information that describes a specific vulnerability or stationary source derived from those documents," but the bill also would allow public disclosure of information derived from the documents and information that is protected if it would not divulge trade secrets, identify any particular stationary source, and "is not reasonably likely to increase the probability or consequences of a criminal release." S. 2486 would not restrict disclosure of certifications under §6(b), orders under §10(a), or best practices established under §13(4) of the Act. The bill would require the Secretary to develop information protection protocols, but S. 2486 would not authorize penalties for unauthorized disclosure of protected information.
Regional and Area Planning. S. 2145 would establish regional DHS security offices to oversee facility efforts and area committees to coordinate local, state, and federal security and emergency response planning. S. 2486 does not include such provisions.
Judicial Review. S. 2145 distinguishes between rulemaking and other final agency actions with respect to courts of jurisdiction, as well as parties authorized to act. S. 2145 would allow challenges to final rules only in the U.S. Court of Appeals for the District of Columbia, but challenges to any other final actions could be filed only in the appropriate federal district court. Because S. 2486 does not address judicial review of final DHS actions, actions may be filed in any federal district court.
S. 2145 would permit any person to file a petition for judicial review of a final regulation but would permit only the owner or operator of a chemical source to file a petition for review of a final agency action or order. Only that owner or operator and the Secretary would have the right to participate in such civil action. In contrast, because S. 2486 does not address judicial review of final DHS actions, any person who is affected by a final DHS action, including promulgation of a final rule, has the right under the Administrative Procedure Act to file an action for its review and to participate in any civil action initiated by another.
Finally, S. 2145 explicitly denies any right to private civil actions against an owner or operator to enforce provisions of the Act. Again, S. 2486 is silent with respect to private rights of action. As a result, it is unclear whether a private right of action would be permitted.
Worker Involvement. S. 2486 would establish Employees' Safety and Security Committees at facilities with 15 or more employees to identify, discuss, and make recommendations to owners or operators concerning potential hazards and risks relevant to security, safety, health, and the environment. These committees are to participate in developing, reviewing, and revising vulnerability assessments, hazard assessments, and prevention, preparedness, and response plans at their facilities. Owners or operators would be required to provide employees annually with four hours of training relevant to security and safety planning. S. 2145 does not have such provisions. Both bills provide protection for employees who might report problems at their facilities to authorities, but whistle-blower protection provisions are more extensive and detailed in S. 2486 than in S. 2145.
Ammonium nitrate. S. 2145 directs the DHS Secretary, in consultation with the Secretary of Agriculture, to regulate the production and sale of ammonium nitrate to prevent misappropriation or use in violation of law. The bill would require registration of facilities and purchasers, and it would restrict sales to registered producers, sellers, and purchasers. S. 2486 does not contain such provisions.
Table 1 summarizes selected provisions of the two bills.
Table 1. Comparison of S. 2145, as Reported, and S. 2486, as
Introduced, in the 109th Congress
| Provision | S. 2145, as reported | S. 2486, as introduced | |
| Title | Chemical Facility Anti-Terrorism Act [§1] | Chemical Security and Safety Act [§1] | |
| Key Definitions | |||
| Chemical source | Defined as a facility designated by the Secretary of the Department of Homeland Security (DHS). | Not defined. Instead defines "stationary source" as defined in the Clean Air Act (CAA) §112(r)(2) with the addition of any chemical facility designated by the DHS Secretary under §5(d) of the Chemical Security and Safety Act. | |
| Protected information | Includes (1) any vulnerability assessment, site security plan, area security plan, and security addendum to an emergency response plan prepared for the purposes of this Act and obtained by DHS under §4; (2) any materials obtained by DHS and developed or produced by a chemical source exclusively in preparation of records, documents, or information referred to by an assessment, plan, or addendum or an emergency response plan; (3) any document or other information obtained by DHS or a state or local government from a chemical source in accordance with this Act, and any document prepared by or provided to a federal agency or state or local government, to the extent that the document or information (a) describes a specific chemical source or the specific vulnerabilities of a chemical source; (b) was taken from a vulnerability assessment, site security plan, area security plan, addendum to an emergency response plan, or an emergency response plan or from a copy of such record inpossession of the chemicalsource; and (c) would, ifdisclosed, be detrimental tothe security of a chemicalsource. | Not defined. Information that is to be protected under §11(a) includes "all documents provided to the DHS Secretary under this Act, and all information that describes a specific vulnerability or stationary source derived from those documents," except certifications under §6(b), orders under §10(a), and best practices for IST established under §13(4). | |
| Security or safety measure | Defines "security measure"
broadly to include measures
to prevent or detect the
presence of terrorists in
sensitive areas of the
facility, as well as measures
to reduce consequences in
the event of a successful
terrorist attack. [§2] |
Defines "design, operation,
and maintenance of safe
facilities" to include "to the
maximum extent practicable"
-- "use of inherently safer technology;" measures to make facilities impregnable; "outreach to the surrounding community;" improving site security, employee training, and coordination with state and local emergency officials, law enforcement agencies, and first responders; and secondary containment, control, or mitigating equipment. The definition also includes use of buffer zones. |
|
| Use of inherently safer technology | No comparable definition. | Defines "use of inherently
safer technology" as use of a
technology, product, raw
material, or practice that
significantly reduces or
eliminates the possibility of
the release of a substance of
concern, and significantly
reduces or eliminates the
hazards to public health and
safety and the environment
associated with the release or
