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1 

49–010 

" ! SENATE 109TH CONGRESS

2d Session 

REPORT

2006

109–332 

Calendar No. 495 

CHEMICAL FACILITY ANTI-TERRORISM ACT 

OF 2006 

R E P O R T 

OF THE

COMMITTEE ON HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

TO ACCOMPANY

S. 2145 

together with 

ADDITIONAL VIEWS 

TO ENHANCE SECURITY AND PROTECT AGAINST TERRORIST 

ATTACKS AT CHEMICAL FACILITIES 

SEPTEMBER 11, 2006.—Ordered to be printed 


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(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

SUSAN M. COLLINS, Maine, Chairman 

TED STEVENS, Alaska 

GEORGE V. VOINOVICH, Ohio 

NORM COLEMAN, Minnesota 

TOM COBURN, Oklahoma 

LINCOLN D. CHAFEE, Rhode Island 

ROBERT F. BENNETT, Utah 

PETE V. DOMENICI, New Mexico 

JOHN W. WARNER, Virginia 

JOSEPH I. LIEBERMAN, Connecticut 

CARL LEVIN, Michigan 

DANIEL K. AKAKA, Hawaii 

THOMAS R. CARPER, Delaware 

MARK DAYTON, Minnesota 

FRANK LAUTENBERG, New Jersey 

MARK PRYOR, Arkansas 

MICHAEL D. BOPP, Staff Director and Chief Counsel 

ALLISON J. BOYD, Counsel 

MICHAEL L. ALEXANDER, Minority Staff Director 

HOLLY A. IDELSON, Minority Counsel 

TRINA DRIESSNACK TYRER, Chief Clerk 


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Calendar No. 495 

109TH CONGRESS REPORT " ! SENATE 2d Session 109–332 

CHEMICAL FACILITY ANTI-TERRORISM ACT OF 2006 

SEPTEMBER 11, 2006.—Ordered to be printed 

Ms. COLLINS, from the Committee on Homeland Security and 

Government Affairs, submitted the following 

R E P O R T 

together with 

ADDITIONAL VIEWS 

[To accompany S. 2145] 

The Committee on Homeland Security and Governmental Affairs, 

to which was referred the bill (S. 2145) to enhance security and 

protect against terrorist attacks at chemical facilities, having considered the same, reports favorably thereon as amended and recommends that the bill do pass. 

CONTENTS 

Page 

I. Purpose and Summary ............................................................................... 1 

II. Background and Need for Legislation ....................................................... 2 

III. Discussion of Legislation ............................................................................ 17 

IV. Legislative History ...................................................................................... 29 

V. Section-by-Section Analysis ........................................................................ 34 

VI. Congressional Budget Office Cost Estimate ............................................. 47 

VII. Changes in Existing Law ........................................................................... 54 

VIII. Additional Views ......................................................................................... 55 

I. PURPOSE AND SUMMARY

The purpose of S. 2145 is to enhance security and protect against 

terrorist attacks at chemical facilities. Among other things, S. 2145 

gives the Department of Homeland Security (DHS) new authority 

to regulate the security of chemical facilities across the United 

States. The bill takes an integrated approach to security, comprehensively addressing vulnerabilities, threats, and consequences 

of a terrorist attack on a chemical facility. 


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The bill gives DHS discretion to regulate the Nation’s at-risk 

chemical facilities. Under the bill, DHS would designate a facility 

for regulation only after a consideration of risk-based factors such 

as the perceived threat to the facility; the potential extent and likelihood of death or injury, environmental harm, and economic loss 

that could result from a terrorist attack on the facility; the proximity of the facility to population centers; the nature and quantity 

of the chemical substance of concern at the facility; and the threat 

to economic and national security and critical infrastructure. The 

bill also requires DHS to place the designated facilities into riskbased tiers, so that the facilities of greatest concern from a security 

standpoint are required to put forward the greatest effort to reduce 

the risk of an attack on those facilities. All covered facilities must 

complete or update vulnerability assessments, security plans, and 

emergency response plans, and must submit these assessments and 

plans to DHS for approval. The Secretary must approve or disapprove all assessments and plans. 

The bill requires that vulnerability assessments and security 

plans be both risk-based and performance-based. 

The bill’s risk-based approach requires security measures at a 

given facility to be proportional to the threat, vulnerabilities, and 

consequences of a potential terrorist attack at that facility. Therefore, the greater the risk of a potential terrorist attack on a particular facility, the greater the security measures required at that 

facility to protect against such an attack or to mitigate its consequences. 

Requiring performance-based standards means a facility governed by the bill can choose the most economical and effective 

means of addressing the vulnerabilities to, and the threat and consequence of, a terrorist attack on that particular facility. The Department is required to set performance standards for each riskbased tier. 

If DHS determines that a covered facility has not complied with 

the regulations or with an order issued under the bill, DHS may 

enforce those regulations and orders through a variety of mechanisms, including civil and criminal penalties, and issuing an order 

to a facility to cease operations. 

The Department is directed to create an office for chemical security and a regional and area structure for implementing the bill. 

The bill exempts protected information from disclosure under the 

Federal Freedom of Information Act (FOIA), and any State or local 

law providing for public access to information. The Secretary of 

Homeland Security is specifically authorized to regulate the handling and purchase of ammonium nitrate. The bill sets a uniform 

Federal standard for chemical security regulation, while preserving 

the right of State and local governments to adopt chemical security 

requirements more stringent than the Federal standard, provided 

that the state or local standard does not actually conflict with the 

Federal standard. 

II. BACKGROUND AND NEED FOR LEGISLATION

Background 

When al Qaeda terrorists hijacked commercial airplanes to attack American office buildings, it became clear that the United 


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1 Congressional Research Service, ‘‘Chemical Facility Security,’’ August 2, 2006, at 4. 2 Id. 

3Letter from Paul Corts, Assistant Attorney General for Administration, U.S. Department of 

Justice, to John Stephenson, Director, Natural Resources and Environment, GAO, Feb. 28, 2003, 

at 2. 4 Id. 

5Letter from Paul Corts, Assistant Attorney General for Administration, U.S. Department of 

Justice, to John Stephenson, Director, Natural Resources and Environment, GAO, Feb. 28, 2003, 

at 2. 6 Id.; GAO, Homeland Security: Voluntary Initiatives Are Under Way at Chemical Facilities, 

But the Extent of Security Preparedness Is Unknown, Mar. 2003, GAO–03–439, at 9. 

States’ new enemy would target our infrastructure as well as seeking to inflict mass casualties. Indeed, few scenarios loom more ominously than terrorists leveraging a facility storing deadly chemicals 

against us. The potential devastation from a terrorist attack on a 

chemical facility was demonstrated on December 3, 1984, when poisonous cyanide gas was accidentally released from a pesticides 

plant in Bhopal, India, killing thousands within a few hours. A terror attack on such a facility would presumably be designed to take 

an even greater human toll. 

International and domestic terrorists have had U.S. chemical facilities in their cross-hairs for at least a decade.1 Terrorists have 

aimed not only to target facilities directly, but also to steal chemicals from facilities for nefarious purposes. One of the 1993 World 

Trade Center bombers, Nidal Ayyad, was employed as a chemical 

engineer and used company stationery to order the chemical ingredients to make the bomb. Testimony at the bombers’ trial indicated 

that they had also stolen cyanide from a chemical facility and were 

planning to introduce it into the ventilation system of office buildings.2

For years, the Federal government’s law enforcement and intelligence community has been sounding the alarm regarding the terrorist threat to the chemical sector. The Department of Justice ‘‘has 

been warning of the terrorist threat to such facilities for a number 

of years,’’ and the Justice Department’s ‘‘risk assessment in 2000, 

conducted at the direction of the President and pursuant to the 

Clean Air Act, concluded in no uncertain terms that chemical facilities present attractive targets for terrorists.’’ 3 Justice ‘‘concluded 

that the risk of terrorists attempting in the foreseeable future to 

cause an industrial chemical release is both real and credible.’’ 4 In 

2003, the Justice Department informed GAO about two attempts to 

attack chemical facilities in the late 1990s, including a 1998–99 

episode where ‘‘domestic terrorists plotted to use a destructive device against a facility outside of Sacramento which housed millions 

of gallons of propane.’’ 5 Moreover, in testimony from the Director 

of the Central Intelligence Agency on February 6, 2002, George 

Tenet warned of the potential for a terrorist attack on a chemical 

facility by al Qaeda.6

Many security experts, including Richard Falkenrath, at a January 2005 Committee hearing, have identified chemical facilities as 

an especially vulnerable target. Falkenrath described terrorists’

ability to exploit inadequately secured systems within the United 

States, as exemplified by the use of passenger aircraft on 9/11. 

Chemical facilities, Falkenrath said, were acutely vulnerable and 


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7The Department of Homeland Security: The Road Ahead: Hearing Before the Senate Comm. 

on Homeland Security and Governmental Affairs, 109th Cong. 29, 114–15 (2005) (testimony of 

Richard Falkenrath). 8GAO, Homeland Security: Voluntary Initiatives Are Under Way at Chemical Facilities, But 

the Extent of Security Preparedness is Unknown, Mar. 2003, GAO–03–439, at 3. 9 Id. At 9–10 (citing EPA, Chemical Accident Risks in U.S. Industry—A Preliminary Analysis 

of Accident Risk Data from U.S. Hazardous Chemical Facilities, Sept. 25, 2000). 10GAO, Homeland Security: DHS Is Taking Steps to Enhance Security at Chemical Facilities, 

but Additional Authority Is Needed, Jan. 2006, GAO–06–150, at 22. 11 Id. at 21. 12 Id. at 22; Is the Federal Government Doing Enough to Secure Chemical Facilities and Is 

More Authority Needed: Hearing Before the Senate Comm. on Homeland Security and Governmental Affairs, 109th Cong. (2005) (testimony of Robert Stephan). 13 Id. at 4. 14 Id. at 5. 15 Id. at 5, 23. 16 Id. at 5. 

uniquely dangerous—surpassed in danger only by threats such as 

nuclear devices and bioterrorism.7

Despite the abundance of evidence and warnings, the government has taken little action. In 2003, GAO reported that ‘‘Chemical 

facilities may be attractive targets for terrorists intent on causing 

massive damage.’’ 8 The EPA has cataloged some 15,000 facilities 

in the United States that manufacture, use or store hazardous 

chemicals under its Clean Air Act Risk Management Program 

(RMP). Using the EPA’s RMP data, GAO noted that 123 chemical 

facilities in the United States have worst-case scenarios in which 

a toxic release could potentially threaten at least 1,000,000 people 

if attacked.9 The Department of Homeland Security uses a different methodology, but still has identified 3,400 facilities that 

could affect more than 1,000 people if attacked.10 In creating its 

list of high risk chemical facilities, DHS started with the EPA’s 

RMP list, and reduced it by eliminating facilities that were redundant, ‘‘were no longer in business or were no longer RMP facilities 

* * * were the responsibility of another critical infrastructure sector,’’ and agricultural facilities.11 According to DHS, of the 3,400 facilities on its list, 272 facilities could potentially affect more than 

50,000 people.12 GAO reported that no Federal law explicitly required chemical facilities to ‘‘assess vulnerabilities or take security 

actions to safeguard their facilities against terrorist attack,’’ and 

that the Federal government ‘‘has not comprehensively assessed 

the chemical industry’s vulnerabilities to terrorist attacks.’’ 13

Also in 2003, GAO acknowledged the voluntary work of the 

chemical industry to enhance security at its facilities, particularly 

that of the American Chemistry Council (ACC), which requires 

members to conduct security vulnerability assessments and implement security improvements.14 Yet ACC members represent only a 

fraction of the chemical sector. GAO stated: ‘‘Despite the voluntary 

industry initiatives to date, the extent of security preparedness 

across the chemical industry is unknown,’’ and ‘‘both the Secretary 

of Homeland Security and the Administrator of the EPA have stated that voluntary efforts alone are not sufficient to assure the public of the industry’s preparedness.’’ 15 GAO therefore recommended 

in 2003 that DHS and EPA develop a comprehensive national 

chemical security strategy.16

GAO repeated these conclusions the next year in testimony before a House subcommittee, stating, ‘‘Experts agree that the Nation’s chemical facilities may be attractive targets for terrorists intent on causing massive damage, but the extent of security preVerDate Aug 31 2005 05:32 Sep 15, 2006 Jkt 049010 PO 00000 Frm 00006 Fmt 6659 Sfmt 6602 E:\HR\OC\SR332.XXX SR332

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17GAO, Homeland Security: Federal Action Needed to Address Security Challenges at Chemical Facilities, Feb. 23, 2004, GAO–04–482T, at 2 (testimony of John B. Stephenson, Director, 

Natural Resources and Environment, GAO, before the Subcommittee on National Security, 

Emerging Threats, and International Relations, Committee on Government Reform, U.S. House 

of Representatives). 18 Id. at 3, 8–11. 19Steve Kroft, ‘‘Chemical Plant Insecurity; Concern Over Terrorist Access to U.S. Chemical 

Plants,’’ 60 Minutes, Jun. 13, 2004 (transcript). 20The Department of Homeland Security: The Road Ahead: Hearing Before the Senate Comm. 

on Homeland Security and Governmental Affairs, 109th Cong. 29, 114–15 (2005) (testimony of 

Richard Falkenrath). 21 Id. 22 Id. 23 National Strategy for Securing the Chemical Sector: A Report to the Committees on Appropriations of the United States Senate and House of Representatives, The U.S. Department of 

Homeland Security, April 2006, at 3. Although the cover of the report notes date of issuance 

as ‘‘April 2006,’’ the report was actually delivered to the Committees on Appropriations in May 

2006. 

