Senate Proposals To Enhance Chemical Facility Security

Congressional research reportJul 5, 2006

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Order Code RL33447

CRS Report for Congress

Received through the CRS Web

Senate Proposals To Enhance

Chemical Facility Security

Updated July 5, 2006

-name redactedSpecialist in Environmental Policy

Resources, Science, and Industry Division

Congressional Research Service ˜ The Library of Congress

Senate Proposals To Enhance Chemical

Facility Security

Summary

The 109th Congress is considering how to address the risks and consequences

of potential terrorist attacks on chemical facilities. This report compares and

analyzes two bills in the Senate that would address these issues: S. 2145, as reported,

and S. 2486, as introduced. S. 2145 was reported, amended (without written report),

by the Committee on Homeland Security and Governmental Affairs on June 26,

2006. For background information on chemical facility security and summaries of

other legislative proposals, see CRS Report RL31530, Chemical Facility Security.

For more information about alternative legislative approaches, see CRS Report

RL33043, Legislative Approaches to Chemical Facility Security.

S. 2145 would direct the Secretary of the Department of Homeland Security

(DHS) to issue rules designating chemical facilities subject to regulation, assigning

them to various risk-based tiers, and establishing performance-based standards for

each tier. Designated facilities would include facilities selected from those required

to complete risk management plans under the Clean Air Act (CAA), Section

112(r)(7), and facilities handling more than specified quantities of ammonium nitrate

or any other substance designated by the Secretary. Facilities would be required to

submit to DHS vulnerability assessments, security plans, and emergency response

plans for terrorist incidents. Plans would have to be “sufficient to deter, to the

maximum extent practicable, a terrorist incident or a substantial threat of such an

incident,” and “include security measures to mitigate the consequences of a terrorist

incident.” To oversee implementation, S. 2145 would establish regional DHS

security offices and area security committees and plans. DHS, other federal agencies,

and state and local agencies would be prohibited from releasing to the public

“protected information.” S. 2145 expressly prohibits any private civil actions against

an owner or operator to enforce provisions of the Act. S. 2145 also requires

regulation of ammonium nitrate sales.

S. 2486 addresses security and safety at “stationary sources,” as defined by the

CAA Section 112(r)(2), and other facilities holding substances of concern that the

DHS Secretary, in consultation with the Administrator of the Environmental

Protection Agency, designates as “high priority.” For all stationary sources, S. 2486

would establish a general duty to identify hazards; ensure safe facility design,

operation, and maintenance (including use of use of inherently safer technology); and

reduce the consequences of a criminal release. Employees would assist owners or

operators in these tasks. Each high-priority facility would be required to submit to

DHS a vulnerability assessment, hazard assessment, and prevention, preparedness,

and response plan. S. 2486 would exempt DHS from public disclosure requirements

of the federal Freedom of Information Act for “all documents provided to the DHS

Secretary under this Act, and all information that describes a specific vulnerability

or stationary source derived from those documents.” S. 2486 establishes Employees’

Safety and Security Committees and mandates employee training with respect to the

Act’s requirements. This report will be updated as warranted by congressional

activity.

Contents

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

S. 2145 (Collins) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Chemical Sources and Substances of Concern . . . . . . . . . . . . . . . . . . . 2

Vulnerability Assessments and Planning Requirements . . . . . . . . . . . . 2

Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Coordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Information Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Judicial Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Other Accountability Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Ammonium Nitrate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

S. 2486 (Lautenberg) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Chemical Sources and Substances of Concern . . . . . . . . . . . . . . . . . . . 4

General Duty to Ensure Safe Design, Operation, and Maintenance . . . 5

Vulnerability Assessments and Planning Requirements . . . . . . . . . . . . 5

Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Coordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Information Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Judicial Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Other Accountability Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Ammonium Nitrate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Key Similarities and Differences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Chemical Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Substances of Concern . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

General Duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Inherently Safer Technology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Information Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Regional and Area Planning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Judicial Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Worker Involvement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Ammonium nitrate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

List of Tables

Table 1. Comparison of S. 2145, as Reported, and S. 2486, as Introduced,

in the 109th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Senate Proposals To Enhance Chemical

Facility Security

Introduction

The 109th Congress is considering how to address the risks and consequences

of potential terrorist attacks on chemical facilities. Competing bills, S. 2145 and S.

2486, have been introduced in the Senate. Other legislation has been introduced in

the House, including a companion to S. 2145 (H.R. 4999). H.R. 5695 is similar to

S. 2145, while two other bills, H.R. 1562 and H.R. 2237, are similar to proposals in

the 108th Congress. This report focuses on legislation in the Senate. For background

information on chemical facility security and summaries of other legislative

proposals, see CRS Report RL31530, Chemical Facility Security, by (name re

dacted). For more information on alte rnative legislative approaches, see CRS

Report RL33043, Legislative Approaches to Chemical Facility Security, by (name r

edacted).

S. 2145 and S. 2486 direct the Secretary of the Department of Homeland

Security (DHS) to designate “substances of concern” and high-priority facilities for

regulation. Both bills require assessments of vulnerability for designated facilities

and preparation and implementation of security plans. Beyond these basic

provisions, however, the bills would mandate facility actions, federal oversight

mechanisms, and other requirements that differ in significant and often controversial

ways. The purpose of this report is to summarize key provisions of the two bills,

highlighting selected areas of disagreement and agreement.

S. 2145 (Collins)

Senator Collins, Chairman of the Homeland Security and Governmental Affairs

Committee (HSGAC), introduced S. 2145, the Chemical Facility Anti-Terrorism Act,

on December 19, 2005, following four full Committee hearings on the subject.1 Cosponsors on introduction included Senator Lieberman (the HSGAC Ranking

1

Recordings of the four hearings are available on the Committee’s website. They are

“Chemical Attack on America: How Vulnerable Are We?” held April 27, 2005; “Is the

Federal Government Doing Enough to Secure Chemical Facilities and Is More Authority

Needed?” held June 15, 2005; “Chemical Facility Security: What Is the Appropriate Federal

Role?” held July 13, 2005; and “Chemical Facility Security: What Is the Appropriate

Federal Role? (Part II),” held July 27, 2005. The House Committee on Homeland Security,

Subcommittee on Economic Security, Infrastructure Protection, and Cybersecurity also held

a hearing on this issue on June 15, 2005, “Preventing Terrorist Attacks on America’s

Chemical Plants.” A recording of the House hearing is not posted on the Committee

website, but a transcript is available on the Congressional Quarterly website at

[http://www.cq.com/].

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Member), Senator Coleman, Senator Carper, and Senator Levin, all members of the

HSGAC. The HSGAC reported an amended bill (without written report) on June 26,

2006.

Chemical Sources and Substances of Concern. S. 2145 would direct

the DHS Secretary to promulgate rules for designating chemical facilities (referred

to in the legislation as “chemical sources”) that would be subject to regulation,

assigning these facilities to various risk-based tiers and establishing performancebased security standards for each tier. Facilities would be considered for designation

if they produced, used, or stored a substance of concern in a quantity equal to or

greater than a threshold quantity. To assist DHS in identifying facilities, the bill

would establish a duty to report to DHS for facilities handling more than a threshold

quantity of a designated substance of concern. Substances of concern would be those

that trigger risk management planning requirements under the Clean Air Act (CAA),

Section 112(r)(7),2 as well as ammonium nitrate and any other substance designated

by the Secretary. A decision to designate a substance would be based on the potential

extent of death, injury, or serious adverse effects to human health and safety or the

environment, or the potential impact on national or economic security or critical

infrastructure caused by a terrorist incident.

Vulnerability Assessments and Planning Requirements. Designated

facilities would be assigned to risk-based tiers and required to complete and submit

to DHS vulnerability assessments, security plans, and emergency response plans for

terrorist incidents. DHS would be required to review these submissions within five

years of their date of submission and to provide a written determination to approve,

disapprove, or modify facility assessments and plans, as well as implementation of

plans. DHS would be prohibited from disapproving a site security plan based on the

presence or absence of a particular security measure, if the plan satisfied the

performance standards established for the applicable risk-based tier.

For facilities in the higher-risk tiers, S. 2145 would require a preliminary DHS

review of facility assessments and plans within nine months of the date when DHS

issues regulations concerning assessments and plans. At that time, DHS would have

to provide notice and compliance assistance to facilities for which an assessment or

plan may not be approved. Three months later, (within one year of the date when

DHS issues regulations concerning assessments and plans), S. 2145 requires a written

determination by DHS to approve, disapprove, or modify facility assessments and

plans, as well as implementation of plans for higher-risk facilities.

