WASHINGTON, DC– Chairman of the Senate Homeland Security and Governmental Affairs Committee Susan Collins and Ranking Member Joseph Lieberman have introduced major, comprehensive legislation that would, for the first time, address the security vulnerabilities that exist at our nation’s chemical plants. The Chemical Facility Anti-terrorism Act of 2005 would provide broad new authority to the Department of Homeland Security to ensure that America’s chemical facilities are better protected from terrorists. The bill is cosponsored by Senators Norm Coleman (R-MN), Thomas Carper (D-DE), and Carl Levin (D-MI).
Senator Collins said, “This legislation addresses one of our nation’s greatest vulnerabilities– the threat of a terrorist attack against a chemical facility. My legislation would provide broad new authority to the Department of Homeland Security to ensure that the nation’s chemical facilities are better protected from terrorists. The potential devastation than an attack on a chemical facility could cause, the sheer number of these facilities, the current widespread lack of security, and the clearly states intent of terrorists to cause maximum harm to the American people and to our economy make these measures necessary. Senator Lieberman said, “Since 9/11 opened our eyes to the threats we face on U.S. soil from Islamist terrorist groups, we have moved to improve security for many of the critical elements of our society and economy,” Senator Lieberman said. “But somehow we have not yet protected one of our greatest vulnerabilities – the chemical sector. This legislation is a forceful but pragmatic response to the challenge of chemical site security. It directs its greatest force and focus to those facilities that pose the highest risk in terms of potential loss of human life or other catastrophic results.” Specifically, the bill directs the Department of Homeland Security to establish risk-based criteria to determine which chemical facilities are vulnerable to terrorist attack and establish security standards for those facilities. Chemical plant facilities would be required to conduct vulnerability assessments and create site security and emergency response plans based on their specific vulnerabilities, subject to approval by the Secretary of Homeland Security. Facilities that fail to comply with the security standards would be subject to fines and penalties. In addition, the bill gives the Secretary of Homeland Security the authority to shut down high-risk chemical facilities that the Secretary believes have not adequately addressed the risk of a terrorist attack. The Homeland Security and Governmental Affairs Committee has held four hearings on chemical security. Chemical Facility Anti-Terrorism Act of 2005 Bill Summary 12-20-05 The Chemical Facility Anti-Terrorism Act of 2005 gives the Department of Homeland Security (DHS) powerful new authority to regulate the security of chemical facilities across the United States. The bill takes an integrated approach to security which addresses both the threat and consequences of a potential terrorist attack in a comprehensive manner. All covered chemical facilities must complete a vulnerability assessment, security plan, and emergency response plan. This legislation is both risk-based and performance-based: · Risk-based: The bill requires security measures at a given facility to be proportional to the threat and consequence of a potential terrorist attack at that facility. The greater the threat or consequence of a potential terrorist attack, the greater the security measures required to protect against such an attack or mitigate or reduce the consequences if there is an attack. · Performance-based: Chemical facilities must meet strong performance standards determined by DHS. DHS will direct facilities to defend against a certain type or level of security threat based on the tier to which the facility belongs and the risk the facility faces. Facilities can then choose the most economical and effective means of addressing the threat and consequence of a terrorist attack on their particular facility. Different means of mitigating or reducing the risk of a terrorist attack or the consequences of a terrorist attack are placed on a level playing field as long as they reduce vulnerabilities and achieve the standards established by DHS. If DHS determines that a chemical facility has not met the performance standard, or has not adequately addressed either the threat or consequence of a terrorist attack, DHS can order the closure of the facility. Covered Facilities The bill requires DHS to designate covered chemical facilities based on a variety of risk factors, including the potential of death or illness caused by a terrorist attack, proximity to population centers, and the potential impact on national security, the economy, and critical infrastructure. As a starting point, the bill directs DHS to consider all facilities on the Environmental Protection Agency’s Risk Management Program (EPA RMP) list, which contains more than 15,000 facilities which store, produce, or use greater than threshold quantities of hazardous chemicals. DHS would apply the specified criteria to these facilities. The bill also gives DHS the authority to cover facilities not on the EPA RMP list, for example if the facility is of critical economic importance or contains greater than threshold quantities of ammonium nitrate or other chemicals not on the RMP list but of concern to DHS. DHS has one year to designate covered facilities, but must give preliminary notification to all facilities likely to be covered after six months. Tiered Approach to Security In addition to designating covered facilities, DHS must also assign each facility to a security tier. The chemical sector is incredibly diverse, including chemical manufacturers, distributors, oil and petrochemical, and agriculture. The risks faced by different facilities are equally diverse. Since a rural facility may face very different security risks than a facility near a major population center, different tiers will help ensure that facilities undertake security measures proportional to the facility’s risk, and will also help prioritize DHS’s efforts on the highest risk tiers. For example, DHS must review security plans from higher risk tiers first (within one year) and those plans must be resubmitted more often (every three years, compared to every five years for other facilities). Nevertheless, all covered facilities must submit plans to DHS, and DHS must review all plans within five years. Vulnerability Assessment All covered facilities are required to conduct a vulnerability assessment, based on a rigorous methodology developed or endorsed by the Secretary, that evaluates the sufficiency of security measures relative to both the threat and consequences of a terrorist attack. The vulnerability assessment must address the appropriate security performance standards established by the Secretary, and must