paredness since the events of September 11, 2001, is unknown.’’ 17

A year later, there was still no legal provision for Federal regulation of chemical sector security, and still no comprehensive Federal 

assessment of chemical facility security.18

Also in 2004, the CBS News television magazine ‘‘60 Minutes’’ focused on chemical security. The news show spoke with an investigative reporter at the Pittsburgh Tribune-Review, who examined 

60 plants in Chicago, Pittsburgh, Baltimore and Houston, and 

walked into them without difficulty. ‘‘We found gates unlocked or 

wide open, dilapidated fences, and unprotected tanks filled with 

deadly chemicals,’’ the ‘‘60 Minutes’’ reporter said of the facilities 

he examined in Chicago and California. Former Senator Warren 

Rudman, co-author of the blue ribbon task force on homeland security, told ‘‘60 Minutes’’ that chemical security is an ‘‘extraordinarily 

serious problem,’’ and recommended that Congress authorize DHS 

to set and enforce chemical security standards.19

In January 2005, Richard Falkenrath of the Brookings Institution urged Congress to give DHS the authority to regulate the security of the Nation’s at-risk chemical facilities, when he testified 

before the Committee’s hearing, ‘‘The Department of Homeland Security: The Road Ahead.’’ He cited that one acute and ‘‘almost 

uniquely dangerous’’ threat, ‘‘toxic-by-inhalation industrial chemicals.’’ 20 The impact of destroying certain chemical facilities, he 

said, could only be rivaled by an improvised nuclear device.21 He 

criticized the Federal government for having made ‘‘no material reduction in the inherent vulnerability of hazardous chemical targets 

inside the United States,’’ and recommended that ‘‘doing so should 

be the highest critical infrastructure protection priority for the Department of Homeland Security in the next two years.’’ 22

The Department’s ‘‘National Strategy for Security of the Chemical Sector’’ report, issued in May 2006, noted, ‘‘Chemical facilities 

in the U.S. are ubiquitous and represent potentially attractive targets for a terrorist adversary. Because the potential for inflicting 

casualties and economic damage by attacking a chemical facility is 

relatively high, the U.S. will continually be concerned with Chemical Sector security.’’ 23

Statutory authority 

Five years after the attacks of September 11, 2001, the Federal 

government lacks the statutory authority to comprehensively regulate the security of chemical facilities in the United States. Instead, 


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24 Chemical Facility Security: What is the Appropriate Federal Role?: Hearing Before the Senate Comm. On Homeland Security and Governmental Affairs, 109th Cong. 16, 53 (2005) (testimony of Rear Admiral Craig E. Bone, Director of Port Security, Marine Safety, Security, and 

Environmental Protection Directorate, U.S. Coast Guard, and Bob Slaughter, President, National Petrochemical and Refiners Association). 25 Is the Federal Government Doing Enough to Secure Chemical Facilities and Is More Authority Needed: Hearing Before the Senate Comm. On Homeland Security and Governmental Affairs, 109th Cong. (2005)(statement of Robert Stephan). 26Thomas J. Ridge & Christine Todd Whitman, A Security Requirement, The Washington 

Post, October 6, 2002, at B6. 

the Federal government is authorized to regulate only segments of 

the chemical sector, creating a patchwork of regulation that has 

left far too many facilities completely unregulated. For example, 

DHS and the Department of Transportation have broad statutory 

authority to regulate the transportation of hazardous materials, 

but lack the authority to regulate their security when stored at 

most stationary facilities. Further, a small portion of chemical facilities are subject to two post-9/11 Federal statutes that specifically address the security concerns: the Maritime Transportation 

Security Act (MTSA), P.L. 107–295, and the Public Health Security 

and Bioterrorism Preparedness and Response Act of 2002 (Bioterrorism Act), P.L. 107–188. 

Under MTSA, the U.S. Coast Guard—a component of DHS—regulates chemical facilities that are located along navigable waterways and receive shipments via vessels. Under MTSA, the Coast 

Guard has reviewed 3,000 facility security plans and has jurisdiction over approximately 300 chemical and petrochemical facilities.24 Under the Bioterrorism Act, the EPA regulates security at 

community water systems. The Bioterrorism Act covers 8,400 of the 

largest water facilities in the United States. Both statutes require 

vulnerability assessments and the creation of or updating of emergency response plans. However, only MTSA requires facilities to 

submit security plans and install security measures; the Bioterrorism Act does not require a specific security plan or security 

measures. Further, MTSA provides for an ongoing security regime; 

the Bioterrorism Act requires that the assessments and plans be 

maintained for five years, but gives no clear guidance after that. 

The Homeland Security Act of 2002 (HSA), P.L. 107–296, also 

provides some authority with respect to the Department’s critical 

infrastructure protection mission, but the HSA does not specifically 

address chemical facility security. While it authorizes DHS to analyze vulnerabilities and to recommend measures to protect the critical infrastructure of the United States, of which the chemical sector is a part, it does not authorize DHS to mandate the submission 

of plans or the installation of any security measures. At the moment, DHS has no power to require these facilities to implement 

security enhancements. 

While the chemical industry has made some notable voluntary 

efforts to enhance security at chemical facilities, there is no comprehensive architecture of security across the chemical sector. As 

noted above, the Department itself, in testimony before the Committee given by Assistant Secretary Bob Stephan, noted that 20 

percent of the 3,400 facilities deemed by the Department to be high 

risk are not participating in any kind of measurable voluntary 

code.25

As early as 2002, the Administration called for legislation to regulate the chemical sector.26 In 2003 and again in 2004, the PresiVerDate Aug 31 2005 23:43 Sep 14, 2006 Jkt 049010 PO 00000 Frm 00008 Fmt 6659 Sfmt 6602 E:\HR\OC\SR332.XXX SR332

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27 ‘‘President Marks Homeland Security’s Accomplishments at Year One,’’ Washington, DC, 

March 2, 2004. The President’s expression of support for legislation was worded virtually the 

same and occurred during an address at the FBI Academy in Quantico, Virginia, on September 

10, 2003. 28 Is the Federal Government Doing Enough to Secure Chemical Facilities and Is More Authority Needed: Hearing Before the Senate Comm. On Homeland Security and Governmental Affairs, 

109th Cong. (2005) (statement of Robert Stephan). 29 National Strategy for Securing the Chemical Sector: A Report to the Committees on Appropriations of the United States Senate and House of Representatives, The U.S. Department of 

Homeland Security, April 2006, at 8. 30 National Strategy for Securing the Chemical Sector: A Report to the Committees on Appropriations of the United States Senate and House of Representatives, The U.S. Department of 

Homeland Security, April 2006, at 8–9. 

dent publicly stated his support for chemical security legislation, 

stating ‘‘we’re working with Congress on new legislation that establishes uniform standards for securing chemical sites, and gives 

DHS the power to enforce those standards.’’ 27 Robert Stephan, 

then Acting Under Secretary for Information Analysis and Infrastructure Protection, testified before the Committee in June 2005, 

saying Secretary Chertoff had concluded new regulatory authority 

was needed to secure the Nation’s chemical facilities.28 On March 

21, 2006, Secretary Chertoff gave a speech on chemical security at 

a George Washington University-American Chemistry Councilsponsored event, asking for legislation that would grant DHS the 

authority to require security at chemical facilities to be enacted 

this year. Furthermore, the Department issued a ‘‘National Strategy for Security of the Chemical Sector’’ in May, noting, ‘‘legislation 

that would provide the Department of Homeland Security with 

overarching regulatory authority for Chemical Sector security 

should be enacted.’’ 29 The Department stated in the National 

Strategy that ‘‘the lack of regulatory authority regarding chemical 

facility security is a serious impediment to the achievement of its 

vision and goals for the sector. Without regulatory authority, the 

Federal government will largely be forced to rely on voluntary performance by sector security partners, and will be extremely limited 

in its ability to ensure that facilities are meeting minimum performance standards commensurate with their level or risk.’’ 30 The 

President’s FY07 budget proposal for the Department included a 

$10 million request for the creation of a chemical security office 

which would establish standards and ensure strong safeguards are 

in place to reduce the vulnerability of the chemical industry critical 

infrastructure from acts of terrorism. 

Hearings 

Four hearings held by this Committee showcased not only the 

threat to the chemical sector, but also the need for Federal legislation granting DHS the authority to regulate the security of the nation’s at-risk chemical facilities. 

On April 27, 2005, Chairman Collins convened the first of the 

four hearings. At that time, there had been no national strategy for 

chemical facilities. This hearing, ‘‘Chemical Attack on America: 

How Vulnerable Are We?,’’ highlighted the vulnerability of thousands of largely unprotected chemical facilities nationwide. The series of hearings would examine the complex issue of chemical facility security, and determine whether the risk of a terrorist attack 


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31 Chemical Attack on America: How Vulnerable Are We?: Hearing Before the Senate Comm. 

on Homeland Security and Governmental Affairs, 109th Cong. 1 (2005) (statement of Sen. Susan 

M. Collins). 32 Id. at 4 (statement of Sen. Joseph I. Lieberman). 33 Id. at. 22 (testimony of Stephen E. Flynn). 34 Id. at 83 (written testimony of Richard Falkenrath). 35 Id. at 62 (written testimony of John Stephenson). 36 Id. at 14–16, 25–26 (testimony of Carolyn Merritt). 37 Id. at 63–64 (written testimony of John Stephenson). 38 Id. at 48 (written testimony of Sen. Jon Corzine). 

warrants a legislative solution.31 The Committee noted that chemical security has not received the attention it deserves, given the 

vulnerabilities involved and called on the Administration to work 

with it on a bipartisan basis in order to help pass effective legislation this session of Congress.32

Witnesses at the hearing were then-Senator Jon Corzine, Carolyn Merritt of the U.S. Chemical Safety and Hazard Investigation 

Board (CSB), John Stephenson of the U.S. Government Accountability Office, Richard Falkenrath of the Brookings Institution and 

Stephen Flynn of the Council on Foreign Relations. 

The consensus among the witnesses was that the chemical sector 

was vulnerable to a deadly attack. Security experts Flynn and 

Falkenrath, detailed the potential consequences of an attack on a 

chemical facility located in or near a high-density population center 

and storing massive quantities of extremely hazardous chemicals. 

Flynn described these facilities as the military equivalent of a poorly guarded weapon of mass destruction.33 Falkenrath noted in his 

written testimony, ‘‘Of all the various remaining civilian 

vulnerabilities in America today, one stands alone as uniquely 

deadly, pervasive and susceptible to terrorist attack: toxic-inhalation-hazard industrial chemicals.’’ 34 The GAO’s John Stephenson 

echoed the remarks of Flynn and Falkenrath, stating that experts 

agree chemical facilities are an attractive target for terrorists.35

Despite the clear danger presented by certain chemical facilities, 

the CSB’s Carolyn Merritt testified that too many high-risk facilities continue to repeat the mistakes of Bhopal, leaving their plants 

vulnerable. She testified about her investigations of accidental 

chemical releases across the Nation revealed serious gaps in the 

preparations for major chemical releases by companies, emergency 

responders, government authorities and the public. She testified 

that the CSB regularly finds deficiencies similar to those at Bhopal 

at major accidental incidents in this country, including failure to 

prepare the public for chemical emergencies. It was the lack of 

preparation that made the Bhopal accident particularly devastating, adding to the casualties—something she said can be mitigated with better preparedness and response efforts.36

The witnesses also found that neither the chemical industry nor 

the Federal government had done enough to secure the potentially 

most deadly facilities. Stephenson stated that despite efforts by 

DHS to assess facility vulnerabilities, no comprehensive security 

assessment has been conducted nationwide, and that there are no 

Federal requirements that comprehensively address security at the 

Nation’s chemical facilities.37 Testimony indicated the Federal government had not done enough to reduce the vulnerability of chemical facilities, nor did it have the authority to do so.38

The witnesses agreed that Congress should authorize the Federal 

government to regulate the security of the Nation’s at-risk chemical 


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39 Id. at 26–29 (testimony of Falkenrath, Flynn, Merritt, Stephenson). 40 Id. At 87 (written testimony of Falkenrath). 41 Id. at 64 (written testimony of John Stephenson). 42 Id. at 35 (testimony of Flynn). 43 Id. at 20–21 (testimony of Falkenrath). 44 Id. at 33 (testimony of Falkenrath). 45 Id. at 34 (testimony of Falkenrath). 46 Id. at 34 (testimony of Falkenrath). 47 Id. at 30–31 (testimony of Falkenrath and Flynn). 48 Id. at 30 (testimony of Falkenrath). 49 Id. at 31 (testimony of Stephenson). 50 Id. at 32 (testimony of Flynn). 

facilities.39 Falkenrath stated that a voluntary regime will not succeed: ‘‘It is a fallacy to think that profit-maximizing corporations 

engaged in a trade as inherently dangerous as the manufacture 

and shipment of * * * chemicals will ever voluntarily provide a 

level of security that is appropriate given the larger external risk 

to society as a whole.’’ 40 Stephenson recommended that, even in 

the absence of legislation, the Federal government should develop 

a national strategy for chemical security.41

Flynn stated that decisions about adequate security require 

threat information, which is typically controlled by the government. 

