Chemical Facility Security Act of 2005 - Requires the Secretary of Homeland Security to designate certain combinations of chemical sources and substances of concern as high-priority categories based on the severity of the threat of a terrorist release, taking into account specified factors.
Requires the Secretary to promulgate regulations requiring owners or operators of chemical sources to conduct vulnerability assessments and develop and implement site security plans that address the results. Directs chemical sources not in high-priority categories to certify completion of such assessments and implementation of such plans.
Requires the Secretary, in promulgating regulations and establishing procedures, protocols, and standards for such assessments and plans, to consider specified factors, including the likelihood that a chemical source will be the target of terrorism and the potential scope of injury. Authorizes the Secretary to: (1) designate or exempt certain categories of stationary sources as chemical sources; and (2) designate, exempt, and adjust threshold quantities of substances of concern.
Establishes a five-year assessment and plan review requirement for chemical sources not in high-priority categories. Requires high-priority chemical sources to provide the Secretary with any changes to assessments and plans within 90 days.
Sets forth disclosure protections and requires the development of confidentiality protocols for information obtained under this Act. Establishes penalties for unauthorized disclosures.
Establishes enforcement mechanisms for noncompliance with assessment or plan requirements.
Sets forth recordkeeping and site inspection requirements.
Exempts from this Act chemical sources required to prepare assessments and plans under specified Federal laws.
Authorizes civil and administrative penalties.
[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1562 Introduced in House (IH)]
109th CONGRESS
1st Session
H. R. 1562
To protect human health and the environment from the release of
hazardous substances by acts of terrorism.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
April 12, 2005
Mr. Fossella introduced the following bill; which was referred to the
Committee on Homeland Security, and in addition to the Committee on
Energy and Commerce, for a period to be subsequently determined by the
Speaker, in each case for consideration of such provisions as fall
within the jurisdiction of the committee concerned
_______________________________________________________________________
A BILL
To protect human health and the environment from the release of
hazardous substances by acts of terrorism.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Chemical Facility Security Act of
2005''.
SEC. 2. FINDINGS.
The Congress finds the following:
(1) Industries that manufacture, distribute, and process
chemicals are crucial components of the national economy and
the critical infrastructure of the United States--
(A) in their own right; and
(B) because those industries supply resources
essential to the functioning of other critical
infrastructure.
(2) A terrorist attack on a facility that manufactures,
processes, or uses potentially dangerous chemicals, or a theft
of those chemicals from such a facility for use in a terrorist
attack, could pose a serious threat to--
(A) public health, safety, and welfare;
(B) critical infrastructure; and
(C) national security.
(3) While Federal, State, and local governments share
primary responsibility for preventing, detecting, and
responding to terrorist attacks, the owners and operators of
facilities that manufacture, process, or use potentially
dangerous chemicals should make every reasonable effort to
protect those facilities against the threat of such attacks.
(4) While programs to protect the health and safety of
workers, the public, and the environment by reducing the
potential for accidental releases of potentially dangerous
chemicals, including the consequences of worst-case releases of
those chemicals, are in place as required by numerous Federal
and State laws, the events of September 11, 2001, demonstrate
the need to ensure that appropriate security measures are taken
to address the threat of acts of terrorism against facilities
that manufacture, use, or process potentially dangerous
chemicals.
SEC. 3. DEFINITIONS.
In this Act:
(1) Administrator.--The term ``Administrator'' means the
Administrator of the Environmental Protection Agency.
(2) Chemical source.--The term ``chemical source'' means a
stationary source as defined in section 112(r)(2)(C) of the
Clean Air Act (42 U.S.C. 7412(r)(2)(C)) at which a substance of
concern is present in more than a threshold quantity, as
defined in or established under paragraphs (3) and (5) of
section 112(r) of the Clean Air Act (42 U.S.C. 7412(r)),
subject to the authority of the Secretary under section 5(f) to
designate additional categories of stationary sources as
chemical sources or to exempt categories of existing chemical
sources from such designation.
(3) Department.--The term ``Department'' means the
Department of Homeland Security.
