Chemical Facility Security: A Comparison of S. 157 and S. 994

Order Code RL31958

CRS Report for Congress

Received through the CRS Web

Chemical Facility Security:

A Comparison of S. 157 and S. 994

June 11, 2003

Linda-Jo Schierow

Specialist in Environmental Policy

Resources, Science, and Industry Division

Congressional Research Service ˜ The Library of Congress

Chemical Facility Security:

A Comparison of S. 157 and S. 994

Summary

The 108th Congress is considering legislation to reduce chemical facilities’

vulnerability to acts of terrorism, so as to protect critical sectors of the U.S.

infrastructure and reduce risks to public health and the environment. Competing

bills, S. 994 and S. 157, have been introduced into the Senate. Both would require

chemical facilities to conduct vulnerability assessments and develop and implement

site security plans, but the approaches of the bills differ with respect to the chemicals

and facilities covered, planning requirements, and mechanisms for federal and facility

accountability. In addition, S. 157 would assign the lead responsibility to the U.S.

Environmental Protection Agency (EPA), while S. 994 would give this role to the

Department of Homeland Security (DHS).

Both S. 157 and S. 994 would provide considerable discretionary authority to

the lead agency to define the universe of regulated chemicals and facilities. The bills

would initially include chemicals for which risk management plans are required

under the Clean Air Act. From that list, S. 157 would exclude “liquified petroleum

gas” that is used as fuel or held by a retail facility for sale as a fuel; S. 994 would

exclude similar facilities using “flammable substances,” as well as all federal

facilities. S. 994, but not S. 157, would require the Secretary to consider cost and

technical feasibility, and scale of operations in selecting facilities.

With respect to planning, the emphasis of S. 994 is on enhancing the security

of facilities against acts of terrorism, while S. 157 emphasizes lessening potential

consequences of releases caused by criminal acts. S. 994 would require security

measures, and identification of equipment, plans, and procedures that could be used

to respond to a chemical release. S. 157 would require “to the extent practicable” (1)

practices that reduce the possibility of a release and the associated threat to public

health and the environment; (2) measures to contain, control, or mitigate a release;

(3) buffer zones; and (4) security measures. S. 157 has numerous requirements for

consultation, and would direct EPA to review each vulnerability assessment and

security plan. S. 994 would not require submission to DHS of plans or assessments,

except at the request of the Secretary, but the bill would direct the Secretary, “as

appropriate,” to ensure compliance. Information provided to the government would

be protected from public disclosure under both bills, but only S. 994 preempts state

and local disclosure laws. Both bills specify procedures that would allow owners and

operators to prepare assessments or plans without reference to federal regulations, but

only S. 157 requires federal review of facility-specific assessments and plans. Table

1 summarizes selected provisions of the two bills in a side-by-side format. For a

broader discussion of the potential threat from, vulnerability to, and consequences of

terrorist acts at chemical facilities, and for summaries of other legislative proposals,

see CRS Report RL31530, Chemical Plant Security. This report will be updated as

events warrant.

Contents

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

Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

S. 157, the Chemical Security Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

S. 994, the Chemical Facilities Security Act . . . . . . . . . . . . . . . . . . . . . 2

Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Chemicals and facilities covered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Planning requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Accountability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

List of Tables

Table 1. Comparison of Selected Provisions of S. 157 and

S. 994 in the 108th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Chemical Facility Security:

A Comparison of S. 157 and S. 994

Introduction

Facilities that handle large quantities of very hazardous chemicals may be

attractive targets for terrorists. In the event of a terrorist attack on, or theft from, such

facilities, release of such chemicals could threaten public health and the environment.

In addition, many of these chemical facilities provide products or services that are

strategically or economically critical to the U.S. infrastructure or public health. For

a discussion of the potential threat from, vulnerability to, and consequences of

terrorist acts at chemical facilities, see CRS Report RL31530, Chemical Plant

Security.

The 108th Congress is considering legislation to reduce chemical facilities’

vulnerability to acts of terrorism, in order to protect critical sectors of the U.S.

infrastructure (such as oil refineries, chemical plants, and electric utilities), and also

to reduce risks of chemical releases to public health and the environment. Two bills

with these goals, S. 994 and S. 157, have been introduced into the Senate. Both

would require chemical facilities to conduct vulnerability assessments and develop

and implement site security plans, but the approaches of the bills differ with respect

to the chemicals and facilities covered, planning requirements, and mechanisms for

federal and facility accountability. In addition, S. 994 would assign lead

responsibility to the Department of Homeland Security (DHS), while S. 157 would

give this role to the U.S. Environmental Protection Agency (EPA). This report

describes the different approaches taken in the two bills and analyzes associated

policy implications. It does not discuss the many minor differences between the two

bills, which do not generally raise controversial policy issues. The report begins with

overviews of the two bills, followed by the issue analysis. Table 1 summarizes

selected provisions of the two bills in a side-by-side format. Other proposed

legislation is discussed in the CRS report referenced above.

