Chemical Facility Security

Congressional research reportDec 15, 2006

Ask Donna

What actually matters in this document.

Text

Chemical Facility Security

(name redacted)

Specialist in Environmental Policy

December 15, 2006

Congressional Research Service

7-....

www.crs.gov

RL31530

CRS Report for Congress

Prepared for Members and Committees of Congress

Chemical Facility Security

Summary

Facilities handling large amounts of potentially hazardous chemicals (i.e., chemical facilities)

might be of interest to terrorists, either as targets for direct attacks meant to release chemicals into

the community or as a source of chemicals for use elsewhere. Because few terrorist attacks have

been attempted against chemical facilities in the United States, the risk of death and injury in the

near future is estimated to be low, relative to the likelihood of accidents at such facilities or

attacks on other targets using conventional weapons. For any individual facility, the risk is very

small, but the risks may be increasing—with potentially severe consequences for human health

and the environment. Available evidence indicates that many chemical facilities may lack

adequate safeguards.

After 9/11, Congress enacted legislation that requires the Department of Homeland Security

(DHS) to analyze vulnerabilities and suggest security enhancements for “critical infrastructure.”

The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (P.L. 107188) and the Maritime Transportation Security Act (MTSA, P.L. 107-295) require vulnerability

assessments and emergency response plans for some chemical facilities that supply drinking

water or are located in ports, as well as security plans for chemical facilities in ports. Many other

chemical facilities, including wastewater treatment facilities, remain unregulated.

Congress could choose to rely on existing efforts in the public and private sectors to improve

chemical site security over time. Alternatively, Congress could direct DHS to oversee security

enhancement at potentially dangerous facilities. Or, Congress might enact legislation to reduce

risks, either by “hardening” defenses against terrorists (for example by increasing security

patrols) or by requiring industries to consider use of safer chemicals, procedures, or processes.

Restricting terrorists’ access to information might be a least-cost approach to reducing risks, but it

would also limit public access to information about potential risks and reduce accountability of

facility owners. For more on this topic, see CRS Report RL33043, Legislative Approaches to

Chemical Facility Security, by (name redacted).

The 109th Congress enacted chemical security legislation as Section 550 of the DHS

appropriations legislation, P.L. 109-295. The law provides authority to DHS for three years to

regulate high-risk chemical facilities other than drinking water and wastewater treatment facilities

and facilities in ports. The enacted provisions also are found in H.R. 6348. These provisions

combine certain elements of H.R. 5695, as reported by the House Homeland Security Committee,

and S. 2145, as reported by the Senate Committee on Homeland Security and Governmental

Affairs. For example, the enacted law directs DHS to establish risk-based security performance

standards for facilities, and requires facility owners or operators to prepare vulnerability

assessments and facility security plans. The new law also authorizes DHS to inspect facilities and

to close down any that are repeatedly noncompliant. However, the law did not address the most

controversial issues: whether state laws are preempted and whether facilities should be required

to consider use of inherently safer technology.

Congressional Research Service

Chemical Facility Security

Contents

Introduction ..........................................................................................................................1

Risks of Terrorism at Chemical Facilities ..............................................................................2

Nature of Hazards ...........................................................................................................2

Recent Trends in Overall Terrorist Activities ...................................................................2

Trends in Chemical Terrorism .........................................................................................3

Predicted Risks of Chemical Terrorism............................................................................4

Severity of Harm.............................................................................................................6

Chemical Site Vulnerability........................................................................................... 10

Conclusion.................................................................................................................... 12

Federal Requirements Established Prior to September 11, 2001, To Reduce Risks at

Chemical Facilities........................................................................................................... 13

EPCRA......................................................................................................................... 13

CAA Section 112(r)....................................................................................................... 14

After September 11, 2001.................................................................................................... 18

Administrative Initiatives .............................................................................................. 18

Private Sector Initiatives ............................................................................................... 20

Congressional Action .................................................................................................... 22

Policy Options .................................................................................................................... 23

Status Quo .................................................................................................................... 24

Collect Additional Information...................................................................................... 24

Improve EPA Guidance and Enforcement ...................................................................... 24

Reduce Risk Through Legislation.................................................................................. 26

Key Issues .......................................................................................................................... 29

Public Disclosure .......................................................................................................... 29

Relative Risks ............................................................................................................... 30

Responsibility and Accountability ................................................................................. 32

Legislation in the 109th Congress......................................................................................... 34

Conclusions ........................................................................................................................ 42

Additional Reading ............................................................................................................. 42

Tables

Table 1. Number of Facilities Reporting Risk Management Plans to EPA in Selected

Industrial Categories .............................................................................................................. 15

Contacts

Author Contact Information ...................................................................................................... 43

Congressional Research Service

Chemical Facility Security

Introduction

The potential harm to public health and the environment from a large release of hazardous

chemicals has long concerned the U.S. Congress. The sudden, accidental release in December

1984 of methyl isocyanate in an industrial incident at the Union Carbide plant in Bhopal, India,

and the attendant loss of thousands of lives and widespread injuries spurred legislative proposals

to reduce the risk of chemical accidents in the United States. For example, federal environmental

laws were enacted in 1986 and 1990 to mitigate and reduce the risk of accidental releases of

hazardous chemicals from manufacturing facilities, processing plants, and storage tanks. (These

laws are discussed below.) The Hazardous Materials Transportation Act of 1975 was passed to

protect the public and environment in the event of an accident during transportation of chemicals.

Other federal laws coordinate preparedness planning and response to significant chemical spills

(e.g., the Comprehensive Environmental Response, Compensation, and Liability Act).

The threat of terrorism manifested on September 11, 2001, prompted renewed congressional

attention to the potential risks to public health and the environment posed by facilities handling

large quantities of hazardous chemicals. Congress addressed chemical facility security when it

enacted legislation establishing the Department of Homeland Security (DHS; P.L. 107-296). The

law requires analysis of vulnerabilities and suggestions for security enhancements for “critical

infrastructure.” The Public Health Security and Bioterrorism Preparedness and Response Act of

2002 (P.L. 107-188) and the Maritime Transportation Security Act (MTSA, P.L. 107-295) require

vulnerability assessments, security plans, and incident response plans for some chemical facilities

which supply drinking water or are located in ports. Many other chemical facilities remain

unregulated with respect to terrorism.1 Thus, the 109th Congress continued to discuss the risks and

consequences of potential terrorist attacks on chemical facilities and possible actions the federal

government might take to prevent or reduce them.

This report provides background information and summarizes issues relevant to existing and

proposed requirements aimed at reducing risks to the general public of exposure to hazardous

chemicals as a result of terrorist acts at U.S. facilities where chemicals are produced, processed,

stored, or used. It considers the likelihood and severity of harm that might result from terrorist

attacks on chemical facilities, as well as from illicit use of such facilities to gain access to

hazardous chemicals (or to precursor chemicals that can be used to produce hazardous

chemicals). Federal requirements for contingency planning and responding to chemical

emergencies after they occur are not the focus of this report. In addition, it does not consider

hazardous materials transport (or storage incidental to transport).

The report first describes the range of terrorist acts that might threaten chemical facilities and

summarizes publicly available information relevant to risks: recent trends in terrorist activity,

including chemical use by terrorists; expert estimates of the harm that might be inflicted through

chemical terrorism; and assessments of the vulnerability of chemical facilities. The next section

of the report discusses existing federal mandates and incentives for reducing risks of accidental

releases from chemical facilities. The remainder of the report summarizes recent Administration

and private sector initiatives to improve chemical site security; analyzes policy options and key

issues; and describes legislation in the 109th Congress.

1

There is no universally accepted definition of “terrorism.” Various definitions are discussed in CRS Report RL33600,

International Terrorism: Threat, Policy, and Response, by (name redacted).

Congressional Research Service

1

Chemical Facility Security

Risks of Terrorism at Chemical Facilities

Nature of Hazards

Potential terrorist acts against chemical facilities might be classified roughly into two categories:

direct attacks on facilities or chemicals on site, or efforts to use business contacts, facilities, and

materials (e.g., letterhead, telephones, computers, etc.) to gain access to potentially harmful

materials. In either case, terrorists may be employees (saboteurs) or outsiders, acting alone or in

collaboration with others. In the case of a direct attack, traditional or nontraditional weapons may

be employed, including explosives, incendiary devices, firearms, airplanes, or computer

programs.

In obtaining chemicals, a terrorist’s intent may be to use them as weapons or to make weapons,

including explosives, incendiaries, poisons, and caustics. Access to chemicals might be gained by

physically entering a facility and stealing supplies, or by using legitimate or fraudulent credentials

(e.g., company stationary, order forms, computers, telephones or other resources) to order,

receive, or distribute chemicals.

Recent Trends in Overall Terrorist Activities

According to February 2003 testimony by the Director of the Federal Bureau of Investigation

(FBI) to the U.S. Senate, there were 353 known or suspected acts of terrorism (including terrorist

acts by Americans) perpetrated within the United States between 1980 and 2001.2 Only a few

incidents involved chemical facilities. Attacks during the 1990s claimed 182 lives and injured

over 1,932 individuals. 3 In comparison, during the 1980s, although there were many more

terrorist or suspected terrorist incidents, only 23 people were killed and 105 were injured.4 Thus,

although the total number of terrorist acts in the United States declined toward the end of the 20th

century, the casualties due to terrorism increased.

The same trends have been evident internationally, although there is considerable variation from

year to year.5 The year 2003 had 208 international terrorist attacks on noncombatants, a few more

than 2002, but 42% fewer than in 2001.6 There were 725 persons killed in 2002 and 625 persons

(35 U.S. citizens) in 2003.7

2

Mueller, Robert S., III, Director, Federal Bureau of Investigation. Testimony before the Senate Select Committee on

Intelligence, Feb. 11, 2003, at http://www.intelcenter.com/resource/2003/mueller.pdf, visited Feb. 4, 2005.

3

The Oklahoma City bombing of the federal building in 1995 accounts for 168 of the 182 deaths during the decade.

4

Counterterrorism Division, Counterterrorism Threat Assessment and Warning Unit, Federal Bureau of Investigation,

Department of Justice. Terrorism in the United States 1999: 30 Years of Terrorism, A Special Retrospective Edition,

p. 16.

5

The National Counterterrorism Center (NCTC) and the State Department changed the methodology for tabulating

terrorist incidents in 2004, and ceased publication of Patterns of Global Terrorism. As a result, no comparable figures

are available for 2004 or subsequent years. A database on terrorist incidents is maintained by the NCTC at

http://tkb.org/AboutTKB.jsp, visited Jan. 11, 2006.

6

U.S. Department of State. 2004. Patterns of Global Terrorism 2003. Revised June 22, 2004. http://www.state.gov/s/

ct/rls/pgtrpt/2003/, visited Sept. 20, 2004.

7

U.S. Department of State. 2004. The Year in Review (Revised), at http://www.state.gov/s/ct/rls/pgtrpt/2003/

33771.htm, visited Sept. 20, 2004.

Congressional Research Service

2

Chemical Facility Security

In terms of U.S. casualties due to international terrorism, 2001 is the most costly year on record,

with 2,689 people killed. 8 As noted by the FBI Executive Assistant Director for Counterterrorism

and Counterintelligence, the attack of September 11, 2001, “marked a dramatic escalation in a

trend toward more destructive terrorist attacks which began in the 1980s.”9

The September 11 attack also reflected a trend toward more indiscriminate targeting among

international terrorists. The vast majority of the ... victims of the attack were civilians. In

addition, the attack represented the first known case of suicide attacks carried out by

international terrorists in the United States. The September 11 attack also marked the first

successful act of international terrorism in the United States since the vehicle bombing of the

World Trade Center in February 1993.10

Other potentially important trends identified by intelligence agencies include:

•

an increase in activity by loosely affiliated extremists, both domestically and

internationally; and

•

the propensity of such groups to focus on producing mass casualties. 11 12

Trends in Chemical Terrorism

With respect to chemical and biological terrorism, hoaxes and unsuccessful attempts by terrorists

to use chemicals increased throughout the 1990s. Loosely affiliated terrorist groups, in particular,

have demonstrated a growing interest in chemical weapons and other weapons of mass

destruction, but explosives are still the most frequently employed weapons.13

During the 1990s, both international and domestic terrorists attempted to use explosives to release

chemicals from manufacturing and storage facilities. Most of these attempts were abroad in war

zones such as Croatia, including attacks on a plant producing fertilizer, carbon black, and light

fraction petroleum products; other plants producing pesticides; and a pharmaceutical factory

using ammonia, chlorine, and other hazardous chemicals. All of these facilities were close to

population centers. In the United States, there were at least two instances during the late 1990s

when criminals attempted to cause releases of chemicals from facilities. One involved a large

propane storage facility, and the other a gas refinery.14

8

Ibid., p. 180. The anthrax killings may or may not be found to meet the FBI definition of terror, depending on whether

the criminal intended to further political or social objectives.

9

Watson, Dale L., Executive Assistant Director, Counterterrorism and Counterintelligence, Federal Bureau of

Investigation. Statement for the Record on the terrorist threat confronting the United States before the Senate Select

Committee on Intelligence. Feb. 6, 2002. http://www.fbi.gov/congress/congress02/watson020602.htm, visited Feb. 4,

2005.

10

Ibid., p. 1.

11

Ibid.

12

Counterterrorism Division, Counterterrorism Threat Assessment and Warning Unit, Federal Bureau of Investigation,

Department of Justice. Terrorism in the United States 1999: 30 Years of Terrorism, A Special Retrospective Edition, p.

25.

13

Ibid., pp. 17, 25.

14

Department of Justice. Assessment of the Increased Risk of Terrorist or Other Criminal Activity Associated with

Posting Off-Site Consequence Analysis Information on the Internet, Apr. 18, 2000. pp. 23-24.

Congressional Research Service

3

Chemical Facility Security

Evidence that U.S. chemical facilities may be used by terrorists to gain access to chemicals also

exists. For example, one of the 1993 World Trade Center bombers, Nidal Ayyad, became a

naturalized U.S. citizen, graduated from Rutgers University, and worked as a chemical engineer

at Allied Signal, from which he used company stationery to order chemical ingredients to make

the bomb. According to a U.S. Prosecutor in the case against the bombers, though “some

suppliers balked when the order came from outside official channels, when the delivery address

was a storage park, or when [a co-conspirator] tried to pay for the chemicals in cash,” others did

not.15 Moreover, testimony at the trial of the bombers indicated that they had successfully stolen

cyanide from a chemical facility and were training to introduce it into the ventilation systems of

office buildings. 16 More recently, chemical trade publications reportedly were found in al Qaeda

hideaways.17

Predicted Risks of Chemical Terrorism

The validity of any risk assessment depends on how much is known about the hazard, risks

(probabilities), adverse effects, events and conditions that lead to or modify adverse effects or

risks, and populations or environments that influence or experience adverse effects. The most

accurate, and therefore the most useful, risk assessments generally are for familiar, frequently

occurring hazards and events with impacts that are experienced with some regularity, such as

severe storms or floods. In contrast, the risk of terrorist activity is unfamiliar (at least in the

United States), rarely experienced, and likely to vary significantly over time, depending on rather

unpredictable social and political phenomena.

The risk of terrorism targeting chemical facilities is particularly difficult to assess for at least

three reasons:

•

There are few prior examples of terrorists targeting chemical facilities;

•

Numerous factors theoretically may increase or decrease risks; and

•

Interactions among factors influencing risks are dynamic and changing.