Without intelligence about threats, chemical companies are only 

making their best guess as to how much security to invest in. But 

the government, he added, has yet to develop the underlying intelligence necessary for facilities to assess their security on the basis 

of threat information alone, forcing decisionmakers to assess and 

enhance security on the basis of potential consequences of an attack on a facility.42

Falkenrath testified that toxic-by-inhalation chemicals, such as 

chlorine and ammonia, are uniquely deadly, pervasive and susceptible to terrorist attack. He felt that there has been little progress 

made since 9/11 to secure chemical facilities. He outlined a regulatory approach that includes six parts: (1) a comprehensive inventory of all facilities; (2) mandatory, graduated Federal standards 

for security; (3) a certification procedure; (4) a verification procedure; (5) a compliance procedure; and (6) an appeals procedure.43

Falkenrath recommended that legislation include strong enforcement mechanisms, such as civil and criminal penalties, including 

the possibility of putting a facility out of business.44 He also 

stressed the importance of placing the facilities into different riskbased tiers, placing greater requirements on the facilities assigned 

to the tiers of greatest risk.45 Falkenrath explained that the tiersystem would provide an incentive for facilities to enhance their security, so that they could fall to a lower risk tier and therefore be 

subject to fewer Federal mandates.46

Finally, witnesses discussed the viability of whether the government should require or encourage facilities to use inherently safer 

technologies to help enhance security. Falkenrath and Flynn said 

the government should provide facilities with incentives to adopt 

security measures, including the substitution of a safer chemical 

for a deadly chemical.47 But Falkenrath counseled against authorizing the government to order facilities to switch to a safer chemical.48 Stephenson noted that using inherently safer technologies 

(IST) would require ‘‘extreme investments’’ for certain facilities,49

and Flynn said ‘‘there is certainly legitimately a call on some Federal resources to help with this problem.’’ 50


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51 Id. at 36 (written statement of Robert Stephan). 52 Id. at 7 (statement of Stephan). 53 Id. at 63 (response of Dunne to questions for the record). 54 Id. at 15 (testimony of Stephan and Dunne). 55 Id. at 5 (testimony of Stephan). 56 Id. 57 Id. at 6 (testimony of Stephan). 

On June 15, 2005, the Committee held the second of four hearings on chemical security. This hearing was entitled, ‘‘Is the Federal Government Doing Enough to Secure Chemical Facilities and 

Is More Authority Needed?’’ This hearing looked directly at the actions and views of the Federal government, specifically DHS and 

EPA. The Committee heard from two witnesses: Robert B. Stephan, 

then-Acting Under Secretary for Information Analysis and Infrastructure Protection, U.S. Department of Homeland Security, and 

Thomas P. Dunne, Deputy Assistant Administrator, Office of Solid 

Waste and Emergency Response, U.S. Environmental Protection 

Agency. 

In December 2003, DHS replaced the EPA as the Federal government’s lead agency for chemical security. The Administration’s ‘‘National Strategy for Homeland Security’’ (July 2002) designated 

EPA as the lead agency responsible for the security of the chemical 

sector. Later that year, Congress created the Department of Homeland Security (DHS) and a subsequent White House directive—

Homeland Security Presidential Directive 7 (HSPD–7)—designated 

DHS as the Federal government’s lead agency for chemical sector 

security, in December 2003. 

In his written testimony, then-Acting Under Secretary Stephan 

said that ‘‘Secretary Chertoff has concluded that from the regulatory perspective, the existing patchwork of authorities does not 

permit us to regulate industry effectively,’’ and told the Committee 

that DHS will ‘‘look forward to working with you in the coming 

weeks on the particulars of proposed legislation.’’ 51 Stephan testified before the Committee that ‘‘it has become clear that the entirely voluntary efforts of these companies alone will not sufficiently address security for the entire chemical sector.’’ 52 In a response to a written question, Dunne wrote, ‘‘EPA has no evidence 

to support the conclusion that market forces alone are sufficient to 

ensure adequate safety or security at hazardous chemical facilities 

* * * Therefore, the Agency believes that Federal safety and security requirements are necessary to ensure high-risk chemical facilities implement appropriate safety and security measures.’’ 53

Although Stephan and Dunne did not indicate that the Administration would send the Committee a proposal,54 Stephan advised 

that the legislation should adhere to three core principles. First, 

any Federal regulatory system should recognize that not all facilities present the same level of risk, and that most scrutiny should 

be focused on those facilities, which if attacked, ‘‘could endanger 

the greatest number of American lives, have the greatest impact on 

the American economy, or present other significant risks.’’ 55 Second, chemical security regulations should be based on enforceable 

performance standards.56 Third, there should be a recognition of 

the progress many responsible companies have made to date in the 

area of chemical security.57 Stephan was unable to offer specifics 

about the Administration’s desired legislative framework, but said 

that MTSA is a framework worth consideration because ‘‘that parVerDate Aug 31 2005 23:43 Sep 14, 2006 Jkt 049010 PO 00000 Frm 00012 Fmt 6659 Sfmt 6602 E:\HR\OC\SR332.XXX SR332

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58 Id. at 29 (testimony of Stephan). 59 Id. at 37, 58 (testimony of Stephan and Dunne). 60 Id. at 38 (testimony of Stephan). 61 Id. at 38–39 (testimony of Stephan). 62 Id. at 40–41 (testimony of Stephan). 63 Id. at 42 (testimony of Stephan). 64 Id. at 51 (testimony of Stephan). 65 Id. at 10 (testimony of Stephan). 66 Id. at 26 (testimony of Stephan). 67 Id. at 50, 52 (testimony of Stephan). 

ticular way of doing business has achieved a certain level of success,’’ while noting that ‘‘we have to * * * see if there are any deltas between the MTSA approach and whatever the overall more encompassing approach would be.’’ 58

Stephan and Dunne agreed that DHS would be the appropriate 

lead agency for chemical security, consistent with HSPD–7.59 In 

support, Stephan reported on the Department’s $13.6 million allocation to state and local governments for Buffer Zone Protection 

Plans, some of which would be dedicated to helping identify and 

recommend security measures, and coordinate local law enforcement for the area surrounding a chemical facility.60 He also described the 38 Site Assistant Visits that DHS has undertaken at 

some of the ‘‘highest-consequence’’ facilities, and the work of the 

Coast Guard regulating the security of the approximately 300 

chemical sites governed by the MTSA regulations.61 He cited the 

Department’s work with the private sector through the Chemical 

Sector Coordinating Council and the security guidance documents 

the Department has shared with the private sector.62 Finally, 

Stephan discussed the Department’s tool for analyzing risk in the 

chemical sector and at individual facilities—the Risk Analysis and 

Management for Critical Asset Protection (RAMCAP).63 ‘‘RAMCAP 

(and other risk methodologies) enables the Office of Infrastructure 

Protection to compare the risk of critical infrastructure assets within the chemical sector, thereby enabling DHS to prioritize * * * 

protective efforts and effective use of available resources,’’ 64

Stephan testified. 

The Committee also explored what role the EPA should play in 

chemical security. Dunne testified that the EPA supports DHS by 

providing information and analytical support as needed, and that 

the EPA would continue in a supporting role. Dunne added that 

only one department or agency should be in charge and Stephan 

agreed. 

Stephan and Dunne also provided data on the number of chemical facilities deemed to pose the greatest risk to the country. According to Stephan, DHS considers 3,400 facilities to be ‘‘high-risk,’’

with 272 facilities in the top tiers.65 Stephan said DHS arrived at 

3,400 facilities by starting with the EPA’s Risk Management Program (RMP) program list of approximately 15,000 facilities and 

then removing facilities that appeared more than once on the list, 

facilities that were no longer RMP-applicable, and facilities that 

DHS believed are under somebody else’s regulatory framework.66

Responding to a written question, Stephan said that the 3,400 facilities would, if befallen to a catastrophic scenario, ‘‘adversely affect’’ at least 1,000 people.67

Notably, Stephan testified that 20 percent of the 3,400 facilities 

deemed by DHS to be high-risk because they would adversely affect 

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68 Id. at 13–14, 53 (testimony of Stephan). 69 Id. at 27 (testimony of Dunne). 70 Id. at 28 (testimony of Dunne). 71 Id. at 28 (testimony of Dunne). 72 Chemical Facility Security: What Is the Appropriate Federal Role?: Hearing Before the Senate Comm. on Homeland Security and Governmental Affairs, 109th Cong. 2 (2005) (statement 

of Senator Susan M. Collins). 73 Id. at 8 (testimony of Durbin). 74 Id. at 15 (testimony of Barmasse); Id. at 17–18 (testimony of Slaughter). 75 Id. at 10, 15, 17–18 (testimony of Durbin, Barmasse, and Slaughter) 76 Id. at 11 (testimony of Durbin). 77 Id. at 11, 15, 18, 25 ((testimony of Durbin, Barmasse, and Slaughter). 

able voluntary code.68 Dunne testified that out of the 15,000 RMP 

facilities, only about seven to eight percent of them adhere to voluntary codes, amounting to about 2,000 facilities.69 Dunne did not 

say whether those 2,000 facilities represented some part of the 

high-risk portion of the 15,000 RMP facilities. 

At the same hearing, the issue of whether local communities 

were prepared for terrorist attacks on nearby chemical facilities 

was explored, as a follow up to the April 27, 2005 testimony from 

Carolyn Merritt of the CSB. Dunne explained that there are 3,900 

Local Emergency Planning Committees (LEPCs) established by the 

Emergency Planning and Community Right-to-Know Act, and that 

according to a 1999 survey, about 59 to 60 percent of them are active.70 ‘‘I am sure we are not well prepared across the board all the 

time,’’ Dunne said.71

On July 13, 2005, the Committee held the third of four hearings 

on chemical security. The hearing was entitled, ‘‘Chemical Facility 

Security: What Is the Appropriate Federal Role?’’ The first panel 

featured witnesses from the chemical industry, including Martin J. 

Durbin, Managing Director, Security and Operations, American 

Chemistry Council (ACC); Matthew Barmasse, Environmental 

Health Safety and Quality Director, ISOCHEM, Inc., Synthetic Organic Chemical Manufacturers Association (SOCMA); and Bob 

Slaughter, President, National Petrochemical and Refiners Association (NPRA). Testifying on the second panel were the Honorable 

Gerald V. Poje, Former Board Member, U.S. Chemical Safety and 

Hazard Investigation Board; Glenn Erwin, Project Director, Triangle of Prevention Program, United Steelworkers International 

Union; and Carol L. Andress, Economic Development Specialist, 

Environmental Defense. 

The testimony included views from stakeholders in the chemical 

sector, including industry, environmental groups, labor, and public 

advocacy groups. These witnesses discussed the need for mandatory measures to complement industry’s voluntary efforts.72

In his testimony, Marty Durbin, representing the ACC, advocated for chemical security legislation 73 and the other industry witnesses representing SOCMA and NPRA did not oppose legislation.74 Like Stephan, these industry witnesses advocated a riskbased, performance-based approach to chemical security regulation.75 Durbin also testified that DHS should have ‘‘the legal authority to police compliance with its standards and to take enforcement action if necessary,’’ and to protect information about the security assessments and plans from public disclosure.76 Finally, 

each of the industry witnesses asked that the legislation include 

Federal preemption authority; Durbin said, ‘‘a national program, 

not an incomplete patchwork of potentially conflicting State efforts, 

is necessary.’’ 77


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78 Id. at 11, 15, 18 (testimony of Durbin, Barmasse, and Slaughter). 79 Id. at 9 (testimony of Durbin). 80 Id. at 11–12, 14–15, 23–24 (testimony of Durbin, Slaughter, and Barmasse). 81 Id. at 11 (testimony of Durbin, Barmasse, and Slaughter). 82 Id. at 11, 14 (testimony of Durbin, Barmasse). 83 Id. at 12 (testimony of Durbin). 84 Id. at 27 (testimony of Barmasse). 85 Id. at 17–19 (testimony of Slaughter). 86 Id. at 24 (testimony of Slaughter). 

The industry witnesses added to the testimony from Stephan, 

Stephenson, and Falkenrath at the two previous hearings, saying 

that Federal legislation should give credit to the investments that 

certain facilities have already made in the enhancement of their security, similar to the credit given to facilities under MTSA.78 Durbin, for example, detailed the ACC’s Responsible Care Security 

Code, which all ACC members must follow. Under the Responsible 

Care Security Code, facilities must develop vulnerability assessments, using methodologies developed by the Sandia National Laboratories and the Center for Chemical Process Safety; implement 

security measures to address the vulnerabilities identified in the 

assessments; and submit to a third-party for an audit.79

Industry witnesses supported the private sector’s development of 

inherently safer technologies (IST), but expressed concerns about a 

regulatory framework that would authorize the government to review, approve, or disapprove a facility’s decision of whether or not 

to use IST.80 First, industry witnesses pointed out that some facilities are using IST on their own (while acknowledging that many 

are not).81 Second, industry witnesses argue that, in some instances, using IST trades one risk against the potential of another—for example, reducing hazardous chemicals at a facility 

could mean their transfer to another location, thereby shifting the 

risk to that other location.82 Third, industry witnesses warned 

about the complexity of chemical industry processes and the absence of a ‘‘standard process,’’ thereby precluding the possibility of 

a one-size-fits-all prescription for IST.83 Fourth, some said DHS 

lacks the expertise to understand how to regulate chemical processes.84 Fifth, industry witnesses echoed Stephan’s testimony at 

the June 15, 2005 hearing that the adoption of IST could require 

massive capital expenditures for certain facilities, particularly 

manufacturing facilities. 

The industry witnesses on the first panel praised MTSA as a successful model on which chemical security regulation could be based. 