potential release. [§3] |
|
| Substance of concern | Defined as a chemical
substance present at a
chemical source in a
quantity equal to or
exceeding the threshold
quantity for the chemical
substance, as established
under the CAA §112(r)(3)
and (5); ammonium nitrate,
in a quantity to be
determined by the DHS
Secretary; or any other
chemical substance above a
threshold quantity
designated by the DHS
Secretary under §3(i). [§2] |
Defined as any substance
listed under the CAA
§112(r)(3) in a threshold
quantity or any other
substance designated by the
Secretary in a threshold
quantity under §5(d) of this
Act. Does not refer to the
CAA §112(r)(5) or
ammonium nitrate. [§3] |
|
| Covered Facilities | Includes facilities
designated by DHS under
§3(a), but not facilities
owned or operated by the
Department of Energy,
Department of Defense, or a
licensee or certificate holder
of the Nuclear Regulatory
Commission. In designating facilities, the DHS Secretary must consider: (1) any facility that is a "stationary source" under the Clean Air Act (CAA), §112(r)(2) and for which the owner or operator is required to complete a risk management plan in accordance with CAA §112(r)(7) (B)(ii); (2) any other facility that produces, uses, or stores a "substance of concern"; and (3) any additional facility that the DHS Secretary determines shall be designated a chemical source. [§3(c)-(d)] |
Includes all "stationary
sources" under the CAA
§112(r)(2), in addition to any
other sources designated in
regulations as "high priority"
under §5(d) by the DHS
Secretary. [§5] |
|
| Criteria for Designating Facilities | Requires the DHS Secretary
to establish criteria for
designating chemical
sources by regulation. The DHS Secretary must base designation criteria on the following "risk factors": -- perceived threat to a facility; -- potential extent and likelihood of serious adverse effects to human health and safety or to the environment; -- threats to or potential impact on national security or critical infrastructure; -- potential threats or harm to the economy; -- proximity of a facility to population centers; -- nature and quantity of substances of concern; and -- other security-related factors necessary to protect public health and safety, critical infrastructure, and national and economic security. [§3(a)-(b)] |
No comparable provision, but criteria for designating high-priority sources are similar. See "Identifying Priorities" below. | |
| Identifying Priorities | Requires the DHS Secretary
to promulgate rules
establishing a risk-based tier
system of chemical sources,
consisting of several tiers,
and providing guidance to
owners and operators
regarding actions that would
enable a source to move to a
lower risk tier. One or more
tiers must be "higher risk"
tiers. Directs the DHS Secretary to determine the tier applicable to each designated chemical source. (Note that the listing of facilities is not through rule-making.) [§3(e)] |
Requires the DHS Secretary,
in consultation with the
Administrator of the U.S.
Environmental Protection
Agency (EPA) and state and
local government agencies
responsible for planning for
and responding to criminal
releases and for providing
emergency health care, to
designate "high priority"
facilities by regulation, based
on "the severity of the threat
posed by a criminal release."
At least 3,000 facilities must
be designated "high priority."
In designating facilities "high
priority," the DHS Secretary
must consider: -- potential severity of harm; -- proximity to population centers; -- threats to national security; -- threats to critical infrastructure; -- threshold quantities of substances of concern that pose a serious threat; and -- other safety or security factors that the DHS Secretary, in consultation with the EPA Administrator, determines to be appropriate. Each stationary source must be considered individually. The DHS Secretary also must identify the 600 highest priority stationary sources. [§5(a)-(b) and §6(c)(1)] In designating high-prioritycategories, the DHSSecretary, in consultationwith the EPA Administrator,is authorized to designate byrule any chemical facility as a "stationary source."[5(d)] |
|
| General Duty | No comparable provision. | Establishes for each owner
and operator of a stationary
source that produces,
processes, handles, or stores
any "substance of concern" a
general duty: (1) to identify
hazards that may result from
a criminal release; (2) to
ensure the "design, operation,
and maintenance of safe
facilities;" and (3) to
eliminate or minimize the
consequences of any criminal
release. Requires that the
owner or operator of a
stationary source involve
employees of the source in
each aspect of ensuring the
"design, operation, and
maintenance of safe
facilities." [§4] |
|
| Security Standards | Requires the DHS Secretary
to establish security
performance standards for
each risk-based tier of
facilities, with stricter
requirements for tiers
posing greater risks. The
standards must allow an
owner or operator to select
security measures that, in
combination, satisfy the
security performance
standards and must be
risk-based,
performance-based, flexible,
and include consideration of
the criteria for designating
chemical sources [under
§3(a)], cost, technical
feasibility, and scale of
operations. [§3(f)] |
Requires the DHS Secretary,
in consultation with the EPA
Administrator, the U.S.
Chemical Safety and Hazard
Investigation Board, and
state and local government
agencies, to promulgate
regulations that require each
owner and each operator of a
"high priority" stationary
source to take action to
detect, prevent, and eliminate
or reduce the consequences
of terrorist attacks and other
criminal releases. Such
action must be taken in
consultation with local law
enforcement, first
responders, employees, and
employee representatives,
and must include the "design,
operation, and maintenance
of safe facilities." [§5(c)(1) and §5(e)] |
|
| Notice to Potentially Designated Facilities | Requires the DHS Secretary
to notify potentially
regulated facilities about the
process and timeline for
review and designation of
chemical sources. [§3(g)] |
No comparable provision. | |
| Review of Designation of Chemical Sources | Requires the DHS Secretary
to review and revise as
necessary the list of
designated sources every 3
years. Authorizes additional
revisions of the list by the
DHS Secretary. [§3(h)] |
Requires the DHS Secretary,
in consultation with the EPA
Administrator, to review the
regulations designating "high
priority" sources and make
necessary revisions, at least
once every 5 years. [§5(e)] |
|
| Identification of Additional Chemical Sources | Requires the owner or
operator of any facility
where a threshold quantity
of a substance of concern is
present to petition the DHS
Secretary for a
determination on whether
that facility should be
designated a chemical
source, if that facility has
not been required to
complete a risk management
plan (under the CAA
§112(r)(7) (B)(ii).