In part, these difficulties stem from the nature of terrorism and the terrorists’ deliberate efforts to

do what is least expected—that is, to defy prediction. For these reasons, most experts have not

tried to quantify risks; existing analyses of chemical terrorism risks in the open literature are

speculative and qualitative. 18

Until the mid to late 1990s, reports focused on the acquisition and use of chemical weapons, such

as sarin or mustard gas. One of the most comprehensive of these reports was a 1995 review of the

open literature on terrorism that was prepared for the Canadian Security Intelligence Service. 19

15

Parachini, John V. “The World Trade Center Bombers (1993).” In: Jonathan B. Tucker (ed.) 2000. Toxic Terror:

Assessing Terrorist Use of Chemical and Biological Weapons, Cambridge, MA: MIT Press. p. 190. Citing the

summation statement of Henry J. DePippo, Prosecutor, United States of America v. Mohammad A. Salameh et al.,

S593CR.180 (KTD), Feb. 16, 1994, pp. 8435-8439.

16

Ibid.

17

Bond, Christopher. Statement on S. 2579. Congressional Record, Daily Edition, June 5, 2002, p. S5043.

18

Computerized databases on terrorist acts offer considerable promise for risk analysts who have access. Nevertheless,

the unpredictable nature of individuals and of the social and political forces that shape them over time will continue to

challenge predictions about future events.

19

Purver, Ron. “Chemical and Biological Terrorism: the Threat According to the Open Literature.” June 1995.

(continued...)

Congressional Research Service

4

Chemical Facility Security

According to this review of the literature, “[t]hose authors who have speculated about the future

terrorist use of chemical agents in particular have generally rated its likelihood as quite high.”20

According to some, the risk also appears to be increasing. Many experts today believe that factors

that might have inhibited proliferation and use of chemicals as weapons in the past are eroding.

For example, some experts hypothesized several years ago that the combination of chemical and

strategic skills necessary to create and deploy chemical weapons would prevent the lone terrorist

from using them. 21 Security experts now believe that lack of personal expertise no longer limits

chemical weapon use, because there is a tendency for terrorists with similar extreme views to

affiliate loosely with others with complementary skills and abilities. Moreover, the rising level of

education worldwide means that more people have the requisite training in chemical engineering,

and the Internet has simplified communications, training, and cooperation within geographically

dispersed terrorist groups.

Others have argued that chemical attacks would be unlikely, due to the difficulties of producing

and effectively delivering chemical agents in sufficient amounts to produce mass casualties. 22

However, while this may be true with regard to military use on a large scale, where weapons are

delivered by advanced systems, it is not necessarily relevant to terrorists who may have more

limited ambitions. A 1999 report by the U.S. General Accounting Office (GAO, now the

Government Accountability Office) summarized the situation—

... many conflicting statements have been made in public testimony before Congress ...

concerning the ease or difficulty with which terrorists could effectively disseminate a

chemical or biological agent on U.S. soil and cause mass casualties.23

GAO studied the threat and concluded that the ease or difficulty for terrorists to cause more than

1,000 casualties depends on the chemical or biological agent selected. The report stated—

Experts from the scientific, intelligence, and law enforcement communities told us that

terrorists do not need sophisticated knowledge or dissemination methods to use toxic

industrial chemicals such as chlorine. In contrast, terrorists would need a relatively high

degree of sophistication to successfully cause mass casualties with some other chemical and

most biological agents.

On the other hand,

“[t]errorists with less sophistication could make a chemical or biological weapon and

disseminate agents, but these would be less likely to cause mass casualties.”24

(...continued)

Canadian Security Intelligence Service, at http://www.csis-scrs.gc.ca/en/publications/other/c_b_terrorism01.asp, visited

Feb. 4, 2005.

20

Ibid., Chemical Terrorism, p. 28. This prediction about the use of chemical agents contrasts with conventional

wisdom that the probability of chemical weapon use is relatively small. The conventional prediction, however, focuses

on military use of chemical weapons in future wars among nations, rather than on chemical use by terrorists.

21

Ibid., p. 29.

22

Purver, p. 5-13.

23

U.S. GAO. Combating Terrorism: Need for Comprehensive Threat and Risk Assessments of Chemical and Biological

Attacks. Sept. 1999. GAO/NSIAD-99-163. Washington, DC: U.S. Govt. Print. Off. p. 1.

24

Ibid., p. 3.

Congressional Research Service

5

Chemical Facility Security

Other factors that might have inhibited chemical use by some terrorists in the past might not

apply to loosely affiliated terrorist groups. For example, some experts argue that terrorists

supported by nation-states have been reluctant to use chemical weapons for fear of offending

other nations and neutral parties, particularly if the sponsors were signatories of the Chemical

Weapons Convention. 25 Another possible deterrent to chemical use, fear of retaliation, probably is

of little concern to attackers with no identifiable homeland or headquarters. Lack of a homeland

might also lessen concern about environmental damage that may be associated with chemical

production. Finally, one must presume that occupational safety would be of limited concern to

terrorists who are not accountable to a government, and who are willing to sacrifice their own

lives for a religious, political, or social cause.

However, many experts believe that the relative risk of terrorism involving chemical weapons

remains small. This point was stressed by John V. Parachini, a senior associate at the Center for

Nonproliferation Studies, Monterey Institute of International Studies at a 1999 hearing before the

U.S. House of Representatives, Committee on Government Reform, Subcommittee on National

Security, Veterans Affairs, and International Relations. Referring to the risk of any use of

chemical or biological weapons he stated:

... attacks with chemical and biological weapons are strikingly infrequent and the number of

fatalities and casualties are far lower than those caused by conventional explosives.

According to an analysis of 105 U.S. incidents featured in the Monterey Institute database

from 1900 to 1998, only one fatality resulted from a [chemical or biological weapon] attack.

This incident involved a 1973 assassination of an Oakland, California school superintendent

by the Symbionese Liberation Army.26

Severity of Harm

It is generally agreed that chemical agents are likely to be the least lethal of the three “weapons of

mass destruction.” In part, this judgment reflects the difficulty of producing and delivering large

quantities of a lethal chemical to the target area prior to release. On the other hand, industrial

chemicals and pesticides are readily available for purchase, and are stored in large quantities in

thousands of locations throughout the United States, often near population centers. A key question

for chemical facilities then is “How much damage could terrorists do using existing stationary

chemical manufacturing, processing, distribution, and storage facilities?”

There are two key sources of information for answering this question: accident reports and hazard

assessments conducted by facility personnel or outside experts. There is no comprehensive

database for either kind of information,27 but various groups have used publicly available data to

estimate hazard potential, usually limited to accidental releases of chemicals from chemical

facilities.

A 1998 report by the U.S. Public Interest Research Group (US PIRG) and the National

Environmental Law Center, Too Close to Home: Chemical Accident Risks in the United States,

25

Purver, p. 28.

U.S. Congress. House Committee on Government Reform. Subcommittee on National Security, Veterans’ Affairs,

and International Relations. Combating Terrorism: Assessing the Threat. Hearings, 106th Cong., 1st sess., Oct. 20, 1999.

Washington, U.S. Govt. Print. Off., 2000, pp. 55-56.

27

The most comprehensive, but still incomplete, listing of chemical spills and releases is kept by the National Response

Center and available on the Internet at http://www.nrc.uscg.mil/foia.html, visited Feb. 4, 2005.

26

Congressional Research Service

6

Chemical Facility Security

addressed the distribution of chemical facilities in the United States relative to population

distribution. It stated that “more than 41 million Americans live within range of a toxic cloud that

could result from a chemical accident at a facility located in their home zip code.”28 Those 41

million Americans live in zip codes that contain manufacturing companies with “vulnerable

zones” extending more than three miles from the facility, the report states. A “vulnerable zone” is

the geographic area that could be affected by the worst possible accident at a facility.29 According

to the report, the estimate of 41 million Americans at risk may underestimate the hazard, because

it was based on “assumptions about facility and atmospheric conditions that would lead to small

vulnerability zones.”30 To produce the estimate, the study author stated that he used standard

methodology used by the U.S. Environmental Protection Agency (EPA) and data on chemical

storage from EPA’s 1995 Toxics Release Inventory, a database of routine releases of industrial

chemicals from manufacturing facilities.

Hazard estimates by James C. Belke, an EPA employee in the Chemical Emergency Preparedness

and Prevention Office, are more detailed. Based on a preliminary analysis of approximately

15,000 facility risk management plans for chemical facilities that were filed under the Clean Air

Act, Section 112(r) before September 25, 2000,31 Belke concluded that the median distance from

a facility to the outer edge of its vulnerable zone is 1.6 miles in the case of toxic worst case

scenarios, and 0.4 miles for flammable worst case scenarios. However, many facilities reported

vulnerable zones potentially extending 14 miles from the facility (primarily for releases in urban

areas of chlorine stored in 90-ton rail tank cars) and 25 miles (for releases in rural terrain of

chlorine stored in 90-ton rail tank cars). Other chemicals for which reported vulnerable zones

equaled or exceeded 25 miles include anhydrous ammonia, hydrogen fluoride, sulfur dioxide,

chlorine dioxide, oleum (fuming sulfuric acid), sulfur trioxide, hydrogen chloride, hydrocyanic

acid, phosgene, propionitrile, bromine, and acrylonitrile.)

Belke found the median population “affected” in a worst case accident was 15 people, for a

flammable substance, while the median for toxic substances was 1,500 people.32 (“Affected”

means potentially exposed. It is highly unlikely that all people within the vulnerable zone would

be exposed due to a single release. However, anyone within the zone could be in the path of the

chemical released, given certain environmental conditions.) Further EPA analysis of risk

management plans submitted by facilities handling chemicals covered by the CAA Section 112

revealed that at least 123 plants reported a worst-case scenario with a vulnerability zone

containing more than a million people. 33 The analysis also found that more than 700 plants could

28

Laplante, Allison. 1998. Too Close To Home: A Report on Chemical Accident Risks in the United States. U.S. Public

Interest Research Group. http://uspirg.org/uspirg.asp?id2=5067&id3=USPIRG&, visited Jan. 11, 2006.

29

“Vulnerable zones” apply to facilities required to prepare risk management plans under the Clean Air Act, Section

112(r). By definition, people within the zone could (but would not necessarily) sustain serious injuries from short-term

exposures.

30

Laplante, Executive Summary. p. 2.

31

Belke, James C. “Chemical Accident Risks in U.S. Industry—a Preliminary Analysis of Accident Risk Data from

U.S. Hazardous Chemical Facilities,” Sept. 25, 2000, p. 24, at http://www.epa.gov/swercepp/pubs/stockholmpaper.pdf,

visited Jan. 11, 2006.

32

Belke, p. 26.

33

Belke, J. (2001), “Chemical Accident Risks in U.S. Industry—A Preliminary Analysis of Accident Risk Data from

U.S. Hazardous Chemical Facilities,” Proceedings of the 10th International Symposium on Loss Prevention and Safety

Promotion in the Process Industries, Stockholm, Sweden, Pasman, Fredholm, and Jacobson (eds.), Elsevier Science

B.V.—Note: This does not mean that more than a million people would be exposed and injured, but rather that,

depending on wind direction and other factors, some portion of the population in the zone might be exposed and

injured.

Congressional Research Service

7

Chemical Facility Security

threaten 100,000 people, and at least 3,000 facilities could threaten 10,000 people in the

vicinity.34

The Department of Justice (DOJ) analyzed EPA data and concluded that among facilities

submitting risk management plans to EPA, more than 7,000 facilities projected worst case

scenarios for toxic substances that could potentially affect more than 1,000 people.35 Almost

1,700 facilities reported the possibility that a less extreme accident might potentially affect more

than 1,000 people. 36

Histories of actual accidents (as opposed to hypothetical worst-case scenarios) for facilities

submitting risk management plans to EPA prior to October 21, 1999, were summarized in a

working paper prepared by the Center for Risk Management and Decision Processes at the

Wharton School, University of Pennsylvania.37 Of 14,500 reporting facilities, 1,145 reported

1,913 accidents between June 21, 1994 and June 20, 1999. Of the 1,145 facilities reporting

accidents, 346 facilities had multiple accidents. Half of the chemicals for which risk management

planning is required under the CAA Section 112(r) were involved in accidents. Half of the

accidents resulted in reported injuries to workers. Accidents caused a reported 1,897 injuries and

33 deaths to employees, 141 injuries and no deaths to non-employees. No deaths were reported

off-site. However, over 200,000 community residents were involved in evacuations and shelterin-place incidents.38

Further analysis by the Wharton group revealed that the risk of accidental chemical releases and

of worker injuries or property damage increased with the size of the facility (from 10 to 1,000

full-time equivalent employees or FTEs).39 Note that this refers to accidents of any kind, not to

worst-case events. In addition, facilities reporting that they handled large amounts and many

types of chemicals had much higher accident rates than facilities handling smaller amounts and

fewer types of chemicals. The probability that a facility had experienced a chemical accident of

any size approached 100% for the very largest chemical manufacturers. Toxic chemicals were

more strongly associated with worker injuries, while flammable chemicals were more strongly

associated with property damage. No regional trends in accident rates were discovered (i.e.,

facilities in various geographical regions had similar accident rates).

Risk management plans submitted to the EPA report the worst-case potentially affected

population for a release from a single process. As such, these populations may under-represent the

34

Ibid. These numbers change each month, as facilities open or close, or change production processes and chemical

quantities. As of June 1, 2005, EPA has approximately 13,260 facilities registered which project potential off-site

consequences to one or more community residents in the event of a worst-case chemical release. Of these, roughly 600

facilities report vulnerability zones encompassing populations of more than 100,000, and about 2,200 facilities

potentially threaten some portion of populations ranging between 10,000 and 99,999 residents. More than 1,000 RMP

facilities report worst-case off-site consequence scenarios that threaten no residents.

35

Department of Justice, p. 13.

36

Ibid.

37

Kleindorfer, Paul R., Harold Feldman, and Robert A. Lowe. “Accident Epidemiology and the U.S. Chemical

Industry: Preliminary Results from RMP*Info.” Working Paper 00-01-15. Center for Risk Management and Decision

Processes, The Wharton School, University of Pennsylvania. Revised March 6, 2000. 27 p.

38

Ibid., p. 9.

39

Elliott, Michael R., Paul Kleindorfer, and Robert A. Lowe. “The Role of Hazardousness and Regulatory Practice in

the Accidental Release of Chemicals at US Industrial Facilities.” Working Paper 01-37-PK. Risk Management and

Decision Processes Center, The Wharton School, University of Pennsylvania. Summer 2001. 22 p.

http://opim.wharton.upenn.edu/risk/downloads/01-37-PK.pdf, visited Jan. 11, 2006.

Congressional Research Service

8

Chemical Facility Security

population potentially affected as a consequence of a terrorist attack. Approximately 70% of RMP

facilities possess reportable quantities of chemicals in amounts greater than a single process. For

roughly 10% of RMP facilities, the quantity of chemical on-site is more than 10 times the

quantity in the single process used to calculate the worst-case scenario. Some 250 facilities report

having 100 times as much chemical on-site as is found in the single process. Thus, the EPA

methodology for calculating the potentially affected population in the worst case, which was

developed for accidental releases, may understate the potential worst-case consequences of a

terrorist attack.