One industry witness, Slaughter of NPRA, asked that the legislation be modeled on MTSA because of its performance-based standards, its emphasis on self-assessments, its enforcement mechanisms, and the NPRA membership’s praise of their relationship 

with the Coast Guard.85 When asked if he would support giving the 

Department similar shut-down authority already granted to the 

Coast Guard under MTSA, Mr. Slaughter responded that ‘‘obviously, any regulatory entity * * * has got to have ultimate authority to enforce its requirements.’’ 86

Witnesses on the second panel stressed the need for examining 

safer processes and chemicals as an integral part of chemical site 

security, as well as the importance of strong emergency response 

capabilities. Poje testified that chemical facilities in the United 

States have many safety and security deficiencies that could jeopardize large populations living nearby. Poje stressed the interVerDate Aug 31 2005 23:43 Sep 14, 2006 Jkt 049010 PO 00000 Frm 00015 Fmt 6659 Sfmt 6602 E:\HR\OC\SR332.XXX SR332

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87 Id. at 32 (testimony of Poje). 88 Id. at 32–33 (testimony of Poje). 89 Id. at 37–38 (testimony of Andress). 90 Id. at 38 (testimony of Andress). 91 Id. at 149 (written statement of Erwin) 92 Id. at 33 (testimony of Erwin). 93 ‘‘PACE International Union Survey: Workplace Incident Prevention and Response Since 9/ 

11’’, October 2004, by Paper, Allied-Industrial, Chemical and Energy Workers International 

Union (PACE). 94 Chemical Facility Security: What Is the Appropriate Federal Role?: Hearing Before the Senate Comm. on Homeland Security and Governmental Affairs, 109th Cong. 2 (2005) (written testimony of Andress). 95 Id. 

connection between safety and security, saying ‘‘I urge the Committee to see the development and maintenance of competent management systems for safety as essential underpinnings to enhanced 

security.’’ 87 Poje said that an effective security program at DHS 

must: include coordination with other agencies that regulate aspects of the chemical sector; require sound ‘‘management systems’’ for security; and include strong planning and training for emergency response.88

Andress testified that numerous water and wastewater facilities 

and refineries have already dramatically reduced their risk of a 

catastrophic accident or terrorist attack by switching to safer 

chemicals and processes.89 Andress said that because other similarly situated facilities have failed to make such changes, effective 

chemical security legislation should require these options where 

feasible.90 Erwin also advocated substituting less toxic materials 

where possible to reduce the potential risk to human life or storing 

smaller volumes of these chemicals, and said a mandatory review 

of such options should be part of a chemical security program. 

Erwin called for Federal funding to research and promote such inherently safer systems, as well as for training employees and first 

responders about safety and security issues.91

Erwin warned that chemical and petrochemical facilities pose a 

likely target because it is ‘‘too easy’’ to gain access to the facilities, 

and the potential economic disruption of an attack is so great.92

Erwin’s testimony drew on his experience working in the industry, 

and on the results of a 2004 employee survey at 125 facilities using 

hazardous chemicals. The survey found that security and safety 

measures at the facilities were dangerously lacking.93 Erwin called 

for greater perimeter security for chemical facilities as well as more 

careful access to hazardous areas within the plant. 

Andress also called for requirements that facilities involve workers and first responders in security planning and bolster emergency 

planning efforts.94 She testified that Congress should direct DHS 

to develop rules to prohibit the siting of new high risk chemical facilities in densely populated areas.95

On July 27, 2005, the Committee held the fourth in its series of 

hearings. The hearing, ‘‘Chemical Facility Security: What is the 

Appropriate Federal Role? (Part II)’’ included a two-fold theme. 

First, the hearing was a continuation of the July 13 hearing, which 

focused on the views of various stakeholders in the chemical sector 

and their opinions on the need for Federal legislation and what 

that legislation should look like. Second, this hearing explored in 

more detail some of the issues that have been raised at the previous three hearings. This hearing included testimony from the 

Coast Guard on its implementation of MTSA as well as testimony 


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96 Id. at 66 (testimony of Turner). 97 Id. at 53 (testimony of Bone). 98 Id. at 53 (testimony of Bone). 99 Id. at 53 (testimony of Bone). 100 Id. at 56 (testimony of Bone). 101 Id. at 56 (testimony of Bone). 

from three company security chiefs, representing three different 

segments of the chemical sector. The first panel consisted of Rear 

Admiral Craig Bone, the Director of Port Security in the Maritime 

Safety, Security and Environment Protection Directorate at the 

U.S. Coast Guard Headquarters. The second panel consisted of 

Beth Turner, Director of Global Operations Security at DuPont; 

Jim Schellhorn, Director of Environmental, Health and Safety at 

Terra Industries, Inc., who also represented The Fertilizer Institute; John Chamberlain, Corporate Security Manager, Asset Protection for Shell, who also represented the American Petroleum Institute, and; Chief Robert Full, Fire Marshall and EMA Coordinator for the Allegheny County Department of Emergency Services 

in Pennsylvania. 

Previous hearing testimony from stakeholders and representatives of the Department of Homeland Security indicated that the 

framework under MTSA would be a good model in drafting a chemical security bill. During this hearing, Beth Turner of DuPont testified that the MTSA has proven ‘‘to be a very effective security regulation’’ and recommended it as a ‘‘model for regulating the highest 

priority facilities.’’ 96 Admiral Bone’s testimony focused on the 

Coast Guard’s role in securing chemical facilities on the waterways 

of the United States under the Maritime Transportation Security 

Act (MTSA). Adm. Bone testified that approximately 300 chemical 

facilities had facility security plans reviewed and approved under 

MTSA.97 The Coast Guard also approved an alternative security 

program for the American Chemistry Council, and approximately 

50 chemical facility operators had chosen to use the American 

Chemistry Council’s alternative security program.98

Admiral Bone testified that since July 1, 2004, the Coast Guard 

had taken ‘‘control actions,’’ which included restrictions and suspension of operations against 45 facilities.99 The Coast Guard exercised its shut-down authority in 32 of those cases, and of these facilities, 3 were chemical facilities.100 Adm. Bone believed that it is 

important to give DHS shut-down authority because if one has a 

significant violation of security, such as access—illegal access or 

breach of the facility—then the security is compromised, as is the 

well-being of the public.101 He described the area maritime security 

committees, led by the local Coast Guard captain of the port, which 

have identified their port’s specific vulnerabilities and created a 

plan to address those vulnerabilities (area security plan). These 

area plans focus on critical port operations and infrastructure, including the chemical facilities regulated under MTSA, as well as 

other facilities located in close proximity to navigable waterways. 

In discussing lessons learned from implementing MTSA that 

would be helpful in crafting a chemical security regime, Adm. Bone 

emphasized that in creating regulations, the regulator must engage 

with the industry component that will be regulated, and this relationship must continue as the process moves forward, because the 


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102 Id. at 57–58 (testimony of Bone). 103 Id. at 58 (testimony of Bone). 104 Id. at 66, 69 (testimony of Turner and Schellhorn). 105 Id. at 66, 69–70 (testimony of Turner and Schellhorn). 106 Id. at 66, 69–70 (testimony of Turner and Schellhorn). 107 Id. at 70 (testimony of Schellhorn). 108 Id. at 66 (testimony of Turner). 109 Id. at 69 (testimony of Schellhorn). 110 Id. at 72 (testimony of Chamberlain). 111 Id. at 71 (testimony of Chamberlain). 112 Id. at 73 (testimony of Chamberlain). 113 Id. at 73 (testimony of Chamberlain). 

industry has expertise that the regulator could utilize.102 Bone also 

testified that there has to be compliance and a mandated set of requirements. He also emphasized that the plans must be exercised 

and include not just the people in the facilities, but the emergency 

response component as well. In fact, Adm. Bone testified that it 

would be a ‘‘big mistake’’ if the emergency responders were not included in the drills and exercises.103

Turner and Schellhorn testified that DuPont and the Fertilizer 

Institute respectively support chemical security legislation that incorporates several elements, including giving DHS the regulatory 

authority that is risk-based, flexible, focused on security and uses 

MTSA as a model.104 Turner and Schellhorn agreed that legislation 

should recognize the voluntary security efforts and investments already made to date by industry.105 They also favored a tiered approach to security regulations.106 In determining what facilities 

should be covered by Federal regulation, Turner noted that the 

ability to create an off-site consequence is a ‘‘very important discriminator.’’ Schellhorn also urged that Federal legislation preempt 

any State or local government’s laws on the subject.107

Turner testified that inherently safer technology (IST) ‘‘has an 

important role to play in security,’’ but she said it is a safety matter, not a security issue, and therefore should not be mandated in 

a chemical security context.108 Schellhorn testified that ‘‘IST is not 

a security measure,’’ but rather a safety concept that he feared 

‘‘could lead to the ban or restricted use of basic nitrogen fertilizers.’’ 109 Chamberlain testified that he is ‘‘strongly oppose[d] to 

any environmental mandates for inherently safer technology pursued under the guise of security.’’ 110

John Chamberlain of Shell Oil Company testified that a large 

number of security personnel in the oil and gas industry have the 

security clearances necessary for classified briefings with the Federal intelligence community.111 Chamberlain also emphasized the 

importance of information protection in any security legislation; in 

addition to a FOIA exemption, he would want any security information required under a Federal chemical security law to be exempt from civil discovery.112 Moreover, he would like MTSA-covered facilities to be exempt from any Federal chemical security 

law.113

Chief Full testified that he supports Federal chemical security 

legislation. As a critical component of this legislation, he emphasized the need for strong emergency planning and relationships between the chemical facilities and their local first responders. Good 

emergency planning can help to minimize the consequences of any 

terrorist event or natural disaster. He noted that ‘‘it’s not the time 

or place to exchange business cards during the time of an emerVerDate Aug 31 2005 23:43 Sep 14, 2006 Jkt 049010 PO 00000 Frm 00018 Fmt 6659 Sfmt 6602 E:\HR\OC\SR332.XXX SR332

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114 Id. at 75 (testimony of Full). 115 Id. at 76 (testimony of Full). 

gency.’’ 114 He also discussed the need to improve intelligence sharing between the Federal government with State and locals, though 

he noted information sharing has improved since 9/11, but it still 

has ‘‘a long way to go.’’ 115

These hearings culminated in Chairman Collins’ and Ranking 

Member Lieberman’s December 19, 2005 introduction of the Chemical Facility Anti-Terrorism Act of 2005. 

III. DISCUSSION OF LEGISLATION

Department of Homeland Security authority/responsibility 

The Chemical Facility Anti-Terrorism Act of 2006 authorizes the 

Department of Homeland Security (DHS) to create a comprehensive chemical facility security program. The President, through 

Homeland Security Presidential Directive 7, has designated DHS 

as the lead agency for security of the chemical sector, and this legislation recognizes that vital role by directing and empowering the 

Department to create meaningful security requirements for facilities that use or store significant amounts of dangerous chemicals. 

This security program will replace an existing patchwork of voluntary and regulatory efforts with a national program that will establish meaningful security requirements for all chemical facilities 

that pose a significant homeland security risk. At the same time, 

the legislation seeks to recognize existing security efforts at some 

facilities by establishing flexible requirements that will allow facilities to build on security planning and measures already in place. 

The bill stresses a flexible and risk-based approach to chemical site 

security, focusing on those facilities that present the greatest risk 

and allowing those facilities to determine the most efficient and effective way to achieve the security performance standards established by the Department. DHS is empowered to require that facilities achieve the security performance standards that it sets. 

Risk-based 

The Committee designed this bill to account for the diversity of 

the chemical sector, rather than imposing a one-size-fits-all solution. The Committee recognizes the incredible diversity of the 

chemical sector, which includes chemical manufacturers, distributors, oil and petrochemical and agricultural companies, and both 

large and small businesses. There are tens of thousands of chemical facilities nationwide, but not all pose a high risk to a terrorist 

attack. Facilities located in a rural area with small quantities of 

non-toxic chemicals are unlikely to pose the same risk as a major 

toxic-by-inhalation chemical manufacturer, for example, located inside a major metropolitan area, or a chemical facility that is a critical supplier to the regional or national economy or national security. The Committee believes that a risk-based approach to security 

is the most effective means to regulate the security of chemical facilities across the Nation. 

The Committee heard testimony during all four of its chemical 

security hearings that established a strong record of support for a 

risk-based approach, from security experts, the Administration, 

and stakeholders. 


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116 National Strategy for Homeland Security, The Office of Homeland Security, July 2002, at 

33. 

Therefore, not all facilities that use or store chemicals will be 

subject to security requirements under this bill. Rather, under Section 3, the Department must establish criteria to determine which 

facilities pose a significant risk from a terrorist attack to warrant 

being included in the program. The bill directs the Secretary to 

‘‘consider’’ those facilities that are required to complete a Risk 

Management Plan (RMP) under section 112(r)(2) of the Clean Air 

Act. The bill uses the list of RMP facilities as the best available initial starting point for possible chemical sources. The Committee 

does not anticipate that the Secretary will designate as chemical 

sources every RMP facility. The Secretary is directed to apply risk 

factors outlined in Section 3(b) to produce a list of regulated facilities. Those risk factors include: the perceived threat to a facility; 

the extent and likelihood of potential deaths or harm to humans or 

the environment; and the potential impact on national security, 

critical infrastructure or the economy. Further, those facilities that 

will face regulation under this bill will be grouped into tiers based 

on the severity of risk they present (Section 3(e)). The Secretary is 

expected to focus the regulatory program under this bill on high 

priority sites; in example, those that would be most attractive to 

potential terrorists due to the potentially high consequences of a 

successful terrorist attack. 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 the consequences if there is an attack. 

Performance-based 

The bill also recognizes the diversity of chemical facilities by requiring DHS to develop performance-based standards for chemical 

site security (Section 3(f)). Facilities can 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 the risk of a terrorist attack or the consequences of a 

terrorist attack are placed on a level playing field as long as they 

achieve the standards established by DHS. If DHS determines that 

a chemical facility has not met the performance standard, DHS can 

order compliance or, ultimately, order the closure of the facility 

until it is in compliance. 

By requiring performance standards, the Committee seeks to recognize that chemical facilities have the most information about 

their operations and should have the first opportunity to design appropriate, efficient and effective security measures. According to 

the National Strategy for Homeland Security (July 2002), ‘‘[i]n 

many cases private firms, not the government, possess the technical expertise and means to protect the infrastructure they control.’’ 116

Vulnerability assessments and site security plans 

Section 4 lays out the core requirements of the chemical security 

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nerability assessments and to develop and implement security and 

emergency response plans that respond to those assessments. 