Background

S. 157, the Chemical Security Act. S. 157 was introduced January 14,

2003, by Senator Jon Corzine, and referred to the Committee on Environment and

Public Works. The bill is similar to S. 1602, which was reported by the Committee

on Environment and Public Works in the 107th Congress (S. Rpt. 107-342). S. 157

would direct the EPA, in consultation with DHS, to issue regulations designating

“certain combinations of chemical sources and substances of concern” as high

priority categories for oversight, based on the severity of potential harm in the event

of a release; proximity to population centers; threats to national security; threats to

critical infrastructure; threshold quantities of substances that pose a serious threat;

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and other safety or security factors that the Administrator of EPA, in consultation

with the Secretary of DHS, determined to be appropriate.1 Owners and operators of

listed facilities 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. Each

owner or operator of a regulated facility also would be required to certify in writing

that the vulnerability assessment and plan had been completed, and the plan

implemented. The bill would require facility owners and operators to submit to EPA

copies of vulnerability assessments and plans, along with certifications, within 12

months of enactment of the Chemical Security Act for assessments, and 18 months

for plans. Assessments, plans, and certifications would have to be updated

periodically.

S. 157 would direct EPA to review each assessment and plan, determine

compliance, and certify that determination. Vulnerability assessments and plans

would be protected from public disclosure under the Freedom of Information Act

(FOIA). The bill also provides for early review and certification of assessments and

plans that are submitted before EPA issues regulations. EPA would be authorized

to issue compliance orders 30 days after either notifying a chemical source that its

assessment or plan was inadequate, or first offering compliance assistance, if the plan

were 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 failed to take adequate action in response to that

notice, DHS would be authorized to secure necessary relief from a district court to

abate the threat.

S. 994, the Chemical Facilities Security Act. S. 994 was introduced May

5, 2003, by Senator James Inhofe, and referred to the Committee on Environment

and Public Works. S. 994 would authorize the DHS to oversee security assessments

and planning at selected chemical facilities. The Secretary would be directed to list,

and may promulgate the list by regulation, chemical facilities that should be subject

to regulation, based on: the likelihood that a facility will be the target of terrorism;

nature and quantity of substances of concern present; potential extent of death, injury,

or serious adverse effects to human health or the environment; potential harm to

critical infrastructure and national security; cost and technical feasibility; scale of

operations; and other security-related factors that the Secretary determines to be

appropriate and necessary. S. 994 would require the Secretary to promulgate

regulations directing owners and operators of listed facilities to conduct vulnerability

assessments, identify hazards, and prepare security plans to reduce vulnerability to

a terrorist release and to respond in the event of a release. Written certification of

compliance would be required by DHS from each owner or operator on a schedule

to be determined by the Secretary. Copies of vulnerability assessments and plans

would be retained at facilities, but must be submitted to DHS on request, and updated

periodically.

1

Both bills define ‘security measures” generally in terms of “hardening” the defenses of

potential targets, using methods that detect adversary action, impede adversary progress, and

respond to neutralize the threat. For more discussion of options for reducing risks, see CRS

Report RL31530, Chemical Plant Security, pages 24-27.

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S. 994 would direct DHS to conduct, or require the conduct of, vulnerability

assessments and other activities (including third-party audits) to evaluate and ensure

compliance with promulgated regulations and procedures endorsed by rule.

(Endorsements are discussed below.) Vulnerability assessments and plans would be

protected from public disclosure under FOIA and state and local disclosure laws.

Penalties are provided for unauthorized disclosure.

The bill would authorize the Secretary to identify and endorse security measures

that are substantially similar to any requirements promulgated by DHS. Endorsement

would indicate compliance with assessment or planning requirements, if the endorsed

assessment or security procedures were implemented. Any person could petition the

Secretary for endorsement of existing procedures. If the Secretary chose not to

endorse such procedures, the Secretary would have to provide written notice

explaining why the petition was denied. Vulnerability assessments and response

plans that were in accord with endorsed procedures would be exempt from other

regulatory requirements.

DHS would be authorized to disapprove any assessment or plan, and to order

revision if it does not comply with regulations, or if the plan or implementation is

insufficient to address the results of a vulnerability assessment or a threat of a

terrorist release. The Secretary would be required to provide notice of disapproval

explaining deficiencies, and to identify appropriate steps to achieve compliance. S.

994 would require the Secretary to issue a compliance order if a plan were

disapproved, and compliance had not been achieved by a date determined by the

Secretary to be appropriate. The bill also would authorize the Secretary to provide

training relevant to the Chemical Facilities Security Act to state and local officials

and facility owners or operators.