In contrast to the above figures, which all were based on hypothetical or actual accidents

described in risk management plans, the Washington Post reported March 12, 2002, that a

classified study conducted by the U.S. Army Surgeon General dated October 29, 2001, found that

a terrorist attack resulting in a chemical release in a densely populated area could injure or kill as

many as 2.4 million people. 40 According to the news article, the study found “even middle-range

casualty estimates from a chemical weapons attack or explosion of a toxic chemical

manufacturing plant are as high as 903,400 people.”41 The worst-case estimate of 2.4 million

casualties from a chemical release was roughly half the surgeon general’s estimate for casualties

due to widespread use of biological weapons, according to the report. The Army Surgeon General

recently explained that the estimate of 2.4 million casualties is of “the number of people who

might request medical treatment during a total release of a large industrial chemical

manufacturing plant, in a densely populated area, and under ideal weather conditions for

maximum exposure.”42 As in most studies of this kind, some question the magnitude and

likelihood of the casualty estimates.

In 2004, the Department of Homeland Security used EPA data to estimate the number of potential

fatalities that might result if all the various chemicals at a facility were released suddenly.43 The

purpose of the exercise was to allow DHS to prioritize chemical facility sites for inspections.

Assuming that released chemicals would move in the direction of the prevailing winds, DHS

determined possible fatalities within a wedge-shaped zone. It identified two facilities that threaten

at least one million people downwind. DHS selected 360 facilities for its attention in the near

term based on these estimates.

In July 2004, the Homeland Security Council issued 15 national planning scenarios to guide

federal, state, and local homeland security preparedness activities.44 Included in these scenarios

are two that refer to industrial chemical releases. One describes a terrorist assault on a petroleum

refinery while the other treats the release of a large volume of chlorine from an industrial facility.

The planning figures cited for the hypothetical refinery attack include 350 fatalities and an

additional 1,000 casualties. For the chlorine release, 17,500 fatalities, 10,000 severe injuries, and

100,000 additional casualties are postulated.

More recent calculations by DHS, based on more sophisticated models, have reduced hazard

estimates.

40

Pianin, Eric. “Study Assesses Risk of Attack on Chemical Plant.” Washington Post, Mar. 12, 2002. p. A8.

Ibid.

42

“Army Recants Attack Estimates.” Chemical Week, May 22, 2002. p. 38.

43

Block, Robert. “Chemical Plants Still Have Few Terror Controls.” Wall Street Journal. Aug. 20, 2004, p. B1.

44

Homeland Security Council, The White House, National Planning Scenarios—Executive Summaries, July 2004, at

http://www.globalsecurity.org/security/library/report/2004/hsc-planning-scenarios-jul04.htm, visited July 29, 2005.

41

Congressional Research Service

9

Chemical Facility Security

In our best estimate, based on an incredible amount of modeling that we’ve done, the

highest-risk facility in the United States would produce under 10,000 potential fatalities and

less than 40,000 people that would demonstrate some effects in terms of anywhere from a

near-death experience from exposure to inhalation of the toxic chemical to a minor skin

blemish caused by irritation through contact with the chemical.45

Chemical Site Vulnerability

CRS identified two publicly available reports that assess site security at U.S. chemical plants. In

addition, investigative reports published in newspapers or documented with video recordings

indicate that reporters have been able to visit various facilities without being supervised. The

studies and selected newspaper accounts are summarized below.

Prior to September 11, an assessment of chemical plant site security by the Agency for Toxic

Substances and Disease Registry (ATSDR) was considered by many to be the most

comprehensive analysis that was publicly available. ATSDR researchers reviewed national

statistics on domestic terrorism compiled by the FBI in 1995, and interviewed security staff from

facilities and potential targets in one community with numerous chemical plants.46 ATSDR

researchers concluded:

•

“security at chemical plants ranged from fair to very poor;”47

•

chemical plant security managers “were very pessimistic about their ability to

deter sabotage by employees, yet none of them had implemented simple

background checks for key employees such as chemical process operators”; and

•

“none of the corporate security staff had been trained to identify combinations of

common chemicals at their facilities that could be used as improvised explosives

and incendiaries.”48

The full ATSDR report was never made public, but a DOJ report noted that

... among the ‘soft targets’ that the ATSDR identified as potential terrorist sites were

chemical manufacturing plants (chlorine, peroxides, other industrial gases, plastics, and

pesticides); compressed gases in tanks, pipelines, and pumping stations; and pesticide

manufacturing and supply distributors.49

The DOJ released a study April 18, 2000, describing the risk of terrorism aimed at chemical

plants.50 It concluded that “the risk of terrorists attempting in the foreseeable future to cause an

45

Stephan, Robert. Testimony before the House Subcommittee on Economic Security, Infrastructure Protection, and

Cybersecurity, House Homeland Security Committee, June 15, 2005.

46

ATSDR. Industrial Chemicals and Terrorism: Human Health Threat Analysis, Mitigation and Prevention. At

http://www.mipt.org/pdf/industrialchemicalsandterrorism.pdf.

47

Greenpeace activists dramatized the poor security at one chlorine manufacturing plant in Feb. 2001. According to a

report in the Washington Post, activists scaled the fence of a large Dow Chemical plant near Baton Rouge, Louisiana,

and gained access to the control panel that regulates discharges into the Mississippi River. (“Toxic Chemicals’ Security

Worries Officials.” Washington Post, Nov. 12, 2001, p. A14.)

48

ATSDR studied two communities in different parts of the United States but only interviewed plant security personnel

in one community.

49

Department of Justice, p. 27.

50

Ibid.

Congressional Research Service

10

Chemical Facility Security

industrial chemical release is both real and credible.”51 The study also noted that security at many

industrial facilities generally is “not as substantial as the security at other comparable potential

terrorist targets.”52

In April and May, 2002, six to seven months after September 11, 2001, the Pittsburgh TribuneReview published a series of articles describing an investigation of plant security conducted by

the paper’s reporters. On April 7, 2002, the newspaper stated that “anyone has unfettered access

to more than two dozen potentially dangerous plants in the region” (referring to western

Pennsylvania).53 The author of the report continued:

The security was so lax at 30 sites that in broad daylight a Trib reporter—wearing a press

pass and carrying a camera—could walk or drive right up to tanks, pipes and control rooms

considered key targets for terrorists.

The report was based on reporters’ trips to 30 plants in western Pennsylvania which have filed

risk management plans under the Clean Air Act, Section 112. Two of the plants were among the

123 plants nationwide that projected potential risks to more than 1,000,000 residents in the event

of a worst-case accident or attack.54 The 30 companies constituted more than half of the 61 sites

in the region required to file risk management plans. Fifteen of the sites to which reporters gained

unchallenged access were water treatment facilities in Pennsylvania and Maryland.

In May, another Tribune-Review article described a similar investigation of 30 additional plants in

Houston, Baltimore, and Chicago.55 The report concluded that security was lax at some of “the

potentially deadliest plants” in all three cities; access was easy to some sites owned by

corporations with large security budgets; employees, customers, neighbors, and contractors “not

only let a stranger walk through warehouses, factories, tank houses and rail depots, but also gave

directions to the most sensitive valves and control rooms”; and access to 19 sites was allowed due

to “unguarded rail lines and drainage ditches, dilapidated or nonexistent fences, open doors,

poorly angled cameras and unmanned train gates.”

Chemical manufacturers and users contacted by reporters said that they had bolstered security

recently. Several site managers reported that they made immediate changes in procedures or

construction plans in response to security breaches by the reporters. But security cannot be

ensured “overnight,” according to the president of the Pennsylvania Chemical Industry Council,56

and it can be expensive. For example, the newspaper reported that U.S. Steel spends more than $1

million each year to equip, train, and hire its own hazardous chemicals response team,

firefighters, paramedics, and gate guards at its coke factory. 57 The American Chemistry Council,

which represents large chemical manufacturers, has reported that since September 11, 2001, its

51

52

Ibid., p. 2.

Ibid., p. 30.

53

Prine, Carl. “Lax Security Exposes Lethal Chemical Supplies.” Pittsburgh Tribune-Review, Apr. 7, 2002, at

http://www.pittsburghlive.com/x/tribunereview/specialreports/potentialfordisaster/s_64612.html, visited Jan. 11, 2006.

54

As noted above, these numbers change each month, as facilities open or close, or change production processes and

chemical quantities. As of June 1, 2005, EPA had approximately 110 facilities registered which projected potential offsite consequences to a million or more community residents in the event of a worst-case chemical release.

55

Prine, Carl. “Chemicals Pose Risks Nationwide.” Pittsburgh Tribune-Review, May 5, 2002.

http://www.pittsburghlive.com/x/pittsburghtrib/s_69664.html, visited Jan. 11, 2006.

56

Prine, Apr. 7, 2002.

57

Ibid.

Congressional Research Service

11

Chemical Facility Security

members have spent over $2 billion at about 2,000 facilities (about $1,000,000, on average, per

facility).58

Television crews again entered and photographed chemical storage areas in November 2003.59

Robert Full, Chief of the Allegheny County Department of Emergency Services in Pennsylvania

testified February 23, 2004, before the Subcommittee on National Security, Emerging Threats,

and International Relations, House Committee on Government Reform, that there continued to be

facilities in his county “that one could walk straight in under the guise of darkness and cause

significant damage and public danger.” He stated, “Some of the facilities have no more security

than maybe perhaps a padlock or a chain.”

In mid-2004, surveys were distributed to 189 U.S. chemical facilities where workers were

represented by the Paper, Allied-Industrial, Chemical and Energy Workers International Union

(PACE). Of the 133 surveys returned, 125 were from facilities where workers agreed that there

were quantities of hazardous materials on site large enough to cause a catastrophic event if they

were released. Responses to the survey indicated that surveyed workers believed nearly threequarters of the plants had improved systems to guard toxic chemicals and had conducted drills to

respond to an intrusion by terrorists.60 On the other hand, according to employees who responded

to questionnaires, fewer than half had improved communications, emergency response training,

warning signals, or protective equipment, or contacted local first responders about the hazards on

their sites. Nearly two-thirds of the plants had not discussed terrorist concerns with neighbors,

according to surveyed workers.61

Conclusion

Whether recent trends in domestic and international terrorism will continue into the future, and

whether they will be reflected in risks to U.S. chemical facilities, is unknown. Historically, there

have been very few terrorist attacks on chemical facilities in the United States. Therefore, the

estimated risk of death and injury from such attacks in the immediate future is low relative to the

likelihood of other hazardous events, such as industrial accidents or terrorist attacks on other

targets using conventional weapons. For any individual chemical plant, the risk of attack is

extremely small. However, the overall risks to chemical facilities may be increasing.

In contrast to the low probability of chemical terrorism, possible consequences for human health

and the environment from such an event could be severe. Moreover, limited evidence suggests

that chemical facilities may be “soft targets,” lacking in adequate safeguards against criminal and

terrorist attacks.

58

American Chemistry Council. News & Media website. Security. At http://www.americanchemistry.com/s_acc/

sec_mediakits.asp?CID=258&DID=632, visited July 9, 2005.

59

CBS News. “U.S. Plants: Open to Terrorists.” Sixty Minutes. Nov. 17, 2003. At http://www.cbsnews.com/stories/

2003/11/13/60minutes/main583528.shtml, visited Jan. 11, 2006.

60

New Perspectives Consulting Group, Inc., PACE Evaluation Team. October 2004. PACE International Union

Survey: Workplace Incident Prevention and Response Since 9/11 Report. Durham, NC. p. 48.

61

The 125 facilities where surveys were distributed were subject to risk management planning requirements of the

Clean Air Act, Section 112(r), based on public databases that were available and current in 2002. Therefore, the survey

in 2004 may have included a few facilities that were no longer covered by RMP requirements. Also, the PACE report

notes in the Executive Summary on page iii, “This survey looked at perceptions only. It did not include an independent

assessment of, for example, which employees actually received training since September 11, 2001, or which actions

companies actually took.”

Congressional Research Service

12

Chemical Facility Security

Federal Requirements Established Prior to September 11, 2001, To

Reduce Risks at Chemical Facilities

Two key federal laws require or encourage certain chemical facility operators to reduce risks to

the general public associated with releases of hazardous chemicals: the Emergency Response and

Community Right-to-Know Act (EPCRA) and the Clean Air Act (CAA). Both focus on accidental

releases of hazardous chemicals.

EPCRA

In 1986, two years after the Bhopal accident, Congress enacted EPCRA (codified at 42 U.S.C.

11001-11050) as Title III of the Superfund Amendments and Reauthorization Act (P.L. 99-499).62

EPCRA mandated the establishment of State Emergency Response Commissions (SERCs) and

Local Emergency Response Committees (LEPCs) to coordinate planning and response to

potentially large releases of specified “extremely hazardous substances.”63 The act requires

facility operators, LEPCs, and SERCs to prepare contingency plans for such releases.

Facility managers are required to provide information to LEPCs and local emergency responders

(fire fighters, police officers, etc.) about chemicals present at facilities and to notify those officials

in the event of a sudden release. EPCRA requires local officials to provide information about

emergency plans and chemical hazards to the general public.

EPCRA’s reporting and disclosure requirements are meant to facilitate planning, but sometimes

they also promote risk reduction. For example, facility managers concerned about community

relations sometimes reduce use of particularly toxic or otherwise hazardous materials, sometimes

to the point that they no longer have to report, because they no longer handle reportable quantities

of EPCRA chemicals. In other cases, the public disclosure requirement may encourage them to

change chemical processes and handling in order to reduce the risk of reportable spills.

Although EPCRA requires facility reporting and cooperation in local emergency response

planning, and it may encourage risk reduction, it stops short of requiring facilities to assess or

reduce risks of chemical releases. 64 Instead, the act directed the EPA to study the problem and to

identify any gaps in federal regulation.

62

For additional information about EPCRA, see CRS Report RL30798, Environmental Laws: Summaries of Major

Statutes Administered by the Environmental Protection Agency (EPA), by (name redacted) et al.

63

EPCRA required EPA to list “extremely hazardous substances” and to establish threshold planning quantities for

each substance. Originally, Congress defined chemicals as “extremely hazardous substances” if they appeared on a list

EPA published in Nov. 1985 as Appendix A in “Chemical Emergency Preparedness Program Interim Guidance.”

However, Congress gave EPA authority to revise the list and the threshold quantities of chemicals. Based on listing

criteria, the intent appears to be to include only chemicals in quantities that could harm people exposed to them for only

a short period of time. Currently, there are approximately 356 such substances listed. For the list, see

http://www.epa.gov/swercepp/ehs/ehsalpha.html, visited Jan. 11, 2006.

64

Many proponents of the reporting provisions of EPCRA argue, however, that public disclosure of information about

chemicals present and released into communities sometimes prompts facility operators to reduce risks.

Congressional Research Service

13

Chemical Facility Security

CAA Section 112(r)

In 1990, data accumulated by EPA on chemical accidents in the United States prompted Congress

again to address the threat of catastrophic releases of chemicals that might cause immediate

deaths or injuries in communities. It amended the Clean Air Act (CAA) to mandate EPA oversight

of risk management planning at facilities that handle more than specified threshold quantities of

hazardous substances. 65 The act defined “hazardous substances” to include chlorine, anhydrous

ammonia, methyl chloride, ethylene oxide, vinyl chloride, methyl isocyanate, hydrogen cyanide,

ammonia, hydrogen sulfide, toluene diisocyanate, phosgene, bromine, anhydrous sulfur dioxide,

sulfur trioxide, and at least 100 other chemicals to be designated by EPA. EPA was directed to

designate chemicals posing the greatest risks to human health or to the environment, based on

three criteria: severity of potential acute adverse health effects, the likelihood of accidental

releases, and the potential magnitude of human exposure. EPA promulgated a list of 77 acutely

toxic substances, 63 flammable gases and volatile flammable liquids, and “high explosive

substances” (59 Federal Register 4478, January 31, 1994). Fourteen chemicals met EPA criteria

for listing as both toxic and flammable substances. The list was amended several times, notably

on January 6, 1998 (63 Federal Register 640-645) to exclude explosive substances, and on March

13, 2000 (65 Federal Register 13243-13250) to exclude flammable substances when used as a

fuel, or held for sale as a fuel at a retail facility. Selected categories of industries with large

numbers of reporting facilities are identified in Table 1.