Directs the DHS Secretary to consult with the EPA Administrator to establish a mechanism for DHS to receive timely notice when a facility is required to complete a risk management plan in accordance with CAA §112(r)(7)(B)(ii). Requires the owner or operator of any newly operational facility that handles at least the threshold quantity of a substance of concern to file a petition with the DHS Secretary for a determination on whether that facility should be designated a chemical source. [§3(h)] |
No comparable provisions, but see "Identifying Priorities" above. | |
| Authority to Designate Substances of Concern and Threshold Quantities | Authorizes the DHS
Secretary to issue a rule
designating or exempting a
chemical substance as a
substance of concern or
establishing or revising the
threshold quantity. In
promulgating such rules, the
DHS Secretary must
consider "the potential
extent of death, injury, or
serious adverse effects to
human health and safety or
the environment and the
potential impact on national
security, the economy, or
critical infrastructure that
would result from a terrorist
incident involving the
chemical substance." [§3(i)] |
Authorizes the DHS Secretary, in consultation with the EPA Administrator, for the purpose of designating "high priority" categories, to designate by rule any additional substance that, in a specified threshold quantity, poses a serious threat as a "substance of concern." [§5(d)] | |
| Vulnerability Assessments, Site Security Plans, and Emergency Response Plans | Requires the DHS Secretary
to promulgate regulations
requiring the owner or
operator of each chemical
source to conduct a
vulnerability assessment,
prepare and implement a
site security plan, and
prepare and implement an
emergency response plan or
addendum to an existing
plan. The regulations must
be risk-based,
performance-based, flexible,
and include consideration of
the criteria for designating
chemical sources [§3(a)],
cost, technical feasibility
and scale of operations. Authorizes cooperation among sources operating at contiguous locations. Directs the DHS Secretary to share relevant threat information with state and local government officials and with an owner or operator of a chemical source. Specifies content of vulnerability assessments. [§4(a)] |
Requires each owner or
operator of a high-priority
facility to submit a report to
the DHS Secretary within 6
months of the date on which
regulations are promulgated
under §5(c)(1). The report
must include a vulnerability
assessment, an assessment of
the hazards that may result
from a criminal release; and
a prevention, preparedness,
and response plan. Requires the DHS Secretary to notify each stationary source of an elevated threat if the DHS Secretary, in consultation with local law enforcement officials, determines that a threat of a terrorist attack exists that is beyond the scope of a submitted prevention, preparedness, and response plan of one or more stationary sources. [§5(c)(2) and §10(c)(1)] |
|
| Content of Site Security Plans | Requires that each site
security plan indicate the
tier applicable to the
facility; address risks
identified in the
vulnerability assessment;
address appropriate security
performance standards;
include security measures
appropriate to the tier level
that are "sufficient to deter,
to the maximum extent
practicable, a terrorist
incident or a substantial
threat of such an incident;"
include security measures to
mitigate the consequences
of a terrorist incident;
increase security of
automated systems; describe
contingency plans for the
facility; identify roles and
responsibilities of
employees; identify steps
taken to coordinate with
government officials;
describe training, drills,
exercises, and security
actions; and describe
security measures that
would be implemented in
response to an order under
§7 in the event that
heightened security
measures became necessary
for a particular facility. [§4(a)] |
Requires that each plan
incorporate the results of the
vulnerability and hazard
assessments. Required
reports to DHS also must
include a statement as to how
the plan meets the
requirements of the
regulations; a statement as to
how the prevention plan
meets the general duty
requirements of §4; a
discussion of the
consideration of the elements
of "design, operation, and
maintenance of safe
facilities," including the
practicability of
implementing each element;
and a statement describing
how and when employees
and employee representatives
were consulted. [§5(c)(2)] |
|
| Contents of Emergency Response Plans | Requires that an emergency
response plan address the
consequences of a terrorist
incident identified in the
vulnerability assessment; is
consistent with the site
security plan; and identifies
the roles and responsibilities
of employees. Requires
plans to be modified
versions of plans that have
been federally approved or
certified and that are in
effect on the date of
enactment, if consistent
with guidance provided by
the National Response
Team (NRT) established
under the National
Contingency Plan.(5) If no plan exists, then
the owner or operator is
required to develop one by
following guidance
provided by the NRT.
Directs owners or operators
to place security
information in an addendum
to the plan, if necessary, to
protect it from public
disclosure. [§4(a)] |
No comparable provision. | |
| Self-Certification and Submission | Within 6 months of
promulgation of rules
requiring vulnerability
assessments, site security
plans, and emergency
response plans, each owner
or operator of a chemical
source must certify in
writing to the DHS
Secretary that a
vulnerability assessment has
been completed and a site
security plan and an
emergency response plan
have been developed and
implemented, and must
submit copies of the
vulnerability assessment and
plans to the DHS Secretary. [§4(b)] |
No comparable provision. | |
| Review and Approval by the DHS Secretary of Reports Submitted by Covered Facilities | Requires the DHS Secretary, within 5 years of the promulgation of requirements for vulnerability assessment and site security and emergency response planning, to review submitted documents to determine whether they comply with requirements promulgated under §4(a). Authorizes subsequent reviews on a schedule to be determined by the DHS Secretary. Requires the DHS Secretary to provide the owner or operator written notice regarding DHS determination of compliance or noncompliance of the vulnerability assessment, security and emergency plans, and facility implementation. DHS is prohibited from disapproving a site security plan based on the presence or absence of a particular security measure, if the plan satisfies the performance standards established for the applicable tier. If a notice indicates disapproval, the notice must include a clear explanation of deficiencies, and DHS must consult with the owner or operator to identify steps to achieve compliance. [§4(c)] | Requires the DHS Secretary,
in consultation with the EPA
Administrator, to review
each report submitted to
determine whether the source
covered by the report is in
compliance with regulations
promulgated under §5(c)(1).