The Secretary would have one year from enactment of the bill to 

develop regulations requiring chemical facilities to conduct vulnerability assessments; prepare and implement a site security plan 

that addresses the risk identified in the vulnerability assessment; 

and prepare or update and implement an emergency response plan 

to reflect planning for a terrorist attack. 

The Secretary must develop or endorse a rigorous methodology 

for vulnerability assessments, to ensure that facilities consider the 

proper issues as they analyze their security needs. The bill specifies that vulnerability assessments must address the relevant performance standards and the sufficiency of security measures relative to the threat and consequences of a possible terrorist incident 

(Section 4(a)(5)). 

Section 4(a)(6) details the requirements for security plans under 

the chemical security program. The plans would need to include security measures that address the vulnerabilities identified in the 

facility’s vulnerability assessment, and meet the appropriate performance standards for that facility as determined by the tier to 

which the facility has been assigned pursuant to Section 3(e). 

As specified in Section 2(11), a ‘‘security measure’’ can be any of 

an array of possible means to improve the security of a chemical 

facility, including increased control of the facility perimeter, personnel-related measures such as training and background checks, 

or enhanced cybersecurity. A security measure might also include 

‘‘the modification, processing, substitution, or reduction of substances of concern’’ as indicated in Section 2(11)(B)(vii)(III). These 

terms, which are considered to be elements of the concept of inherently safer technology (IST), are not included in the bill to provide 

the Secretary with the power to require a facility to implement 

IST. The list of possible security measures under Section 2(11) is 

permissive, not mandatory, and is not meant to exclude any other 

measures that would help enable an owner or operator to meet the 

designated security performance standards for that facility. Section 

4(a)(6) simply directs that the security plan include security measures that ‘‘in combination’’ satisfy the appropriate performance 

standards and other required elements. During Committee markup, the Committee adopted an amendment clarifying this principle; 

Section 4(c)(2) specifies that the Secretary may not disapprove a 

site security plan due to the presence or absence of any particular 

security measure so long as the plan satisfies the applicable security performance standards. Moreover, during markup, the Committee also rejected an amendment that would have given the Secretary the power to require high risk facilities to implement IST. 

The Committee does not believe that this provision or the bill in 

general gives DHS the authority to require IST. 

Emergency response plans 

The Committee believes that it is imperative to incorporate the 

concept of emergency response planning in any chemical security 

regime. During the Committee’s four chemical security hearings, 

witnesses highlighted the importance of emergency preparedness in 

dealing with a chemical release as well as weaknesses in the current state of preparedness of many facilities and communities. In 


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particular, Carolyn Merritt, Chairman of the U.S. Chemical Safety 

and Hazard Investigation Board (CSB), and Gerald Poje, a former 

member of the CSB, were critical of chemical plant preparedness 

across the country. Both Merritt and Poje emphasized in their testimony that effective emergency response planning and capabilities 

can mitigate the consequences of a terrorist attack on a chemical 

facility. In addition, the events of Hurricane Katrina demonstrated 

that the lack of effective emergency planning further exacerbates 

the consequences of a catastrophic event. 

The Committee acknowledges that many chemical facilities nationwide already have created emergency response plans pursuant 

to other Federal, State or local requirements, and it is not interested in duplicating efforts. Rather, the Committee intends this 

provision to build on and bolster existing emergency response plans 

such that they address the consequences of an intentional attack, 

such as a terrorism event, in addition to accidental releases. The 

Committee intends this provision to contribute to the chemical sector’s all hazards preparedness planning, as opposed to planning 

purely for an accidental release or for a terrorist attack scenario. 

Where a chemical facility already has an existing emergency response plan, the bill requires it to update the existing plan by adding a security addendum which addresses a terrorist attack scenario. The bill further requires that emergency response plans specifically address the consequences of a terrorist attack identified in 

the vulnerability assessment and consistent with the facility’s site 

security plan. The bill also requires that the emergency response 

plan identify the roles and responsibilities of employees at the 

chemical source. There is precedent for the revision and update of 

existing emergency response plans in post-9/11 security statutes. 

For example, the Bioterrorism Act included a provision that requires community water systems to ‘‘prepare or revise, where necessary, an emergency response plan.’’ A security regime should encourage both preparedness and response, and the emergency response provision in this bill will encourage chemical facilities to work with their local communities to 

ensure that if a terrorist attack occurs, the community will be prepared. 

Sharing of threat information 

The Secretary is required to provide State and local government 

officials and owners or operators of chemical sources with threat information that is relevant to the chemical sector in general, and to 

provide threat information relevant to a particular chemical source 

to relevant State and local government officials and the owner or 

operator of that particular source. The Secretary must share relevant information to the maximum extent permitted under other 

applicable laws and in the interests of national security. The Committee recognizes that information sharing in an appropriate manner, as noted in the legislation, is an important aspect of effective 

homeland security preparedness. 

MTSA-regulated chemical facilities 

Currently the MTSA regulates approximately 300 chemical facilities in the Nation. The Committee did not exempt MTSA-regulated 

chemical facilities from this bill because it believes that some of the 


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highest risk chemical facilities nationwide are located in ports and 

should meet the security performance standards for their applicable tier, should they, in fact, be covered by this bill. In constructing 

a comprehensive and cohesive Federal chemical security regime, 

the Committee believes that MTSA-regulated chemical facilities 

should be subject to the security performance standards and other 

requirements of this bill. At the same time, the Committee also recognizes that MTSA-regulated chemical facilities have invested in 

security and are currently complying with a Federal statute, while 

many other high risk chemical facilities that are not complying 

with any Federal security law. 

The Committee does not want to duplicate efforts. The Committee included a provision directing that the Secretary must implement this bill in as consistent and integrated a manner as possible with MTSA. The Secretary must also ensure coordination between the Undersecretary for Preparedness and the Coast Guard 

Commandant in carrying out this bill for chemical sources that are 

also MTSA-regulated facilities. Under the bill, if a chemical facility 

owner or operator reviews the security performance standards and 

determines that he is already in compliance, based on his MTSA 

facility security plan, then the owner or operator is not required to 

implement additional security. The owners and operators of these 

facilities must review their own vulnerability assessment, security 

plan and emergency response plan prepared pursuant to MTSA 

and make any modifications necessary to comply with the security 

performance standards established for the tier in which it was 

placed under this Act. Depending on the tier an MTSA-regulated 

chemical facility is in, it may already have sufficient security to address the security performance standards set by DHS. The assessment and plans, with any appropriate modifications, must be submitted to the appropriate Federal Maritime Security Coordinator 

and the Secretary for approval within 6 months after issuance of 

the regulations. Owners and operators of these facilities must also 

certify in writing to the Federal Maritime Security Coordinator for 

their area that the assessment and plans are in compliance with 

the security performance standards for their tier. 

Voluntary activities and investments in security by chemical facilities 

The Committee recognizes the efforts and investments in security 

that some companies have made voluntarily over the last few 

years. This was one of the issues raised in testimony at the July 

13 and July 27, 2005 hearings from companies and industry associations representing different aspects of the chemical sector, including chemical manufacturing, small chemical manufacturers, 

agriculture, and oil and petrochemical. 

The Committee included an alternative security programs provision (Section 4(f)) specifically to take account of the voluntary efforts already taken by chemical companies. The Committee did not 

want chemical companies to duplicate work already done and investments in security already made in creating vulnerability assessments, site security plans, and emergency response plans, for 

example. Under Section 4(f), the Secretary may consider petitions 

to approve alternative security programs. A person may submit a 

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ards established by Federal, State, or local government authorities, 

or industry for determination whether assessments and plans prepared for the alternative program meet the requirements of this 

bill. If an alternate program meets the requirements, the assessments and plans may be submitted by a covered facility without 

further revision. If the Secretary determines that the assessments 

and plans under the alternate program do not meet the requirements of this legislation, he may specify necessary modifications. If 

an alternative security program is approved by the Secretary, each 

facility covered by that program must submit its assessments and 

plans to the Secretary, for review in accordance with the security 

performance standards for the pertinent tier. Each facility submission must be individually approved or disapproved. 

This provision reflects the Committee’s desire that chemical facilities not be forced to duplicate significant work already done and 

security investments already made in creating vulnerability assessments, site security plans, and emergency response plans. However, the Committee feels strongly that the purpose of this bill is 

to create a strong, uniform Federal standard for regulating the security of chemical facilities, so that all existing assessments and 

plans must meet its requirements to be approved by the Secretary. 

DHS review 

In Section 4(c), the Secretary is required to review the assessment and plans to determine whether the submitted assessments 

and plans, and the implementation of such plans comply with the 

bill. If compliance is determined, then the Secretary would issue an 

approval notice; if non-compliance is determined, the Secretary 

would issue a disapproval notice. During Committee markup, an 

amendment was accepted that directs that the Secretary may not 

disapprove a site security plan because it either includes or excludes a specific security measure (Section 4(c)(2)). The amendment 

was intended to reiterate the performance-based, flexible construct 

of the bill and exclude prescriptive requirements. The Secretary 

must provide written notice to the owner or operator of the chemical source regarding the determination of approval or disapproval. 

For disapprovals, the Secretary must provide the owner or operator, in writing, a clear explanation of deficiencies and consult with 

them to identify appropriate steps to achieve compliance and provide additional time for the facility to come into compliance. If the 

owner or operator does not achieve compliance, the Secretary must 

issue an order requiring the owner or operator to correct the specified deficiencies. If the owner or operator continues to be in noncompliance, the Secretary may issue an order for the chemical 

source to cease operation. Hearing testimony from industry witnesses as well as Coast Guard Adm. Bone indicated that the Coast 

Guard possesses similar shut-down authority under MTSA. 

The Committee provided the Secretary with greater authority in 

dealing with higher risk tier facilities. For these facilities, the Secretary may issue an order to cease operation to a chemical source 

owner or operator as soon as the determination is made that the 

vulnerability assessment, site security plan, or emergency response 

plan is disapproved or determines that implementation does not 

comply with this Section. The Secretary is not required to provide 

additional time for compliance as noted for all other tiers. 


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The Secretary is required to make the approval or disapproval 

determination within 5 years after the date of submission of the assessment and plans. For higher risk tier facilities, the Secretary 

must make the approval or disapproval determination within 1 

year after the date of submission of the assessment and plans. The 

Secretary may conduct subsequent reviews and determinations of 

compliance on a schedule that he determines. Higher risk tier facilities must be given priority for review. 

Inspections and audits 

The Committee believes that requiring vulnerability assessments, site security plans and emergency response plans, and the 

implementation of such plans is not enough to ensure adequate security for the Nation’s high risk chemical facilities. The Committee 

included a section in the bill (Section 5) requiring the Department 

to conduct audits and inspections of covered chemical facilities to 

ensure compliance with the bill. Each chemical source must maintain a current copy of the vulnerability assessment, site security 

plan and emergency response plan onsite for 5 years after date of 

the approval determination. The Secretary is given the authority 

for a right of entry to chemical sources and any premises on which 

any record required to be maintained is located. 

The Secretary is directed to conduct, or require the conduct of, 

audits and inspections. The Secretary is given the discretion of determining the times and places of the audits and inspections, and 

he may establish the requirements of this section of the bill by 

rule, regulation, or order. The audits and inspections under this 

section are intended to determine whether a chemical source is in 

compliance with the bill. 

The Committee believes that higher risk facilities should be 

given priority for inspection and audits, and therefore the requirements for these facilities under this section are more stringent. The 

Secretary is directed to inspect or audit higher risk tier facilities 

at least once per year. The Committee also felt strongly that higher 

risk tier chemical sources that are also MTSA-regulated facilities 

should have a seamless audit and inspection regime. Therefore, the 

bill includes a provision that allows an MTSA audit or inspection 

to qualify as an audit or inspection under the bill’s annual requirement. 

While the Committee wants the Department to focus its efforts 

and resources on the highest risk facilities, it did not want to unduly tie the hands of the Secretary in establishing an effective 

audit and inspection regime. Therefore, pursuant to an amendment 

adopted at Committee markup, if a higher risk tier facility has 

been found in compliance with this Act based upon 5 consecutive 

years of audits or inspections, the Secretary may exempt a chemical source from this annual requirement. The bill gives the Secretary the discretion to exempt a facility from the annual requirement, but the Secretary is not required to issue such exemption. If 

the Secretary exempts a higher risk tier facility from this annual 

requirement, such facility must be audited or an unannounced inspection must occur at least once per every 5 years after the exemption determination. The Secretary may require the submission 

of or access to and copy any records or information, including the 

assessment and plans and any other documentation necessary for 


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the review and analysis of such assessment and plans and the implementation of a security plan. If the Secretary determines that 

an owner or operator is not maintaining, producing, or permitting 

access to records or to the premises of the chemical source as required by this section, the Secretary may issue an order requiring 

compliance. 

Infrastructure and implementation 

The Committee felt strongly that an effective chemical security 

regulatory regime, which would both help prevent future attacks 

and provide effective response capabilities should an attack occur, 

needed a robust infrastructure and implementation structure. The 

bill included such an architecture in Section 6, entitled ‘‘Infrastructure and Implementation.’’ The intent of Section 6 was to address 

effectively both the prevention and response capabilities simultaneously. As noted in the ‘‘Emergency Response Plan’’ subsection of 

this report, the Committee believes that a chemical security regime 

must contain both the prevention and the response capabilities. An 

effective response to a terrorist attack can mitigate the consequences and save lives. 