S. 2145 would require intergovernmental coordination, and requires facility

owners or operators to specify in their plans “steps taken by the chemical source to

coordinate security measures and plans for response to a terrorist incident with

Federal, State, and local government officials, including law enforcement and first

responders.” Plans would have to be “sufficient to deter, to the maximum extent

2

The list of regulated substances may be found at 40 CFR 68.130. Risk management

planning is required to reduce and mitigate the risk to neighboring communities from

accidental releases at facilities handling more than a threshold quantity of any of the 140

listed substances.

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practicable, a terrorist incident or a substantial threat of such an incident,” and

“include security measures to mitigate the consequences of a terrorist incident.”

Enforcement. S. 2145 would provide administrative, civil, and criminal

penalties for facility owners or operators who fail to submit assessments or plans or

to implement plans adequately. DHS would be authorized to issue an order for the

chemical source to cease operation if the facility persisted in noncompliance with the

requirements established under S. 2145.

Coordination. The bill would mandate coordination with existing security

and emergency response planning, including planning under the Maritime

Transportation Security Act (MTSA). To ensure coordination, S. 2145 establishes

regional security offices and area security committees and plans. State and local laws

would not be preempted unless they were inconsistent with federal law.

Information Disclosure. DHS, other federal agencies, and state and local

agencies would be prohibited from releasing to the public “protected information.”

That term is defined to include vulnerability assessments, site security plans, security

addenda to emergency response plans, area security plans, or materials developed or

produced exclusively in preparation for assessments or plans. S. 2145 also includes

in the definition of “protected information” any document obtained by DHS or a state

or local government from a chemical source in accordance with this Act, and any

document prepared by or provided to a federal agency or state or local government,

to the extent that the record contains information that (1) describes a specific

chemical source or the specific vulnerabilities of a chemical source; (2) was taken

from a vulnerability assessment, site security plan, addendum to an emergency

response plan, materials produced by a chemical source exclusively in preparation

of such documents, or a copy of such record in possession of the chemical source;

and (3) would, if disclosed, be detrimental to the security of a chemical source.

The introduced bill would have required public disclosure of written

certifications of compliance by facility owners/operators, DHS certificates of

compliance issued for individual sources, DHS orders issued for noncompliance, and

lists of facilities for which DHS has issued an approval or disapproval, unless the

Secretary determined that release of a particular record would increase security risk.

An amendment to S. 2145 was approved during markup that reverses this provision,

such that certifications and orders could not be disclosed unless the Secretary were

to determine that release of a particular record would increase security risk. Even if

the Secretary determined an absence of increased risk, the Secretary would be

authorized, but not required, to disclose the record.

Judicial Review. As introduced, S. 2145 was silent with respect to judicial

review. However, S. 2145 was amended during markup to permit any person to file

a petition with the U.S. Court of Appeals for the District of Columbia for judicial

review of a rule within 60 days of promulgation. The reported bill directs the court

to review rules in accordance with the Administrative Procedure Act (i.e., 5 U.S.C.

§701 et seq.).

The amended bill would allow only an owner or operator whose facility is

affected by a final agency action to file a petition for judicial review of the action

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with an appropriate U.S. district court. (The standard of review would remain that

in the Administrative Procedure Act.) Only the owner or operator and the Secretary

could participate in such civil actions. In addition, the bill expressly prohibits any

private civil actions against an owner or operator to enforce provisions of the Act.

Other Accountability Measures. Other provisions of S. 2145 would

require reports by DHS and GAO, establish a process by which any person might

submit a report to DHS regarding vulnerabilities of a chemical source, and protect

whistle-blowers from retaliation. During markup, an amendment was approved that

would prohibit GAO from releasing to the public any “protected information” in its

reports.

Ammonium Nitrate. S. 2145 directs the DHS Secretary, in consultation with

the Secretary of Agriculture, to regulate the production and sale of ammonium nitrate

to prevent misappropriation or use in violation of law. The bill would require

registration of facilities and purchasers, and restrict sales to registered producers,

sellers, and purchasers.

S. 2486 (Lautenberg)

Senator Lautenberg, a member of the HSGAC, introduced the Chemical

Security and Safety Act of 2006 (S. 2486) on March 30, 2006. Co-sponsors on

introduction included Senator Obama, Senator Kerry, Senator Menendez, Senator

Durbin, and Senator Biden.

Chemical Sources and Substances of Concern. S. 2486 addresses

security and safety at “stationary sources,” which are defined by reference to the

CAA Section 112(r)(2),3 but also to include other facilities that produce, process,

handle, or store any “substance of concern” and which the DHS Secretary designates

as “high priority.” Substances of concern are defined as substances listed under the

CAA Section 112(r)(3) in a threshold quantity or any other substance designated by

the Secretary under section 5(d) of the Chemical Security and Safety Act in a

threshold quantity.

The DHS Secretary, in consultation with the Administrator of the

Environmental Protection Agency (EPA), would be directed to designate by rule at

least 3,000 facilities handling substances of concern as “high priority categories.” In

designating high-priority facilities, the Secretary would be directed to consider

potential severity of harm; proximity to population centers; threats to national

security; threats to critical infrastructure; threshold quantities of substances of

3

The CAA §112(r)(2)(C) defines a “stationary source” to mean “any buildings, structures,

equipment, installations, or substance-emitting stationary activities (i) which belong to the

same industrial group, (ii) which are located on one or more contiguous properties, (iii)

which are under the control of the same person (or persons under common control), and (iv)

from which an accidental release may occur.” The CAA §112(r)(2)(A) defines “accidental

release” to mean “an unanticipated emission of a regulated substance or other extremely

hazardous substance into the ambient air from a stationary source.” The CAA §112(r)(2)(B)

defines “regulated substance” to mean “a substance listed under [CAA §112(r)] paragraph

(3).”

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concern that pose a serious threat; and other safety or security factors that the DHS

Secretary, in consultation with the EPA Administrator, determines to be appropriate.

S. 2486 also would require the Secretary to identify the 600 highest priority stationary

sources.

General Duty to Ensure Safe Design, Operation, and Maintenance.

For all stationary sources, S. 2486 would establish a general duty to —

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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 of stationary sources would be required to involve employees

in ensuring the “design, operation, and maintenance of safe facilities,” an obligation

that is defined to include use of inherently safer technology (IST) “to the maximum

extent practicable.” S. 2486 defines IST as the “use of a technology, product, raw

material, or practice that, as compared to the technology, products, raw materials, or

practices currently in use ... significantly reduces or eliminates the possibility of the

release of a substance of concern, and ... significantly reduces or eliminates the

hazards to public health and safety and the environment associated with the release

or potential release.” This definition includes such actions as “chemical substitution,

process redesign, product reformulation, and procedural and technological

modification.”

Vulnerability Assessments and Planning Requirements. Each owner

or operator of a high-priority facility would be required to submit to DHS a written

report that would include a vulnerability assessment, a hazard assessment, and a

prevention, preparedness, and response plan that would incorporate the results of the

assessments and meet requirements established by DHS. Each plan would have to

include discussion of the practicability of implementing each element of “safe”

facility design, operation, and maintenance. The bill also requires consultation with

employees at the facility in developing the assessments and plan.

S. 2486 would require the DHS Secretary to review each submitted report to

determine whether it complied with DHS regulations, and to certify approval for

compliant facilities. In addition, the bill directs the DHS Secretary to notify any

owner or operator who submits a plan that is disapproved. S. 2486 would establish

an information clearinghouse to assist facilities in complying with requirements.

Enforcement. S. 2486 would provide administrative, civil, and criminal

penalties for facility owners or operators who failed to comply with a compliance

order or directive issued by the Secretary. If a threat of a terrorist attack is beyond

the scope of a submitted prevention, preparedness, and response plan, or current

implementation of the plan is insufficient, DHS would be authorized to issue a

compliance order. If a facility persisted in noncompliance, the Secretary would be

authorized, after notifying the facility of that fact, to seek judicial relief to abate the

threat. Such judicial relief could include an order to cease operation and such other

orders as would be necessary to protect public health or welfare.

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Coordination. S. 2486 mandates coordination of implementation for the

Chemical Security and Safety Act with the MTSA and directs the DHS Secretary to

minimize duplication of requirements for risk assessment and response plans under

other federal law.

Information Disclosure. S. 2486 would protect DHS from public disclosure

requirements of the federal Freedom of Information Act (FOIA) for “all documents

provided to the DHS Secretary under this Act, and all information that describes a

specific vulnerability or stationary source derived from those documents.” A few

documents are excepted from this protection, such as compliance certifications by the

DHS Secretary. In addition, information derived from the protected documents may

be disclosed if it would not divulge trade secrets, not identify any particular

stationary source, and “is not reasonably likely to increase the probability or

consequences of a criminal release.” No protection is provided for information at

other federal agencies, but state and local government agencies are protected from

disclosure requirements of all federal, state, and local laws. As for DHS information

protection, a few documents are excepted from protection at state and local

government agencies.