The CAA Section 112(r) imposes “a general duty” on owners and operators of facilities

producing, processing, handling or storing any “extremely hazardous substance” to detect and

prevent or minimize accidental releases and to provide prompt emergency response to a release in

order to protect human health and the environment. The act requires owners and operators of

covered facilities to prepare Risk Management Plans (RMPs) that summarize the potential threat

of sudden, large releases of certain chemicals, including the results of off-site consequence

analysis (OCA) for a worst-case chemical accident, and facilities’ plans to prevent releases and

mitigate any damage. Plans were to be submitted to EPA and made “available to the public” by

June 21, 1999. EPA is required to review RMPs regularly, and if necessary, require revisions. EPA

has delegated this responsibility to some states and localities.66 (All states have authority to

review RMPs at facilities that are major sources of air pollution, which are required to obtain

permits under Title V of the Clean Air Act.) Plans must be revised and resubmitted to EPA every

five years. Many facilities were required to submit updates by the end of June 2004.

In October 1996, the Accident Prevention Subcommittee of the Clean Air Act Advisory

Committee to EPA created the Electronic Submission Workgroup to consider the technical and

practical issues associated with an electronic database of risk management plans. In spring 1997,

the workgroup unanimously agreed that EPA should provide full, unrestricted access via the

65

The Clean Air Act Amendments of 1990 gave responsibility for the prevention of accidental chemical releases to the

Occupational Safety and Health Administration (OSHA) and EPA. OSHA has responsibility for the protection of

workers from accidental chemical releases and has promulgated the Process Safety Management Standard (29 CFR

1910.119) in response to this requirement. EPA has incorporated the OSHA Process Safety Management Standard as

the chemical accident prevention program for certain facilities subject to both rules.

66

EPA has delegated authority to implement CAA Section 112(r) to the following states, territories, and localities:

Delaware, Florida, Georgia, Kentucky, Mississippi, New Jersey, North Carolina, Ohio, South Carolina, Puerto Rico,

Virgin Islands, Jefferson County, Kentucky, Buncombe County and the City of Asheville, North Carolina, Forsyth

County, North Carolina, and Allegheny County, Pennsylvania. Rhode Island, Nevada, and Hawaii are seeking

delegated authority. See http://yosemite.epa.gov/oswer/ceppoweb.nsf/content/112r-sts.htm#StateDelegation, visited

July 5, 2006.

Congressional Research Service

14

Chemical Facility Security

Internet to most RMP information. However, advisors did not reach consensus regarding access

to OCA data.

There were concerns that in facilitating electronic access to the general U.S. public through the

Internet, EPA also would be facilitating access to these data internationally, which might permit

misuse by terrorists.67 Several members of the Accident Prevention Subcommittee recommended

EPA undertake a security study to determine how much risk might increase as a result of putting

OCA data on the Internet. Aegis Research Corporation, ICF Incorporated, and Science

Applications International Corporation conducted the security study for EPA. The Agency

concluded from the study that—

... the risk (although still very small) was slightly more than two times higher with

unrestricted availability of the RMP with OCA data on the Internet. This increase reflects

several factors, including the nature of the OCA data elements and the enhanced accessibility

of data on the Internet to an international audience. Taken together, the primary utility of the

unrestricted RMP and OCA data to a terrorist emerges from the capability to scan across the

entire country for the “best” targets.68

Table 1. Number of Facilities Reporting Risk Management Plans to EPA in Selected

Industrial Categories

Industrial Categories (NAICS code)a

Number of

registered facilities

(Total = 14,343)

Farm supplies wholesalers (42291, 42491)

3,699

Water supply and irrigation (22131)

1,777

Wastewater treatment (22132)

1,157

Refrigerated warehousing and storage facilities (49312)

717

Support activities for crop production (11511)

439

Oil and gas extraction (21111)

495

Meat processing (31161)

460

Other chemical and allied production wholesalers (42269,42469)

447

Basic organic chemical manufacturing (32519)

357

Electric power generation (22111)

322

Basic inorganic chemical manufacture (32518)

319

Farm production warehousing and storage (49313)

307

Plastics material and resin manufacturing (32521)

283

Fertilizer manufacturing (32531)

224

Other Farm Product Raw Material Merchant Wholesalers (42459)

179

Petroleum refineries (32411)

153

67

U.S. EPA. Security Study: An Analysis of the Terrorist Risk Associated with the Public Availability of Offsite

Consequence Analysis Data under EPA’s Risk Management Program Regulations. EPA 550-R97-003. Dec. 1997. p. 1.

68

Ibid., p. 10.

Congressional Research Service

15

Chemical Facility Security

Industrial Categories (NAICS code)a

Number of

registered facilities

(Total = 14,343)

Petroleum bulk stations and terminals (42271, 42471)

142

All other chemical product manufacturing (32599)

133

Industrial gas manufacturing (32512)

130

Corn farming (111150)

116

General warehousing and storage facilities (49311)

102

Other

2,385

Source: Congressional Research Service. Numbers were obtained by searching the risk management plans for

U.S. facilities using the June 1, 2005 version of the EPA National Database (with off-site consequence data) and

EPA’s software RMP*Review (version 3.1). Facilities that have deregistered are not included in the tallies.

a.

North American Industry Classification System (NAICS) codes.

In December 1997, EPA began discussions with the FBI and other federal agencies about the

electronic RMP distribution plan. National security concerns centered on the OCA data and their

potential utility to terrorists. An interagency agreement was reached in late October 1998 that

OCA data would not be included in RMP information placed on the Internet. Instead, EPA would

make “appropriate” OCA data available in some form on request, but access would be restricted

and not anonymous.69 The possibility that OCA data could have been distributed via the Internet

remained, however, because it could have been obtained and distributed by any citizen under the

Freedom of Information Act (FOIA), according to the EPA Legal Counsel.

To address the security concerns raised by the Section 112(r) requirements, the Clinton

Administration submitted draft legislation to Congress May 7, 1999. Congress enacted an

amended version of the legislation as an amendment to S. 880, the Chemical Safety Information,

Site Security and Fuels Regulatory Relief Act (P.L. 106-40). The new law amended Section 112

of the CAA to exempt OCA data from disclosure under FOIA, and limited public availability until

EPA and DOJ issued regulations in August, 2000.

The final RMP regulation on data access was published August 4, 2000.70 It allows public access

to paper copies of sensitive OCA information through federal reading rooms, approximately one

per state,71 and provides Internet access to the OCA data elements that pose the least serious

criminal risk. State and local agencies are encouraged to provide the public with read-only access

to OCA information on local facilities. At the federal reading rooms, members of the public may

read OCA information for up to 10 facilities per calendar month and for all facilities with

potential effects in the jurisdiction of the local emergency planning committee. State and local

officials and other members of the public may share OCA information as long as the data are not

conveyed in the format of sensitive portions of the RMP or any electronic database developed by

69

Blitzer, Robert M., Former Section Chief, Domestic Terrorism/Counterterrorism Planning Section, Federal Bureau of

Investigation. Testimony before the Senate Committee on Environment and Public Works, Subcommittee on Clean Air,

Wetlands, Private Property and Nuclear Safety. Mar. 16, 1999.

70

65 Federal Register 48107-48133.

71

The number of available reading rooms appears to have varied over time, and their location is not always easy to

determine. Several telephone calls were necessary before CRS identified a reading room near Maine.

Congressional Research Service

16

Chemical Facility Security

EPA from those sections.72 A Clinton Administration proposal to implement the final rule (66

Federal Register 4021, January 17, 2001) would have allowed people to view plans of facilities

outside their local area and enhanced access for “qualified researchers.” The draft plan was

rescinded by the Bush Administration (66 Federal Register 15254, March 16, 2001).

The 1999 Act also directed GAO to report to Congress within three years (i.e., before August

2002) on “the adequacy of chemical information required to be submitted to local emergency

response personnel to help them respond to chemical incidents, the adequacy of the delivery of

that information, and the level of compliance with the requirement to submit the information.”73

That report was released July 31, 2002. GAO concluded that EPA officials believe industries

generally are complying with reporting requirements. GAO’s conclusions about the adequacy of

information and its delivery were tentative and could not be generalized to the universe of

LEPCs.

DOJ also was directed to report to Congress within three years on the extent to which RMP

regulations led to actions “that are effective in detecting, preventing, and minimizing the

consequences of releases of regulated substances that may be caused by criminal activity,” the

vulnerability of facilities to criminal and terrorist activity, “current industry practices regarding

site security,” and security of transportation of substances listed under CAA Section 112(r).”74

The law directed DOJ to consult with state, local and federal agencies, affected industry, and the

public in preparing the report, and to submit any recommendations to Congress. An interim report

was due within one year of enactment (i.e., by August 2000), and a final report within three years

of enactment (i.e., by August 2002). DOJ missed both deadlines. The Natural Resources Defense

Council (NRDC) filed a lawsuit against DOJ March 11, 2002, asserting that DOJ unlawfully

withheld or unreasonably delayed the report’s submission to Congress.75 The interim report was

released to Congress May 30, 2002, but withheld from the public. On June 3, 2002, DOJ filed a

motion to dismiss the NRDC lawsuit. The NRDC moved to dismiss its lawsuit on July 1, 2002.

A GAO study released October 10, 2002, concluded that DOJ failed to complete the mandated

study, and that the Department had the funds to do so, although it had no specific appropriation.

“Generally, when Congress imposes a new requirement on an agency but does not appropriate

funds specifically to implement it, the agency must use existing appropriations to fund the

requirement.”76

72

EPA Fact Sheet. “Chemical Safety Information, Site Security and Fuels Regulatory Relief Act: Public Distribution of

Off-Site Consequence Analysis Information.” EPA 550-F00-012, Aug. 2000.

73

U.S. GAO. Chemical Safety: Emergency Response Community Views on the Adequacy of Federally Required

Chemical Information. July 31, 2002. GAO-02-799. Washington, DC: U.S. Govt. Print. Off. 23 pp.

74

42 USC 7412(r)(7)(H)(xi).

75

Natural Resources Defense Council v. Ashcroft, D.D.C., No. 02-0449, Mar. 11, 2002.

76

U.S. GAO. Homeland Security: Department of Justice’s Response to Its Congressional Mandate to Assess and

Report on Chemical Industry Vulnerabilities. Oct. 10, 2002. GAO-03-24R. Washington, DC: U.S. Govt. Print. Off. 11

pp. At http://www.gao.gov/new.items/d0324r.pdf, visited July 14, 2005.

Congressional Research Service

17

Chemical Facility Security

After September 11, 2001

Administrative Initiatives

The events of September 11, 2001, bolstered the view that access to information about facilities

should be restricted if it might make them more vulnerable to terrorist attacks. This led EPA to

limit Internet access on its website to “sensitive” data.

Early in October 2001, EPA removed from its website facility-specific information of a general

nature that had been compiled from the executive summaries of risk management plans—for

example, about the physical state and concentrations of chemicals at facilities and the duration of

a possible chemical release—which previously had been considered acceptable for Internet

posting. That information remained available on the Internet through OMB Watch’s Right-toKnow Network (RTK NET),77 but EPA refused repeated requests (including a formal FOIA

request) to provide updated information about facility plans. EPA released that information only

after OMB Watch filed a complaint in the U.S. District Court for the District of Columbia. In July

2005, EPA provided the electronic database to OMB Watch, which promptly made it accessible

on its website.78

In March 2002, EPA restricted access to Envirofacts, a link to several EPA databases that allowed

the user to access facility-specific information about chemical releases, compliance with

environmental laws, and other issues. The next week, the White House sent a memorandum to all

federal agencies, ordering them to further review and protect information that might be used to

threaten national security or public safety. On May 6, 2002, President Bush signed an

administrative order granting the EPA Administrator the authority to classify as “secret”

information that might pose a national security risk.79

On the other hand, the attacks of September 11 led to increased communication among

government officials at all levels, as well as facility owners and operators. For example, EPA

advised pesticide companies and applicators to be especially vigilant about physical security of

chemicals and equipment. The Agency issued a “chemical safety alert” tailored to the security

needs of the pesticide industry, based on an earlier paper on site security of chemical plants that

first was issued in February 2000.80 In September 2002, EPA also sent about 9,400 drinking water

utilities advice about securing facilities from terrorists. (About 2,000 drinking water utilities

submit risk management plans that include worst-case scenarios under the CAA Section 112(r).)

In February 2003, the White House released The National Strategy for the Physical Protection of

Critical Infrastructures and Key Assets. It outlines goals, principles, “a unifying structure,” roles

and responsibilities, and the major cross-sector and sector-specific initiatives of national efforts to

secure infrastructures and “assets vital to our public health and safety, national security,

77

OMB Watch is a nonprofit research and advocacy group dedicated to promoting government accountability and

public participation in public policy decisions.

78

The recently updated executive summaries of risk management plans submitted to EPA may be examined using RTK

NET at http://www.rtknet.org/rmp/wgrmp.php, visited July 15, 2005.

79

67 Federal Register 31109, May 9, 2002.

80

The alerts are available through the EPA website at http://yosemite.epa.gov/oswer/ceppoweb.nsf/content/apchsa.htm, visited Jan. 11, 2006.

Congressional Research Service

18

Chemical Facility Security

governance, economy, and public confidence.”81 Chemical facilities are addressed in connection

with three critical infrastructure sectors: the chemical industry and hazardous materials, water,

and energy. EPA was the designated lead federal agency for the chemical industry and water,

while the Department of Energy (DOE) was the designated lead agency for energy.

With respect to the chemical industry and hazardous materials, the Strategy acknowledged both

the potential economic consequences of a successful attack on the sector and the potential threat

to public health and safety. It aimed to assure supply to downstream users of chemical products,

to protect and assure the quality of chemical stockpiles, and to reduce the risk of malicious use of

inherently hazardous chemicals. The Strategy noted that “there is currently no clear, unambiguous

legal or regulatory authority at the federal level to help ensure comprehensive, uniform security

standards for chemical facilities.”82 In particular, the Strategy observed that federal laws might be

out-of-date and no longer effective for monitoring and controlling access to dangerous

substances. The President proposed that DHS, in concert with EPA, should “work with Congress

to enact legislation to require certain chemical facilities, particularly those that maintain large

quantities of hazardous chemicals in close proximity to population centers, to undertake

vulnerability assessments and take reasonable steps to reduce the vulnerabilities identified.”83 The

Strategy also proposed that EPA, in concert with DHS, should review current laws and

regulations pertaining to “the distribution and sale of highly toxic pesticides and industrial

chemicals.” Finally, the Strategy suggested that DHS and EPA should encourage participation in

the chemical sector’s Information Sharing Analysis Center. The fact that security can be

expensive also was noted.

The Strategy described the importance of water from a public health and an economic standpoint

and noted that security of the water sector against terrorism had been greatly enhanced since

September 11, 2001. Challenges facing the water sector, according to the Strategy, included the

need to protect against intentional release of toxic chemicals so as to protect the safety of people

who reside or work near water facilities. The Strategy proposed that EPA and DHS identify better

ways to secure key points of storage and distribution; improve monitoring and analysis,

information exchange, and contingency planning; and manage risks due to interdependencies with

other critical infrastructures.

The energy sector was divided into two sections: electricity and the oil/natural gas industries.