Requires the DHS Secretary,
after consultation with the
EPA Administrator, to notify
the stationary source and to
provide advice and technical
assistance to the source, if
the DHS Secretary
determines, in consultation
with the EPA Administrator,
that a report does not
comply, a threat exists that is
beyond the scope of the plan
submitted, or the
implementation of the plan is
insufficient. [§6(a) and (d)] |
|
| Schedule for Review and Approval of Reports by Facilities in Higher-risk Tiers | Within 9 months of the promulgation of requirements for vulnerability assessment and site security and emergency response planning, requires the DHS Secretary to conduct a preliminary review of higher-risk facilities and provide notice and compliance assistance to owners or operators if their assessment or plan may not be approved. Within one year of the promulgation of requirements for assessments and plans, requires the DHS Secretary to (1) review and approve, disapprove, or modify a vulnerability assessment, site security plan, and emergency response plan submitted by a chemical source in a higher-risk tier; and 2) determine whether the chemical source is operating in compliance with the submitted site security plan and emergency response plan. [§4(c)] | Within 2 years of the date on
which reports are required to
be submitted under §5(c)(2),
requires the DHS Secretary
to complete review and
certification of all reports
submitted by high-priority
stationary sources. Within 6
months of the date on which
reports are required to be
submitted under §5(c)(2),
requires the DHS Secretary
to review reports and certify
compliance of the 600
highest priority stationary
sources. [§6(c)] |
|
| Certificate of Compliance | Requires the DHS Secretary
to issue a certificate of
approval for facilities in
compliance with the
requirements of this Act. [§9(b)(2)] |
Requires the DHS Secretary
to certify each compliance
determination for each
"higher priority" source, and
to include a checklist
indicating the consideration
by the source of the use of
elements of "design,
operation, and maintenance
of safe facilities." [§6(b)] |
|
| Authority to Issue Orders for Noncompliance | Authorizes the DHS
Secretary to issue an order
requiring certification and
submission, if an owner or
operator fails to certify or to
submit a vulnerability
assessment, site security
plan, or emergency response
plan. Directs the DHS
Secretary to issue an order
requiring correction of
specified deficiencies if the
owner or operator does not
achieve compliance by a
date to be determined by the
DHS Secretary. Authorizes
the DHS Secretary to issue
an order for a chemical
source to cease operation, if
the owner or operator
continues to be in
noncompliance after an
order to comply with
requirements has been
issued. [§4(b)-(c)] |
Authorizes the DHS
Secretary, in consultation
with the EPA Administrator,
to issue an order requiring
compliance by the owner or
operator of a stationary
source 30 days after the date
on which the DHS Secretary
first provided assistance, or
the owner or operator
received notice regarding a
deficient report under
§6(d)(2), whichever is later.
An order may be issued only
after such notice and an
opportunity for a hearing. [§10(a)] |
|
| Authority to Close Non-compliant Facilities in Higher-Risk Tiers | Authorizes the DHS
Secretary to issue an order
to a chemical source in a
higher risk tier to cease
operation, if the DHS
Secretary disapproves its
vulnerability assessment,
site security plan, or
emergency response plan or
determines that a chemical
source is not operating in
compliance with its site
security plan or emergency
response plan. [§4(c)] |
No comparable provision, but see "Heightened Security Measures" below. | |
| Heightened Security Measures | Authorizes the DHS
Secretary to issue an order
to the owner or operator of a
chemical source mandating
security measures specified
in rules promulgated under
§4(a), if the DHS Secretary
determines that additional
security measures are
necessary to respond to a
threat. Orders may be
effective for up to 90 days,
or longer if the DHS
Secretary files an action in a
U.S. district court and the
court authorizes an
extension. [§7] |
If the DHS Secretary has
notified a stationary source
that a threat of a terrorist
attack exists that is beyond
the scope of a submitted
prevention, preparedness,
and response plan of one or
more stationary sources, or
that current implementation
of the plan is insufficient,
and the response by a
stationary source to such
notification is insufficient,
the DHS Secretary is
required to notify the
stationary source, the EPA
Administrator, and the
Attorney General. After the
DHS Secretary provides such
notice, the DHS Secretary or
the Attorney General may
secure such relief as is
necessary to abate a threat,
including an order to cease
operation and such other
orders as are necessary to
protect public health or
welfare. Provides district
courts with the jurisdiction to
grant such relief. [§10(c)(2)] |
|
| No comparable provision. | Authorizes [by reference to
the CAA §112(r)(9)] judicial
relief in the case of an
imminent danger to public
health. [§9(a)] |
||
| Information clearinghouse | No comparable provision. | Requires the DHS Secretary,
in consultation with the EPA
Administrator, to establish an
information clearinghouse to
assist stationary sources in
complying with this Act that
includes "scalable best
practices" for IST and other
actions. [§13] |
|
| Submissions and Certification of Changes Affecting the Security of a Chemical Source | Requires owners or
operators of chemical
sources to notify the DHS
Secretary in writing within
60 days of any change to a
chemical source that would
have a "materially
detrimental effect" on its
security. Requires owners
and operators to certify to
the Secretary that they have
reviewed and implemented
necessary modifications to
the vulnerability
assessment, site security
plan, or emergency response
plan. Requires the DHS
Secretary to provide written
notice to the owner or
operator if additional
modification of a
vulnerability assessment,
site security plan, or
emergency response plan is
required. Requires owners
or operators to ensure
temporary security measures
are implemented before the
modified vulnerability
assessment, site security
plan, or emergency response
plan is implemented. [§4(d)] |
No comparable provision. | |
| Facilities Regulated under Other Federal Laws | Requires a facility regulated
under the Maritime
Transportation Security Act
(MTSA) to comply with the
Chemical Facility
Anti-Terrorism Act by
modifying and submitting to
the Maritime Security
Coordinator and the DHS
Secretary its facility security
assessment and facility
security plan. Modifications
should ensure compliance
with the security
performance standards of
the tier applicable to the
chemical source under the
Chemical Facility
Anti-Terrorism Act.