The Committee modeled Section 6 of this bill on MTSA to include 

its regulatory implementation structure for prevention and response. In turn, Committee discussions with the Coast Guard and 

others regarding MTSA described a regulatory implementation regime based directly upon the successful implementation of the Oil 

Pollution Act of 1990 (OPA–90) (PL 101–380). It is the intent of the 

Committee that the Department should align its efforts with those 

of MTSA and the implementation efforts previously proven successful by the Coast Guard. The Committee intends for the Department 

to use MTSA as a model for this section and avoid developing an 

inconsistent security regime with one already covering some chemical facilities. 

The bill directs the Department to establish a national office to 

provide strategic and consistent doctrine for a unified and effective 

Federal effort for security and response. This national level office 

will work collaboratively to coordinate with other Federal, State 

and local government agencies and departments, law enforcement 

agencies and first responders, and chemical sources to provide the 

leadership, guidance, oversight, and adequate resources to protect 

the Nation’s chemical facilities. The national office will have the responsibility of directly supervising Infrastructure Protection Regional Security Offices, designating areas within the regions, supporting the Area Security Committees when requested or needed, 

and assigning adequate and well-qualified staff to include the Federal Area Security Coordinator. The national office will also be responsible for approving both individual chemical source assessments and plans and area security plans, planning and conducting 

national-level exercises, issuing any reports required by this bill, 

and ensuring the prevention, preparedness, response, and recovery 

capabilities for the chemical sources. The national office will further delineate and assign functions and responsibilities to the regional and area offices as appropriate to achieve the intent of this 

bill. 

In order to implement an effective chemical critical infrastructure protection and response regime, the Committee believes that 


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the Department needs to design and implement a regional operational structure. It is important for the Department to establish 

relationships with regional and local government agencies, first responders, and the chemical source owners and operators in order 

to provide for effective critical infrastructure protection and implement this bill effectively. Moreover, this regional structure for the 

chemical sector could ultimately provide the architecture for overseeing preparedness and protection for other critical infrastructure 

sectors. The bill directs the Department to establish Infrastructure 

Protection Regional Security Offices in each region of the Federal 

Emergency Management Agency (FEMA) Region, or the regional 

office of any successor agency with responsibility for emergency 

management, preparedness, and response. The purpose of these regional offices is to carry out this bill and coordinate regional chemical site security, as described by this section of the bill. Regional 

Offices will have the responsibility of reviewing and approving each 

Area Security Plan developed by each Area Security Committee 

within its region, ensuring consistent implementation of this bill 

across the region, providing direct supervision and support to each 

Federal Area Security Coordinator in the region, providing regional 

coordination between states and Areas (including Areas designated 

under MTSA), and planning and conducting regional level exercises. In addition, the regional offices of this bill shall coordinate 

and integrate their activities to the maximum extent possible with 

all other activities assigned to the FEMA regional offices in an effort to provide the maximum level of prevention, preparedness, response, and recovery capabilities possible for the region. 

The bill directs the Department to designate ‘‘Areas,’’ which will 

be overseen by an Area Security Committee, which will be comprised of security and response personnel from State and local government agencies, chemical sources, local emergency planning and 

response entities, other critical infrastructure sectors and other appropriate organizations. The Committee intends the Area Security 

Committee to coordinate with Federal, State and local officials and 

chemical sources to enhance security and emergency response planning. The Area Security Committee will be led by a designated 

Federal Area Security Coordinator (FASC). The Areas designated 

by the Secretary through the national office will cover all of the 

territory of the United States except for the Areas already designated by MTSA. The FASC will lead an Area Security Committee 

made up of members appointed by the Secretary through the national office of relevant Federal, State, local, and other stakeholders. The FASC and Area Security Committee will be responsible for preparing an Area Security Plan with the relevant stakeholders in each area based upon an area vulnerability assessment 

and review of each individual chemical source’s security and response plan, planning and conducting area level and individual 

chemical source exercises, and coordinating with Federal, State, 

and local enforcement and response agencies to provide the maximum level of prevention, preparedness, response, and recovery capabilities possible for the area. The FASC is also responsible for 

conducting individual regulatory inspections and audits of chemical 

sources in compliance with the regulations promulgated by the Secretary. The Area Security Plans developed by the FASC and Area 

Committee will be aligned the National Response Plan, the NaVerDate Aug 31 2005 23:43 Sep 14, 2006 Jkt 049010 PO 00000 Frm 00027 Fmt 6659 Sfmt 6602 E:\HR\OC\SR332.XXX SR332

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tional Infrastructure Protection Plan, and any other appropriate 

national security and response plans. The Area Security Plan will 

also address the responsibilities and resources available to prevent, 

prepare for, respond to, and recover from a terrorist release from 

a chemical source within the geographically defined Area. 

Heightened threat authorities of the Secretary 

The Committee believes that the Secretary should have the authority to require greater security at chemical sources during times 

of heightened threat of terrorist attack. Section 7 of the bill, 

‘‘Heightened Security Measures,’’ is intended to address these situations, such as when the Federal government has intelligence 

about threats to the chemical sector or a threat assessment. In the 

event of such a situation, the Secretary may issue an order to the 

owner or operator of a chemical source to implement increased security measures, as pre-identified in the facility’s site security plan. 

The bill requires a chemical source to include a provision in its site 

security plan detailing what additional security measures it would 

implement in situations of heightened threat (Section 

4(a)(6)(C)(iii)). If the Secretary issues an order pursuant to this section of the bill, the chemical source must implement the security 

measures pursuant to its site security plan. The Secretary does not 

have the authority to prescribe specific security measures pursuant 

to this section, nor does the Secretary have the authority to require 

that these heightened security measures remain in place indefinitely. This section limits the effect of an order for heightened security measures to 90 days, unless the Secretary files an action in 

Federal district court to extend the order. 

Enforcement authority and penalties 

Section 8 provides for administrative, civil and criminal penalties 

for owners or operators of a chemical source who do not comply 

with orders or directives issued by the Secretary pursuant to this 

bill. This section provides for administrative penalties of not more 

than $25,000 per day and not more than a maximum of $1,000,000 

for each year for failure to comply with an order or directive issued 

by the Secretary. This section also provides for a notice and hearing on the proposed penalty. This section also provides for civil 

penalties against the owner or operator of a chemical source that 

violates or fails to comply with an order or directive issued by the 

Secretary under this bill or a site security plan approved by the 

Secretary under this bill. These cases may be brought in a United 

States district court. A court may issue an order for injunctive relief or may award a civil penalty of not more than $50,000 for each 

day on which a violation occurs or a failure to comply continues. 

This section also permits criminal penalties to be brought against 

an owner or operator who knowingly and willfully violates any 

order issued by the Secretary under this bill or knowingly and willfully fails to comply with a site security plan approved by the Secretary under this bill. A court may fine an owner or operator not 

more than $50,000 for each day of such violation or imprison him 

for not more than 2 years or both. 


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Protection of information 

The new regulatory scheme proposed under the bill requires the 

Secretary to keep information defined as ‘‘protected information’’

secure and exempts such information from the public-disclosure requirements of the Freedom of Information Act (FOIA) or any State 

or local law providing for public access to information. The specific 

legislative language employed is that the Department and State 

and local agencies shall not be required under FOIA and State and 

local sunshine laws to make available to the public protected information. (The Maritime Transportation Security Act (MTSA), enacted in 2002, employs similar language regarding Sensitive Security Information (SSI) obtained by the Department for purposes of 

MTSA, stating that, ‘‘[n]otwithstanding any other provision of law, 

information developed under this chapter is not required to be disclosed to the public.’’) 

Under the bill, protected information includes vulnerability assessments, site security plans, area security plans, and security addenda to emergency response plans, as well as certain other materials derived from them that would be harmful to security if disclosed. Also, the Secretary is required to establish confidentiality 

protocols that ensure records are maintained securely and that access is appropriately limited. These provisions together mandate 

that the Department and other agencies will maintain the secrecy 

and integrity of protected information. 

The bill provides guidance with respect to the handling of certifications of compliance and orders, directing that, generally, certifications and orders are not made available to the public, except 

where the Secretary makes a specific finding that releasing certifications of compliance from a chemical source to the Department or 

compliance certifications from the Department to a chemical source 

will not increase risk to a chemical source. 

The bill, while fostering an atmosphere of appropriate information sharing between the Department and State and local law enforcement, first responders and other officials, still contemplates 

protocols based on a need to know standard. 

The bill also provides that nothing in the bill will limit legally 

established whistleblower rights. The bill mandates that the protocols must provide guidance to Federal employees as to how to make 

protected disclosures without compromising security. This reflects 

that the integrity of protected information must be maintained 

without infringing upon whistleblower protections afforded for 

proper public interest disclosures nor a Federal employee’s right to 

petition Congress. 

The bill also requires the Department to establish a process by 

which a person may submit a report to the Secretary regarding 

problems or vulnerabilities at a chemical source. To encourage such 

reporting, the bill requires the Secretary to keep the identity of any 

person submitting such a report confidential and forbids an employer from discharging or otherwise discriminating against an employee for making a report. 

The bill also provides for penalties with respect to any government employee who, in a manner not permitted by law, ‘‘knowingly 

discloses’’ any record containing protected information. 


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Preemption of State and other laws 

Section 10(a) states that nothing in this bill precludes States or 

localities from adopting or enforcing chemical security requirements that are more stringent than the standard under this bill, 

unless there is an ‘‘actual conflict’’ between a provision of this bill 

and the law of a State or locality. Section 10(b) preserves the authority of states to regulate chemical facilities for purposes of environment, health, safety, or any other permissible purpose other 

than the security of chemical sources from acts of terrorism. 

National strategy for chemical security 

Section 11 requires the Department to issue an updated national 

strategy for chemical security. This section requires the Department to submit to the Senate Homeland Security and Governmental Affairs Committee and the Homeland Security Committee 

and the Energy and Commerce Committee of the House of Representatives an update of its ‘‘National Strategy for Securing the 

Chemical Sector.’’ This document was originally required to be submitted to the House and Senate Committees on Appropriations, 

pursuant to a requirement in the Conference Committee Report on 

the Fiscal Year 2006 Homeland Security Appropriations Bill (Report 109–241). The conferees directed the Department to complete 

a national security strategy for the chemical sector by February 10, 

2006. The report was submitted to the House and Senate Appropriations Committees in May 2006. As the terrorist threat continues to evolve, the Committee feels strongly that the Department 

must continue to plan for an implement a holistic, coordinated approach to chemical security and should update its National Strategy accordingly. 

Judicial review 

This provision establishes the process of judicial review of regulations and orders under the bill and was added to the bill by amendment during Committee markup. The regulations under this Act 

may be challenged by any person in the U.S. Court of Appeals for 

the District of Columbia within 60 days after the date of promulgation. Further, an owner or operator of a chemical source may seek 

judicial review of a final agency action or order that affects the 

chemical source in a U.S. district court within 60 days of the final 

agency action. For example, an owner or operator may seek review 

of an order disapproving a vulnerability assessment or a site security plan. Such cases may be brought in the U.S. district court for 

which the chemical source is located or the owner or operator has 

its principal place of business. The parties in such civil actions are 

limited to the owner or operator filing the petition and the Secretary of DHS. 

The Administrative Procedure Act (chapter 7 of title 5, United 

States Code) standard of review would apply to the initial 60-day 

challenges for new regulations and to challenges brought by an 

owner or operator regarding final agency actions or orders issued 

with respect to an owner or operator of a chemical source. This section also provides that nothing in the Act creates a private right 

of action against an owner operator of a chemical source to enforce 

a provision of the Act. 


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Ammonium nitrate 

Ammonium nitrate is an important fertilizer critical to agriculture in the United States and around the world. It is also a serious security concern that should be addressed. Ammonium nitrate 

can be combined with fuel oil or other explosives to produce a powerful explosive. 

Since the 1990s, ammonium nitrate bombs have been used in 

some of the world’s most infamous terrorist attacks. Ammonium nitrate was combined with fuel oil to create a truck bomb in Oklahoma City that destroyed the Alfred P. Murrah Federal Building 

in April 1995. The bombing, considered the deadliest incident of domestic terrorism in U.S. history, killed 168 people and injured hundreds more. There is evidence that terrorists continue to plot attacks using ammonium nitrate. In June 2006, police uncovered a 

terrorist plot in Toronto, Canada involving 3 tons of ammonium nitrate that was intended to be used for an attack in Toronto. Based 

on these and other terrorist attacks and attempted attacks involving ammonium nitrate, and the threat of additional attacks using 

this product, the Committee believes that ammonium nitrate 

should be regulated for security. During Committee markup, this 

section (Section 14) requiring registration of ammonium nitrate 

buyers and sellers was added to the bill. This section is a step in 

making it more difficult for terrorists to commit acts of destruction 

using this product. 

IV. LEGISLATIVE HISTORY

S. 2145 was introduced on December 19, 2005 by Chairman Collins and Senator Lieberman. Senators Coleman, Carper and Levin 

were original cosponsors. S. 2145 was referred to the Committee on 

Homeland Security and Governmental Affairs. As described earlier 

in the report, the Committee held four hearings regarding chemical 

security. On June 14–15, 2006, the Committee took up S. 2145. 