Issues

Although the two bills are similar in many ways, some differences raise

significant policy issues. Selected issues are discussed in this section.

Chemicals and facilities covered. Both S. 157 and S. 994 would provide

considerable discretionary authority to the administering agency to define the

universe of regulated chemicals and facilities. Both would have the lead agency

begin by looking at the chemicals listed by EPA under the Clean Air Act (CAA),

Section 112(r)(3). This list includes chlorine, anhydrous ammonia, methyl chloride,

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

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

and sulfur trioxide (all designated in the CAA), and other chemicals that have been

determined by EPA to pose 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 has promulgated a list containing 77 acutely toxic substances, 63 flammable

gases and volatile flammable liquids, and “high explosive substances” (59 Federal

Register 4478, Jan. 31, 1994). Both bills would allow the list to be revised as

necessary.

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S. 994 would exclude “flammable substances” that are used as fuel or held by

a retail facility for sale as a fuel. Congress adopted this exclusion in a 1999

amendment to the CAA, primarily in response to complaints from propane retailers

and users. They argued that the original CAA risk management planning

requirements were redundant, given laws in 48 states requiring compliance with

national safety standards established by the National Fire Protection Association

(NFPA). Prior to the 1999 amendment, EPA argued that the CAA required it to list

flammable and combustible liquids, other than gasoline, because they were involved

in more than 128,000 reported accidental releases from 1987 through 1996, according

to federal databases. However, Congress overrode EPA’s objections. S. 994

maintains this exemption which covers facilities that store or use any flammable

substance, including propane, butane, natural gas, acetylene, or proylene. S. 157

would adopt a narrower exclusion for “liquified petroleum gas” (propane or a

mixture of propane and butane), when used as a fuel or held by a retail facility for

sale as fuel. Thus, S. 157 would exempt from security requirements propane dealers

and users, without exempting other facilities that might store or use other fuels.

Another explicit difference between the bills is that S. 157 would include, and

S. 994 would exempt, federal facilities from assessment and planning requirements.

Federal facilities include headquarters, as well as regional facilities, such as military

bases, federal penitentiaries, office buildings, and national laboratories.

Finally, the bills differ with respect to the selection criteria the administrating

officer is to use in listing or designating facilities for regulation. Both bills direct the

government to consider severity of threat and severity of potential harm in

designating facilities, but the bills appear to emphasize threats from different causes,

as well as different consequences of chemical releases. The emphasis in S. 157 is on

eliminating or significantly lessening potential consequences of “unauthorized”

releases. An unauthorized release is defined as a release that is not authorized by the

owner or operator of the facility and that is caused, at least in part, by a criminal act.

On the other hand, S. 994 focuses on ensuring or enhancing the security of facilities

against acts of terrorism.2 Thus, the final catch-all criterion in S. 994 is to consider

“other security-related factors,” while S. 157 requires considering “other safety or

security factors.”

S. 994 includes criteria not mentioned in S. 157: cost and technical feasibility,

and scale of operations. Since the purpose of the criteria, according to S. 994,

Section 4(f)((3)(B), is to help the Secretary determine which facilities present “a risk

sufficient to justify ... classification as a chemical source,” inclusion of these criteria

seems to imply that a “sufficient” risk under S. 994 would depend in part on the

burden of reducing it. Although S. 157 does not incorporate these criteria, neither

does it prohibit such consideration.

Planning requirements. The different emphases of the bills (i.e., on

reducing potential consequences of criminal acts, as in S. 157, vs. securing facilities

from terrorists, as in S. 994) are reflected in their requirements for vulnerability

assessments and planning. S. 157 requires an assessment of the vulnerability of the

2

For a definition of “security measures,” see note 1.

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source to an unauthorized release, and preparation of a prevention, preparedness, and

response plan. Required plan components are “actions and procedures, including

safer design and maintenance,”aimed at reducing consequences to public health and

the environment.

The bill defines “safer design and maintenance” as

“implementation, to the extent practicable” of (1) practices that reduce the possibility

of a release and the associated threat to public health and the environment (i.e., socalled “inherently safer technologies”); (2) measures that contain, control, or mitigate

a release; (3) buffer zones; and (4) security measures. S. 994 requires an assessment

of the vulnerability of the source to a terrorist release, and a site security plan that

includes security measures and equipment, plans and procedures to respond in the

event of a terrorist release, but it does not require implementation of buffer zones or

inherently safer technologies.