Requires the DHS
Secretary, in consultation
with the Federal Maritime
Security Coordinator, to
determine whether such
facility security assessment
and plan meet the security
performance standards
established by the DHS
Secretary. Requires the
DHS Secretary to
implement this Act and the
MTSA in "as consistent and
integrated manner as
possible," and to ensure
coordination between the
DHS Under Secretary for
Preparedness and the Coast
Guard Commandant. [§4(e)] |
Requires the DHS Secretary, in consultation with the EPA Administrator, to minimize duplication of the requirements for risk assessments and response plans under the MTSA. | |
| No comparable provision. | Requires the DHS Secretary,
in consultation with the EPA
Administrator, to minimize
duplication of the
requirements for risk
assessments and response
plans under the CAA and
other federal law. [§15(a)] |
||
| Alternative Security Programs | Authorizes the DHS Secretary to consider a petition submitted by any person that describes alternate security procedures, protocols, and standards established by an industry entity, government authority, or other law and the scope of chemical sources to which it would apply. Authorizes the DHS Secretary to determine (by rule, regulation, or order) whether the alternative security program meets all promulgated requirements for a vulnerability assessment, security plan, and emergency response plan. If the DHS Secretary determines that all requirements are met, the DHS Secretary is required to notify the petitioner that any chemical source covered by that program may submit an assessment or plan prepared under that program without revision. Authorizes the DHS Secretary to specify (by rule, regulation, or order) what modifications would be necessary to meet promulgated requirements. Allows an owner or operator covered by the program to submit an alternative assessment or plan with the specified modifications. [4(f)] | No comparable provision. | |
| Updates to Vulnerability Assessments, Site Security Plans, and Emergency Response Plans | Requires the owner or
operator of a chemical
source to review the
adequacy of the
vulnerability assessment,
site security plan, and
emergency response plan on
a schedule to be determined
by the DHS Secretary, and
to certify to the DHS
Secretary that the chemical
source has completed the
review and implemented
any needed modifications.
For a facility in a higher-risk
tier, requires the DHS
Secretary to establish a
timeline that requires review
within one year of the date
of approval of the previous
vulnerability assessment,
site security plan, and
emergency response plan,
and not less often than every
3 years thereafter. For a
facility in any other tier,
review must be required at
least every 5 years. [§4(g)] |
Requires the owner or
operator of a high priority
stationary source, within 3
years after the date of
submission of the first report
and every 2 years thereafter,
to review the adequacy of the
report, certify that the review
is complete, and submit to
the DHS Secretary any
changes to the assessment or
plan. [§6(e)] |
|
| Record Keeping, Site Inspections, and Production of Information | Requires the owner or operator to keep a copy of the vulnerability assessment, site security plan, and emergency response plan for 5 years after the date on which it was approved by the DHS Secretary. Authorizes the DHS Secretary to require submission of, or seek access to and copy, any required copy of a vulnerability assessment, site security plan, or emergency response plan or any documentation needed to support such assessment or plan or to demonstrate implementation of such. | Requires the owner or operator to keep at the stationary source copies of any vulnerability assessment, hazard assessment, or prevention, preparedness, and response plan required under §5(c)(2). Provides to the DHS Secretary and EPA Administrator, for purposes of determining compliance with this Act, authority that is provided to the EPA Administrator by the CAA §112(r)(7), §112(r)(9), or §114. Includes authority to require an owner or operator to prepare and submit hazard assessment, risk management plans, or emergency response plans; to establish and maintain records; make reports; submit compliance certifications; or provide information. | |
| Provides the DHS Secretary with a right of entry to the premises of a chemical source and any other premises on which any required copy of a vulnerability assessment, site security plan, or emergency response plan is located. | Authorizes the DHS Secretary and the EPA Administrator to enter premises and have access to and copy records. | ||
| Requires the DHS Secretary to conduct, or require the conduct of, facility security audits and inspections to ensure and evaluate compliance with the Chemical Facility Anti-Terrorism Act. [§5] | Directs the DHS Secretary and the EPA Administrator to establish a program to conduct regular inspections. Requires at least 25% of inspections to occur without prior notice to the facility owner or operator. | ||
| No comparable provision. | When notice is provided, the
DHS Secretary or the EPA
Administrator must inform
the owner or operator that
public posting of that notice
is required. When conducting
an inspection, an official
must instruct the owner or
operator to afford
opportunity to participate in
the inspection to any
employee. Official
explanations of the purpose,
scope, procedures, progress,
or outcome of an inspection
or investigation must be
shared with such employees.
Authorizes officials to
interview any person at the
stationary source as
necessary. [§9] |
||
| Audits for Higher- Risk Tiers | Requires DHS Secretary to conduct an audit or inspection of each higher-risk facility annually. Authorizes exemptions for particular facilities if they have been audited and found in compliance for 5 consecutive years. [§5(b)(2)(C)] | No comparable provision. | |
| Compliance Orders for Record Keeping, Inspections, and Production of Information | If the DHS Secretary
determines that an owner or
operator of a chemical
source is not maintaining,
producing, or permitting
access to records or to the
premises of the chemical
source as required,
authorizes the DHS
Secretary to issue an order
requiring compliance. [§5(d)] |
Authorizes the DHS
Secretary, in consultation
with the EPA Administrator,
to issue an order directing
compliance 30 days after the
date on which the DHS
Secretary provides notice to
the source that it is not in
compliance. [§10(a)(1)] |
|
| Infrastructure Protection and Implementation | Requires the DHS Secretary
to provide necessary
infrastructure, leadership,
technical assistance,
guidance, and accountability
to ensure effective security
planning and response in
areas surrounding chemical
sources. Requires the DHS
Secretary to promulgate
regulations, establish
organizations, and take
actions to ensure effective
planning and response in a
manner that models
requirements of the MTSA.