Judicial Review. S. 2486 is silent with respect to judicial review of DHS

actions. That means that final actions by DHS, whether rules or orders, would be

subject to judicial review as provided by the generally applicable Administrative

Procedure Act (APA; 5 U.S.C. §501 et seq.). The APA permits any person the right

to petition a federal district court for review of a final agency action. Under the APA,

an agency rulemaking can be held unlawful or set aside if it is found to be “arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with the law.”4

The court can also “compel agency action unlawfully withheld or unreasonably

delayed.”

Other Accountability Measures. S. 2486 would establish Employees’

Safety and Security Committees at stationary sources with at least 15 employees, and

mandates employee training at all stationary sources with respect to the Act’s

requirements. In addition, the bill would require notification and involvement of

employees in facility inspections and investigations. Protection is provided for

employees who might report problems at their facilities to authorities.

Ammonium Nitrate. S. 2486 does not authorize additional regulation

regarding sale or purchase of ammonium nitrate.

Key Similarities and Differences

Chemical Sources. Both bills would direct the Secretary to focus on

chemical sources regulated under the CAA §112(r). However, S. 2145 provides the

Secretary discretion with respect to designating and requires only that the Secretary

consider “any facility that is a stationary source ... for which the owner or operator

is required to complete a risk management plan....” Facilities required to complete

a risk management plan are those at which a regulated substance is present at a

4

The judicial review provisions of the APA are codified at 5 U.S.C 701-706.

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quantity greater than a threshold quantity (CAA §112(r)(7)). In contrast, S. 2486

would apply to all stationary sources, which the bill defines with reference to the

CAA §112(r)(2). That definition includes “any buildings, structures, equipment,

installations, or substance-emitting stationary activities” (arguably a wider category

than “facilities”) “(i) which belong to the same industrial group, (ii) which are

located on one or more contiguous properties, (iii) which are under the control of the

same person (or persons under common control), and (iv) from which an accidental

release may occur.”

In addition, both bills would authorize designation of additional facilities for

regulation. S. 2145, but not S. 2486, exempts facilities owned or operated by the

Department of Energy, the Department of Defense, or a licensee or certificate holder

of the Nuclear Regulatory Commission.

Substances of Concern. S. 2145 would define “substance of concern” as

a chemical substance present at a chemical source in a quantity equal to or exceeding

the threshold quantity, as established under the CAA §112(r)(3) and (5); ammonium

nitrate, in a quantity to be determined by the Secretary; or any other chemical

substance above a threshold quantity designated by the Secretary. S. 2486 would

define “substance of concern” similarly, but does not include ammonium nitrate in

its definition.

General Duty. S. 2145 would not impose a general duty on stationary sources

that produce, process, handle, or store any “substance of concern,” as does S. 2486.

The latter would require owners or operators of stationary sources (1) to identify

hazards that may result from a criminal release; (2) to ensure the “design, operation,

and maintenance of safe facilities”; and (3) to eliminate or minimize the

consequences of any criminal release.

Inherently Safer Technology. S. 2486 would require owners or operators

of stationary sources to ensure the “design, operation, and maintenance of safe

facilities,” which the bill defines to include the use of IST “to the maximum extent

practicable.” Higher priority stationary sources are required to consider use of IST,

implement IST to the maximum extent practicable, and document consideration in

security and response plans. S. 2145 does not require consideration or

implementation of IST, although it explicitly allows consideration and use of

technologies that would reduce potential consequences of any successful terrorist

attack as a security measure in a site security plan. During markup of S. 2145, the

committee approved an amendment that would prohibit the Secretary from

disapproving a security plan because it failed to incorporate a particular security

measure. This provision was adopted to ensure that the Secretary would not require

IST.

Information Protection. Both bills would exempt DHS from FOIA

requirements for public disclosure of agency documents. S. 2145 would prohibit

disclosure of “protected information” (see definition above). In addition, it prohibits

disclosure of certifications and orders that might reveal the compliance status of

regulated facilities. Certifications (but not orders) may be released only if the

Secretary determines that release of such information would not increase the risk to

a facility. S. 2145 directs the Secretary to develop protocols to ensure, to the

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maximum extent practicable, that protected information will be maintained in a

secure location and that access will be limited to persons granted access for the

purpose of carrying out the Chemical Facility Anti-Terrorism Act. The bill also

mandates that any officer or employee of a federal, state, or local government agency

who knowingly discloses any protected information be imprisoned for up to one year,

fined under chapter 227 of title 18, United States Code, or both, and if a federal

employee, removed from office or employment.

S. 2486 would exempt DHS from FOIA requirements with respect to “all

documents provided to the DHS Secretary under this Act, and all information that

describes a specific vulnerability or stationary source derived from those documents,”

but the bill also would allow public disclosure of information derived from the

documents and information that is protected if it would not divulge trade secrets,

identify any particular stationary source, and “is not reasonably likely to increase the

probability or consequences of a criminal release.” S. 2486 would not restrict

disclosure of certifications under §6(b), orders under §10(a), or best practices

established under §13(4) of the Act. The bill would require the Secretary to develop

information protection protocols, but S. 2486 would not authorize penalties for

unauthorized disclosure of protected information.

Regional and Area Planning. S. 2145 would establish regional DHS

security offices to oversee facility efforts and area committees to coordinate local,

state, and federal security and emergency response planning. S. 2486 does not

include such provisions.

Judicial Review. S. 2145 distinguishes between rulemaking and other final

agency actions with respect to courts of jurisdiction, as well as parties authorized to

act. S. 2145 would allow challenges to final rules only in the U.S. Court of Appeals

for the District of Columbia, but challenges to any other final actions could be filed

only in the appropriate federal district court. Because S. 2486 does not address

judicial review of final DHS actions, actions may be filed in any federal district court.

S. 2145 would permit any person to file a petition for judicial review of a final

regulation but would permit only the owner or operator of a chemical source to file

a petition for review of a final agency action or order. Only that owner or operator

and the Secretary would have the right to participate in such civil action. In contrast,

because S. 2486 does not address judicial review of final DHS actions, any person

who is affected by a final DHS action, including promulgation of a final rule, has the

right under the Administrative Procedure Act to file an action for its review and to

participate in any civil action initiated by another.

Finally, S. 2145 explicitly denies any right to private civil actions against an

owner or operator to enforce provisions of the Act. Again, S. 2486 is silent with

respect to private rights of action. As a result, it is unclear whether a private right of

action would be permitted.

Worker Involvement. S. 2486 would establish Employees’ Safety and

Security Committees at facilities with 15 or more employees to identify, discuss, and

make recommendations to owners or operators concerning potential hazards and risks

relevant to security, safety, health, and the environment. These committees are to

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participate in developing, reviewing, and revising vulnerability assessments, hazard

assessments, and prevention, preparedness, and response plans at their facilities.

Owners or operators would be required to provide employees annually with four

hours of training relevant to security and safety planning. S. 2145 does not have such

provisions. Both bills provide protection for employees who might report problems

at their facilities to authorities, but whistle-blower protection provisions are more

extensive and detailed in S. 2486 than in S. 2145.

Ammonium nitrate. S. 2145 directs the DHS Secretary, in consultation with

the Secretary of Agriculture, to regulate the production and sale of ammonium nitrate

to prevent misappropriation or use in violation of law. The bill would require

registration of facilities and purchasers, and it would restrict sales to registered

producers, sellers, and purchasers. S. 2486 does not contain such provisions.

Table 1 summarizes selected provisions of the two bills.

CRS-10

Table 1. Comparison of S. 2145, as Reported, and S. 2486,

as Introduced, in the 109th Congress

Provision

Title

S. 2145, as reported

S. 2486, as introduced

Chemical Facility Anti-Terrorism Chemical Security and Safety Act

Act [§1]

[§1]

Key Definitions

Chemical source

Defined as a facility designated

Not defined. Instead defines

by the Secretary of the

“stationary source” as defined in

Department of Homeland Security the Clean Air Act (CAA)

(DHS).

§112(r)(2) with the addition of any

chemical facility designated by the

DHS Secretary under §5(d) of the

Chemical Security and Safety Act.