Accountability. As mentioned previously, both S. 157 and S. 994 provide

considerable discretionary authority to the EPA Administrator and the DHS

Secretary, respectively. Within broad guidelines, they may choose which facilities

to regulate, which substances are of concern, threshold levels of chemicals that pose

a significant threat, and appropriate levels of vulnerability analysis and security

planning. The general advantage of executive discretion is the flexibility it allows

the decision maker to efficiently adjust a program to accommodate new information

or unusual circumstances. Another possible benefit is that sensitive information

about facility security, as well as confidential business information, might be

protected more effectively, if agencies are not obligated to publicly defend their

decisions. A possible disadvantage is that Congress, and the general public, may find

it more difficult to oversee and evaluate agency performance, due to a lack of specific

statutory requirements to which the agency can be held accountable, as well as lack

of access to decision-making processes. Several bill provisions that might open

decision-making processes to public scrutiny, or otherwise provide some independent

assurance that the purposes of the bills would be achieved, are described below.

Agency consultation and certification.

S. 157 has numerous

requirements for consultation. The EPA Administrator is directed at key decision

points to consult with the DHS Secretary. When designating high-priority facilities,

the Administrator also must consult with state and local agencies responsible for

planning for, and responding to, releases, and providing emergency health care. The

Administrator must consult with all of those groups, as well as the Chemical Safety

and Hazard Investigation Board [established under the CAA Section 112(r)], when

promulgating regulations requiring vulnerability assessments and security planning.

After facility assessments and plans have been submitted to EPA and reviewed, the

Administrator must certify in writing the Administrator’s determination as to whether

each assessment and plan complies with regulations. S. 157 also requires facility

owners and operators to work with local law enforcement, first responders, and

employees of facilities when assessing vulnerability and preparing the security plan.

S. 994 does not require the Secretary to consult or certify determinations about

individual facilities, but the bill does authorize the Secretary to request technical and

analytical support (other than field work) from other agencies and to reimburse such

agencies as appropriate.

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Facility submissions. S. 157 would require all owners and operators of

chemical facilities identified by EPA regulations to submit completed vulnerability

assessments and security plans to EPA before deadlines established by statute.

Furthermore, owners and operators must certify in writing that assessments and plans

comply with EPA regulations, and must submit such certifications to EPA. S. 994

does not require submission to DHS of plans or assessments, except at the request of

the Secretary. It does, however, require owners and operators of listed facilities to

certify to the Secretary in writing their compliance with DHS regulations. The

Secretary is required to promulgate deadlines for certification. Neither bill would

protect these self-certification documents from public disclosure.

Third-party audit. S. 994 would require the Secretary, “as appropriate,” to

conduct, or require to be conducted, vulnerability assessments and other activities

(including third-party audits) to evaluate compliance with the Chemical Facilities

Security Act. Third-party audits are inspections of facilities, assessments, and/or

plans conducted by an uninterested, but expert party. S. 157 has no similar provision.

Early compliance/Endorsement. Both bills provide procedures that would

allow facility owners and operators to prepare vulnerability assessments or security

plans without reference to federal regulations, if such assessments or plans met

certain criteria. Three key differences exist between the provisions of S. 157 and S.

994.

! S. 157 would authorize approval of plans and assessments submitted prior to

promulgation of final regulations, while S. 994 would allow approval of plans

and assessments no matter when they were produced, as long as they were in

accord with endorsed model practices.

! S. 157 would require the Administrator to review and approve or reject facility

plans and assessments on a case-by-case basis, while S. 994 would authorize

approval or rejection of model security practices (e.g., perhaps the

vulnerability assessment methodology established by the American Chemistry

Council, a trade group for chemical manufacturers, for its members), and de

facto approval of all facility plans and assessments that are in accord with

those models.

! S. 157 specifies procedural and substantive standards that facility owners or

operators would have to meet, while S. 994 directs the Secretary to accept

security measures that the Secretary finds substantially equivalent to whatever

requirements the Secretary might choose to promulgate.

S. 157 would direct the Administrator to review assessments and plans that

facility owners or operators submit prior to publication of final EPA regulations. If

the Administrator, in consultation with the Secretary, determined that an assessment

or plan met the consultation, planning, and assessment requirements for high-priority

facilities that are specified in Section 4(a)(3) of the Act, the Administrator would be

required to certify compliance without requiring any revision of the assessment or

plan. Section 4(a)(3) would require owners or operators of facilities to: (1) consult

with local first responders and employees in assessing vulnerability of the source to

a terrorist attack or other unauthorized release; identifying hazards that may result

from release; and preparing a prevention, preparedness, and response plan; and (2)

include in the plan actions and procedures, to eliminate or significantly lessen the

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potential consequences of an unauthorized release, including “implementation, to the

extent practicable,” of any technology, product, raw material, or practice that reduces

the possibility of a release prior to secondary containment, control, or mitigation;

well-maintained secondary containment, control, or mitigation equipment; security

measures; and buffer zones.

S. 994 would not require facility owners or operators to submit assessments or

plans to the Secretary. Rather, the bill would authorize the Secretary to promulgate

regulations endorsing certain security practices as being in compliance with the law.