Requires the DHS Secretary
to coordinate with and
complement other federal
area security and response
committees to provide a
unified and effective federal
security and response
organizational
infrastructure. [§6(a)] |
No comparable provision. | |
| Office for Chemical Facility Security | Establishes under the DHS
Assistant Secretary for
Infrastructure Protection an
office responsible for
implementing and enforcing
the Chemical Facility
Anti-Terrorism Act. [§6(b)] |
No comparable provision. | |
| General Authority to Regulate | No comparable general provision. | Authorizes the DHS
Secretary and the EPA
Administrator to promulgate
such regulations as are
necessary to carry out this
Act. [§15] |
|
| Regional Security Offices | Requires the DHS Secretary
to establish in each Federal
Emergency Management
Agency (FEMA) region an
Infrastructure Protection
Regional Security Office, to
carry out this Act and
coordinate regional security.
Requires each office to
consist of DHS personnel in
the Infrastructure Protection
Office within the region,
and regional security
advisory staff, to be
appointed by the DHS
Secretary. Each such office
must review and approve
each Area Security Plan in
the region, oversee
implementation of this Act,
and perform other functions
as assigned by the DHS
Secretary. [§6(c)] |
No comparable provision. | |
| Area Security Committees and Coordinators | Requires the DHS
Secretary, within 6 months
of enactment of this Act, to
designate geographic areas
for area committees and
planning. Requires that no
area be larger than a single
state, and all parts of the
United States are to be
included in such areas
(except areas designated
under MTSA, which shall
not be included in any
newly designated area).
Allows areas to incorporate
portions of more than one
state. Establishes an Area
Security Committee and a
Coordinator for each
designated area. Requires
each Coordinator to conduct
audits and inspections of,
and provide guidance and
support to, chemical sources
in the area. [§6(d)] |
No comparable provision. | |
| Area Security Plans | Requires each Area Security
Committee, within 2 years
of the date of enactment, to
prepare and submit to the
DHS Secretary an Area
Security Plan for the area.
Requires that plans
coordinate resources, and
coordinate with the National
Infrastructure Protection
Plan, National Response
Plan, site security plans of
chemical sources in the
area, other national security
and response plans, and
Area Security Plans for
contiguous areas. Requires
the DHS Secretary to review
and approve or require
amendments to each Area
Security Plan within 24
months of the date of
enactment of this Act. [§6(d)] |
No comparable provision. | |
| Exercises and Drills | Requires the DHS Secretary
to periodically conduct
drills and exercises of
security and response
capability in each area for
which an Area Security Plan
is required, and under the
site security plan and
emergency response plans
of relevant chemical
sources. Requires the DHS
Secretary to publish annual
reports on drills, including
assessments of the
effectiveness of plans. [§6(e)] |
Requires the DHS Secretary
and the EPA Administrator,
in consultation with other
federal agencies and state
and local government
officials, to promulgate
regulations requiring
high-priority stationary
sources to participate in
emergency preparedness
exercises. Requires
exercises to be structured
based on the threat posed to
the public by a criminal
release at a stationary source. [§12] |
|
| Employees' Safety and Security Committees | No comparable provision. | Within 6 months of
promulgation of regulations
under §5(a), requires the
owner or operator of a
stationary source with at least
15 employees to establish a
safety and security
committee of employees,
including both
non-managerial and
managerial employees, which
must meet at least monthly to
identify, discuss, and make
recommendations to the
owner or operator concerning
potential hazards and risks
relevant to security, safety,
health, and the environment.
An existing health and safety
committee may be designated
to serve as the safety and
security committee. Such
committee shall participate in
the development, review, and
revision of the vulnerability
assessment, hazard
assessment, and prevention,
preparedness, and response
plan. [§7] |
|
| Employee Training | No comparable provision. | Requires the owner or
operator of a stationary
source to annually provide
each employee with 4 hours
of training -- (1) regarding
the requirements of the
Chemical Security and Safety
Act; (2) identifying and
discussing substances of
concern; (3) discussing the
prevention, preparedness,
and response plan for the
stationary source; (4)
identifying opportunities to
reduce or eliminate the
vulnerability of a stationary
source to a criminal release
through the use of the
elements of "design,
operation, and maintenance
of safe facilities;" and (5)
discussing appropriate
emergency response
procedures. [§8] |
|
| Penalties for Non-Compliance | |||
| Administrative | Authorizes administrative penalties of not more than $25,000 per day and not more than $1,000,000 per year, for failure to comply with an order or directive issued by the DHS Secretary, but only after the DHS Secretary has provided written notice of the proposed penalty and 30 days, during which the owner or operator may request a hearing. | Similar, but authorizes administrative penalty orders of not more than $50,000 per day and not more than $2,000,000 per year, for failure to comply with an order or directive issued by the DHS Secretary under §10(a). | |
| Civil | Authorizes the DHS Secretary to bring an action in a U.S. district court against any owner or operator of a chemical source that violates or fails to comply with any order or directive issued by the DHS Secretary or with a site security plan approved by the DHS Secretary. Authorizes the court to issue an order for injunctive relief and to award a civil penalty of not more than $50,000 per day. | Authorizes a U.S. district court to issue civil penalties to owners or operators of facilities in high priority categories of up to $50,000 per day for violation or failure to comply with any compliance order issued under §10(a). | |
| Criminal | Authorizes a fine of up to $50,000 per day and/or imprisonment for up to 2 years for an owner or operator of a chemical source who knowingly and willfully violates any order issued by the DHS Secretary or fails to comply with an approved site security plan. [§8] | Authorizes a fine of between
$5,000 and $50,000 per day
and/or imprisonment for up
to 2 years, the first time that
an owner or operator of a
facility in a high priority
category knowingly violates
or fails to comply with a
compliance order under
§10(a). For subsequent
violations or failures,
authorizes fines not less than
$10,000 nor more than
$50,000 per day and/or
imprisonment for up to 4
years. [§10(b)] |
|
| Exemption from Federal Freedom of Information Act (FOIA) | Exempts DHS from public
disclosure requirements of
the federal Freedom of
Information Act (FOIA; 5
U.S. C. §552) for "protected
information." [§9(a)(1)] |