Overall, energy was described as “essential to our economy, national defense, and quality of

life.”84 The Strategy proposed that DHS and DOE work with state and local governments and

industry to identify “appropriate levels of redundancy” and requirements for “designing and

enhancing reliability.” In addition, DHS and DOE were to work with oil and natural gas industry

representatives to “define consistent criteria for criticality, standard approaches for vulnerability

and risk assessments,” and “physical security training for industry personnel.”85 An advisory task

force was to be convened by DHS and DOE to identify appropriate planning requirements and

approaches. Finally, the Strategy proposed that DHS and DOE work with industry “to develop

regional and national programs for identifying spare parts, requirements, notifying parties of their

81

Bush, George W. Cover letter to The National Strategy for the Physical Protection of Critical Infrastructures and

Key Assets. Feb. 2003. 83 pp. At http://www.whitehouse.gov/pcipb/physical.html, visited Jan. 11, 2006.

82

Ibid., p. 65.

83

Ibid., p. 66.

84

Ibid., p. 50.

85

Ibid.

Congressional Research Service

19

Chemical Facility Security

availability, and distributing them in an emergency.” There is no mention in this section of the

hazardous chemicals present in some facilities in the energy sector.86 However, it may be the

Administration’s intention that certain facilities, such as oil refineries, electric/gas utilities, and

bulk storage facilities, would be included in, and targeted by initiatives in, multiple critical

infrastructure sectors.

As the war began in Iraq, the President launched Operation Liberty Shield, a surveillance

program to provide additional security for potentially threatened facilities in the critical

infrastructure. Chemical plants were among the potential focal points of the initiative.

On December 17, 2003, the President issued Homeland Security Presidential Directive (HSPD) 7,

transferring to DHS all EPA authority for overseeing the security of chemical facilities, with the

single exception of drinking water and water treatment plants. In addition, the directive revised

the Administration’s strategy for protecting critical infrastructure by designating DHS the lead

agency for the chemical sector. The directive requires that DHS “identify, prioritize, and

coordinate the protection of critical infrastructure and key resources with an emphasis on critical

infrastructure and key resources that could be exploited to cause catastrophic health effects or

mass casualties comparable to those from the use of a weapon of mass destruction” (HSPD 7,

paragraph 12). In addition, DHS must conduct or facilitate vulnerability assessments of the

chemical sector and “encourage risk management strategies to protect against and mitigate the

effects of attacks.” Finally, all departments and agencies are directed “to work with sectors

relevant to their responsibilities to reduce the consequences of catastrophic failures not caused by

terrorism” and to cooperate with the DHS Secretary.

Private Sector Initiatives

Although trade associations for the chemical industries have been engaged in emergency planning

for many years, and began developing guidelines for site security at least a year before September

11, 2001, the events of that date infused on-going efforts with commitment and energy that

previously were not evident.

The American Chemistry Council (ACC, formerly the Chemical Manufacturers Association), the

Chlorine Institute, Inc., and the Synthetic Organic Chemical Manufacturers Association issued

Site Security Guidelines for the U.S. Chemical Industry on October 23, 2001. The guidelines

build on “Management Practice 15: Site Security” in the Responsible Care® Employee Health

and Safety Code. Responsible Care® is the ACC’s response to general public concerns about the

manufacture and use of chemicals. Members of the ACC are required to commit to the principles

of Responsible Care® and “to support a continuing effort to improve the industry’s responsible

management of chemicals” by continually improving their health, safety and environmental

performance; listening and responding to public concerns; assisting other companies to achieve

optimum performance; and reporting their goals and progress to the public.”87 There are today

about 130 corporate ACC members operating approximately 2,000 chemical facilities,

representing almost 90% of U.S. chemical productive capacity.88 About half of the ACC facilities

86

However, the first of the eight guiding principles underpinning the strategy is “assure public safety, public

confidence, and services.”

87

The principles of Responsible Care® are listed on the ACC website at http://www.americanchemistry.com/s_acc/

sec_statistics.asp?CID=176&DID=304/, visited Jan. 11, 2006.

88

Durbin, Martin. Testimony before the U.S. Senate Committee on Homeland Security and Governmental Affairs, July

(continued...)

Congressional Research Service

20

Chemical Facility Security

are covered by the CAA Section 112(r) requirements for risk management planning.89 The ACC

guidelines for site security are general, and must be adapted by chemical companies to meet site

requirements.

During April 2002, ACC circulated a draft of a Security Code of Management Practices—

... to help companies achieve continuous improvement in security performance using a riskbased approach to identify, assess and address vulnerabilities, prevent or mitigate incidents,

enhance training and response capabilities, and maintain and improve relationships with key

stakeholders.90

On June 5, 2002, the ACC Board of Directors approved the code and voted to make it mandatory

for ACC members. Under the Security Code, ACC members are required to evaluate site security

using vulnerability assessment methodology equivalent to that developed by the Department of

Energy’s Sandia Laboratories for the Department of Justice91 or by the Center for Chemical

Process Safety (an industry-funded research center). They are then required to implement security

enhancements commensurate with the risks identified by the assessments. Other key requirements

of the code include

•

training and drills for employees, contractors, customers, and suppliers;

•

consideration of process changes, material substitutions, and other inherently

safer approaches to chemical production;

•

evaluation, response, and reporting of security threats; and

•

internal audits.92

ACC members began by assessing security, including computer security, at high-risk facilities, as

well as from supplier to manufacturer, to wholesaler, to retailer, and finally to customer. On

March 7, 2003, ACC announced that all of its member companies had completed site

vulnerability assessments for their 120 highest priority facilities, prior to the end of 2002, a

deadline established by the industry’s security code. 93 In early 2005, ACC announced that

members had completed implementation of security measures at all 2,040 of their facilities.

However, the security code does not require specific expenditures for risk reduction; rather, it

recommends decisions should be based on an evaluation of risks and costs. According to ACC,

facilities have spent more than $2 billion since September 11 to improve security.94

(...continued)

13, 2005.

89

Durbin, Martin. Personal communication. Feb. 4, 2005.

90

ACC. Responsible Care® Security Code of Management Practices Draft Concepts, Apr. 18, 2002.

91

National Institute of Justice, U.S. Department of Justice. Chemical Facility Vulnerability Assessment Methodology,

NCJ 195171, July 2, 2002. At http://www.ojp.usdoj.gov/nij/pubs-sum/195171.htm, visited Jan. 11, 2006.

92

Responsible Care® website. At http://www.americanchemistry.com/s_acc/sec_article.asp?CID=258&DID=1232,

visited Jan. 11, 2006.

93

ACC. “Chemical Makers Complete Priority Site Vulnerability Assessments, Continue Security Performance Through

Responsible Care®.” Press release, Mar. 7, 2003. At http://www.accnewsmedia.com/docs/1100/

1090.doc?DocTypeID=4&TrackID=, visited July 9, 2005.

94

American Chemistry Council. News & Media website. Security. At http://www.americanchemistry.com/s_acc/

sec_mediakits.asp?CID=258&DID=632, visited July 9, 2005.

Congressional Research Service

21

Chemical Facility Security

In addition to developing guidelines and a management code on site security, ACC and other

chemical trade organizations have been communicating extensively with one another and with

government officials about how to reduce the risks of chemical terrorism. For example, ACC and

the Association of American Railroads formed a task force to develop strategies to ensure the

safety of communities near chemical and rail facilities.95 In addition, as mentioned above, the

Center for Chemical Process Safety has developed a risk-based methodology for assessing the

vulnerability of chemical facilities to terrorist attacks. The Synthetic Organic Chemical

Manufacturers Association (SOCMA) has developed a vulnerability assessment methodology for

smaller chemical producers.96 In addition, SOCMA has adopted the ACC security code as a

condition of membership. According to Tom Hall, director of stewardship for CropLife America

(a pesticide industry trade association), pesticide and fertilizer distributors represented by

CropLife America, the Fertilizer Institute, and the Agricultural Retailers Association formed a

working group to tailor a vulnerability assessment methodology for rural facilities, where theft is

a greater threat than a direct attack on a facility.97 A document, Guidelines to Help Ensure a

Secure Agribusiness, was released October 24, 2002.98 Finally, the American Petroleum Institute

has published security guidelines developed in consultation with the Department of Energy.

GAO examined the voluntary initiatives underway in a report released in March 2003, Homeland

Security: Voluntary Initiatives Are Under Way at Chemical Facilities but the Extent of Security

Preparedness Is Unknown. 99 GAO concluded that many initiatives are admirable, but “the extent

of security preparedness at U.S. chemical facilities is unknown ... [because] no federal

requirements are in place to require chemical facilities to assess their vulnerabilities and take

steps to reduce them ... [and] no federal oversight or third-party verification ensures that

voluntary industry assessments are adequate and that necessary corrective actions are taken.”

Congressional Action

The 107th Congress passed the Public Health Security and Bioterrorism Preparedness and

Response Act of 2002 (P.L. 107-188), which requires many community water systems to perform

vulnerability assessments and to prepare emergency preparedness and response plans. Some of

these facilities handle significant quantities of hazardous chemicals. Funding is authorized to

assist communities in complying with the act. It also directs EPA to review methods to prevent,

detect, and respond to threats to water safety and infrastructure security. P.L. 107-117 provided

EPA with roughly $90 million to enhance the security of drinking water treatment facilities.

The 107th Congress also enacted the Maritime Transportation Security Act (MTSA, P.L. 107-295),

which requires the DHS Secretary to identify port facilities “that pose a high risk of being

involved in a transportation security incident,” and to conduct a vulnerability assessment of such

facilities. Facility owners or operators are required to develop and submit to DHS both security

95

“ACC Teams up with Railroad Association to Boost Chemical Security,” Pesticide & Toxic Chemical News Daily,

vol. 4, no. 5, Mar. 28, 2002, p. 2.

96

DeConti, Angela. Personal communication, July 9, 2002.

97

Hall, Tom. Personal communication, July 2, 2002.

98

The Guidelines may be accessed through the Internet at http://www.magnetmail.net/Actions/

email_web_version.cfm?publish=newsletter&user_id=ARA1&message_id=192110, visited Jan. 11, 2006.

99

U.S. GAO. Homeland Security: Voluntary Initiatives Are Under Way at Chemical Facilities but the Extent of

Security Preparedness is Unknown. Mar. 2003. GAO-03-439. 41 pp. At http://www.gao.gov/new.items/d03439.pdf ,

visited Jan. 11, 2006.

Congressional Research Service

22

Chemical Facility Security

plans and incident response plans that deter “to the maximum extent practicable a transportation

security incident or a substantial threat of such a security incident”; are consistent with national

and area security plans; and conform to requirements specified by the U.S. Coast Guard. DHS

must review and approve each plan. The act also authorized a grant program that finances

security upgrades. For more information about the MTSA and related issues, see CRS Report

RL31733, Port and Maritime Security: Background and Issues for Congress, by (name redacted).

P.L. 107-296, establishing DHS, does not address chemical plant security directly. However, the

law does require DHS to analyze vulnerabilities and recommend methods of enhancing site

security at facilities that are part of the “critical infrastructure.” As noted above, the

Administration has identified chemical facilities as part of the critical infrastructure in the

National Strategy for the Physical Protection of Critical Infrastructures and Key Assets.

Chemical facilities are included in several sectors: water utilities, the energy sector, and the

chemical and hazardous materials sector. The law exempts from public disclosure requirements

(i.e., FOIA) any information about physical and cyber security if it is submitted voluntarily to

DHS by such facilities for use by that agency related to “the security of critical infrastructure and

protected systems.” Disclosure under the authority of state or local laws also is prohibited.

Unauthorized disclosure of “critical infrastructure information” by government employees is

punishable by imprisonment, fines, and removal from office.

The 108th Congress amended the MTSA in the Coast Guard and Maritime Transportation Act of

2004, P.L. 108-293, on August 9, 2004. Title VIII of that act requires the DHS to submit a plan

for a maritime security grant program, including recommendations on how funds should be

allocated.

The 109th Congress enacted security provisions attached to the DHS appropriations bill for 2007,

H.R. 5441. The law, P.L. 109-295, provides authority to DHS for three years to issue regulations

for high-risk chemical facilities, other than drinking water and wastewater treatment facilities and

facilities in ports. DHS is directed to establish risk-based security performance standards for such

facilities, and designated chemical facilities are required to prepare vulnerability assessments and

facility security plans. DHS has authority to inspect facilities and to order compliance. Failure to

comply with an order may be punished with a civil penalty of $25,000. There are no criminal

penalties for noncompliance, although criminal penalties are authorized for unauthorized

disclosure of “protected information.” In the event of repeated compliance failures, DHS may

order a facility to cease operations. The law is silent on numerous issues debated during markup

of other bills reported in the House and the Senate, including the criteria for weighing risks of

various facilities, federal preemption of state and local right-to-know laws, how to facilitate

congressional oversight, and the role of IST.

Policy Options

September 11, 2001 prompted policy makers to reconsider federal policy options regarding

potential terrorist threats to chemical facilities. A range of possible strategies is summarized

below. Additional information on this topic is provided by CRS Report RL33043, Legislative

Approaches to Chemical Facility Security, by (name redacted).

Congressional Research Service

23

Chemical Facility Security

Status Quo

Congress could rely on existing mechanisms in the public and private sectors to continuously

evaluate and improve site security. Federal statutes already mandate facility assessments of

chemical hazards and planning to prevent, mitigate, and respond to accidental releases of

hazardous chemicals. And the events of September 11, 2001, undoubtedly have reinvigorated

implementation efforts by federal, state, and local government officials, as well as facility

operators. Some state and local governments have instituted additional security requirements. For

example, Baltimore, Maryland, requires chemical facilities to implement security measures

described by police and fire officials. Moreover, trade associations have developed vulnerability

assessment methodologies to facilitate planning for diverse types of facilities. The ACC requires

that its members assess vulnerability and devise plans to improve security.

The establishment of DHS and Homeland Security Presidential Directive 7 on the protection of

critical infrastructure, as well as the newly enacted P.L. 109-295, ensure a federal role in chemical

facility security planning. DHS must identify and prioritize facilities needing protection from

terrorists, require vulnerability assessment and security planning, and oversee compliance with

security plans at high-risk facilities. However, the DHS authority is limited to three years, which

may not be adequate.100

Collect Additional Information

Another option would be to delay addressing chemical facility security until additional

information is gathered on which to base proposals. The final DOJ assessment of chemical site

security and the impact of the current risk management planning program might provide needed

insights. For a broader view of the issue, including analysis of policy options, Congress might

establish a Blue Ribbon Panel or request a study by the National Academy of Sciences. Studies

could provide information about the risks of terrorism, the risks of accidents, the views of public

interest groups, and the effectiveness of public disclosure to reduce risks. Such information might

assist Congress in evaluating alternative approaches to reducing risks. However, the benefits

gained from delaying federal decisions pending development of better risk information should be

weighed against the possibility that terrorists might strike this kind of facility before Congress

acts.

Improve EPA Guidance and Enforcement

Congress also might provide additional resources for, or exercise increased oversight over,

implementation of existing statutes. Although neither EPCRA nor the CAA explicitly addresses

chemical releases due to criminal or terrorist acts, EPA arguably has sufficient authority under the

acts to more strongly encourage facilities to reduce their vulnerability to terrorists. Additional

resources could facilitate EPA review of facility risk management plans. Through September

2001, EPA had reviewed only 15% of submitted plans, according to a GAO report.101

100

President George W. Bush. Sept. 10, 2003. “President Bush Discusses Homeland Security at the FBI Academy,”

FBI Academy, Quantico, Virginia.

101

U.S. GAO, p. 4.