A managers’ amendment in the nature of a substitute, was offered by Chairman Collins and Ranking Member Lieberman, was 

adopted by voice vote. The managers’ amendment included technical edits primarily. For example, it clarified that the Department 

has to put in writing the approval or disapproval decisions for site 

security plans. The more substantive modifications included: (1) 

adding cyber security as a requirement of a site security plan (section 4(a)(6)(C)(iii)) and modifying the existing cyber security requirements in the contents of a vulnerability assessment to mirror 

the site security plan language (section 4(a)(5)(D)(iii)); (2) adding a 

provision requiring DHS to notify facility owners and operators in 

writing as to whether their plans and assessments were approved 

or disapproved (Section 4(c)(1)(B)); segregating the determination 

as to whether a higher risk tier facility is implementing its security 

plan from the approval/disapproval determination for compliance 

with the assessment and plans submitted to DHS. This is a 2-step 

process now, as opposed to rolled into one (Section 4(c)(3)(B)(iv)); 

adding a requirement that higher risk tier facilities must be audited or inspected for compliance at least once per year (Section 

5(b)(2)(c)). The managers’ amendment also included a new guidance 

and consultation provision in two separate places in the bill that 

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vide guidance to all covered chemical facilities to help them meet 

the security performance standards specifically, as well as provide 

technical assistance on compliance with the overall bill. The managers’ amendment provided that for higher risk tier facilities, the 

owner or operator of a facility in this tier may request that the Department provide consultation, in addition to the guidance already 

provided for, in coming into compliance with the bill, and in meeting the security performance standards. Because higher risk tier 

facilities must meet a stricter standard of security, the Committee 

wanted to ensure that the Department consulted and worked with 

these facilities so that they could achieve compliance with the Act. 

Senators present were Collins, Stevens, Voinovich, Coleman, 

Coburn, Chafee, Bennett, Warner, Lieberman, Akaka, Carper, Dayton, Lautenberg and Pryor. 

By a vote of 8–8, the Committee did not accept an amendment 

by Senator Voinovich to amend the regulatory regime created by S. 

2145 with respect to chemical facilities already covered by the Maritime Transportation Security Act (MTSA) and to modify the standard of review for alternative security programs under S. 2145. The 

amendment requires the Secretary to consult with the Coast Guard 

Commandant to determine whether additional security measures 

are necessary at any MTSA-regulated facility in order to comply 

with the security performance standards established under S. 2145. 

The Secretary must review the assessment and plans for MTSAregulated chemical sources within 6 months of enactment of S. 

2145. If additional security measures are determined to be required, the owner or operator of such chemical source must implement additional security measures to comply with the security performance standards within 6 months after receiving the request to 

comply from DHS. The amendment also modifies the standard in 

the Alternative Security Programs provision (Section 4(f)) such that 

assessment and plans prepared under an alternative security program must be ‘‘substantially equivalent’’ to the assessment and 

plans submitted under S. 2145, as opposed to the ‘‘meets each required element’’ standard of S. 2145. 

Yeas: Stevens, Voinovich, Coleman, Bennett and Pryor. Yeas by 

proxy: Coburn, Domenici and Warner. Nays: Collins, Chafee, 

Lieberman, Akaka, Carper, Dayton and Lautenberg. Nays by 

proxy: Levin. 

The Committee adopted by voice vote an amendment offered by 

Senator Akaka to clarify that whistleblower protection rights under 

any other Federal or State whistleblower protection law would not 

be limited by the bill. The bill already provided that it would not 

limit Federal employees’ rights to make protected disclosures under 

applicable whistleblower protection statutes, 5 U.S.C. §§ 2302(b)(8) 

and 7211. 

Senators present were Collins, Voinovich, Coleman, Chafee, Bennett, Lieberman, Akaka, Carper, Dayton, Lautenberg and Pryor. 

By a vote of 7–9, an amendment offered by Senator Voinovich 

was not agreed to that would have struck the State and local law 

provision in Section 10 and replaced it with a provision establishing Federal preemption of State and local laws in the regulation 

of chemical security. The amendment provides that a State or local 

law is preempted by the bill if complying with the State or local 

law and S. 2145 is not possible, or if the State or local law, as apVerDate Aug 31 2005 23:43 Sep 14, 2006 Jkt 049010 PO 00000 Frm 00032 Fmt 6659 Sfmt 6602 E:\HR\OC\SR332.XXX SR332

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plied or enforced, is an obstacle to accomplishing and carrying out 

this bill or frustrates an overwhelming Federal need for consistency 

and uniformity for rules, and regulations resulting from this bill. 

Yeas: Voinovich, Coburn, Bennett and Pryor. Yeas by proxy: Stevens, Domenici and Warner. Nays: Collins, Coleman, Chafee, 

Lieberman, Akaka, Carper, Dayton and Lautenberg. Nays by 

proxy: Levin. 

By a vote of 5–11, the Committee did not agree to an amendment 

offered by Senators Lieberman and Lautenberg that would require 

mandatory consideration and implementation of inherently safer 

technology measures for higher risk tier chemical sources. The 

amendment requires each higher risk tier chemical source to implement inherently safer technology solutions, unless the owner or operator of the chemical source demonstrates to the Secretary one of 

the following three exceptions: (1) implementing such measures 

would not reduce the risk of the facility to an attack; (2) implementing such measures would be cost-prohibitive, and; (3) implementing such measures would be otherwise unfeasible. Any higher 

risk tier facility that demonstrates one of these 3 must reevaluate 

whether it should implement inherently safer technology measures 

at least once every five years that the facility remains assigned to 

a higher risk tier. The amendment also requires the Secretary to 

consult with other governmental agencies at the Federal, State, 

and local level (including the Chemical Safety and Hazard Investigation Board and the U.S. Environmental Protection Agency) to 

determine whether higher risk facilities have adequately evaluated 

such risk-reducing measures. The amendment also requires that 

the Secretary assign at least 360 facilities to its higher risk tier. 

Yeas: Lieberman, Akaka and Dayton. Yeas by proxy: Chafee and 

Lautenberg. Nays: Collins, Voinovich, Coleman, Coburn, Bennett, 

Carper and Pryor. Nays by proxy: Stevens, Domenici, Warner and 

Levin. 

When the Committee reconvened its business meeting on Thursday, June 15, Senator Voinovich offered an amendment which further clarifies the performance-based intent of S. 2145, and it was 

accepted by voice vote. The amendment provides that the Secretary 

may not disapprove a site security plan based on the presence or 

absence of a particular security measure, if the site security plan 

satisfies the security performance standards. The purpose of this 

amendment is to clarify the performance-based intent of the bill, 

that the Secretary cannot disapprove a site security plan because 

such plan does not embrace specific security measures. 

Senators present were Collins, Voinovich, Coleman, Coburn, 

Chafee, Bennett, Lieberman, Carper, Dayton and Pryor. 

The Committee adopted by voice vote an amendment by Senator 

Pryor that would provide the Department with the regulatory authority to track the handling and purchase of ammonium nitrate 

to prevent and deter terrorists from acquiring and utilizing ammonium nitrate to create explosives for use in acts of terrorism. The 

amendment would require that handlers and sellers of ammonium 

nitrate must register facilities and only sell or distribute ammonium nitrate to handlers and purchasers that are registered. Purchasers of ammonium nitrate are also required to be registered. 

Handlers must maintain records of sale or transfer of ownership of 

ammonium nitrate. The Secretary is required to consult with the 


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Secretary of Agriculture in issuing regulations to avoid placing an 

undue burden on agricultural producers’ access to ammonium nitrate. 

The Committee adopted by voice vote a second degree amendment by Senator Lieberman. The second degree amendment strikes 

the preemption provision in the ammonium nitrate amendment, 

with the effect that there is no preemption provision attached to 

the Pryor amendment. The second degree amendment also strikes 

the protection of information provision in the Pryor amendment 

and directs that registration information under the Pryor amendment be treated as a record as described in the protection of information (Section 9) of S. 2145. 

Senators present were Collins, Voinovich, Coleman, Coburn, 

Chafee, Bennett, Lieberman, Carper, Dayton and Pryor. 

Senators present for the vote on Senator Pryor’s first degree 

amendment were Collins, Voinovich, Coleman, Coburn, Chafee, 

Bennett, Lieberman, Carper, Dayton, and Pryor. 

Senator Voinovich offered a second degree amendment to modify 

his amendment and it was adopted by a vote of 9 to 5. The second 

degree amendment includes several provisions that would amend 

S. 2145 in different places. The second degree amendment includes: 

(1) adding an exemption for any facility owned or operated by a licensee or certificate holder of the Nuclear Regulatory Commission; 

(2) adding an interim notice provision for higher risk tier facilities; 

(3) modifying the heightened security measures provision in Section 7; (4) modifying the criminal penalties provision in Section 8; 

(5) adding a judicial review provision; (6) modifying the submission 

and certification of changes provision, and; (7) modifying the protection of information provision in Section 9. 

Yeas: Collins, Voinovich, Coleman and Carper. Yeas by proxy: 

Stevens, Coburn, Bennett, Domenici and Warner. Nays: Lieberman 

and Dayton. Nays by proxy: Levin, Akaka and Lautenberg. No instruction: Chafee. 

The amendment directs the Secretary to conduct a preliminary 

review and assessment of the vulnerability assessment, site security plan, and emergency response plan of chemical sources in a 

higher risk tier. This preliminary review must be conducted at 

least 3 months before the 1-year deadline by which chemical 

sources must have their assessments and plans approved. Following the review and assessment, if a chemical source in a higher 

risk tier appears to not be on track for compliance, the Secretary 

must provide notice and assistance to the source in complying with 

the Act. 

The amendment modifies Section 7 of S. 2145 by (1) adding a 

provision to the requirements of site security plans to require that 

such plans describe the security measures that would be implemented under an order issued by the Secretary pursuant to his 

Section 7 authority, and (2) clarifying the Secretary’s authority to 

issue an order to an owner or operator of a chemical source to implement heightened security measures described in the chemical 

source’s site security plan approved by the Secretary. The amendment (1) adds a heightened standard of knowingly and willfully for 

assigning criminal liability to an owner or operator, and (2) removes criminal liability for the violation of a site security plan. 


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The amendment adds a new Section 13 to S. 2145 to provide a 

judicial review provision. This provision (1) allows any person to 

seek judicial review of a regulation within 60 days of its promulgation; (2) allows the owner or operator of a chemical source to seek 

judicial review of a final agency action under the Act within 60 

days of the final agency action; (3) provides that no other judicial 

review will be permitted under the Administrative Procedures Act; 

and (4) provides that nothing in the bill creates a private right of 

action against an owner or operator of a chemical source to enforce 

a provision of the bill. 

The amendment provides that if a chemical source makes a 

change that would have a materially detrimental effect on the security of the chemical source, the owner or operator must (1) certify 

to the Secretary that the source has completed the review and implemented any necessary modifications to the assessment or plans 

and (2) provide the Secretary a description of any changes to the 

assessment or plans. 

The amendment included provisions on the protection of sensitive information that were incorporated into the bill in lieu of the 

provisions on information protection that were in the bill as introduced. The information protection provisions of the amendment 

grants exemptions from the Freedom of Information Act (FOIA) (5 

U.S.C. § 522) and from State and local sunshine laws for vulnerability assessments, site security plans, area security plans, and security addenda to emergency response plans. The amendment also 

provides these exemptions for materials obtained by DHS developed exclusively in preparation of the information listed immediately above (e.g., vulnerability assessments). The amendment 

also provides FOIA and sunshine law exemptions for (1) documents 

or other information obtained by DHS or a State or local government from a chemical source and (2) documents prepared by or provided to a Federal agency or State and local government, but only 

to the extent that the documents or information (noted in both (1) 

and (2)) describes a chemical source or its vulnerabilities, was 

taken from a vulnerability assessment or the other plans noted 

above, and, if disclosed, would be detrimental to the security of a 

chemical source. The amendment also forbids making any orders or 

disapprovals available to the public under FOIA, and provides a 

specific mechanism through which certain information (other than 

that described above) can be made available to the public (via the 

discretion of the Secretary). The amendment specifically notes that 

certain information—(a) certifications of compliance from a chemical source to DHS, (b) failure-to-comply orders from DHS to a 

chemical source, (c) compliance certifications from DHS to a chemical source, and (d) other disapprovals and orders issued under the 

bill—shall not be made available to the public under FOIA, except 

that if the Secretary makes a specific finding that releasing a certification referenced in clause (a) or (c) will not increase the risk 

to a chemical source, the Secretary may release the certification. 

The amendment also contains a provision which works in favor of 

effective information sharing principles between the Federal, State 

and local governments. The amendment provides instruction with 

respect to the establishment of protocols under the bill which allow 

for permitted access to protected information to include not just 

State or local law enforcement officials, first responders, or other 


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State or local government officials granted access to protected information for purposes of carrying out the bill, but also to provide 

such officials and first responders with information on the extent 

to which security of chemical sources in the State or local area is 

being achieved. 

The Committee adopted by voice vote a modified second degree 

amendment by Senator Carper to add language back into the criminal penalties provision (Section 8(c) of S. 2145) which was removed 

by Senator Voinovich’s first degree amendment. The second degree 

amendment would make a chemical source owner or operator 

criminally liable for failing to comply with a site security plan approved by the Secretary under this bill. After some discussion during the mark-up, Senator Carper asked for and received unanimous 

consent to modify his second degree amendment to add the words 

‘‘knowingly and willfully’’ to the failure to comply with a site security plan approved by the Secretary under this bill. 

Senators present were: Collins, Voinovich, Coleman, Chafee, 

Lieberman, Carper, Dayton, Pryor. 

The Committee adopted by voice vote a second degree amendment by Senator Coburn which would modify the audits and inspections requirements for higher risk tier facilities. The amendment would permit the Secretary to exempt a higher risk tier facility from the annual inspection if a facility is inspected or audited 

for 5 years in a row, and is found in compliance with the bill. The 

amendment then provides that for each 5-year period after an exemption, the Secretary must conduct at least one audit or unannounced inspection of the chemical source. This exemption is not 

mandatory; the Secretary has the discretion to exempt facilities or 

he could continue to require annual inspections. 

Senators present were: Collins, Voinovich, Coleman, Chafee, 

Lieberman, Carper, Dayton, Pryor. 