Exempts DHS from public
disclosure requirements of
FOIA for "all documents
provided to the DHS
Secretary under this Act, and
all information that describes
a specific vulnerability or
stationary source derived
from those documents,"
except for certifications
under §6(b), orders under
§10(a), and best practices
established under §13(4). [§11(a)] |
|
| Exemption from Federal Freedom of Information Act (FOIA) (cont.) | Prohibits disclosure under FOIA of (1) self-certifications by owners or operators under §4(b) that a vulnerability assessment has been completed, and a site security plan and an emergency response plan have been developed and implemented; (2) DHS orders under §4(b)(3) requiring certification and submission, if an owner or operator fails to certify or to submit such documents; (3) DHS compliance certificates for individual facilities under §9(b)(2); and (4) the identity of any chemical source and its owner or operator for which any other order or any approval or disapproval is issued under this Act, including information identifying the applicable order, approval, or disapproval. | No comparable provision. | |
| Authorizes the DHS
Secretary to release to the
public a certification under
§4(b)(1) or §9(b)(2), if the
DHS Secretary finds that
security risk would not be
increased for a facility if the
record were released. [§9(b)(1)] |
Allows public disclosure of
information derived from
information described in
§11(a) if it would not divulge
trade secrets, identify any
particular stationary source,
and "is not reasonably likely
to increase the probability or
consequences of a criminal
release." [§11(d)] |
||
| Protection of Information by Other Federal Agencies | Exempts other federal
agencies from disclosure
requirements of FOIA for
"protected information." [§9(a)(2)] |
No comparable provision. | |
| Protection of Information by State or Local Government Agencies | Exempts state and local government agencies from disclosure requirements of state and local laws for "protected information."[§9(a)(3)] | Exempts state and local
government agencies from
disclosure requirements of all
federal, state, and local laws
for "any documents provided
by a stationary source under
this Act, or any information
that describes a specific
vulnerability or stationary
source derived from those
documents," except for
certifications under §6(b),
orders under §10(a), and best
practices established under
§13(4). [§11(b)] |
|
| Report to Congress | Requires the DHS Secretary
to submit to Congress a
public report on the
performance of chemical
sources (as a group) under
the Act. [§9(b)(3)] |
No comparable provision. | |
| Development of Information Protection Protocols | Requires the DHS Secretary, in consultation with the Director of the Office of Management and Budget and appropriate federal law enforcement and intelligence officials, in a manner consistent with existing protections for sensitive or classified information, to develop confidentiality protocols for maintaining and using records containing "protected information." | Requires the DHS Secretary to develop within one year of the date of enactment of this Act protocols to protect information described in §11(a) from unauthorized disclosure. Requires protocols to be in effect before the date on which the EPA Administrator receives any report under this Act. [§11(c)] | |
| Requires protocols to
ensure, to the maximum
extent practicable, that
information protected from
public disclosure laws shall
be maintained in a secure
location and access shall be
limited to persons granted
access for the purpose of
carrying out the Chemical
Facility Anti-Terrorism Act. [§9(c)] |
No comparable provision.
|
||
| Process for Reporting Problems | Requires the DHS Secretary to establish a process by which any person may submit a report to the DHS Secretary regarding problems, deficiencies, or vulnerabilities at a chemical source. Requires the DHS Secretary to provide guidance to employees as to how to make such disclosures without compromising security. | Requires the DHS Secretary
to establish and publicize
information regarding
mechanisms through which
any person may report an
alleged violation of this Act
or a threat to the health or
safety of the public. [§14] |
|
| Directs Government
Accountability Office
(GAO) to report on the
problems, deficiencies, or
vulnerabilities reported and
on the DHS Secretary's
response to such
information. Prohibits
GAO from releasing
protected information to the
public unless the Secretary
has released information
under §9(b)(1). [§9(d), (k)] |
No comparable provision. | ||
| Whistle-blower Protection | Prohibits employers from discriminating against a person who submits a report to the DHS Secretary. Requires information disclosure protocols to accommodate protections for disclosures that are not prohibited by law and are generally permitted for federal employees who believe the information is evidence of a violation of law, "gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety" [5 U.S.C. §2302(b)(8) and §7211]. | Prohibits employers from discriminating against a person who: (1) notifies the employer, DHS, or any other appropriate government agency of an alleged violation of this Act or of a threat to the health or safety of the public relating to chemical security or the improper release of any harmful chemical; (2) refuses to engage in unlawful activity; (3) testifies before Congress or at any relevant federal or state proceeding; (4) commences a proceeding for administration or enforcement of this Act; (5) testifies in any such proceeding; or (6) assists in a proceeding or in any other action to carry out the purposes of this Act. | |
| Directs the DHS Secretary to keep the identity of a person who submits such a report confidential. [§9(d)] | No comparable provision. | ||
| No comparable provision. | Authorizes an employee to
file a complaint with the
Secretary of Labor alleging
discrimination in violation of
this provision. Requires the
Secretary of Labor to
complete an investigation of
the alleged violation and
notify the complainant of the
results within 30 days from
the date on which the
complaint was received.
Within 90 days of receiving
the complaint, the Secretary
of Labor must issue an order
providing relief or denying
the complaint "on the record"
after notice and opportunity
for public hearing. Provides
instructions regarding the
basis for decisions by the
Secretary of Labor.
Authorizes a complainant to
bring an action at law or
equity for de novo review of
a complaint in a district
court, if the Secretary of
Labor has not issued a final
decision within one year after
the date on which a
complaint was filed. Any
person adversely affected by
an order may obtain review
in a U.S. court of appeals. [§14] |
||
| Whistle-blower Protection (cont'd) | No comparable provision. | Authorizes the Secretary of
Labor to file a civil action in
U.S. district court if a person
has failed to comply with an
order. Also authorizes any
person on whose behalf the
order was issued to
commence a civil action
against the person to whom
the order was issued.