Congressional Research Service

24

Chemical Facility Security

As previously mentioned, EPA already has provided guidance to facilities on this subject, but

many public interest groups would like EPA to go farther in interpreting the risk management

planning requirements of the CAA Section 112(r).102 For example, US PIRG argued in a 1998

report:

EPA missed opportunities to require companies to identify inherently safer technologies, and

ignored comments made by a coalition of environmental and labor organizations calling for a

requirement that companies undertake Technology Options analyses to identify inherently

safer technologies.103

In lieu of regulations, EPA could be urged to provide technical assistance or demonstration

programs, or to develop incentives to encourage risk reduction.

EPA has considered revisions to either the risk management planning rule or EPA guidance under

the CAA Section 112(r)(7) to require or encourage chemical facility owners to assess their

vulnerability to terrorists and correct any significant weaknesses. Some EPA officials expected

new principles for risk management planning to address both site and computer security; building

access; background checks; inventory controls; storage safety; and other physical security

measures, as well as changes that improve “inherent safety.”104

However, EPA has stated that its authority to regulate chemical site security is unclear, and

authority under the Clean Air Act has been questioned by the House Committee on Energy and

Commerce. 105 In October 2002, Administrator Whitman announced that EPA would not pursue

chemical security regulations under the CAA. 106 President Bush has made it clear that he does not

envision a large role for EPA with respect to security from terrorism. Congress might ultimately

elect to clarify EPA authority through legislation, expanding or narrowing current interpretations,

or examine the adequacy of EPA’s implementation of the risk management planning rule in

congressional hearings.

A potential disadvantage of relying on existing environmental law is that it may not apply to all

facilities of interest. For example, the CAA, Section 112 applies to chemicals that were selected

based on severity of potential acute adverse health effects, the likelihood of accidental releases,

and the potential magnitude of human exposure. It excludes explosives, as well as flammable

substances when used as a fuel, or held for sale as a fuel at a retail facility.

Congressional oversight and guidance for DHS implementation of the newly enacted provisions

of P.L. 109-295 also is an option.

102

Hind, Rick. Legislative Director, Greenpeace Toxics Campaign. Letter to Christine Todd Whitman, EPA

Administrator. March 14, 2002.

103

Laplante, Allison. Too Close To Home: A Report on Chemical Accident Risks in the United States, U.S. Public

Interest Research Group, Washington, DC. July 22, 1998.

104

Heilprin, John. “Government to Require 15,000 Chemical, Waste, Water Plants to Assess Terrorism Risks, Make

Fixes,” The Associated Press, via NewsEdge Insight, June 7, 2002.

105

EPA. 2002. Lessons Learned in the Aftermath of September 11, 2001. p. ES-10.

106

Preston, Meredith. “EPA Announces Strategy to Meet Homeland Protection Responsibility,” Daily Environment

Report, Oct. 3, 2002. p. A-1.

Congressional Research Service

25

Chemical Facility Security

Reduce Risk Through Legislation

GAO has recommended that DHS and EPA, in consultation with the Office of Homeland

Security, jointly develop a comprehensive national chemical security strategy, which should

include a legislative proposal “to require chemical facilities to expeditiously assess their

vulnerability to terrorist attacks and, where necessary, require these facilities to take corrective

action.”107 DHS and EPA agree. 108 The National Strategy for the Physical Protection of Critical

Infrastructures and Key Assets asks DHS to work with Congress to enact such legislation.109

If Congress decides that legislation is required to reduce the risks of terrorism targeting chemical

plants, proposals might focus on preventing terrorism in general or on reducing risks of terrorism

specifically targeting chemical plants. A broad focus on reducing terrorism would involve

numerous issues that are beyond the scope of this report. Interested readers are referred to CRS

Report RL33600, International Terrorism: Threat, Policy, and Response, by (name redacted).

A narrower focus on chemical plants might provide incentives for voluntary private sector

initiatives or new regulatory authorities to reduce risks. Economists Robert Litan and Peter

Orszag have suggested that a blended approach involving performance-based regulation and a

requirement for insurance coverage against terrorist acts might be the most cost-effective

approach.110 Stakeholder views regarding the relative merits of voluntary versus mandatory

approaches are discussed in the next major section of this report, “Key Issues,” in the subsection

on “Responsibility and Accountability.” Bills considered and enacted during the 109th Congress

are described in the last major section of this report, Legislation in the 109th Congress.

The remainder of the present discussion analyzes selected strategies and tactics for reducing risks

that may be incorporated into legislation.

Physical Security Enhancement

Perhaps the most common approach to improving site security is to “harden” defenses so that

sites would be less vulnerable to terrorists.111 According to the recently released DOJ

vulnerability assessment methodology, an effective protection system serves three functions:

detection (discovery or sensing of adversary action), delay (impediment to adversary progress),

and response by security personnel to ensure that a threat is neutralized. 112 Examples of hardening

tactics include increasing security patrols, strengthening fences, installing better locks on doors,

relocating sensitive chemical processes within the facility, installing intruder detection systems

and alarms, and performing background checks on employees. Congress has adopted such tactics

in other contexts. For example, the USA Patriot Act (P.L. 107-56) requires background checks as

107

GAO. Homeland Security: Voluntary Initiatives Are Under Way at Chemical Facilities, but the Extent of Security

Preparedness Is Unknown. March 2003. GAO-03-439. Washington, DC: U.S. Govt. Print. Off. p. 31. At

http://www.gao.gov/new.items/d03439.pdf, visited Jan. 11, 2006.

108

Ibid.

109

Bush, George W. The National Strategy for the Physical Protection of Critical Infrastructures and Key Assets, Feb.

2003. p. 66.

110

Litan, Robert, and Peter Orszag. 2002. A complicated intersection: Public action to protect private property.

Brookings Review, vol. 20, no. 3 (summer). pp. 20-23.

111

National Institute of Justice, p. 1.

112

Ibid., pp. 15-16.

Congressional Research Service

26

Chemical Facility Security

a condition for obtaining a license to operate a motor vehicle transporting a hazardous material in

commerce.

A key advantage of hardening tactics is their variety and adaptability to a range of security needs.

Other advantages include the ability to deepen defenses by adding layers of protection and, in

many cases, relatively low costs. A potential weakness of this strategy is that even the most

effective security measures might be disabled or overwhelmed by a determined, skilled terrorist

organization. For example, guards might be bribed or killed, passwords discovered, alarms shortcircuited, or computers hacked. The World Trade Center and Pentagon attacks demonstrate the

vulnerability of any site to a novel and vigorous attack.

Technology Assessment and Inherently Safer Options

An alternative strategy for reducing risk is advocated by environmental groups. It would reduce

the hazardous characteristics of the facility, for example, by reducing production, processing,

storage, and use of dangerous chemicals, or changing the characteristics of chemicals to make

them less dangerous (e.g., by reducing volatility). Such tactics aim to improve the “inherent

safety” of a site, and are preferred by advocates to target-hardening tactics, which they often refer

to as “add-on safety systems.”113 According to this view, “‘Inherent Safety’ activities reduce or

eliminate the possibility of an accident occurring through the fundamental redesign of production

systems or products, reductions in chemical inventories, or substitution for hazardous chemicals

at the facility.”114 Currently, there is no federal U.S. law that explicitly promotes use of inherently

safer technologies (IST) by the chemical industry.

Two potential advantages of this approach are that consequences of terrorism may be reduced

even if a terrorist succeeds in his mission, and that risks associated with accidental releases of

chemicals also are likely to be reduced. In addition, efforts to promote inherent safety of

production could fill gaps in current laws, which address risks associated with specified

chemicals and industries. According to the U.S. Chemical Safety and Hazard Investigation Board,

many reactive chemicals responsible for industrial accidents are not covered by the CAA Section

112.115

The chemical industry developed the concept of inherent safety,116 and the ACC Security Code

requires members to “consider” it in choosing security measures. Many facility operators have

applied this approach in recent years. For example, a utility in Ohio chose to employ a urea-based

pollution control system instead of another system which would have required storage of large

quantities of ammonia.117 Shortly after September 11, the Blue Plains wastewater treatment

facility in Washington D.C. stopped using chlorine in favor of the less volatile sodium

113

Laplante, Allison. Too Close To Home: A Report on Chemical Accident Risks in the United States, U.S. Public

Interest Research Group, Washington, DC. July 22, 1998.

114

Ibid.

115

U.S. Chemical Safety and Hazard Investigation Board website, at http://www.csb.gov/, visited Aug. 7, 2003.

116

Bollinger, Robert E., et al., 1996. Inherently Safer Processes: A Life Cycle Approach. John Wiley & Sons, Inc.,

Hoboken, New Jersey. 154 pp.

117

American Electric Power, press release, Dec. 18, 2000.

Congressional Research Service

27

Chemical Facility Security

hypochlorite bleach.118 Other water and wastewater treatment plants are making similar changes

in chemical usage.

The key disadvantages of this “safer” facility strategy are potentially higher production and

research and development costs, delays in achieving security while new processes are put into

place, and, at least in some cases, lack of feasibility. However, advocates argue that use of safer

technologies may reduce production costs by reducing regulatory burdens, insurance premiums,

transportation costs, and waste disposal costs. Another potential disadvantage of the strategy is

that some “safer” tactics may simply spread a risk around, shift the risk to other locations or

populations, or substitute one risk for another. For example, in replacing an acutely toxic

chemical (that produces relatively severe health effects after a short exposure) with a less acutely

toxic chemical, one might increase chronic risks (due to low-level, long-term exposures) or

environmental risks (e.g., due to the chemical’s persistence).

Deterrence

A third approach to reducing risks aims to reduce theft, rather than direct attacks, by making

dangerous chemicals in use at a facility less attractive to criminals, for example, by introducing a

color or other property that facilitates detection and tracking by authorities (so-called “taggants”),

or by creating and storing antidotes to toxic effects. A disadvantage of the use of taggants is that

they act as contaminants, and therefore may impede chemical processes. For this reason, taggants

typically are useful only in end products, not in intermediate (i.e., process) chemicals. Generally,

such deterrents appear to be in the development stage and are not available for immediate

application.

Restricted Access to Information

Restricting terrorists’ access to information about vulnerability and location of chemical facilities

also might reduce the risk of terrorism. This approach was taken by the 106th Congress when it

enacted amendments to the CAA Section 112(r) to prevent Internet posting of risk management

plans and worst-case scenarios for accidents. Internet access to information is a particular

concern, because it permits anonymous inquiries about sensitive U.S. facilities from remote

locations. P.L. 107-296, that established DHS, limits access to sensitive information potentially

useful to terrorists by exempting information about critical infrastructures submitted voluntarily

to DHS from disclosure requirements of the Freedom of Information Act (FOIA).

A key advantage of restricting access to sensitive information is that it is an inexpensive method

of reducing risk. However, some argue that information restriction is contrary to American values,

reduces public oversight of chemical facilities and consequently facility operators’ incentives to

reduce risk, and is not likely to prevent determined terrorist groups from obtaining needed

information. 119

The general issue of public access to facility-specific information is discussed under Key Issues,

in the section on Public Disclosure.

118

“Toxic Chemicals’ Security Worries Officials,” Washington Post, Nov. 12, 2001.

Ament, Lucy. “Greenpeace Maps Possible Chemical accidents,” Pesticide & Toxic Chemical News, July 1, 2002, p.

9-10.

119

Congressional Research Service

28

Chemical Facility Security

Key Issues

Policy makers choosing among policy options for reducing terrorist risks associated with

chemical plants are faced with at least three fundamentally political issues: the effect of public

disclosure; the relative importance of diverse risks (and associated costs and benefits of risk

reduction), and who should be responsible (and held accountable) for achieving results.

Public Disclosure

Public disclosure of information about chemical hazards and risk management plans at industrial

facilities is controversial. 120 Professional and trade groups representing the chemical industry

oppose the release of information regarding the vulnerability of facilities to terrorism and the

potential off-site consequences (OCA) to public health and the environment. They argue that

terrorists might use the information to target facilities that are most vulnerable or located near

large population centers. Congress responded to this view when it enacted amendments to the

CAA Section 112(r) in 1999.

Environmental and right-to-know advocates often oppose restrictions on public disclosure. They

argue that communities have a right to be informed about hazards to which they might be

exposed, and that free access to information is important to ensure public accountability of

facility managers. Opponents of limiting public information also point out that citizens need

information to assess facility compliance with laws, and if necessary, to petition the

Administration or the courts for enforcement. 121 Unsafe practices and inadequate risk

management plans, in particular, should be publicized, they contend, so that communities may

exert political or social pressure on plant managers to improve the inherent safety of their

facilities. Moreover, these groups want access to information about similar facilities handling

comparable chemicals across the United States, so that plans and accident rates can be compared

and analyzed to determine the effectiveness of various safety measures. Informed citizens can

work with local plant managers to reduce the risk of accidents, they argue. This view was adopted

by Congress in the 1990 amendments to the CAA Section 112(r).122

Another argument in favor of public disclosure has been advanced by investment groups, who

argue, “Investors need to know about potential liabilities of companies in which they invest.”123

Although some have argued that environmental information is inadequately disclosed, due in part

to vague disclosure requirements established by the Securities and Exchange Commission (SEC),

the GAO reported in 2004 that the situation is not clear.124 GAO found: (1) “Key stakeholders

disagree” about how well SEC has defined the environmental disclosure requirements; (2) “Little

120

Davis, Ann. “New Alarms Heat up Debate on Publicizing Chemical Risks,” Wall Street Journal, May 30, 2002, p.

A1.

121

American Association of Law Libraries, American Library Association, et al. Letter to U.S. Senators, July 12, 2002.

122

“Coalition says response to terrorism should not limit access to information,” Chemical Regulation Reporter, vol.

25, no. 45, Nov. 12, 2001. p. 1654.

123

Frieder, Julie (Calvert), Adam Kanzer (Domini Social Investments), Kathy Leonard (Center for Responsible

Investing), Sam Pierce (Ideals Work, Inc.), Steven J. Schueth (First Affirmative Financial Network), Kenneth Scott

(Walden Asset Management), Conrad MacKerron (As You Sow Foundation), and Alison L.F. Wise (Progressive Asset

Management). Letter to U.S. Senators, July 11, 2002.

124

U.S. GAO. SEC Should Explore Ways to Improve Tracking and Transparency of Information. July 14, 2004. GAO04-808. Washington, DC: Govt. Print. Off. 80 pp.

Congressional Research Service

29

Chemical Facility Security

is known about the extent to which companies are disclosing” such information in their filings

with SEC; and (3) SEC enforcement of environmental disclosure requirements may or may not be

adequate.

With respect to the possibility that information may be used by terrorists, right-to-know advocates

claim that public disclosure of chemical hazards motivates facility operators to reduce chemical

hazards, thereby reducing the likelihood and severity of harm from terrorist attacks, as well as the

risk of chemical accidents.

The net effect on risk to public health and the environment of public disclosure, therefore,

appears to depend on the relative risks of releases due to accidents, versus those due to terrorism,

and on the extent to which those risks are reduced or enhanced by publication of risk management

plans and similar information. However, data are not available to calculate risks, relative risks, or

risk reduction/enhancement potential.

A related issue is the extent to which federal laws regarding public disclosure should preempt

state and local disclosure laws. P.L. 107-296, establishing DHS, prohibits release under the

authority of state and local disclosure laws of “information (including the identity of the

submitting person or entity) that is voluntarily submitted to a covered Federal agency for use by

that agency regarding the security of critical infrastructure and protected systems.” For more on

issues related to information disclosure, see CRS Report RL31547, Critical Infrastructure

Information Disclosure and Homeland Security, by (name redacted) and (name redacted).