also include an analysis of weaknesses in physical security, communications systems, and electronic, computer, or other automated systems. The vulnerability assessment must also evaluate the sufficiency of security measures, which include reducing, modifying, or substituting hazardous chemicals, in addressing vulnerabilities at the covered facility arising from the nature and quantity of hazardous chemicals and the use, storage, or handling of those chemicals. Security Plan All covered chemical facilities must create and implement a site security plan which addresses the risks identified in the vulnerability assessment, meets the appropriate security performance standards established by the Secretary, and includes security measures appropriate to the tier level of the chemical facility sufficient to deter, to the maximum extent practicable, a terrorist incident or a substantial threat of such incident. Chemical facilities must coordinate their security plans with federal, state, and local government officials, including law enforcement and first responders. Each security plan must designate a security officer who will be the point of contact for federal, state, and local law enforcement and first responders. Security plans must include training, periodic unannounced drills, and exercises, and must identify employee roles and responsibilities. Emergency Response Plans All covered facilities must create an emergency response plan, or update an existing emergency response plan to reflect planning for a terrorist attack scenario. This plan must specifically address the consequences identified in the vulnerability assessment and must be consistent with a site security plan. Compliance All vulnerability assessments, security plans, and emergency response plans must be submitted to the Secretary not later than six months after the promulgation of regulations. Each owner or operator of a covered chemical facility must certify in writing to the Secretary that the owner or operator has completed a vulnerability assessment, has developed and implemented a site security plan, and has reviewed or is implementing an emergency response plan. The Secretary must approve or reject all vulnerability assessments, security plans, and emergency response plans for facilities in higher risk tiers within one year, and within five years for all other facilities. The Secretary must disapprove of any vulnerability assessment, site security plan, or emergency response plan not in compliance with the provisions of the legislation. The Secretary will conduct subsequent reviews and determinations of compliance on a schedule as determined to be appropriate by the Secretary. For higher risk facilities, if the Secretary disapproves of the assessment, plans, or implementation of the plans, the Secretary may order the immediate closure of the facility. For other facilities, the Secretary may also order the closure of the facility, but only after a process of written notification, consultation, and further time for compliance. Civil, Criminal, and Administrative Penalties The bill provides for administrative, civil, and criminal penalties. Administrative: The Secretary may impose an administrative penalty of not more than $25,000 per day, and not more than $1 million per year, for failure to comply with an order or directive issued by the Secretary. Civil: The Secretary may bring a civil action in a United States District Court, with penalties of up to $50,000 per day, for failure to comply with an order or directive issued by the Secretary. Criminal: An owner or operator who knowingly violates any order issued by the Secretary, or fails to comply with a site security plan, shall be fined not more than $50,000 per day, imprisoned not more than two years, or both. Implementation To ensure effective implementation and compliance, as well as to bolster response planning, the bill directs DHS to create a chemical security office at DHS headquarters, as well as regional offices and area committees at a more local level. At the national level, the Department will facilitate comprehensive planning and resource management, provide a mechanism that facilitates a constant review and improvement cycle for chemical facility security, and coordinate with industry on a strategic level for ensuring and improving security. The regional security offices, to be aligned with the FEMA regions, will oversee facility compliance, conduct large-scale exercises, and coordinate with senior state personnel to promote regional mutual aid agreements. DHS is also directed to create “areas” and assign a Federal security coordinator to oversee an area committee comprised of qualified security and response personnel, including officials from State and local government, chemical facilities and local emergency planning and response entities. The area committee concept is borrowed from the Coast Guard’s successful implementation of the Maritime Transportation Security Act (MTSA). Area committees will provide enhanced coordination for security and emergency response planning with the local law enforcement and first responders. Protection of Information In order to keep sensitive information that is provided by chemical sources to DHS from falling into the hands of terrorists, this legislation exempts such protected information from disclosure under Federal Freedom of Information Act (FOIA), and any State or local law providing for public access to information. DHS is required to create confidentiality protocols for maintenance and use of the protected information. This section allows for disclosures under FOIA for approvals, disapprovals, and other orders under this Act, unless the Secretary makes a finding that releasing any of these records would increase the risk to the chemical facility or other facilities. This finding is limited to 6 months, unless the Secretary makes subsequent determinations. This provision does not protect information that is required to be disclosed under other Federal or State law or regulations. This provision does not interfere with federal employee disclosures protected under the Whistleblower Protection Act, and it establishes a secure channel by which members of the public may submit information to DHS about security problems at chemical facilities. Unlawful disclosure of protected information includes civil and criminal penalties. Preserving State’s Rights and Local Authority While this legislation sets a strong Federal standard, it preserves the right of States and localities to adopt chemical security requirements that are more stringent than those in the Federal law, as long as the State or local law or regulation does not actually conflict with the Federal law. In addition, nothing in this act shall preclude or deny the right of any State to adopt or enforce any requirement, including air or water pollution requirements, that are directed at problems other than reducing damage from terrorist attacks.