(4) Environment.--The term ``environment'' has the meaning
given the term in section 101 of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980
(42 U.S.C. 9601).
(5) Owner or operator.--The term ``owner or operator'' has
the meaning given the term in section 112(a) of the Clean Air
Act (42 U.S.C. 7412(a)).
(6) Release.--The term ``release'' has the meaning given
the term in section 101 of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42 U.S.C.
9601).
(7) Secretary.--The term ``Secretary'' means the Secretary
of Homeland Security.
(8) Security measure.--
(A) In general.--The term ``security measure''
means an action carried out to ensure or enhance the
security of a chemical source.
(B) Inclusions.--The term ``security measure'',
with respect to a chemical source, includes measures
such as--
(i) employee training and background
checks;
(ii) the limitation and prevention of
access to controls of the chemical source;
(iii) the protection of the perimeter of
the chemical source;
(iv) the installation and operation of
intrusion detection sensors;
(v) the implementation of measures to
increase computer or computer network security;
(vi) the implementation of other security-
related measures to protect against or reduce
the threat of--
(I) a terrorist attack on the
chemical source; or
(II) the theft of a substance of
concern for offsite release in
furtherance of an act of terrorism; and
(vii) conduct of any similar security-
related activity, as determined by the
Secretary.
(9) Substance of concern.--The term ``substance of
concern'' means a chemical substance present at a chemical
source in more than a threshold quantity, subject to the
authority of the Secretary under section 5(g) to designate new
substances as substances of concern, exempt existing substances
of concern from such designation, or adjust the threshold
quantity for a substance of concern.
(10) Terrorism.--The term ``terrorism'' has the meaning
given the term in section 2 of the Homeland Security Act of
2002 (6 U.S.C. 101).
(11) Terrorist release.--The term ``terrorist release''
means--
(A) a release from a chemical source into the
environment of a substance of concern that is caused by
an act of terrorism; or
(B) the theft of a substance of concern by a person
for offsite release in furtherance of an act of
terrorism.
SEC. 4. DESIGNATION OF AND REQUIREMENTS FOR HIGH-PRIORITY CATEGORIES.
(a) Designation and Regulation of High-Priority Categories by the
Secretary.--Not later than 1 year after the date of enactment of this
Act, the Secretary, in consultation with the Administrator, shall
promulgate regulations to designate certain combinations of chemical
sources and substances of concern as high-priority categories based on
the severity of the threat posed by a terrorist release from the
chemical sources.
(b) Factors to Be Considered.--In designating high-priority
categories under subsection (a), the Secretary, in consultation with
the Administrator, shall consider--
(1) the severity of the harm that could be caused by a
terrorist release;
(2) the proximity to population centers;
(3) the threats to national security;
(4) the threats to critical infrastructure;
(5) the nature and quantity of substances of concern at a
given facility; and
(6) such other security-related factors as the Secretary,
in consultation with the Administrator, determines to be
appropriate.
SEC. 5. VULNERABILITY ASSESSMENTS AND SITE SECURITY PLANS.
(a) Requirement.--
(1) In general.--Not later than 1 year after the date of
enactment of this Act, the Secretary shall promulgate
regulations that require the owner or operator of each chemical
source--
(A) to conduct an assessment of the vulnerability
of the chemical source to a terrorist release,
including identifying hazards that may result from a
terrorist release;
(B) to prepare and implement a site security plan
that addresses the results of the vulnerability
assessment;
(C) in the case of a chemical source that is in a
high-priority category under regulations under section
4, to provide to the Secretary a copy of the
vulnerability assessment conducted under subparagraph
(A) and the site security plan prepared under
subparagraph (B); and
(D) in the case of a chemical source that is not in
a high-priority category under regulations promulgated
under section 4, to provide to the Department, on
request, copies of the vulnerability assessment and
site security plan for review.
(2) Deadlines.--
(A) In general.--The Secretary shall specify in
regulations promulgated under paragraph (1) specific
deadlines for the completion and certification of
vulnerability assessments and site security plans under
subsection (b).