S. 994 would authorize any person to petition the Secretary for endorsement of

procedures, protocols, and standards established by law, industry, or federal, state,

or local government authorities. The Secretary would be authorized to endorse such

measures, if they are implemented, and if the Secretary finds them “substantially

equivalent” to any requirements the Secretary may establish. S. 994 directs the

Secretary to provide to each petitioner a written notice and explanation, if the

Secretary chooses not to endorse the petitioner’s security measures. The bill would

exempt from other regulatory requirements any vulnerability assessments and plans

that are in accord with endorsed security measures.

The intent of S. 157, it appears, is to ensure, through EPA oversight, the quality

of vulnerability assessments and security planning at individual facilities. Quality is

likely to come at the price of considerable EPA resources, however, because there

may be thousands of facility assessments and plans submitted before EPA issues

regulations. On the other hand, facility owners and operators may fear that under the

provisions of S. 157, their early planning efforts might be in vain, if EPA later

decides to reject their facility plans; that fear might cause owners and operators to

delay assessments and planning until EPA’s final regulations take effect, thus

defeating the purpose of the “early compliance” provision.

In contrast, S. 994 would minimize the paperwork burden, and might provide

assurance to facility owners and operators that their facility assessments and plans,

if prepared in accord with established governmental or industrial guidance, will be

acceptable to DHS. However, S. 994 provides limited means for reassuring the

public that individual facility plans and assessments are adequate for security needs.

This potential problem might be resolved by the Secretary, however, for example, if

the Secretary promulgated rules requiring submission of copies of facility plans or

required third-party audits.

Disclosure. Both bills would prevent public disclosure under FOIA of any

information provided to EPA or DHS, except the self-certification of compliance

submitted by facility owners and operators. S. 994 has several additional provisions

to prevent disclosure of information. First, it would preempt state and local laws that

require disclosure. Secondly, S. 994 would require (with some exceptions)

punishment of anyone who “knowingly or recklessly” disclosed protected

information – removal from federal employment or office, and either imprisonment

for up to one year, a fine, or both. A third provision would prevent public disclosure

of the Secretary’s disapproval of an assessment or plan. Finally, S. 994 would

require all information obtained or submitted by the Secretary to be treated in any

judicial or administrative action as if it were classified.

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These provisions of S. 994 might make it difficult for terrorists to obtain useful

information about the vulnerability or security arrangements of chemical facilities.

On the other hand, the same provisions may make it difficult for U.S. citizens to learn

about risks to which they might be exposed, and prevent informed public

involvement in federal, state, and local policy development and contingency planning

with respect to such risks.

Conclusion

S. 157 and S. 994 are similar in that both bills would require chemical facilities

to conduct vulnerability assessments and develop and implement site security plans.

In addition, both bills provide the federal lead agency with considerable discretionary

authority in selecting facilities and chemicals for regulation. The bills differ in the

extent to which federal (congressional and agency) and public oversight would be

facilitated. S. 157 generally provides more opportunities for oversight and informed

public policy development and contingency planning, while S. 994 is more protective

of sensitive information so as to avoid facilitating terrorist acts.

The bills also address somewhat different threats (i.e., criminal acts vs. terrorist

acts) and prescribe different approaches to reduce risks: S. 994 would mandate

planning and implementation to ensure plant security and adequate resources to

respond to any emergency, while S. 157 would require (to the extent practicable)

actions and procedures to reduce the potential for harm, in the event of a chemical

release, in addition to security and emergency preparedness measures.

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Table 1. Comparison of Selected Provisions of S. 157 and

S. 994 in the 108th Congress

Provision

Chemical Security Act (S. 157)

Chemical Facilities Security

Act (S. 994)

Lead agency

Environmental Protection Agency

(EPA)

Department of Homeland

Security (DHS)

Regulated facilities

Stationary sources when coupled

with certain substances that the

Administrator designates as high

priority categories. Requires the

Administrator to designate such

combinations of chemical sources

and substances of concern within

one year of the date of enactment

of the Chemical Security Act. The

Administrator must review and

revise the designations as needed

within 5 years after the date of

promulgation.

[§4(a)(1)]

Non-federal, stationary sources

that: are regulated by EPA under

the Clean Air Act (CAA)

§112(r)(7)(B)(ii);3 contain

regulated substances; and are

listed4 by the Secretary. Requires

the Secretary to list chemical

sources within 180 days after the

date of enactment of the

Chemical Facilities Security Act.

Within 3 years after the date of

promulgation of regulations, and

every 3 years thereafter, the

Secretary must review and update

the list of regulated facilities as

appropriate.