Relative Risks

Another important issue involves the diverse and sometimes conflicting goals implicit in

discussions of chemical site security enhancement; there is general agreement that risks should be

reduced and that “the greatest risks” should be addressed first, but little discussion of which risks

are “greatest” and should be targeted and at what cost. For example, should we focus on lowering

death rates or rates of sickness and disability? Should we focus on preventive measures or

emergency response and recovery services? Should we allocate resources to prevent worst-case

scenarios, or everyday risks that add up over time? Are risks due to chemical terrorism worse than

risks of equal or greater magnitude due to explosions or firearms? Should we emphasize measures

to reduce terrorist risks that also may improve federal efforts to prepare for and respond to other

disasters, as the President’s National Strategy suggests?125 To what extent are we willing to

sacrifice access to information about facilities in our neighborhoods, privacy, or government

accountability for the sake of risk reduction? Are we willing to shift federal resources to DHS and

away from other programs? The answers to such questions depend on value judgments and are

likely to lead to diverse policy approaches and decisions about particular federal initiatives to

reduce the threat of terrorism.

For example, on the one hand, it often is argued that federal expenditures are most efficient when

they are allocated with respect to relative risks and risk reduction opportunities. According to this

view, relatively more federal funding should be provided to programs targeting risks that are

greater and more clearly documented (e.g., to prevent smoking or motor vehicle accidents), than

for programs targeting small, hypothetical risks (e.g., from exposure to pesticide residues on

food). Based on this reasoning, the risks of chemical terrorism in the United States would deserve

125

Office of Homeland Security. National Strategy for Homeland Security, July 2002. p. 3.

Congressional Research Service

30

Chemical Facility Security

relatively few resources, because they are hypothetical and very small. This is especially true for

individual chemical facilities. Such reasoning might leave some chemical facilities vulnerable to

attack. As explained by the President of the Louisiana Chemical Association, “Worst-case

scenarios are just that Virtually every safety system in every process would have to fail for a

worst-case scenario to actually happen.”126 Will the federal government or some plant operators

find such a scenario incredible, and thus, not worth additional security investments? What cost is

justified for risk reduction at individual chemical facilities?

On the other hand, some have argued that the distribution of risk is more important than the

absolute or relative magnitude of risk. Scholars at the Brookings Institution, for example, argue

that federal resources to combat terrorism should be devoted primarily to avoiding or mitigating

potentially catastrophic terrorist acts.127 Catastrophic events, in which many people are killed or

injured at once often strain local social, political, and economic systems, as well as emergency

response resources, as was well illustrated by the attack on the World Trade Center and again

during the hurricane season of 2005. Thus, the Brookings report focuses on protecting against

nuclear, chemical, or biological terrorism and large-scale attacks at airports, seaports, nuclear and

chemical facilities, stadiums, big commercial buildings, monuments, and American icons, as

opposed to preventing numerous smaller attacks that might produce an equal number of casualties

over a longer period of time.

President Bush has directed the DHS Secretary to set priorities for critical infrastructure

protection “with an emphasis on critical infrastructure and key resources that could be exploited

to cause catastrophic health effects or mass casualties comparable to those from the use of a

weapon of mass destruction,” but with consideration of numerous other potential effects of

terrorist acts. As a result, DHS has been developing a vulnerability-assessment tool, working its

way through, “in priority order, first with the nuclear energy sector, and with the chemical sector,

and shortly to follow many others across the top tier of consequences, vulnerabilities and

threats.”128

Still others object to reliance on any form of cost-benefit accounting with respect to public health

and environmental risk management, because quantitative, analytic tools often do not consider

risk factors and management options that they consider important.129 For example, one cannot

produce a reliable estimate of benefits that might accrue from basing decisions on the so-called

“precautionary principle” or most other preventive management tools, because specific kinds of

damages and clean-up costs may never occur, and thus cannot be validated or corrected.

Moreover, it can be argued that quantitative analysis is biased against preventive measures,

because the hypothetical benefits, as well as the hypothetical risks, accrue (or not) in the future

and generally are discounted (reduced in value). Many observers feel this kind of process

inevitably estimates that preventive options will have relatively high short-term costs and

relatively low and uncertain long-term benefits.

126

Johnson, Jeff. Chemical accident debate rolls on. Chemical and Engineering News, Apr. 9, 2001. p. 22. At

http://pubs.acs.org/cen/, visited Aug. 6, 2003.

127

O’Hanlon, Michael E., Peter R. Orszag, Ivo H. Daalder, et al. 2002. Protecting the American Homeland: A

Preliminary Analysis, Brookings Institution Press, Washington, DC. 177 p.

128

Stephan, Robert. Testimony before the House Subcommittee on Economic Security, Infrastructure Protection, and

Cybersecurity, House Homeland Security Committee, June 15, 2005.

129

For more on policy issues related to risk analysis and cost-benefit analysis, see CRS Report 98-618, Environmental

Risk Analysis: A Review of Public Policy Issues, by Linda-Jo Shierow.

Congressional Research Service

31

Chemical Facility Security

Responsibility and Accountability

Deciding who should be responsible for achieving results (or who should be held accountable)

requires consideration of many factors, including statutory authority, resource availability,

technical competence, political feasibility, and moral or ethical constraints. Responsibility is

multifaceted, involving financial, operational, and managerial duties, and may be layered

hierarchically. In addition, responsibility may be shared or distributed among several private and

public entities. For example, in the case of chemical plant safety, responsibility probably will be

divided in some manner to include owners/operators of facilities, insurers, and some unit of

government. It is up to policy makers to decide upon the appropriate distribution of each

component.

Generally, people agree that the federal government is responsible for protecting citizens and the

homeland, and that business owners are responsible for not causing hazards for their employees,

neighbors, and assets. However, people have different views about who should be held

accountable for the consequences of an act of terrorism, what level of protection from risk is

acceptable, whether the private sector is likely to achieve that level of protection without public

assistance or oversight, and who should bear the costs of achieving greater safety. These different

views largely reflect general political philosophies (e.g., regarding the appropriate role of

government and the value of public involvement in risk management decisions), but they also are

influenced by specific knowledge of, and attitudes toward, the chemical industry, EPA, and other

governmental and non-governmental entities.

Some argue that the risks of terrorism for individual chemical facilities are so small that many

facility managers are unlikely to invest sufficient resources to adequately ensure site security.

Based on this view, some argue that sufficient reductions in terrorist risks for the nation as a

whole can be assured only if chemical facilities are required to comply with federal standards for

risk management—that is, if they are held accountable by government. Federally mandated

standards are likely to ensure a greater level of safety, according to this view, because

administrative rule-making procedures provide for public comments, including comments by

people potentially at risk if a terrorist attacks, but who do not directly profit from neighboring

facilities. Voluntary chemical site security measures advocated by trade associations do not

suffice, it is argued, because they do not cover all potentially dangerous facilities and have no

standards, no timelines, no hazard reduction policies, no measurable hazard reduction goals, no

accountability, and are not enforceable. 130 However, at least some trade associations require

independent audits of risk management plans, as discussed below.

Recent testimony by Robert Stephan, Assistant Secretary of Infrastructure Protection, indicates

that approximately 20% of chemical facilities that are relatively hazardous are not voluntarily

signed up to an industry security code and are not covered by MTSA.131 As a result, DHS does

not know whether they are acting to secure themselves from terrorist acts.

130

Orum, Paul. Additional testimony in response to questions from Senator Jon Corzine concerning the Chemical

Security act, S. 1602, Jan. 15, 2002, at http://crtk.org/detail.cfm?docID=243&cat=spills%20and%20emergencies,

visited Jan. 11, 2006.

131

Stephan, Robert. Testimony before the House Subcommittee on Economic Security, Infrastructure Protection, and

Cybersecurity, House Homeland Security Committee, June 15, 2005.

Congressional Research Service

32

Chemical Facility Security

Some contend that chemical facility operators are willing and prepared to reduce significant risks,

for personal, professional, and business reasons.132 They argue that well-managed businesses

routinely assess, prioritize, and manage risks of all kinds, including risks of potential exposure to

hazardous chemicals due to criminal or terrorist acts. Business incentives to good chemical risk

management include reduced legal liability, reduced insurance costs, enhanced reputation,

improved employee relations, and reduced costs for remediation and victim compensation. In the

United States, environmental and occupational health and safety laws provide additional

incentives to many facility operators to responsibly manage hazardous chemicals.

Some are opposed to new legislation, because it might disrupt and delay installation of security

enhancements by individual companies. On the other hand, such legislation could benefit

businesses by shifting liability to the government and discouraging states from adopting diverse

regulatory strategies.

Some industry representatives, while acknowledging that some guidance, training, and financial

assistance for threat assessment and risk management are needed, especially for addressing risks

to small businesses, point out that trade associations and industrial research centers have been

working for several years to fill such needs. Such groups advocate a flexible, risk-based approach

to securing facilities, arguing that “most plants are not likely terrorist targets.”133 Some business

groups argue that most regulations inappropriately force diverse enterprises to adopt a “one-sizefits-all” strategy. To satisfy any public demand for assurance that risk reduction is occurring,

some industry representatives have recommended a safety certification process and are willing to

submit their facilities to independent audits.

In the National Strategy for the Physical Protection of Critical Infrastructures and Key Assets,

released in February 2003, the Bush Administration recommended legislation to enhance security

measures at chemical facilities, 134 although it had hoped to avoid that approach, according to the

Secretary of the Department of Homeland Security, Tom Ridge. 135 He acknowledged that the

Administration (as of mid-July 2002) had been leaning toward a voluntary approach.136 The

Administration would assign financial responsibility to chemical facility owners. According to

Ridge, “[T]his is a cost [chemical companies] have to absorb.” For their part, some pesticide trade

groups would welcome increased government assistance in the form of funding for education.137

Administrative support for legislation again was expressed at a Senate hearing June 15, 2005.

Although this was interpreted by many news reports as a change in Administration policy,138

Robert B. Stephan, Acting Undersecretary of DHS for Information Analysis and Infrastructure

Protection, testified that there has been no change in the Administration’s position: It has always

been willing to work with Congress to produce new regulatory authority to enhance the security

132

Zahodiakin, Phil. 2002. “Industry sees few unturned stones in anti-terror effort,” Pesticide & Toxic Chemical News,

Mar. 18, 2002, p. 10.

133

Ibid.

134

Bush, George W. National Strategy for the Physical Protection of Critical Infrastructures and Key Assets, Feb.

2003, p. 66.

135

Preston, Meredith. “Administration Wants to Avoid Legislation Requiring Safety Measures at Chemical Sites,”

Daily Environment Report, July 11, 2002, p. A-6.

136

Ibid.

137

Ibid.

138

Hall, Mimi. Chemical Plants Need More Protection, Official Says. USA Today, June 15, 2005, p. A8

Congressional Research Service

33

Chemical Facility Security

of chemical facilities. However, the Undersecretary emphasized that the Administration will only

support risk-based regulation of chemical security. Mr. Stephan stated that DHS was not quite

ready to propose or approve of any particular legislative provisions, but would be in a position to

do so soon. 139

The 109th Congress ultimately decided that the private sector should be held accountable and

enacted legislation (P.L. 109-295) authorizing DHS to oversee facility vulnerability studies and

set performance standards for facility risk management. The American Chemistry Council and the

Administration support the enacted legislation. Others in the 109th Congress would have preferred

legislation (H.R. 2237) that would have would have required submission of assessments and

plans to EPA. Many would have preferred S. 2145/H.R. 4999 or H.R. 5695, which were more

comprehensive and addressed controversial issues such as federal preemption of state and local

laws and whether to require consideration or implementation of inherently safer technology.

Legislation in the 109th Congress

Although legislation to enhance the security of a broad range of chemical facilities was

introduced in previous Congresses (the 107th and 108th), none was enacted. A shift in committee

structure in both the House and the Senate may have affected the fate of legislation in the 109th

Congress. The Committee on Homeland Security and Governmental Affairs took the lead in

holding hearings and developing legislation in the Senate. However, Senator Inhofe, Chairman of

the Senate Committee on Environment and Public Works, which held hearings during the

previous Congress, placed a hold on the bill because of concerns about its coverage of drinking

water and wastewater treatment facilities (which fall within the purview of his committee). In the

House, bills were referred to both the Committee on Energy and Commerce, which held hearings

during the 108th Congress, and to the now permanent Committee on Homeland Security, which

reported a bill very similar to the Senate bill. As the 109th Congress approached the end of the 2nd

session, the Chairman of the Committee on Energy and Commerce supported an amendment to

the DHS FY2007 appropriations bill, H.R. 5441, which was adopted and became law when the

bill was enacted on October 4, 2006. On December 5, 2006, the Chairman introduced the same

provisions as a stand-alone bill, H.R. 6348. P.L. 109-295 provides authority to DHS for three

years to issue regulations for high-risk chemical facilities, other than drinking water and

wastewater treatment facilities and facilities in ports. The enacted provisions combine certain

elements of H.R. 5695, as reported by the House Homeland Security Committee, and S. 2145, as

reported by the Senate Committee on Homeland Security and Governmental Affairs. The various

legislative proposals, as well as the enacted provisions, are summarized below.

S. 2145/H.R. 4999

Senator Collins, Chairman of the Homeland Security and Governmental Affairs Committee

(HSGAC), introduced S. 2145, the Chemical Facility Anti-Terrorism Act, in December 2005,

after holding four hearings to frame the problem and possible solutions.140 The bill was co139

Stephan, Robert. Statement before the U.S. Senate Committee on Homeland Security and Governmental Affairs.

June 15, 2005. At http://hsgac.senate.gov/_files/TestimonyStephan.pdf, visited July 9, 2005.

140

The four hearings may be viewed through 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

(continued...)

Congressional Research Service

34

Chemical Facility Security

sponsored by Senator Lieberman, Ranking Member of the HSGAC. Congressmen Shays and

Langevin introduced a companion bill, H.R. 4999, in the House on March 16, 2006. The HSGAC

amended and approved S. 2145 on June 15, 2006. The bill was reported on September 11, 2006.

S. 2145 would direct the Secretary of DHS to promulgate rules for designating chemical sources

for regulation, assigning sources to various risk-based tiers, and establishing performance-based

security standards for each tier. Facilities would be considered for listing (i.e., designation) if they

produced, used, or stored a substance of concern in a quantity equal to or greater than a threshold

quantity. Substances of concern would be those that trigger risk management planning

requirements under the Clean Air Act, Section 112(r), as well as ammonium nitrate and any other

substance designated by the Secretary, 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. 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. For facilities in the higher risk tiers, S. 2145 would require

a written DHS determination to approve, disapprove, or modify facility assessments and plans

within 21 months of the date of enactment (within nine months of the date when DHS issues

regulations concerning assessments and plans).

S. 2145 would establish a duty to report to DHS for facilities handling more than a threshold

quantity of a designated substance of concern, and it would require plans to specify “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.”

S. 2145 would provide administrative, civil, and criminal penalties for facility owners or

operators who failed 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.

Other S. 2145 provisions would require reports from DHS and GAO, establish a process by

which any person may submit a report to DHS regarding vulnerabilities of a chemical source, and

protect whistle-blowers from retaliation. The bill would mandate coordination with existing

security and emergency response planning, including planning under MTSA. To that end, S. 2145

establishes regional security offices and area security committees and plans. State and local laws

would not be preempted unless they were in “actual conflict” with the federal law.

With respect to information protection, S. 2145 would prohibit DHS and other federal, state, and

local agencies from releasing to the public 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. The introduced bill would have required

(...continued)

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.” 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/.