Protected

information

Not defined. Information that is to

Includes (1) any vulnerability

be protected under §11(a) includes

assessment, site security plan,

“all documents provided to the

area security plan, and security

DHS Secretary under this Act, and

addendum to an emergency

all information that describes a

response plan prepared for the

purposes of this Act and obtained specific vulnerability or stationary

source derived from those

by DHS under §4; (2) any

documents,” except certifications

materials obtained by DHS and

under §6(b), orders under §10(a),

developed or produced by a

and best practices for IST

chemical source exclusively in

established under §13(4).

preparation of records,

documents, or information

referred to by an assessment, plan,

or addendum or an emergency

response plan; (3) any document

or other information obtained by

DHS or a state or local

government from a chemical

source in accordance with this

Act, and any document prepared

by or provided to a federal agency

or state or local government, to

the extent that the document or

information (a) describes a

specific chemical source or the

specific vulnerabilities of a

chemical source; (b) was taken

from a vulnerability assessment,

site security plan, area security

plan, addendum to an emergency

response plan, or an emergency

response plan or from a copy of

such record in possession of the

chemical source; and (c) would, if

disclosed, be detrimental to the

security of a chemical source.

CRS-11

Provision

S. 2145, as reported

S. 2486, as introduced

Security or safety

measure

Defines “security measure”

broadly to include measures to

prevent or detect the presence of

terrorists in sensitive areas of the

facility, as well as measures to

reduce consequences in the event

of a successful terrorist attack.

[§2]

Defines “design, operation, and

maintenance of safe facilities” to

include “to the maximum extent

practicable” —

“use of inherently safer

technology;” measures to make

facilities impregnable; “outreach to

the surrounding community;”

improving site security, employee

training, and coordination with

state and local emergency officials,

law enforcement agencies, and first

responders; and secondary

containment, control, or mitigating

equipment. The definition also

includes use of buffer zones.

Use of inherently

safer technology

No comparable definition.

Defines “use of inherently safer

technology” as use of a technology,

product, raw material, or practice

that significantly reduces or

eliminates the possibility of the

release of a substance of concern,

and significantly reduces or

eliminates the hazards to public

health and safety and the

environment associated with the

release or potential release.

[§3]

Substance of

concern

Defined as a chemical substance Defined as any substance listed

present at a chemical source in a under the CAA §112(r)(3) in a

quantity equal to or exceeding the threshold quantity or any other

substance designated by the

threshold quantity for the

chemical substance, as established Secretary in a threshold quantity

under §5(d) of this Act. Does not

under the CAA §112(r)(3) and

refer to the CAA §112(r)(5) or

(5); ammonium nitrate, in a

quantity to be determined by the ammonium nitrate.

[§3]

DHS Secretary; or any other

chemical substance above a

threshold quantity designated by

the DHS Secretary under §3(i).

[§2]

CRS-12

Provision

S. 2145, as reported

S. 2486, as introduced

Covered Facilities

Includes facilities designated by

DHS under §3(a), but not

facilities owned or operated by

the Department of Energy,

Department of Defense, or a

licensee or certificate holder of

the Nuclear Regulatory

Commission.

In designating facilities, the DHS

Secretary must consider:

(1) any facility that is a

“stationary source” under the

Clean Air Act (CAA), §112(r)(2)

and for which the owner or

operator is required to complete a

risk management plan in

accordance with CAA §112(r)(7)

(B)(ii); (2) any other facility that

produces, uses, or stores a

“substance of concern”; and (3)

any additional facility that the

DHS Secretary determines shall

be designated a chemical source.

[§3(c)-(d)]

Includes all “stationary sources”

under the CAA §112(r)(2), in

addition to any other sources

designated in regulations as “high

priority” under §5(d) by the DHS

Secretary.

[§5]

Criteria for

Designating Facilities

No comparable provision, but

Requires the DHS Secretary to

criteria for designating highestablish criteria for designating

priority sources are similar. See

chemical sources by regulation.

“Identifying Priorities” below.

The DHS Secretary must base

designation criteria on the

following “risk factors”:

— perceived threat to a facility;

— potential extent and likelihood

of serious adverse effects to

human health and safety or to the

environment;

— threats to or potential impact

on national security or critical

infrastructure;

— potential threats or harm to the

economy;

— proximity of a facility to

population centers;

— nature and quantity of

substances of concern; and

— other security-related factors

necessary to protect public health

and safety, critical infrastructure,

and national and economic

security.

[§3(a)-(b)]

CRS-13

Provision

Identifying Priorities

S. 2145, as reported

S. 2486, as introduced

Requires the DHS Secretary, in

Requires the DHS Secretary to

consultation with the Administrator

promulgate rules establishing a

risk-based tier system of chemical of the U.S. Environmental

Protection Agency (EPA) and state

sources, consisting of several

and local government agencies

tiers, and providing guidance to

responsible for planning for and

owners and operators regarding

actions that would enable a source responding to criminal releases and

to move to a lower risk tier. One for providing emergency health

care, to designate “high priority”

or more tiers must be “higher

facilities by regulation, based on

risk” tiers.

“the severity of the threat posed by

Directs the DHS Secretary to

a criminal release.” At least 3,000

determine the tier applicable to

each designated chemical source. facilities must be designated “high

(Note that the listing of facilities priority.” In designating facilities

“high priority,” the DHS Secretary

is not through rule-making.)

must consider:

[§3(e)]

— potential severity of harm;

— proximity to population

centers;

— threats to national security;

— threats to critical infrastructure;

— threshold quantities of

substances of concern that pose a

serious threat; and

— other safety or security factors

that the DHS Secretary, in

consultation with the EPA

Administrator, determines to be

appropriate. Each stationary

source must be considered

individually.

The DHS Secretary also must

identify the 600 highest priority

stationary sources. [§5(a)-(b) and

§6(c)(1)]

In designating high-priority

categories, the DHS Secretary, in

consultation with the EPA

Administrator, is authorized to

designate by rule any chemical

facility as a “stationary source.”

[§5(d)]

CRS-14

Provision

S. 2145, as reported

S. 2486, as introduced

General Duty

No comparable provision.

Establishes for each owner and

operator of a stationary source that

produces, processes, handles, or

stores any “substance of concern” a

general duty: (1) to identify

hazards that may result from a

criminal release; (2) to ensure the

“design, operation, and

maintenance of safe facilities;” and

(3) to eliminate or minimize the

consequences of any criminal

release. Requires that the owner or

operator of a stationary source

involve employees of the source in

each aspect of ensuring the

“design, operation, and

maintenance of safe facilities.”

[§4]

Security Standards

Requires the DHS Secretary to

establish security performance

standards for each risk-based tier

of facilities, with stricter

requirements for tiers posing

greater risks. The standards must

allow an owner or operator to

select security measures that, in

combination, satisfy the security

performance standards and must

be risk-based, performance-based,

flexible, and include

consideration of the criteria for

designating chemical sources

[under §3(a)], cost, technical

feasibility, and scale of

operations.

[§3(f)]

Requires the DHS Secretary, in

consultation with the EPA

Administrator, the U.S. Chemical

Safety and Hazard Investigation

Board, and state and local

government agencies, to

promulgate regulations that require

each owner and each operator of a

“high priority” stationary source to

take action to detect, prevent, and

eliminate or reduce the

consequences of terrorist attacks

and other criminal releases. Such

action must be taken in

consultation with local law

enforcement, first responders,

employees, and employee

representatives, and must include

the “design, operation, and

maintenance of safe facilities.”

[§5(c)(1) and §5(e)]

Notice to Potentially

Designated Facilities

Requires the DHS Secretary to

notify potentially regulated

facilities about the process and

timeline for review and

designation of chemical sources.

[§3(g)]

No comparable provision.

Review of Designation Requires the DHS Secretary to

of Chemical Sources

review and revise as necessary the

list of designated sources every 3

years. Authorizes additional

revisions of the list by the DHS

Secretary.

[§3(h)]

Requires the DHS Secretary, in

consultation with the EPA

Administrator, to review the

regulations designating “high

priority” sources and make

necessary revisions, at least once

every 5 years.

[§5(e)]

CRS-15

Provision

Identification of

Additional Chemical

Sources

S. 2145, as reported

S. 2486, as introduced

Requires the owner or operator of No comparable provisions, but see

“Identifying Priorities” above.

any facility where a threshold

quantity of a substance of concern

is present to petition the DHS

Secretary for a determination on

whether that facility should be

designated a chemical source, if

that facility has not been required

to complete a risk management

plan (under the CAA §112(r)(7)

(B)(ii).

Directs the DHS Secretary to

consult with the EPA

Administrator to establish a

mechanism for DHS to receive

timely notice when a facility is

required to complete a risk

management plan in accordance

with CAA §112(r)(7)(B)(ii).

Requires the owner or operator of

any newly operational facility that

handles at least the threshold

quantity of a substance of concern

to file a petition with the DHS

Secretary for a determination on

whether that facility should be

designated a chemical source.