[§3(1); §4(f)]

Regulated substances

Substances listed by the EPA

under the CAA§112(r)(3) (other

than liquified petroleum gas used

as fuel), as well as other

substances that the Administrator

designates, together with certain

stationary sources, as high

priority. Requires the

Administrator to designate such

combinations of chemical sources

and substances of concern within

one year of the date of enactment

of this Act. [§3(3); §3(9);

§4(a)(1); §4(a)(5)]

Substances listed by the EPA

under the CAA §112(r)(3) (other

than flammable substances used

as fuel) that are present at

regulated facilities in quantities

greater than or equal to threshold

quantities established by EPA

under the CAA§112(r)(5). The

Secretary may exempt a

substance or adjust the threshold

quantity. The Secretary also may

designate additional substances

for regulation. [§3(8); §4(g)]

3

The CAA§112(r) directs EPA to require risk management planning by facilities handling more than

threshold amounts of listed chemicals. EPA lists chemicals under subsection 112(r)(3), sets thresholds

under subsection 112(r)(5), and requires hazard assessments and planning to prevent and respond to

accidental releases of chemicals under subsection 112(r)(7)(B)(ii).

4

Due to the bill’s syntax (“... the Secretary develop a list ...”), it is not clear from S. 994, Section

4(f)(1) whether the Secretary is required or only authorized to develop this list, although the inclusion

of a deadline – “Not later than 180 days after the enactment of Chemical Facilities Security Act” –

implies a mandate.

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Provision

Chemical Security Act (S. 157)

Chemical Facilities Security

Act (S. 994)

Basis for selecting

substances and

facilities for

regulation

Requires the Administrator to

designate combinations of

chemical sources and substances

of concern based on “severity of

the threat posed by an

unauthorized release from the

chemical sources.” Requires

consideration of: severity of

potential harm; proximity to

population centers; threats to

national security; threats to

critical infrastructure; threshold

quantities of substances that pose

a serious threat; and other safety

or security factors the

Administrator, in consultation

with the Secretary, determines to

be appropriate. [§4(a)(1) - (2)]

Requires the Secretary to

designate substances of concern

based on “the potential extent of

death, injury, or serious adverse

effects to human health or the

environment that would result

from a terrorist release.”

Chemical sources are selected

based on: consideration of

likelihood that a chemical source

will be the target of terrorism;

nature and quantity of substances

of concern present; potential

extent of death, injury, or serious

adverse effects to human health

or the environment; potential

harm to critical infrastructure and

national security; cost and

technical feasibility; scale of

operations; and other securityrelated factors the Secretary

determines to be appropriate and

necessary. [§4(e) and (f)]

Consultation

Requires consultation with the

Secretary, and in some cases with

State and local agencies

responsible for planning for and

responding to unauthorized

releases and providing emergency

health care; the Chemical Safety

and Hazard Investigation Board;

local law enforcement, first

responders, and employees.

[§4(a)(1)-(5)]

No similar provision

Technical support

No similar provision

Authorizes the Secretary to

request technical and analytical

support (other than field work)

from other agencies, and to

reimburse for such support as the

Secretary determines to be

appropriate. [§6]

Emphasis

Actions and procedures to

eliminate or significantly lessen

the potential consequences of a

release of a covered substance of

concern that is caused in part by a

criminal act. [§2(4); §3(10);

§4(a)(3)(B)]

Appropriate actions to ensure or

enhance the security of sources of

potentially dangerous chemicals

against acts of terrorism.

[§2(3)-(4) and §3(7)]

CRS-11

Provision

Chemical Security Act (S. 157)

Chemical Facilities Security

Act (S. 994)

Vulnerability and risk

assessments

Requires the Administrator to

promulgate regulations within one

year of the date of enactment of

this Act, requiring

owners/operators of high-priority

chemical sources, in consultation

with local first responders and

employees, to assess the

vulnerability of the source to a

terrorist attack or other

unauthorized release, and identify

hazards that may result from

release. [§4(a)(3)A)]

The Administrator must review

and revise as necessary such

regulations within 5 years of their

date of promulgation. [ §4(a)(4)]

Requires the Secretary to

promulgate regulations within

one year of the date of enactment

of this Act requiring

owners/operators of sources

listed by the Secretary to assess

vulnerability to a terrorist release

and identify hazards that may

result from a release. [§4(a)(1)]

Authorizes the Secretary to

promulgate procedures,

protocols, and standards for

assessments. [§4(c)]

Requires that the Secretary

promulgate deadlines for

completion of vulnerability

assessments. [§4(a)(2)]

Planning and

implementation

Requires the Administrator to

promulgate regulations within one

year of the date of enactment of

this Act, requiring owners and

operators of high-priority

chemical sources, in consultation

with local first responders and

employees, to prepare a

prevention, preparedness, and

response plan. [§4(a)(3)]

The Administrator must review

and revise as necessary such

regulations within 5 years of their

date of promulgation. [§4(a)(4)]

Requires the Secretary to

promulgate regulations within

one year of the date of enactment

of this Act requiring covered

facilities to prepare and

implement a site security plan.