(B) Alternative deadlines.--The Secretary may
establish deadlines other than deadlines described in
subparagraph (A) for different categories of chemical
sources based on the regulatory criteria specified in
subsection (e).
(3) Contents of site security plan.--A site security plan
required under the regulations promulgated under paragraph
(1)--
(A)(i) shall include security measures to reduce
the vulnerability of the chemical source covered by the
plan to a terrorist release; and
(ii) may include other actions and procedures
appropriate to reduce the vulnerability of the chemical
source to a terrorist release; and
(B) shall describe, at a minimum, particular
equipment, plans, and procedures that could be
implemented or used by or at the chemical source in the
event of a terrorist release.
(4) Threat information.--To the maximum extent practicable
under applicable authority and in the interests of national
security, the Secretary shall provide to an owner or operator
of a chemical source required to prepare a vulnerability
assessment and site security plan threat information that is
relevant to the chemical source.
(b) Certification and Submission.--
(1) In general.--Each owner or operator of a chemical
source that is not in a high-priority category shall certify in
writing to the Secretary that the owner or operator has
completed a vulnerability assessment, and has developed and
implemented or is implementing a site security plan, in
accordance with this Act, including--
(A) regulations promulgated under subsection
(a)(1); and
(B) any applicable procedures, protocols, or
standards endorsed or recognized by the Secretary under
subsection (c)(2).
(2) Oversight.--The Secretary shall, at such times and
places as the Secretary determines to be appropriate, conduct
or require the conduct of vulnerability assessments and other
activities to ensure and evaluate compliance with--
(A) this Act (including regulations promulgated
under subsection (a)(1)); and
(B) other applicable procedures, protocols, or
standards endorsed or recognized by the Secretary under
subsection (c)(2).
(c) Specified Standards.--
(1) In general.--The Secretary may--
(A) establish procedures, protocols, and standards
for vulnerability assessments and site security plans;
(B) establish provisions identifying security
measures that, if implemented, would establish the
sufficiency of a vulnerability assessment or site
security plan; and
(C) require that a vulnerability assessment and
site security plan address a particular threat or type
of threat.
(2) Existing procedures, protocols, and standards.--Upon
petition by any person of the Secretary, any procedures,
protocols, and standards established by the Secretary under
paragraph (1)(A) shall endorse or recognize procedures,
protocols, and standards--
(A) that are established by--
(i) industry;
(ii) Federal, State, or local authorities;
or
(iii) other applicable law; and
(B) the requirements of which the Secretary
determines to be--
(i) substantially equivalent to the
requirements under subsection (a); and
(ii) in effect on or after the date of
enactment of this Act.
(3) No action by secretary.--If the Secretary does not
endorse or recognize existing procedures, protocols, and
standards described in paragraph (2)(A), the Secretary shall
provide to each person that submitted a petition under
paragraph (2) a written notification that includes a clear
explanation of the reasons why the endorsement or recognition
was not made.
(d) Preparation of Assessments and Plans.--As of the date of
endorsement or recognition by the Secretary of a particular procedure,
protocol, or standard under subsection (c)(2), any vulnerability
assessment or site security plan that is prepared by a chemical source
before, on, or after the date of endorsement or recognition of, and in
accordance with, that procedure, protocol, or standard, shall be exempt
from subsection (c) and paragraphs (1) and (3) of subsection (a)
(including such a vulnerability assessment or site security plan
prepared before, on, or after the date of enactment of this Act).
(e) Regulatory Criteria.--In exercising the authority under
subsections (a) and (c) with respect to a chemical source, the
Secretary shall consider--
(1) the likelihood that a chemical source will be the
target of terrorism;
(2) the nature and quantity of the substances of concern
present at a chemical source;
(3) the potential extent of death, injury, or serious
adverse effects to human health or the environment that would
result from a terrorist release;
(4) the potential harm to critical infrastructure and
national security from a terrorist release;
(5) cost and technical feasibility;
(6) scale of operations; and
(7) such other security-related factors as the Secretary
determines to be appropriate and necessary to protect the
public health and welfare, critical infrastructure, and
national security.