Authorizes enforcement in a
mandamus proceeding for
any non-discretionary duty
imposed by §14. [§14] |
|
| Protection of Disclosure Rights and Obligations | Protects the right to make
certain disclosures under
current law or to a Special
Counsel, inspector general,
or other employees who
might be designated by an
agency head. Also protects
the right or obligation of a
chemical source, a
non-governmental
organization, or an
individual to disclose
records or copies of records
in their possession. [§9(e)-(h)] |
No comparable provision. | |
| Penalties for Unauthorized Disclosure | Requires that any officer or
employee of a federal, state,
or local government agency
who knowingly discloses
any record protected from
disclosure be imprisoned for
up to 1 year, fined, or both,
and removed from federal
office or employment. [§9(j)] |
No comparable provision. | |
| State and Other Laws | Protects the right of states
and political subdivisions to
adopt or enforce
requirements more stringent
than requirements in effect
under the Chemical Facility
Anti-Terrorism Act, unless
there is an actual conflict
between a provision of this
Act and the law of a state. [§10] |
The Chemical Security and
Safety Act does not affect
any duty or other requirement
imposed under any other
federal, state, or local law or
any collective bargaining
agreement. [§16] |
|
| National Strategy for Chemical Security | Directs the DHS Secretary,
within 6 months of the date
of enactment, to submit to
the Senate Committee on
Homeland Security and
Governmental Affairs and
the House Committee on
Energy and Commerce an
update of the national
strategy for the chemical
sector that was required to
be submitted by February
10, 2006 to the Committee
on Appropriations of the
Senate and the Committee
on Appropriations of the
House of Representatives. [§11] |
No comparable provision. | |
| GAO Review | Directs the DHS Secretary
to provide access by the
GAO to any document or
information required to be
submitted to, generated by,
or otherwise in the
possession of DHS under
this Act. [§12] |
No comparable provision. | |
| GAO Reports | Requires GAO to provide
annually to the Senate
Committee on Homeland
Security and Governmental
Affairs and the House
Committee on Energy and
Commerce a review of site
security plans, vulnerability
assessments, and emergency
response plans under the
Act and a determination of
whether such plans and
assessments are in
compliance. [§12] |
No comparable provision. | |
| Judicial Review | Permits any person to file a
petition with the U.S. Court
of Appeals for the District
of Columbia for judicial
review of a rule within 60
days of promulgation.
Directs the court to review
rules in accordance with the
Administrative Procedure
Act (5 U.S.C. §701 et seq.).
Allows only an owner or operator whose facility is affected by a final agency action to file a petition for judicial review of the action with an appropriate U.S. district court. Only the owner or operator and the Secretary could participate in such civil actions. Expressly prohibits any private civil actions against an owner or operator to enforce provisions of the Act. [§13] |
No comparable provisions. | |
| Ammonium Nitrate | Directs the DHS Secretary,
in consultation with the
Secretary of Agriculture, to
regulate the production and
sale of ammonium nitrate to
prevent misappropriation or
use in violation of law.
Requires registration of
facilities and purchasers.
Restricts sales to registered
producers, sellers, and
purchasers. Requires sales
records to be maintained.
Registration information is
to be treated as protected
information. Authorizes the
DHS Secretary to establish a
process for auditing handler
records to determine
compliance. Authorizes
penalties for violations and
compliance failures. Gives
federal district courts
jurisdiction over any action
for civil damages against a
handler for any harm or
damage alleged to have
resulted from use of
ammonium nitrate in
violation of law. [§14] |
No comparable provisions. | |
| Authorization of Appropriations | Authorizes such sums as are
necessary to carry out the
Act. [§15] |
Similar, but funds remain
available until expended. [§17] |
|
1. (back) Recordings of the four hearings are available on the Committee's website. They are "Chemical Attack on America: How Vulnerable Are We?" held April 27, 2005; "Is the Federal Government Doing Enough to Secure Chemical Facilities and Is More Authority Needed?" held June 15, 2005; "Chemical Facility Security: What Is the Appropriate Federal Role?" held July 13, 2005; and "Chemical Facility Security: What Is the Appropriate Federal Role? (Part II)," held July 27, 2005. The House Committee on Homeland Security, Subcommittee on Economic Security, Infrastructure Protection, and Cybersecurity also held a hearing on this issue on June 15, 2005, "Preventing Terrorist Attacks on America's Chemical Plants." A recording of the House hearing is not posted on the Committee website, but a transcript is available on the Congressional Quarterly website at http://www.cq.com/.
2. (back) The list of regulated substances may be found at 40 CFR 68.130. Risk management planning is required to reduce and mitigate the risk to neighboring communities from accidental releases at facilities handling more than a threshold quantity of any of the 140 listed substances.
3. (back) The CAA §112(r)(2)(C) defines a "stationary source" to mean "any buildings, structures, equipment, installations, or substance-emitting stationary activities (i) which belong to the same industrial group, (ii) which are located on one or more contiguous properties, (iii) which are under the control of the same person (or persons under common control), and (iv) from which an accidental release may occur." The CAA §112(r)(2)(A) defines "accidental release" to mean "an unanticipated emission of a regulated substance or other extremely hazardous substance into the ambient air from a stationary source." The CAA §112(r)(2)(B) defines "regulated substance" to mean "a substance listed under [CAA §112(r)] paragraph (3)."
4. (back) The judicial review provisions of the APA are codified at 5 U.S.C 701-706.
5. (back) The National Contingency Plan (NCP) and the National Response Team (NRT) are established by EPA and the U.S. Coast Guard under the authority of Section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (also known as Superfund, 42 U.S.C. 9605). The purpose of the NCP and NRT is to coordinate cleanup of releases of hazardous substances or oil.
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