[§3(h)]

Authority to

Designate Substances

of Concern and

Threshold Quantities

Authorizes the DHS Secretary to

issue a rule designating or

exempting a chemical substance

as a substance of concern or

establishing or revising the

threshold quantity. In

promulgating such rules, the DHS

Secretary must consider “the

potential extent of death, injury,

or serious adverse effects to

human health and safety or the

environment and the potential

impact on national security, the

economy, or critical infrastructure

that would result from a terrorist

incident involving the chemical

substance.”

[§3(i)]

Authorizes the DHS Secretary, in

consultation with the EPA

Administrator, for the purpose of

designating “high priority”

categories, to designate by rule any

additional substance that, in a

specified threshold quantity, poses

a serious threat as a “substance of

concern.” [§5(d)]

CRS-16

Provision

S. 2145, as reported

S. 2486, as introduced

Vulnerability

Assessments, Site

Security Plans, and

Emergency Response

Plans

Requires the DHS Secretary to

promulgate regulations requiring

the owner or operator of each

chemical source to conduct a

vulnerability assessment, prepare

and implement a site security

plan, and prepare and implement

an emergency response plan or

addendum to an existing plan.

The regulations must be riskbased, performance-based,

flexible, and include

consideration of the criteria for

designating chemical sources

[§3(a)], cost, technical feasibility

and scale of operations.

Authorizes cooperation among

sources operating at contiguous

locations. Directs the DHS

Secretary to share relevant threat

information with state and local

government officials and with an

owner or operator of a chemical

source. Specifies content of

vulnerability assessments.

[§4(a)]

Requires each owner or operator of

a high-priority facility to submit a

report to the DHS Secretary within

6 months of the date on which

regulations are promulgated under

§5(c)(1). The report must include

a vulnerability assessment, an

assessment of the hazards that may

result from a criminal release; and

a prevention, preparedness, and

response plan.

Requires the DHS Secretary to

notify each stationary source of an

elevated threat if the DHS

Secretary, in consultation with

local law enforcement officials,

determines that a threat of a

terrorist attack exists that is beyond

the scope of a submitted

prevention, preparedness, and

response plan of one or more

stationary sources.

[§5(c)(2) and §10(c)(1)]

Content of Site

Security Plans

Requires that each site security

plan indicate the tier applicable to

the facility; address risks

identified in the vulnerability

assessment; address appropriate

security performance standards;

include security measures

appropriate to the tier level that

are “sufficient to deter, to the

maximum extent practicable, a

terrorist incident or a substantial

threat of such an incident;”

include security measures to

mitigate the consequences of a

terrorist incident; increase

security of automated systems;

describe contingency plans for the

facility; identify roles and

responsibilities of employees;

identify steps taken to coordinate

with government officials;

describe training, drills, exercises,

and security actions; and describe

security measures that would be

implemented in response to an

order under §7 in the event that

heightened security measures

became necessary for a particular

facility.

[§4(a)]

Requires that each plan incorporate

the results of the vulnerability and

hazard assessments. Required

reports to DHS also must include a

statement as to how the plan meets

the requirements of the regulations;

a statement as to how the

prevention plan meets the general

duty requirements of §4; a

discussion of the consideration of

the elements of “design, operation,

and maintenance of safe facilities,”

including the practicability of

implementing each element; and a

statement describing how and when

employees and employee

representatives were consulted.

[§5(c)(2)]

CRS-17

Provision

S. 2145, as reported

S. 2486, as introduced

Contents of

Emergency Response

Plans

No comparable provision.

Requires that an emergency

response plan address the

consequences of a terrorist

incident identified in the

vulnerability assessment; is

consistent with the site security

plan; and identifies the roles and

responsibilities of employees.

Requires plans to be modified

versions of plans that have been

federally approved or certified

and that are in effect on the date

of enactment, if consistent with

guidance provided by the

National Response Team (NRT)

established under the National

Contingency Plan.5 If no plan

exists, then the owner or operator

is required to develop one by

following guidance provided by

the NRT. Directs owners or

operators to place security

information in an addendum to

the plan, if necessary, to protect it

from public disclosure.

[§4(a)]

Self-Certification and

Submission

Within 6 months of promulgation No comparable provision.

of rules requiring vulnerability

assessments, site security plans,

and emergency response plans,

each owner or operator of a

chemical source must certify in

writing to the DHS Secretary that

a vulnerability assessment has

been completed and a site security

plan and an emergency response

plan have been developed and

implemented, and must submit

copies of the vulnerability

assessment and plans to the DHS

Secretary.

[§4(b)]

5

The National Contingency Plan (NCP) and the National Response Team (NRT) are

established by EPA and the U.S. Coast Guard under the authority of Section 105 of the

Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (also

known as Superfund, 42 U.S.C. 9605). The purpose of the NCP and NRT is to coordinate

cleanup of releases of hazardous substances or oil.

CRS-18

Provision

S. 2145, as reported

S. 2486, as introduced

Review and Approval

by the DHS Secretary

of Reports Submitted

by Covered Facilities

Requires the DHS Secretary, in

Requires the DHS Secretary,

within 5 years of the promulgation consultation with the EPA

of requirements for vulnerability Administrator, to review each

report submitted to determine

assessment and site security and

emergency response planning, to whether the source covered by the

report is in compliance with

review submitted documents to

regulations promulgated under

determine whether they comply

§5(c)(1). Requires the DHS

with requirements promulgated

Secretary, after consultation with

under §4(a). Authorizes

subsequent reviews on a schedule the EPA Administrator, to notify

the stationary source and to

to be determined by the DHS

provide advice and technical

Secretary. Requires the DHS

Secretary to provide the owner or assistance to the source, if the DHS

operator written notice regarding Secretary determines, in

DHS determination of compliance consultation with the EPA

Administrator, that a report does

or noncompliance of the

vulnerability assessment, security not comply, a threat exists that is

and emergency plans, and facility beyond the scope of the plan

submitted, or the implementation

implementation. DHS is

of the plan is insufficient.

prohibited from disapproving a

[§6(a) and (d)]

site security plan based on the

presence or absence of a

particular security measure, if the

plan satisfies the performance

standards established for the

applicable tier. If a notice

indicates disapproval, the notice

must include a clear explanation

of deficiencies, and DHS must

consult with the owner or operator

to identify steps to achieve

compliance. [§4(c)]

Schedule for Review

and Approval of

Reports by Facilities

in Higher-risk Tiers

Within 2 years of the date on which

Within 9 months of the

promulgation of requirements for reports are required to be

vulnerability assessment and site submitted under §5(c)(2), requires

security and emergency response the DHS Secretary to complete

review and certification of all

planning, requires the DHS

Secretary to conduct a preliminary reports submitted by high-priority

review of higher-risk facilities and stationary sources. Within 6

months of the date on which

provide notice and compliance

assistance to owners or operators reports are required to be

submitted under §5(c)(2), requires

if their assessment or plan may

not be approved. Within one year the DHS Secretary to review

reports and certify compliance of

of the promulgation of

requirements for assessments and the 600 highest priority stationary

plans, requires the DHS Secretary sources.

[§6(c)]

to (1) review and approve,

disapprove, or modify a

vulnerability assessment, site

security plan, and emergency

response plan submitted by a

chemical source in a higher-risk

tier; and 2) determine whether the

chemical source is operating in

compliance with the submitted

site security plan and emergency

response plan. [§4(c)]

CRS-19

Provision

S. 2145, as reported

S. 2486, as introduced

Certificate of

Compliance

Requires the DHS Secretary to

issue a certificate of approval for

facilities in compliance with the

requirements of this Act.

[§9(b)(2)]

Requires the DHS Secretary to

certify each compliance

determination for each “higher

priority” source, and to include a

checklist indicating the

consideration by the source of the

use of elements of “design,

operation, and maintenance of safe

facilities.”

[§6(b)]

Authority to Issue

Orders for

Noncompliance

Authorizes the DHS Secretary to Authorizes the DHS Secretary, in

consultation with the EPA

issue an order requiring

certification and submission, if an Administrator, to issue an order

owner or operator fails to certify requiring compliance by the owner

or operator of a stationary source

or to submit a vulnerability

assessment, site security plan, or 30 days after the date on which the

emergency response plan. Directs DHS Secretary first provided

assistance, or the owner or operator

the DHS Secretary to issue an

received notice regarding a

order requiring correction of

specified deficiencies if the owner deficient report under §6(d)(2),

whichever is later. An order may

or operator does not achieve

be issued only after such notice and

compliance by a date to be

determined by the DHS Secretary. an opportunity for a hearing.