(f) Designation and Exemption of Chemical Sources.--
(1) In general.--The Secretary may, from time to time, by
regulation--
(A) designate certain categories of stationary
sources as chemical sources under this Act; or
(B) exempt certain categories of stationary sources
from designation as chemical sources,
without regard to whether a substance of concern is present at
such sources in more than a threshold quantity.
(2) Considerations.--In designating or exempting a chemical
source under paragraph (1), the Secretary shall consider the
factors described in subsection (e).
(3) Regulations.--The Secretary may make a designation or
exemption under paragraph (1) in regulations promulgated under
subsection (a)(1).
(4) Future determinations.--Not later than 3 years after
the date of promulgation of regulations under subsections
(a)(1) and (c), and every 3 years thereafter, the Secretary
shall, after considering the criteria described in subsection
(e), determine whether to designate or exempt particular
categories of chemical sources under this subsection.
(g) Designation, Exemption, and Adjustment of Threshold Quantities
of Substances of Concern.--
(1) In general.--The Secretary may, by regulation--
(A) designate certain chemical substances in
particular threshold quantities as substances of
concern under this Act;
(B) exempt certain chemical substances from
designation as substances of concern under this Act;
and
(C) adjust the threshold quantity of a chemical
substance.
(2) Considerations.--In designating or exempting a chemical
substance or adjusting the threshold quantity of a chemical
substance under paragraph (1), the Secretary shall consider the
potential extent of death, injury, or serious adverse effects
to human health or the environment that would result from a
terrorist release of the chemical substance.
(3) Regulations.--The Secretary may make a designation,
exemption, or adjustment under paragraph (1) in regulations
promulgated under subsection (a)(1).
(h) Five-Year Review.--Not later than 5 years after the date of
certification of a vulnerability assessment and a site security plan
under subsection (b)(1), and not less often than every 5 years
thereafter (or on such a schedule as the Secretary may establish by
regulation), the owner or operator of the chemical source covered by
the vulnerability assessment or site security plan shall--
(1) review the adequacy of the vulnerability assessment and
site security plan; and
(2)(A) certify to the Secretary that the chemical source
has completed the review and implemented any modifications to
the site security plan; and
(B) upon request by the Secretary, submit to the Secretary
a description of any changes to the vulnerability assessment or
site security plan.
(i) Submission of Changes for High-Priority Chemical Sources.--The
owner or operator of a chemical source that is in a high-priority
category under regulations under section 4 shall provide to the
Secretary a description of any change made to the vulnerability
assessment or site security plan required for the chemical source under
this section, by not later than 90 days after the date the change is
made.
(j) Protection of Information.--
(1) Disclosure exemption.--All information obtained in
accordance with this Act, and all information derived from that
information (including information shared with Federal, State,
and local governmental entities under paragraphs (2) and (3))--
(A) shall not be disclosed by any Federal agency,
under section 552 of title 5, United States Code, or
otherwise;
(B) shall not be disclosed under any State or local
law providing for public access to information; and
(C) shall not be subject to discovery or admitted
into evidence in any Federal or State civil judicial or
administrative proceeding, other than an action under
section 10.
(2) Development of protocols.--
(A) In general.--The Secretary, in consultation
with the Director of the Office of Management and
Budget and appropriate Federal law enforcement and
intelligence officials, and in a manner consistent with
existing protections for sensitive or classified
information, shall, by regulation, establish
confidentiality protocols for maintenance and use of
information that is obtained from owners or operators
of chemical sources and provided to the Secretary under
this Act.
(B) Requirements for protocols.--A protocol
established under subparagraph (A) shall ensure that--
(i) each copy of a vulnerability assessment
or site security plan submitted to the
Secretary, all information contained in or
derived from that assessment or plan, and other
information obtained under section 8, is
maintained in a secure location; and
(ii) except as provided in paragraph
(3)(B), access to the copies of the
vulnerability assessments and site security
plans submitted to the Secretary, and other
information obtained under section 8, shall be
limited to persons designated by the Secretary.