Congressional Research Service

35

Chemical Facility Security

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. This provision was

modified during markup. As reported, S. 2145 would prohibit disclosure of such documents and

would permit disclosure of certifications only if DHS determined that release would not increase

security risk.

S. 2145 also was modified with respect to judicial review of agency action. As introduced, the bill

was silent, so that all final agency actions would have been subject to judicial review under the

provisions of the generally applicable Administrative Procedure Act (5 U.S. C. §701 et seq.).

However, S. 2145, as reported, 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, whereas

challenges to any other final actions could be filed in district courts. In addition, S. 2145, as

reported, would authorize any person to file a petition for judicial review of a final regulation, but

would authorize 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 be authorized

to participate in such civil action.

S. 2486

Senator Lautenberg introduced the Chemical Security and Safety Act of 2006 (S. 2486) on March

30, 2006. On introduction, the bill was co-sponsored by Senators Biden, Durbin, Kerry,

Menendez, and Obama. The bill addresses security and safety at “stationary sources,” which are

facilities covered by the CAA Section 112(r)(2) and other facilities that the DHS Secretary

designates as “high priority” that produce, process, handle, or store any “substance of concern.”141

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.

For all stationary sources, S. 2486 would establish a general duty to—

•

identify hazards that may result from a criminal release of a substance;

•

ensure that the facility is designed, operated, and maintained in a safe manner;

and

•

reduce the consequences of a criminal release.

Owners or operators would be required to involve employees in ensuring the “design, operation,

and maintenance of safe facilities,” an obligation that includes “to the maximum extent

practicable” use of inherently safer technology (IST). IST is defined 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

141

“Stationary source” is defined as in the Clean Air Act, Section 112(r)(2), in which various terms are crossreferenced. Thus, paraphrasing the CAA, “stationary source” means any buildings, structures, or activities from which

an “accidental release” may occur. An “accidental release” is an unanticipated emission of a “regulated substance.” A

“regulated substance” means a substance listed under Section 112(r)(3), which requires EPA to produce a list of

substances. That list of substances must be developed based on criteria specified in Section 112(r)(4).

Congressional Research Service

36

Chemical Facility Security

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.”

The DHS Secretary, in consultation with the EPA Administrator, would be directed to designate

by rule at least 3,000 facilities handling substances of concern as “high priority categories,” based

on 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.

Each owner or operator of these high-priority facilities would be required to submit to DHS a

written report that would include a vulnerability assessment, an assessment of the hazards, 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 requires the DHS Secretary to review each report submitted to determine whether it

complies 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.

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 if 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.

The bill mandates annual employee training at all stationary sources with respect to the Act’s

requirements. At stationary sources with at least 15 employees, S. 2486 would establish

Employees’ Safety and Security Committees 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. In addition, the bill would require notification and involvement of employees in

facility inspections and investigations.

S. 2486 provides extensive and detailed protection for whistle-blowers who might report

problems at their facilities to authorities. Penalties for employers who do not comply with worker

protections increase with repeated violations.

Congressional Research Service

37

Chemical Facility Security

S. 2486 does not require owners or operators of chemical sources to notify DHS when there are

changes affecting the source’s security. However, the bill does require updates for vulnerability

assessments and security plans on a regular basis.

S. 2486 mandates coordination of implementation of requirements with the Maritime

Transportation Security Act of 2004 (MTSA; P.L. 108-293) and requires that the DHS Secretary

minimize duplication of the requirements for risk assessment and response plans under other

federal law.

S. 2486 would protect DHS from public disclosure requirements under 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,” with a few exceptions, such as compliance certifications by the DHS Secretary. No

similar 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. S. 2486 does not authorize penalties for disclosure of protected information by federal

employees.

H.R. 5695

On June 28, 2006, Representative Daniel E. Lungren, Chairman of the House Subcommittee on

Economic Security, Infrastructure Protection, and Cybersecurity, Committee on Homeland

Security, introduced H.R. 5695. The Subcommittee held a hearing on the bill June 29, 2006, and

approved it, amended, July 11, 2006. On September 29, 2006, the House Homeland Security

Committee reported an amended version of the bill, and the House Committee on Energy and

Commerce was granted an extension until November 17, 2006, of its referral for consideration of

the bill. Similar in many ways to S. 2145, H.R. 5695 is described as more “streamlined,” but it

also includes provisions not in S. 2145.142

H.R. 5695, as reported, would amend the Homeland Security Act of 2002 (6 U.S.C. 101 et seq.)

by adding at the end a new title. It would authorize the Secretary of Homeland Security to

designate chemical substances of concern and threshold quantities for regulation. In designating

or exempting substances and setting threshold quantities, the Secretary would be required to

consider “the potential extent of death, injury, or serious adverse effects to human health, the

environment, critical infrastructure, national security, the national economy, or public welfare that

would result from a terrorist release of the chemical substance.”

The Secretary would be required to keep a list of chemical facilities that have more than the

threshold quantity of any substance of concern, as well as other facilities the Secretary may

choose to designate “significant.” Each selected facility would have to be assigned to one of at

least four risk-based tiers.

H.R. 5695 would require the Secretary, within a year of enactment, to prescribe regulations to

establish standards, protocols, and procedures for vulnerability assessments and facility security

plans that might be required for listed facilities. Regulations must be risk-based and performancebased and must take into consideration, among other factors, the cost and technical feasibility of

142

Roeder, Linda. “House Subcommittee to Consider Bill to Require Chemical Plant Assessments,” Daily Environment

Report, June 27, 2006, p. A7.

Congressional Research Service

38

Chemical Facility Security

compliance. H.R. 5695 also requires the Secretary to establish security performance requirements

for security plans in each tier.

The bill requires the owner or operator of a facility assigned to the high-risk tier to conduct a

vulnerability assessment and to prepare and implement a facility security plan. Owners or

operators or high-risk facilities must submit assessments and plans within six months of the date

on which regulations are prescribed. H.R. 5695 would exempt facilities subject to the Public

Health Security and Bioterrorism Preparedness and Response Act or the MTSA from additional

requirements for submitting vulnerability assessments and security plans to DHS, unless the

Secretary finds that the facility requires more stringent security measures.143

The DHS Secretary, or a designated third-party entity, would be directed to review and approve or

disapprove plans and assessments for facilities within 180 days of receiving such documents. The

Secretary would be required to disapprove an assessment or plan if it did not comply with

regulations or was insufficient to address vulnerabilities identified in the assessment or a threat to

the facility. As reported, H.R. 5695 would allow the DHS Secretary to require a high-risk facility

to use inherently safer technology (IST), if the Secretary determined that incorporation of IST

into the facility would significantly reduce the consequences of terrorist actions, would be

feasible, and would not significantly impair the ability of the owner to continue in business.

Written notice of disapproval of a security plan must be provided to an owner or operator. The bill

explicitly denies any private right of action against an owner or operator to enforce any provision

of the Act. A facility owner or operator would have the right to appeal to a chemical security

review board a decision of the Secretary with respect to the use of IST.

H.R. 5695 would establish a process by which any person might report problems or

vulnerabilities at a chemical facility, and for employees, the bill provides protection against

retaliation by the employer.

Administrative, civil, and criminal penalties for noncompliance with the provisions of this law

would be authorized. A chemical facility owner or operator would have the right to a formal

hearing to dispute a penalty for a violation. State and local laws would not be preempted by the

law, unless they “may frustrate the purposes of this title or any regulations or standards prescribed

under this title.” As amended, the bill would specify that it did not prevent a state from enacting

or enforcing a law or regulation related to environmental protection, health, or safety.

The bill directs the Secretary to prevent disclosure of protected information by any federal agency

under FOIA or under any state or local law. Protected information would include the criteria and

data used to assign facilities to risk-based tiers and the tier assignments for specific facilities,

vulnerability assessments, facility security plans, assessments of IST, security performance

requirements for a facility, and any other information generated or collected by a government

agency or a chemical facility to fulfill requirements of this title if it describes any vulnerability,

describes the assignment of a facility to a risk-based tier, describes a security measure for the

protection of a chemical facility from terrorism, or if “the disclosure of which the Secretary

determines would be detrimental to the security of any chemical facility.”

143

However, the Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (P.L. 107-188) does

not require security plans; rather, it requires emergency response plans.

Congressional Research Service

39

Chemical Facility Security

H.R. 5695 also establishes a procedure for certifying third-party auditors under the Homeland

Security Act, Section 863-864. As reported, the bill includes provisions to reduce the potential for

a conflict of interest for auditors.

As reported, H.R. 5695 would establish an Office of Chemical Facility Security at DHS.

H.R. 5441/H.R. 6348

As the 109th Congress drew to a close, the Senate and House passed the DHS appropriations bill

for 2007, H.R. 5441, which included certain provisions found in H.R. 5695, as reported by the

House Committee on Homeland Security, and S. 2145, as reported by the Senate Committee on

Homeland Security and Governmental Affairs. The law, P.L. 109-295, provides authority to DHS

for three years to issue regulations for high-risk chemical facilities, other than drinking water and

wastewater treatment facilities and facilities in ports. DHS is directed to establish risk-based

security performance standards for such facilities, and designated chemical facilities are required

to prepare vulnerability assessments and facility security plans. DHS has authority to inspect

facilities and order compliance. Failure to comply with an order may be punished with a civil

penalty of $25,000. There are no criminal penalties for noncompliance, although criminal

penalties are authorized for unauthorized disclosure of “protected information.” In the event of

repeated compliance failures, DHS may order a facility to cease operations. The law is silent on

numerous issues, including the criteria for weighing risks of various facilities, federal preemption

of state and local right-to-know laws, how to facilitate congressional oversight, and the role of

IST.

H.R. 1562

Two other chemical facility security bills in the House were similar to proposals in the 108th

Congress. H.R. 1562 was introduced by Representative Fossella. It offers an approach somewhat

similar to that of S. 994, as reported in the 108th Congress. H.R. 1562 would make DHS the lead

agency overseeing chemical facility security, but it would require consultation between DHS and

EPA. The bill would give the DHS Secretary discretionary authority to select facilities that should

conduct vulnerability assessments and security planning, but it would require designation of highpriority facilities. H.R. 1562 would exempt from its requirements drinking water treatment

facilities required to conduct vulnerability assessment under the Safe Drinking Water Act and

facilities subject to the MTSA, unless the owner or operator of such a facility petitioned the

Secretary to be subject to the requirements of this act in lieu of the former act. Vulnerability

assessments and plans would be focused in H.R. 1562 on security (i.e., hardening) and emergency

measures, in order to prevent and respond to releases caused by terrorism, rather than on inherent

safety measures that might reduce the consequences of an unauthorized release, regardless of

cause.

H.R. 1562 also would protect from public disclosure under FOIA and state and local disclosure

laws the certification documents submitted by facility managers indicating that they have

complied with assessment, planning, and implementation requirements. (This is in addition to a

provision that protects from public disclosure information related to vulnerability assessments

and security plans.) H.R. 1562 also would withhold such information from civil judicial or

administrative proceedings (except with respect to compliance with the chemical facility security

legislation), thus shielding facility owners from lawsuits based on those documents. Criminal

Congressional Research Service

40

Chemical Facility Security

penalties are provided for unauthorized knowing disclosure of protected information by

government officials.

H.R. 1562 would authorize DHS to disapprove any assessment or plan and to order revision if it

did not comply with regulations, or if the plan or implementation were insufficient to address the

results of a vulnerability assessment or a threat of a terrorist release. Civil, but not criminal,

penalties would be available if facility owners or operators failed to comply with an

administrative order.

H.R. 2237

H.R. 2237 (introduced by Representative Pallone and similar to S. 157/H.R. 1861 in the 108th

Congress) would build on existing EPA authority to oversee chemical facilities but would require

consultation with DHS. It would require EPA to designate “certain combinations of chemical

sources and substances of concern” as high priority categories based on the severity of the threat

posed by an unauthorized release, proximity to population centers, and other criteria. Owners and

operators of facilities within high priority categories would be required to conduct vulnerability

assessments, identify hazards, and prepare prevention, preparedness, and response plans to

eliminate or significantly lessen the potential consequences of an unauthorized release. Plans

would be required to incorporate inherently safer technology, if practicable. Copies of

vulnerability assessments and plans would be submitted to EPA and updated periodically.

H.R. 2237 would protect vulnerability assessments and plans from public disclosure under FOIA,

but H.R. 2237 would allow disclosure of information under state or local laws, if the state or local

government received the information independently of DHS.

H.R. 2237 would direct EPA to review each assessment and plan, determine compliance, and

certify that determination. EPA would be authorized to issue compliance orders 30 days after

notifying a chemical source that its assessment or plan was inadequate and offering compliance

assistance, if the plan was not revised to comply with EPA requirements. If DHS notified a

chemical source that its plan or implementation was insufficient to address a threat of terrorist

attack, and the chemical source took inadequate action in response to that notice, DHS would be

authorized to secure necessary relief to abate the threat from a district court in the district where

the threat existed.

Other Legislation

In addition to these comprehensive proposals to enhance the security of chemical facilities, bills

have been introduced that address a specific category of facility or chemical. For example, S.

2052/H.R. 713 would provide a tax credit to agricultural businesses for security enhancements. S.

1995 and S. 2781 address the security of wastewater treatment facilities. S. 2781 was reported by

the Senate Committee on Environment and Public Works on September 21, 2006. S. 2855 would

require community drinking water and wastewater treatment facilities to replace hazardous

gaseous chemicals, such as chlorine gas, with IST. H.R. 3197/S. 1141 and H.R. 1389 aim to

secure supplies of ammonium nitrate, an explosive. H.R. 3197 was approved by the House

Homeland Security Committee on June 14, 2006. Some of the provisions of H.R. 3197/S. 1141

were incorporated as an amendment into S. 2145 on June 15, 2006, by the Senate HSGAC.

Congressional Research Service

41

Chemical Facility Security

On July 14, 2005, the Senate unanimously agreed to an amendment to H.R. 2360, the Department

of Homeland Security Appropriations Act for 2006, expressing the “Sense of the Senate that

Congress should pass legislation establishing enforceable federal standards to protect against a

terrorist attack on chemical facilities within the United States.” The conference report on H.R.

2360, which became P.L. 109-90 on October 18, 2005, included the same support for legislation

and added a requirement for DHS to submit a report to the Appropriations Committees by

February 10, 2006, “on the resources needed to implement mandatory security requirements ...

and to create a system for auditing and ensuring compliance with the security standards.” The

conferees also directed the Secretary to complete vulnerability assessments of the highest risk

chemical facilities by December 2006 and to complete a national security strategy for the

chemical sector by February 10, 2006.

Conclusions

The threat of terrorism in the United States challenges the existing balance maintained in federal

laws between the public’s right to know about chemical hazards and the chemical industry’s right

to protect confidential business information. At issue are risks to public health and safety,

environmental protection, civil rights and duties, national security, and privacy. Some are

advocating a strategy of relative risk analysis and analysis of risk management options to reveal

the best course of action. However, information appears to be inadequate for quantitative

evaluation of the risks of chemical releases, whether deliberate or accidental, and the nature of

terrorism makes prediction difficult. Moreover, there is no universally accepted level of tolerable

risk, no obvious basis for a comparison of relative risks and benefits, and no established federal

mechanism for ensuring responsible management of the risks of chemical terrorism.

A variety of federal policy options are available for enhancing chemical security. In choosing

among options, policy makers face three key issues: how to evaluate the risks versus the benefits

of public disclosure; how to determine and prioritize the relative importance of diverse risks; and

who to hold responsible for achieving results. Section 550 of P.L. 109-295, the FY2007 DHS

appropriation, resolved these issues temporari

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.