Authorizes the DHS Secretary to [§10(a)]

issue an order for a chemical

source to cease operation, if the

owner or operator continues to be

in noncompliance after an order to

comply with requirements has

been issued.

[§4(b)-(c)]

Authority to Close

Non-compliant

Facilities in HigherRisk Tiers

Authorizes the DHS Secretary to No comparable provision, but see

“Heightened Security Measures”

issue an order to a chemical

below.

source in a higher risk tier to

cease operation, if the DHS

Secretary disapproves its

vulnerability assessment, site

security plan, or emergency

response plan or determines that a

chemical source is not operating

in compliance with its site

security plan or emergency

response plan.

[§4(c)]

CRS-20

Provision

Heightened Security

Measures

Information

clearinghouse

S. 2145, as reported

S. 2486, as introduced

Authorizes the DHS Secretary to If the DHS Secretary has notified a

stationary source that a threat of a

issue an order to the owner or

terrorist attack exists that is beyond

operator of a chemical source

the scope of a submitted

mandating security measures

prevention, preparedness, and

specified in rules promulgated

under §4(a), if the DHS Secretary response plan of one or more

determines that additional security stationary sources, or that current

measures are necessary to respond implementation of the plan is

insufficient, and the response by a

to a threat. Orders may be

stationary source to such

effective for up to 90 days, or

longer if the DHS Secretary files notification is insufficient, the DHS

Secretary is required to notify the

an action in a U.S. district court

stationary source, the EPA

and the court authorizes an

Administrator, and the Attorney

extension.

General. After the DHS Secretary

[§7]

provides such notice, the DHS

Secretary or the Attorney General

may secure such relief as is

necessary to abate a threat,

including an order to cease

operation and such other orders as

are necessary to protect public

health or welfare. Provides district

courts with the jurisdiction to grant

such relief.

[§10(c)(2)]

No comparable provision.

Authorizes [by reference to the

CAA §112(r)(9)] judicial relief in

the case of an imminent danger to

public health.

[§9(a)]

No comparable provision.

Requires the DHS Secretary, in

consultation with the EPA

Administrator, to establish an

information clearinghouse to assist

stationary sources in complying

with this Act that includes

“scalable best practices” for IST

and other actions.

[§13]

CRS-21

Provision

S. 2145, as reported

S. 2486, as introduced

No comparable provision.

Requires owners or operators of

Submissions and

chemical sources to notify the

Certification of

Changes Affecting the DHS Secretary in writing within

Security of a Chemical 60 days of any change to a

Source

chemical source that would have a

“materially detrimental effect” on

its security. Requires owners and

operators to certify to the

Secretary that they have reviewed

and implemented necessary

modifications to the vulnerability

assessment, site security plan, or

emergency response plan.

Requires the DHS Secretary to

provide written notice to the

owner or operator if additional

modification of a vulnerability

assessment, site security plan, or

emergency response plan is

required. Requires owners or

operators to ensure temporary

security measures are

implemented before the modified

vulnerability assessment, site

security plan, or emergency

response plan is implemented.

[§4(d)]

CRS-22

Provision

Facilities Regulated

under Other Federal

Laws

S. 2145, as reported

S. 2486, as introduced

Requires a facility regulated under Requires the DHS Secretary, in

consultation with the EPA

the Maritime Transportation

Security Act (MTSA) to comply Administrator, to minimize

duplication of the requirements for

with the Chemical Facility AntiTerrorism Act by modifying and risk assessments and response

plans under the MTSA.

submitting to the Maritime

Security Coordinator and the

DHS Secretary its facility security

assessment and facility security

plan. Modifications should

ensure compliance with the

security performance standards of

the tier applicable to the chemical

source under the Chemical

Facility Anti-Terrorism Act.

Requires the DHS Secretary, in

consultation with the Federal

Maritime Security Coordinator, to

determine whether such facility

security assessment and plan meet

the security performance

standards established by the DHS

Secretary. Requires the DHS

Secretary to implement this Act

and the MTSA in “as consistent

and integrated manner as

possible,” and to ensure

coordination between the DHS

Under Secretary for Preparedness

and the Coast Guard

Commandant.

[§4(e)]

No comparable provision.

Requires the DHS Secretary, in

consultation with the EPA

Administrator, to minimize

duplication of the requirements for

risk assessments and response

plans under the CAA and other

federal law.

[§15(a)]

CRS-23

Provision

S. 2145, as reported

S. 2486, as introduced

Alternative Security

Programs

Authorizes the DHS Secretary to No comparable provision.

consider a petition submitted by

any person that describes alternate

security procedures, protocols,

and standards established by an

industry entity, government

authority, or other law and the

scope of chemical sources to

which it would apply. Authorizes

the DHS Secretary to determine

(by rule, regulation, or order)

whether the alternative security

program meets all promulgated

requirements for a vulnerability

assessment, security plan, and

emergency response plan. If the

DHS Secretary determines that all

requirements are met, the DHS

Secretary is required to notify the

petitioner that any chemical

source covered by that program

may submit an assessment or plan

prepared under that program

without revision. Authorizes the

DHS Secretary to specify (by rule,

regulation, or order) what

modifications would be necessary

to meet promulgated

requirements. Allows an owner or

operator covered by the program

to submit an alternative

assessment or plan with the

specified modifications.

[§4(f)]

Updates to

Vulnerability

Assessments, Site

Security Plans, and

Emergency Response

Plans

Requires the owner or operator of

a chemical source to review the

adequacy of the vulnerability

assessment, site security plan, and

emergency response plan on a

schedule to be determined by the

DHS Secretary, and to certify to

the DHS Secretary that the

chemical source has completed

the review and implemented any

needed modifications. For a

facility in a higher-risk tier,

requires the DHS Secretary to

establish a timeline that requires

review within one year of the date

of approval of the previous

vulnerability assessment, site

security plan, and emergency

response plan, and not less often

than every 3 years thereafter. For

a facility in any other tier, review

must be required at least every 5

years.

[§4(g)]

Requires the owner or operator of a

high priority stationary source,

within 3 years after the date of

submission of the first report and

every 2 years thereafter, to review

the adequacy of the report, certify

that the review is complete, and

submit to the DHS Secretary any

changes to the assessment or plan.

[§6(e)]

CRS-24

Provision

S. 2145, as reported

S. 2486, as introduced

Record Keeping, Site

Inspections, and

Production of

Information

Requires the owner or operator to

keep a copy of the vulnerability

assessment, site security plan, and

emergency response plan for 5

years after the date on which it

was approved by the DHS

Secretary. Authorizes the DHS

Secretary to require submission

of, or seek access to and copy,

any required copy of a

vulnerability assessment, site

security plan, or emergency

response plan or any

documentation needed to support

such assessment or plan or to

demonstrate implementation of

such.

Requires the owner or operator to

keep at the stationary source copies

of any vulnerability assessment,

hazard assessment, or prevention,

preparedness, and response plan

required under §5(c)(2). Provides

to the DHS Secretary and EPA

Administrator, for purposes of

determining compliance with this

Act, authority that is provided to

the EPA Administrator by the CAA

§112(r)(7), §112(r)(9), or §114.

Includes authority to require an

owner or operator to prepare and

submit hazard assessment, risk

management plans, or emergency

response plans; to establish and

maintain records; make reports;

submit compliance certifications;

or provide information.

Provides the DHS Secretary with

a right of entry to the premises of

a chemical source and any other

premises on which any required

copy of a vulnerability

assessment, site security plan, or

emergency response plan is

located.

Authorizes the DHS Secretary and

the EPA Administrator to enter

premises and have access to and

copy records.

Requires the DHS Secretary to

conduct, or require the conduct

of, facility security audits and

inspections to ensure and evaluate

compliance with the Chemical

Facility Anti-Terrorism Act. [§5]

Directs the DHS Secretary and the

EPA Administrator to establish a

program to conduct regular

inspections. Requires at least 25%

of inspections to occur without

prior notice to the facility owner or

operator.

No comparable provision.

When notice is provided, the DHS

Secretary or the EPA

Administrator must inform the

owner or operator that public

posting of that notice is required.

When conducting an inspection, an

official must instruct the owner or

operator to afford opportunity to

participate in the inspection to any

employee. Official explanations of

the purpose, scope, procedures,

progress, or outcome of an

inspection or investigation must be

shared with such employees.

Authorizes officials to interview

any person at the stationary source

as necessary.

[§9]

CRS-25

Provision

S. 2145, as reported

S. 2486, as introduced

Audits for HigherRisk Tiers

Requires DHS Secretary to

conduct an audit or inspection of

each higher-risk facility annually.

Authorizes exemptions for

particular facilities if they have

been audited and found in

compliance for 5 consecutive

years. [§5(b)(2)(C)]

No comparable provision.