(3) Penalties for unauthorized disclosure.--
(A) In general.--Except as provided in subparagraph
(B), any individual who acquires any information
described in paragraph (2)(A) (including any
reproduction of that information or any information
derived from that information), and who knowingly or
recklessly discloses the information, shall--
(i) be imprisoned not more than 1 year,
fined in accordance with chapter 227 of title
18, United States Code (applicable to class A
misdemeanors), or both; and
(ii) if a Federal employee, be removed from
Federal office or employment.
(B) Exceptions.--
(i) In general.--Subparagraph (A) shall not
apply to a person described in that
subparagraph that discloses information
described in paragraph (2)(A)--
(I) to an individual designated by
the Secretary under paragraph
(2)(B)(ii); or
(II) for use in any administrative
or judicial proceeding to impose a
penalty for failure to comply with a
requirement of this Act.
(ii) Law enforcement officials and first
responders.--Notwithstanding subparagraph (A),
an individual referred to in paragraph
(2)(B)(ii) who is an officer or employee of the
United States may share with a State or local
law enforcement or other official (including a
first responder) the contents of a
vulnerability assessment or site security plan,
or other information described in that
paragraph, to the extent disclosure is
necessary to carry out this Act.
SEC. 6. ENFORCEMENT.
(a) Failure to Certify or Submit.--If an owner or operator of a
chemical source fails to certify or submit a vulnerability assessment
or site security plan in accordance with this Act, the Secretary may
issue an order requiring the certification and submission of a
vulnerability assessment or site security plan in accordance with this
Act.
(b) Disapproval.--The Secretary may disapprove a vulnerability
assessment or site security plan if the Secretary determines that--
(1) the vulnerability assessment or site security plan does
not comply with regulations promulgated under subsections
(a)(1) and (c) of section 5; or
(2) the site security plan, or the implementation of the
site security plan, is insufficient to address--
(A) the results of a vulnerability assessment of a
chemical source; or
(B) a threat of a terrorist release.
(c) Compliance.--If the Secretary disapproves a vulnerability
assessment or site security plan of a chemical source under subsection
(b), the Secretary shall--
(1) provide the owner or operator of the chemical source a
written notification of the determination that includes a clear
explanation of deficiencies in the vulnerability assessment,
site security plan, or implementation of the assessment or
plan;
(2) consult with the owner or operator of the chemical
source to identify appropriate steps to achieve compliance; and
(3) if, following that consultation, the owner or operator
of the chemical source does not achieve compliance in
accordance by such date as the Secretary determines to be
appropriate under the circumstances, issue an order requiring
the owner or operator to revise, recertify, and submit the
assessment or plan to correct deficiencies specified in the
order.
(d) Protection of Information.--Any determination of disapproval or
order made or issued under this section--
(1) shall not be disclosed by any Federal agency, under
section 552 of title 5, United States Code, or otherwise;
(2) shall not be disclosed under any State or local law
providing for public access to information; and
(3) shall not be subject to discovery or admitted into
evidence in any Federal or State civil judicial or
administrative proceeding, other than an action under section
10.
SEC. 7. INTERAGENCY TECHNICAL SUPPORT AND COOPERATION.
The Secretary--
(1) may request other Federal agencies to provide technical
and analytical support (other than field work) in implementing
this Act; and
(2) may provide reimbursement for such technical and
analytical support received as the Secretary determines to be
appropriate.
SEC. 8. RECORDKEEPING; SITE INSPECTIONS; PRODUCTION OF INFORMATION.
(a) Recordkeeping.--The owner or operator of a chemical source that
is required to prepare a vulnerability assessment or site security plan
under section 5(a) shall maintain a current copy of those documents.
(b) Right of Entry.--In carrying out this Act, the Secretary (or a
designee), on presentation of credentials, shall have a right of entry
to, on, or through--
(1) any premises of an owner or operator of a chemical
source described in subsection (a); and
(2) any premises on which any record required to be
maintained under subsection (a) is located.