[§4(a)(1)]

Requires that the Secretary

promulgate deadlines for

completion of plans. [§4(a)(2)]

Authorizes the Secretary to

promulgate procedures,

protocols, and standards for

plans. [§4(c)]

Required plan

components

The plan must include actions and

procedures to eliminate or

significantly lessen the potential

consequences of an unauthorized

release, including

“implementation, to the extent

practicable,” of any technology,

product, raw material, or practice

that reduces the possibility of a

release prior to secondary

containment, control, or

mitigation; well-maintained

secondary containment, control,

or mitigation equipment; security

measures; and buffer zones.

[§3(7); §3(11); §4(a)(3)]

The plan must include security

measures to reduce vulnerability

to a terrorist release, and

equipment, plans, and procedures

that might be used in the event of

a release. [§4(a)(1)]

CRS-12

Chemical Facilities Security

Act (S. 994)

Provision

Chemical Security Act (S. 157)

Self-certification

Requires owners/operators of

high priority chemical sources to

certify compliance with

assessment and planning

requirements. Vulnerability

assessments must be certified

within one year, and plans within

18 months after the date of

promulgation of regulations

regarding requirements for

planning. [§4(b)]

Requires owners/operators to

certify completion of a

vulnerability assessment and

development and implementation

of a plan, in accord with any

regulations promulgated by the

Secretary or with protocols and

standards endorsed by the

Secretary. [§4(b)(1)] Requires

that the Secretary promulgate

deadlines for certification of

vulnerability assessments and

plans. [§4(a)(2)]

Reviews

Requires owners/operators to

review and recertify vulnerability

assessments and plans within 5

years of the date of first

certification, and every 3 years

thereafter. [§4(b)]

Requires owners/operators to

review and recertify vulnerability

assessments and plans within 5

years of the date of first

certification, and every 5 years

thereafter (or on a schedule

established by the Secretary).

[§4(h)]

Third-party audit or

certification

No similar provision

Requires the Secretary to

conduct, or require to be

conducted, vulnerability

assessments and other activities

(including third-party audits) to

evaluate and ensure compliance.

[§4(b)(3)]

Submission of

documents

Requires submission of copies of

assessments and plans to EPA.

[§4(b)]

Requires submission of copies of

assessments and plans to DHS,

on request. [§4(a)(1); §4(b)(2)]

Threat information

Directs the Secretary, in

consultation with the

Administrator, “to the maximum

extent permitted by applicable

authorities,” to provide to

owners/operators threat

information relevant to

assessments and plans.

[§4(a)(3)(C)]

Directs the Secretary, “to the

maximum extent practicable

under applicable authority,” to

provide an owner/operator threat

information relevant to the

chemical source. [§4(a)(4)]

CRS-13

Provision

Chemical Security Act (S. 157)

Chemical Facilities Security

Act (S. 994)

Information

protection

All information provided to EPA,

or derived from that information,

except self-certification, is

exempt from disclosure under

section 552 of title 5, United

States Code (FOIA). [§4(b)(4)]

Same as S. 157, but also exempts

such information from disclosure

under state or local disclosure

laws. Provides that anyone who

“knowingly or recklessly

discloses the information” shall

be removed from federal office

or employment, and be

imprisoned up to one year, fined,

or both. Some exceptions are

allowed. [§4(i)]

Also protects from disclosure any

determination or order by the

Secretary with respect to

disapproval of an assessment or

plan. [§5(d)] (See below

“Compliance assistance” and

“Compliance orders.”)

Requires that information

submitted or obtained by the

Secretary, and information

derived from that information,

and information submitted by the

Secretary be treated in any

judicial or administrative action

as if it were classified. [§8]

Agency review

The Administrator must review

each assessment and plan to

determine compliance and must

certify each determination.

[§5(a)]

Requires the Secretary to ensure

and evaluate compliance with

regulations and endorsed

procedures, protocols, or

standards. [§4(b)(3)]

CRS-14

Chemical Facilities Security

Act (S. 994)

Provision

Chemical Security Act (S. 157)

Early compliance

Before EPA rules are

promulgated, the Administrator,

in consultation with the Secretary,

must review each assessment or

plan submitted and determine

whether it meets consultation,

planning, and assessment

requirements for high-priority

categories under §4(a)(3). See

above “Vulnerability and risk

assessment” and “Planning and

implementation.” If such

requirements are met, the

Administrator must certify

compliance without requiring any

revision of the assessment or plan.

[§5(a)(2)(C)]

Authorizes the Secretary to

identify and endorse security

measures that, if implemented,

would indicate compliance with

assessment or planning

requirements. Authorizes any

person to petition the Secretary

for endorsement of procedures,

protocols, and standards

established by law, industry, or

federal, state, or local

government authorities.