Compliance Orders

for Record Keeping,

Inspections, and

Production of

Information

If the DHS Secretary determines

that an owner or operator of a

chemical source is not

maintaining, producing, or

permitting access to records or to

the premises of the chemical

source as required, authorizes the

DHS Secretary to issue an order

requiring compliance.

[§5(d)]

Authorizes the DHS Secretary, in

consultation with the EPA

Administrator, to issue an order

directing compliance 30 days after

the date on which the DHS

Secretary provides notice to the

source that it is not in compliance.

[§10(a)(1)]

Infrastructure

Protection and

Implementation

No comparable provision.

Requires the DHS Secretary to

provide necessary infrastructure,

leadership, technical assistance,

guidance, and accountability to

ensure effective security planning

and response in areas surrounding

chemical sources. Requires the

DHS Secretary to promulgate

regulations, establish

organizations, and take actions to

ensure effective planning and

response in a manner that models

requirements of the MTSA.

Requires the DHS Secretary to

coordinate with and complement

other federal area security and

response committees to provide a

unified and effective federal

security and response

organizational infrastructure.

[§6(a)]

Office for Chemical

Facility Security

Establishes under the DHS

No comparable provision.

Assistant Secretary for

Infrastructure Protection an office

responsible for implementing and

enforcing the Chemical Facility

Anti-Terrorism Act.

[§6(b)]

General Authority to

Regulate

No comparable general provision. Authorizes the DHS Secretary and

the EPA Administrator to

promulgate such regulations as are

necessary to carry out this Act.

[§15]

CRS-26

Provision

S. 2145, as reported

S. 2486, as introduced

Regional Security

Offices

No comparable provision.

Requires the DHS Secretary to

establish in each Federal

Emergency Management Agency

(FEMA) region an Infrastructure

Protection Regional Security

Office, to carry out this Act and

coordinate regional security.

Requires each office to consist of

DHS personnel in the

Infrastructure Protection Office

within the region, and regional

security advisory staff, to be

appointed by the DHS Secretary.

Each such office must review and

approve each Area Security Plan

in the region, oversee

implementation of this Act, and

perform other functions as

assigned by the DHS Secretary.

[§6(c)]

Area Security

Committees and

Coordinators

No comparable provision.

Requires the DHS Secretary,

within 6 months of enactment of

this Act, to designate geographic

areas for area committees and

planning. Requires that no area

be larger than a single state, and

all parts of the United States are

to be included in such areas

(except areas designated under

MTSA, which shall not be

included in any newly designated

area). Allows areas to incorporate

portions of more than one state.

Establishes an Area Security

Committee and a Coordinator for

each designated area. Requires

each Coordinator to conduct

audits and inspections of, and

provide guidance and support to,

chemical sources in the area.

[§6(d)]

CRS-27

Provision

S. 2145, as reported

S. 2486, as introduced

Area Security Plans

No comparable provision.

Requires each Area Security

Committee, within 2 years of the

date of enactment, to prepare and

submit to the DHS Secretary an

Area Security Plan for the area.

Requires that plans coordinate

resources, and coordinate with the

National Infrastructure Protection

Plan, National Response Plan, site

security plans of chemical sources

in the area, other national security

and response plans, and Area

Security Plans for contiguous

areas. Requires the DHS

Secretary to review and approve

or require amendments to each

Area Security Plan within 24

months of the date of enactment

of this Act.

[§6(d)]

Exercises and Drills

Requires the DHS Secretary to

periodically conduct drills and

exercises of security and response

capability in each area for which

an Area Security Plan is required,

and under the site security plan

and emergency response plans of

relevant chemical sources.

Requires the DHS Secretary to

publish annual reports on drills,

including assessments of the

effectiveness of plans.

[§6(e)]

Requires the DHS Secretary and

the EPA Administrator, in

consultation with other federal

agencies and state and local

government officials, to

promulgate regulations requiring

high-priority stationary sources to

participate in emergency

preparedness exercises. Requires

exercises to be structured based on

the threat posed to the public by a

criminal release at a stationary

source.

[§12]

CRS-28

Provision

S. 2145, as reported

S. 2486, as introduced

Employees’ Safety and No comparable provision.

Security Committees

Within 6 months of promulgation

of regulations under §5(a), requires

the owner or operator of a

stationary source with at least 15

employees to establish a safety and

security committee of employees,

including both non-managerial and

managerial employees, which must

meet at least monthly to identify,

discuss, and make

recommendations to the owner or

operator concerning potential

hazards and risks relevant to

security, safety, health, and the

environment. An existing health

and safety committee may be

designated to serve as the safety

and security committee. Such

committee shall participate in the

development, review, and revision

of the vulnerability assessment,

hazard assessment, and prevention,

preparedness, and response plan.

[§7]

No comparable provision.

Requires the owner or operator of a

stationary source to annually

provide each employee with 4

hours of training — (1) regarding

the requirements of the Chemical

Security and Safety Act; (2)

identifying and discussing

substances of concern; (3)

discussing the prevention,

preparedness, and response plan

for the stationary source; (4)

identifying opportunities to reduce

or eliminate the vulnerability of a

stationary source to a criminal

release through the use of the

elements of “design, operation, and

maintenance of safe facilities;” and

(5) discussing appropriate

emergency response procedures.

[§8]

Employee Training

CRS-29

Provision

S. 2145, as reported

S. 2486, as introduced

Administrative

Authorizes administrative

penalties of not more than

$25,000 per day and not more

than $1,000,000 per year, for

failure to comply with an order or

directive issued by the DHS

Secretary, but only after the DHS

Secretary has provided written

notice of the proposed penalty

and 30 days, during which the

owner or operator may request a

hearing.

Similar, but authorizes

administrative penalty orders of not

more than $50,000 per day and not

more than $2,000,000 per year, for

failure to comply with an order or

directive issued by the DHS

Secretary under §10(a).

Civil

Authorizes the DHS Secretary to

bring an action in a U.S. district

court against any owner or

operator of a chemical source that

violates or fails to comply with

any order or directive issued by

the DHS Secretary or with a site

security plan approved by the

DHS Secretary. Authorizes the

court to issue an order for

injunctive relief and to award a

civil penalty of not more than

$50,000 per day.

Authorizes a U.S. district court to

issue civil penalties to owners or

operators of facilities in high

priority categories of up to $50,000

per day for violation or failure to

comply with any compliance order

issued under §10(a).

Criminal

Authorizes a fine of up to $50,000 Authorizes a fine of between

per day and/or imprisonment for $5,000 and $50,000 per day and/or

imprisonment for up to 2 years, the

up to 2 years for an owner or

operator of a chemical source who first time that an owner or operator

of a facility in a high priority

knowingly and willfully violates

category knowingly violates or

any order issued by the DHS

Secretary or fails to comply with fails to comply with a compliance

order under §10(a). For

an approved site security plan.

subsequent violations or failures,

[§8]

authorizes fines not less than

$10,000 nor more than $50,000 per

day and/or imprisonment for up to

4 years.

[§10(b)]

Penalties for NonCompliance

Exemption from

Federal Freedom of

Information Act

(FOIA)

Exempts DHS from public

disclosure requirements of the

federal Freedom of Information

Act (FOIA; 5 U.S. C. §552) for

“protected information.”

[§9(a)(1)]

Exempts DHS from public

disclosure requirements of FOIA

for “all documents provided to the

DHS Secretary under this Act, and

all information that describes a

specific vulnerability or stationary

source derived from those

documents,” except for

certifications under §6(b), orders

under §10(a), and best practices

established under §13(4).

[§11(a)]

CRS-30

Provision

Exemption from

Federal Freedom of

Information Act

(FOIA) (cont.)

S. 2145, as reported

S. 2486, as introduced

Prohibits disclosure under FOIA No comparable provision.

of (1) self-certifications by

owners or operators under §4(b)

that a vulnerability assessment has

been completed, and a site

security plan and an emergency

response plan have been

developed and implemented; (2)

DHS orders under §4(b)(3)

requiring certification and

submission, if an owner or

operator fails to certify or to

submit such documents; (3) DHS

compliance certificates for

individual facilities under

§9(b)(2); and (4) the identity of

any chemical source and its owner

or operator for which any other

order or any approval or

disapproval is issued under this

Act, including information

identifying the applicable order,

approval, or disapproval.

Authorizes the DHS Secretary to

release to the public a

certification under §4(b)(1) or

§9(b)(2), if the DHS Secretary

finds that security risk would not

be increased for a facility if the

record were released.

[§9(b)(1)]

Allows public disclosure of

information derived from

information described in §11(a) if

it would not divulge trade secrets,

identify any particular stationary

source, and “is not reasonably

likely to increase the probability or

consequences of a criminal

release.”