(c) Requests for Records.--In carrying out this Act, the Secretary
(or a designee) may require the submission of, or, on presentation of
credentials, may at reasonable times seek access to and copy--
(1) any records, reports, or other information described in
subsection (a); and
(2) any other documentation necessary for--
(A) review or analysis of a vulnerability
assessment or site security plan; or
(B) implementation of a site security plan.
(d) Compliance.--If the Secretary determines that an owner or
operator of a chemical source is not maintaining, producing, or
permitting access to records as required by this section, the Secretary
may issue an order requiring compliance with the relevant provisions of
this section.
SEC. 9. INTEGRATION WITH OTHER AUTHORITIES.
A chemical source that is required to prepare a facility
vulnerability assessment and a facility security plan or emergency
response plan under the provisions of chapter 701 of title 46, United
States Code, or section 1433 of the Safe Drinking Water Act (42 U.S.C.
300i-2) shall not be subject to the requirements of this Act, unless
the owner or operator petitions the Secretary to be subject to the
requirements of this Act in lieu of those established by such
provisions.
SEC. 10. PENALTIES.
(a) Judicial Relief.--Any owner or operator of a chemical source
that violates or fails to comply with any order issued by the Secretary
under this Act or a site security plan submitted to the Secretary under
this Act (or, in the case of an exemption described in section 5(d), a
procedure, protocol, or standard endorsed or recognized by the
Secretary under section 5(c)) may, in a civil action brought in United
States district court, be subject, for each day on which the violation
occurs or the failure to comply continues, to--
(1) an order for injunctive relief; or
(2) a civil penalty of not more than $50,000.
(b) Administrative Penalties.--
(1) Penalty orders.--The Secretary may issue an
administrative penalty of not more than $250,000 for failure to
comply with an order issued by the Secretary under this Act.
(2) Notice and hearing.--Before issuing an order described
in paragraph (1), the Secretary shall provide to the person
against which the penalty is to be assessed--
(A) written notice of the proposed order; and
(B) the opportunity to request, not later than 30
days after the date on which the person receives the
notice, a hearing on the proposed order.
(3) Procedures.--The Secretary may promulgate regulations
outlining the procedures for administrative hearings and
appropriate review, including necessary deadlines.
(c) Treatment of Information in Judicial Proceedings.--Information
submitted to or obtained by the Secretary, information derived from
that information, and information submitted by the Secretary under this
Act shall be treated in any judicial or administrative action as if the
information were classified material.
SEC. 11. PROVISION OF TRAINING.
The Secretary may provide training to State and local officials and
owners and operators in furtherance of the purposes of this Act.
SEC. 12. PROVISION OF ASSESSMENTS AND RESPONSE PLANS UNDER SAFE
DRINKING WATER ACT.
Section 1433 of the Safe Drinking Water Act (42 U.S.C. 300i-2) is
amended by adding at the end the following:
``(f) Provision of Assessments and Response Plans to Secretary of
Homeland Security.--Pursuant to section 202 of the Homeland Security
Act of 2002 (Public Law 107-296; 6 U.S.C. 122), the Administrator
shall, upon request by the Secretary of Homeland Security, provide to
the Secretary any vulnerability assessment or emergency response plan
received by the Administrator under this section.''.
SEC. 13. NO EFFECT ON REQUIREMENTS UNDER OTHER LAW.
Except as provided in section 5(j), section 6(c), section 9, and
section 12, nothing in this Act affects any duty or other requirement
imposed under any other Federal or State law.
<all>
Introduced in House
Introduced in House
Referred to the Committee on Homeland Security, and in addition to the Committee on Energy and Commerce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on Homeland Security, and in addition to the Committee on Energy and Commerce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on Homeland Security, and in addition to the Committee on Energy and Commerce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Subcommittee on Economic Security, Infrastructure Protection, and Cybersecurity.
Referred to the Subcommittee on Environment and Hazardous Materials, for a period to be subsequently determined by the Chairman.
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