Authorizes the Secretary to

endorse in regulations such

procedures, protocols, and

standards, if the Secretary finds

them in effect and substantially

equivalent to any requirements

the Secretary may establish. If

the Secretary chooses not to

endorse such procedures,

protocols, and standards, the

Secretary must provide to each

petitioner written notice

explaining why. Also authorizes

petitions requesting that plans or

assessments be required to

address particular threats or types

of threats, and authorizes the

Secretary to promulgate such

requirements. [§4(c)]

Vulnerability assessments and

response plans that are in accord

with provisions endorsed by the

Secretary are exempt from other

regulatory requirements for plans

or assessments. [§4(d)]

Compliance

assistance

Requires the Administrator to

notify a source if an assessment or

plan does not comply with EPA

regulations, or if a threat exists

beyond the scope of the plan, or

current implementation of the

plan is insufficient. Directs EPA

to provide advice and technical

assistance to bring the assessment

or plan into compliance, or to

address any threat. [§5(b)]

Authorizes the Secretary to

disapprove a vulnerability

assessment or plan, or to order

revision, recertification, and

resubmission of such, to correct

deficiencies, if they do not

comply with regulations, or if the

plan, or its implementation, is

insufficient. The Secretary must

provide notice of disapproval,

explaining deficiencies and

consult to identify appropriate

steps to achieve compliance.

[§5(a)-(c)]

CRS-15

Provision

Chemical Security Act (S. 157)

Chemical Facilities Security

Act (S. 994)

Compliance orders

Thirty days after assistance is

provided, or a source receives

notice, if the plan or assessment is

not brought into compliance, or

the source has not complied with

an entry or information request,

the Administrator may issue an

order directing compliance, after

providing the source notice of the

order and opportunity for a

hearing. [§5(c)]

If an owner/operator fails to

certify or submit a satisfactory

assessment or plan, the Secretary

is authorized to order

certification and submission.

Requires the Secretary to issue a

compliance order if an

assessment or plan has been

disapproved, and compliance is

not achieved by an appropriate

date. [§5(c)]

Threat notification

and abatement action

The Secretary must notify a

source or sources of an elevated

threat, if the Secretary determines

that a terrorist threat exists that is

beyond the scope of a submitted

plan or plans, or current

implementation is insufficient to

address the results of vulnerability

assessment or existing threat. If a

source’s response to notification

is insufficient, the Secretary must

notify the source, the

Administrator, and the Attorney

General. In response to such

notice, the Administrator or

Attorney General may secure

necessary relief to abate a threat,

including orders necessary to

protect public health or welfare.

[§5(d)]

No similar provision

Record-keeping and

entry

High-priority sources are required

to keep a current copy of each

assessment and plan. The

Administrator may enter the

premises of an owner or operator

of a source, or any premises

where records are stored, on

presenting credentials. The

Administrator also may at

reasonable times have access to

and may copy records, reports,

plans, or assessments. The

Administrator may require a

source to provide any information

necessary to enforce this Act and

to promulgate or enforce

regulations. [§6]

Sources required to prepare

assessments and plans must keep

a current copy. The Secretary

has authority to enter premises

and to copy records and other

documentation that is necessary

for analysis of a vulnerability

assessment or site security plan

or for implementation of the plan.

Authorizes the Secretary to issue

an order requiring compliance

with this section. [§7]

CRS-16

Provision

Chemical Security Act (S. 157)

Chemical Facilities Security

Act (S. 994)

Penalties

A district court may assess a civil

penalty for violation or noncompliance with an order equal to

or less than $25,000 per day.

EPA may assess civil penalties

less than or equal to $125,000 in

an order, after providing notice

and the opportunity to request

within 30 days a hearing.

Knowing violation or failure to

comply with an order may be

punished with a fine of at least

$2,500, but less than $25,000, per

day, and imprisonment for up to

one year, or both. Subsequent

violation or failure to comply may

result in a fine of not more than

$50,000 per day, imprisonment

for up to 2 years, or both. [§7]

A district court may assess a civil

penalty for violation or noncompliance with an order or a

site security plan (or endorsed

security measure) submitted to

the Secretary of not more than

$50,000 per day, and may issue

an order for injunctive relief. The

Secretary may assess civil

penalties less than or equal to

$250,000 in an order, after

providing notice and the

opportunity to request within 30

days a hearing. Authorizes the

Secretary to establish procedures

for administrative hearings and

review. [§8]

Authorization of

appropriations

Authorizes such sums as are

necessary. [§9]

No similar provision

Training

No similar provision

Authorizes the Secretary to

provide training relevant to this

Act to state and local officials

and owners/operators. [§9]