[§11(d)]

Protection of

Information by Other

Federal Agencies

Exempts other federal agencies

from disclosure requirements of

FOIA for “protected

information.”

[§9(a)(2)]

No comparable provision.

Protection of

Information by State

or Local Government

Agencies

Exempts state and local

government agencies from

disclosure requirements of state

and local laws for “protected

information.”[§9(a)(3)]

Exempts state and local

government agencies from

disclosure requirements of all

federal, state, and local laws for

“any documents provided by a

stationary source under this Act, or

any information that describes a

specific vulnerability or stationary

source derived from those

documents,” except for

certifications under §6(b), orders

under §10(a), and best practices

established under §13(4).

[§11(b)]

CRS-31

Provision

S. 2145, as reported

S. 2486, as introduced

Report to Congress

No comparable provision.

Requires the DHS Secretary to

submit to Congress a public report

on the performance of chemical

sources (as a group) under the

Act.

[§9(b)(3)]

Development of

Information

Protection Protocols

Requires the DHS Secretary to

Requires the DHS Secretary, in

consultation with the Director of develop within one year of the date

of enactment of this Act protocols

the Office of Management and

to protect information described in

Budget and appropriate federal

law enforcement and intelligence §11(a) from unauthorized

disclosure. Requires protocols to

officials, in a manner consistent

be in effect before the date on

with existing protections for

sensitive or classified information, which the EPA Administrator

receives any report under this Act.

to develop confidentiality

[§11(c)]

protocols for maintaining and

using records containing

“protected information.”

No comparable provision.

Requires protocols to ensure, to

the maximum extent practicable,

that information protected from

public disclosure laws shall be

maintained in a secure location

and access shall be limited to

persons granted access for the

purpose of carrying out the

Chemical Facility Anti-Terrorism

Act.

[§9(c)]

Process for Reporting

Problems

Requires the DHS Secretary to

establish a process by which any

person may submit a report to the

DHS Secretary regarding

problems, deficiencies, or

vulnerabilities at a chemical

source. Requires the DHS

Secretary to provide guidance to

employees as to how to make

such disclosures without

compromising security.

Requires the DHS Secretary to

establish and publicize information

regarding mechanisms through

which any person may report an

alleged violation of this Act or a

threat to the health or safety of the

public.

[§14]

No comparable provision.

Directs Government

Accountability Office (GAO) to

report on the problems,

deficiencies, or vulnerabilities

reported and on the DHS

Secretary’s response to such

information. Prohibits GAO from

releasing protected information to

the public unless the Secretary has

released information under

§9(b)(1).

[§9(d), (k)]

CRS-32

Provision

Whistle-blower

Protection

S. 2145, as reported

S. 2486, as introduced

Prohibits employers from

discriminating against a person

who submits a report to the DHS

Secretary. Requires information

disclosure protocols to

accommodate protections for

disclosures that are not prohibited

by law and are generally

permitted for federal employees

who believe the information is

evidence of a violation of law,

“gross mismanagement, a gross

waste of funds, an abuse of

authority, or a substantial and

specific danger to public health or

safety” [5 U.S.C. §2302(b)(8) and

§7211].

Prohibits employers from

discriminating against a person

who: (1) notifies the employer,

DHS, or any other appropriate

government agency of an alleged

violation of this Act or of a threat

to the health or safety of the public

relating to chemical security or the

improper release of any harmful

chemical; (2) refuses to engage in

unlawful activity; (3) testifies

before Congress or at any relevant

federal or state proceeding; (4)

commences a proceeding for

administration or enforcement of

this Act; (5) testifies in any such

proceeding; or (6) assists in a

proceeding or in any other action

to carry out the purposes of this

Act.

Directs the DHS Secretary to keep No comparable provision.

the identity of a person who

submits such a report confidential.

[§9(d)]

No comparable provision.

Authorizes an employee to file a

complaint with the Secretary of

Labor alleging discrimination in

violation of this provision.

Requires the Secretary of Labor to

complete an investigation of the

alleged violation and notify the

complainant of the results within

30 days from the date on which the

complaint was received. Within 90

days of receiving the complaint,

the Secretary of Labor must issue

an order providing relief or

denying the complaint “on the

record” after notice and

opportunity for public hearing.

Provides instructions regarding the

basis for decisions by the Secretary

of Labor. Authorizes a

complainant to bring an action at

law or equity for de novo review of

a complaint in a district court, if

the Secretary of Labor has not

issued a final decision within one

year after the date on which a

complaint was filed. Any person

adversely affected by an order may

obtain review in a U.S. court of

appeals.

[§14]

CRS-33

Provision

S. 2145, as reported

S. 2486, as introduced

Whistle-blower

Protection (cont’d)

No comparable provision.

Protection of

Disclosure Rights and

Obligations

Protects the right to make certain No comparable provision.

disclosures under current law or

to a Special Counsel, inspector

general, or other employees who

might be designated by an agency

head. Also protects the right or

obligation of a chemical source, a

non-governmental organization,

or an individual to disclose

records or copies of records in

their possession.

[§9(e)-(h)]

Penalties for

Unauthorized

Disclosure

No comparable provision.

Requires that any officer or

employee of a federal, state, or

local government agency who

knowingly discloses any record

protected from disclosure be

imprisoned for up to 1 year, fined,

or both, and removed from federal

office or employment.

[§9(j)]

State and Other Laws Protects the right of states and

political subdivisions to adopt or

enforce requirements more

stringent than requirements in

effect under the Chemical Facility

Anti-Terrorism Act, unless there

is an actual conflict between a

provision of this Act and the law

of a state.

[§10]

Authorizes the Secretary of Labor

to file a civil action in U.S. district

court if a person has failed to

comply with an order. Also

authorizes any person on whose

behalf the order was issued to

commence a civil action against the

person to whom the order was

issued. Authorizes enforcement in

a mandamus proceeding for any

non-discretionary duty imposed by

§14.

[§14]

The Chemical Security and Safety

Act does not affect any duty or

other requirement imposed under

any other federal, state, or local

law or any collective bargaining

agreement.

[§16]

CRS-34

Provision

S. 2145, as reported

S. 2486, as introduced

National Strategy for

Chemical Security

Directs the DHS Secretary, within No comparable provision.

6 months of the date of

enactment, to submit to the Senate

Committee on Homeland Security

and Governmental Affairs and the

House Committee on Energy and

Commerce an update of the

national strategy for the chemical

sector that was required to be

submitted by February 10, 2006

to the Committee on

Appropriations of the Senate and

the Committee on Appropriations

of the House of Representatives.

[§11]

GAO Review

Directs the DHS Secretary to

No comparable provision.

provide access by the GAO to any

document or information required

to be submitted to, generated by,

or otherwise in the possession of

DHS under this Act.

[§12]

GAO Reports

No comparable provision.

Requires GAO to provide

annually to the Senate Committee

on Homeland Security and

Governmental Affairs and the

House Committee on Energy and

Commerce a review of site

security plans, vulnerability

assessments, and emergency

response plans under the Act and

a determination of whether such

plans and assessments are in

compliance.

[§12]

CRS-35

Provision

Judicial Review

S. 2145, as reported

S. 2486, as introduced

No comparable provisions.

Permits any person to file a

petition with the U.S. Court of

Appeals for the District of

Columbia for judicial review of a

rule within 60 days of

promulgation. Directs the court

to review rules in accordance with

the Administrative Procedure Act

(5 U.S.C. §701 et seq.).

Allows only an owner or operator

whose facility is affected by a

final agency action to file a

petition for judicial review of the

action with an appropriate U.S.

district court. Only the owner or

operator and the Secretary could

participate in such civil actions.

Expressly prohibits any private

civil actions against an owner or

operator to enforce provisions of

the Act.

[§13]

Ammonium Nitrate

No comparable provisions.

Directs the DHS Secretary, in

consultation with the Secretary of

Agriculture, to regulate the

production and sale of ammonium

nitrate to prevent

misappropriation or use in

violation of law. Requires

registration of facilities and

purchasers. Restricts sales to

registered producers, sellers, and

purchasers. Requires sales

records to be maintained.

Registration information is to be

treated as protected information.

Authorizes the DHS Secretary to

establish a process for auditing

handler records to determine

compliance. Authorizes penalties

for violations and compliance

failures. Gives federal district

courts jurisdiction over any action

for civil damages against a

handler for any harm or damage

alleged to have resulted from use

of ammonium nitrate in violation

of law.

[§14]

Authorization of

Appropriations

Authorizes such sums as are

necessary to carry out the Act.

[§15]

Similar, but funds remain available

until expended.

[§17]

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