By a vote of 15–0, the Committee voted unanimously to report 

the bill to the full Senate. 

Yeas: Collins, Lieberman, Stevens (by proxy), Voinovich, Coleman, Coburn, Chafee, Bennett, Domenici (by proxy), Warner (by 

proxy), Levin (by proxy), Carper, Dayton, Lautenberg (by proxy), 

Pryor. Nays: none. Senator Akaka was not present and provided no 

instructions. 

V. SECTION-BY-SECTION ANALYSIS

Section 1—Short Title; table of contents 

Section 2—Defines key terms 

Section 3—Designation of chemical sources and tiering 

Designate covered facilities. DHS is directed to designate the 

chemical facilities that are covered under this bill within one year 

of the date of enactment of this bill. DHS is directed to issue regulations that establish criteria for evaluating the types of facilities 

that should be covered. The regulations establishing the criteria for 

designations should (1) take account of the risk factors described 

in Section 3(b), and (2) evaluate the types of facilities described in 

Section 3(c). Section 3(b) lays out risk factors that the Secretary 

should consider in designating chemical sources: (1) the perceived 

threat to a facility, (2) the potential extent and likelihood of death, 


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injury, or serious adverse effects to human health and safety or to 

the environment caused by a terrorist attack at a facility, (3) 

threats to or potential impact on national security or critical infrastructure, (4) potential threats or harm to the economy, (5) proximity of a facility to population centers, (6) the nature and quantity 

of substances of concern, and (7) other security-related factors necessary to protect public health and safety, critical infrastructure, 

and national and economic security. Section 3(c) directs DHS to (1) 

consider any facility that is a ‘‘stationary source’’ under the Clean 

Air Act (CAA), section 112(r)(2) and for which the owner or operator is required to complete a risk management plan in accordance 

with CAA section 112(r)(7)(B)(ii), (2) consider any other facility that 

uses, produces, or stores a ‘‘substance of concern,’’ and (3) determine whether additional facilities, outside of the first two categories, should be included on its list. The bill explicitly exempts 

chemical facilities owned or operated by the Departments of Defense and Energy, as well as any facility owned or operated by a 

licensee or certificate holder of the Nuclear Regulatory Commission. 

Subsection (e)—Establish a Tiered System. Within 1 year of the 

date of enactment of this bill, the Secretary must issue rules establishing a risk-based tiered system of ‘‘chemical sources.’’ The system must consist of several tiers and be based on risk criteria identified above. Within the first year, DHS must place each covered 

chemical facility in a tier. DHS must designate 1 or more of these 

tiers ‘‘higher risk tier(s).’’ Higher risk tiers have stricter requirements and standards, as indicated in Section 4. The rules must 

also provide guidance to owners and operators regarding steps that 

would enable a chemical source to move to a lower risk tier. 

Subsection (f)—Establish Security Performance Standards. DHS 

must create security performance standards for each tier. As the 

tiers increase in risk, the security performance standards should 

become correspondingly stricter, thereby requiring facilities to implement greater security measures to meet these standards. DHS 

must issue guidance as to the types of security measures that, if 

applied, could meet the security performance standards. Chemical 

facilities would have the flexibility to employ different security 

measures that those described in the guidance if such measures 

satisfy the security performance standards. For higher risk tier facilities, at the request of the owner or operator, the Secretary must 

provide consultation on the types of security measures, that, if applied, could satisfy the security performance standards. The standards must also include consideration of the criteria for designating 

chemical sources (under Section 3(a)), cost, technical feasibility, 

and scale of operations. 

Subsection (g)—Notice to Facilities. The Secretary must notify potentially regulated facilities within 6 months of enactment of the 

bill about the process and timeline for review and designation of 

chemical sources. 

Subsection (h)—Subsequent Determinations. The Secretary is required to review and revise as necessary the list of designated 

sources every 3 years. In addition to this periodic review, the Secretary at any time may determine whether to designate additional 

facilities or remove the designation of particular facilities. 


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Identification of Additional Chemical Sources—The owner or operator of any chemical facility where a threshold quantity of a substance of concern is present to petition the 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 section 112(r)(7)(B)(ii)). The 

owner or operator of any newly operation facility that handles at 

least the threshold quantity of a substance of concern to file a petition with the Secretary for a determination on whether that facility 

should be designated a chemical source. The Secretary is directed 

to consult with the EPA Administrator to establish a mechanism 

for the Department to receive timely notice when a facility is required to complete a risk management plan in accordance with 

CAA section 112(r)(7)(B)(ii). 

Subsection (i)—Designating Substances of Concern. The Secretary 

may create a list of chemical substances of concern with corresponding threshold quantities. In doing so, the Secretary may, by 

regulation, designate or exempt a chemical substance as a substance of concern or establish or revise a threshold quantity. In 

designating or exempting substances of concern, the 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 attack involving 

the chemical substance. 

Section 4—Vulnerability assessments, security plans, and emergency 

response plans 

Subsection (a)—Requirements for Assessments and Plans. DHS 

must issue regulations with requirements for conducting vulnerability assessments, creating and implementing site security plans 

that addresses the risks identified in the vulnerability assessment, 

and creating an emergency response plan or updating an existing 

plan to reflect planning for a terrorist attack scenario. The regulations must be risk-based, performance-based, and flexible, and 

must include consideration of the criteria for designating chemical 

sources (Section 3(a)(1)). These regulations must allow for the cooperation among chemical sources operating at contiguous locations. 

Subsection (a)(4)—Sharing of Threat Information. The Secretary 

is directed to share relevant threat information with State and 

local government officials and with an owner or operator of a chemical source. The Secretary must take into account the interests of 

national security and applicable authority before sharing relevant 

threat information. 

Subsection (a)(5)—Contents of Vulnerability Assessments. Vulnerability assessments must (1) be based on a methodology developed 

or endorsed by the Secretary, (2) incorporate any threat information shared by DHS under subsection (a)(4), and (3) address the appropriate security performance standards for the facility’s tier. In 

addition, vulnerability assessments must include an analysis of 

physical security, communications systems, cyber security, and the 

sufficiency of existing security measures relative to the threats and 

consequences of a terrorist attack, including vulnerabilities from 

hazardous chemicals. 


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Subsection (a)(6)—Contents of Site Security Plans. Each site security plan must indicate the tier applicable to the facility, address 

risks identified in the vulnerability assessment and address the appropriate security performance standards. Site security plans must 

also include security measures (1) sufficient to deter, to the maximum extent practicable, a terrorist attack, (2) to mitigate the consequences of a terrorist incident, and (3) to increase cyber security. 

Further, these plans must 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 respond to an order under Section 7 in the event that heightened security measures became necessary for a particular facility. 

Subsection (a)(7)—Contents of Emergency Response Plans. Emergency response plans must address the consequences of a terrorist 

attack identified in the vulnerability assessment; is consistent with 

the site security plan; and identifies the roles and responsibilities 

of employees. Existing plans must be modified (to reflect the requirements noted in the previous sentence) 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. If an owner or operator does not already have 

an emergency response plan, one must be created following the 

guidance of section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9605). 

Owners and operators are required to place security information in 

an addendum to the plan, if necessary, to protect it from public disclosure. 

Subsection (a)(8)—Guidance and Consultation. The Secretary 

must provide guidance to assist owners and operators of chemical 

sources in complying with this bill, including advice on aspects of 

compliance that may be unique to small businesses. An owner or 

operator of a higher risk tier facility may request, in addition to 

the guidance provided to all covered facilities that DHS consult 

with them on achieving compliance under this bill. Higher risk tier 

facilities may request that DHS consult with them on achieving 

compliance with the bill, in addition to the guidance provided for 

above. 

Subsection (b)—Certification and Submission of Assessments and 

Plans. Within 6 months after the regulations are issued under this 

section, all covered facilities must certify to DHS that they have 

complied with this section (completed a vulnerability assessment, 

developed and is implementing a site security plan and an emergency response plan) and submit to the Secretary for review and 

approval copies of the assessment and plans. 

Subsection (c)—Review by the Secretary. The Secretary is required to review the assessment and plans to determine whether 

such assessment and plans, and the implementation of such plans 

comply with this section. If compliance is determined, then the Secretary would issue an approval notice; if non-compliance is determined, the Secretary would issue a disapproval notice. The Secretary may not disapprove a site security plan based on the presence or absence of a particular security measure if the site security 


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plan satisfies the security performance standards. The Secretary 

must provide written notice to the owner or operator of the chemical source regarding the determination of approval or disapproval. 

For disapprovals, the Secretary must provide the owner or operator, in writing, a clear explanation of deficiencies and consult with 

them to identify appropriate steps to achieve compliance and provide additional time for the facility to come into compliance. If the 

owner or operator does not achieve compliance, the Secretary must 

issue an order requiring the owner or operator to correct the specified deficiencies. If the owner or operator continues to be in noncompliance, the Secretary may issue an order for the chemical 

source to cease operation. The Secretary has greater authority in 

dealing with higher risk tier facilities. For these facilities, the Secretary may issue an order to a chemical source as soon as determining that the vulnerability assessment, site security plan, or 

emergency response plan or determines that implementation does 

not comply with this Section. The Secretary is not required to provide additional time for compliance as noted for all other tiers. 

The Secretary is required to make the approval or disapproval 

determination within 5 years after the date of submission of the assessment and plans. For higher risk tier facilities, the Secretary 

must make the approval or disapproval determination within 1 

year after the date of submission of the assessment and plans. The 

Secretary may conduct subsequent reviews and determinations of 

compliance on a schedule that he determines, so long as such reviews occur not less than once every five years after the initial approval of a facility’s assessments and plans. Higher risk tier facilities must be given priority for review, and these facilities must be 

reviewed not less than once every three years after the initial approval determination of its assessment and plans. 

Subsection (c)(3)(B)(i)—Interim Notice. For higher risk tier facilities, DHS must conduct a preliminary review of the vulnerability 

assessment, site security plan, and emergency response plan not 

later than 9 months after date of issuance of the regulations under 

this Section. If the preliminary review indicates that a disapproval 

determination is likely, DHS must provide to the chemical source 

assistance in achieving compliance with this bill. 

Subsection (d)—Submission and Certification of Changes. If an 

owner or operator makes a change to a chemical source that would 

have a materially detrimental effect on the security of the chemical 

source, the owner or operator must notify DHS in writing of such 

changes and provide a description of such changes. The owner or 

operator must also certify to DHS that it has reviewed and made 

any necessary changes to its assessment and plans and provided a 

description of any such modifications to DHS. If the Secretary determines that additional modifications, beyond what the owner or 

operator has made, are required, the Secretary must provide written notice to the owner or operator regarding the deficiencies and 

permit an additional 60 days for compliance. During the time before any revised security measures are implemented, the owner or 

operator must ensure temporary security measures are implemented to address the vulnerabilities previously identified. 

Subsection (e)—MTSA-regulated Facilities. A chemical facility 

that is regulated under the Maritime Transportation Security Act 

(MTSA) and designated as a chemical source under this Act must 


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comply with this Act. The owners and operators of these facilities 

must review the vulnerability assessment, security plans and emergency response plans that they submitted to the Coast Guard pursuant to the MTSA and make any modifications necessary to comply with the security performance standards established for the tier 

in which it was placed under this Act. The assessment and plans, 

with any appropriate modifications, must be submitted to the appropriate Federal Maritime Security Coordinator and the Secretary 

for approval within 6 months after issuance of the regulations. 

Owners and operators of these facilities must also certify in writing 

to the Federal Maritime Security Coordinator for their area that 

the assessment and plans are in compliance with the security performance standards for their tier. The Secretary must consult with 

the Federal Maritime Security Coordinator to determine whether 

the security plan meets the security performance standards for the 

pertinent tier. Chemical sources that are regulated under the 

MTSA are exempt from the Section 6 requirements of this Act. The 

Secretary must implement this Act in as consistent and integrated 

a manner as possible with the MTSA. The Secretary must also ensure coordination between the Undersecretary for Preparedness 

and the Coast Guard Commandant in carrying out this Act for 

chemical sources that are also MTSA-regulated facilities. 

Subsection (f)—Alternative Security Programs. The Secretary 

may also consider petitions to approve documents prepared for alternative security programs. A person may submit a petition to the 

Secretary to have him consider alternate standards established by 

Federal, State or local government authorities, or industry for a determination of whether documents prepared for that program meet 

each required element for assessments and plans under this bill. If 

so, the assessments and plans prepared under that program may 

be submitted without further revision. If the Secretary determines 

that the documents prepared under the alternate program do not 

meet all the required elements, he may specify modifications that 

would be necessary for the alternate program to comply with this 

bill. If an alternative security program is approved by the Secretary, each facility covered by that program must submit its assessments and plans to the Secretary for review in accordance with 

the security performance standards for the pertinent tier. Each facility submission must be approved or disapproved on an individual 

basis. 

Section 5—Recordkeeping; site inspections; production of information 

Each chemical source must maintain a current copy of the vulnerability assessment, site security plan and emergency response 

plan onsite for 5 years after date of the approval determination. 

The Secretary may require the submission of or access to and may 

copy any records or information, including the assessment and 

plans and any other documentation necessary for the review and 

analysis of such assessment and plans and the implementation of 

a security plan. If the Secretary determines that an owner or operator is not maintaining, producing, or permitting access to records 

or to the premises of the chemical source as required by this section, the Secretary may issue an order requiring compliance. The 

Secretary has a right of entry to chemical sources and any premVerDate Aug 31 2005 23:43 Sep 14, 2006 Jkt 049010 PO 00000 Frm 00041 Fmt 6659 Sfmt 6602 E:\HR\OC\SR332.XXX SR332

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ises on which any record required to be maintained is located. The 

Secretary has the authority to conduct security audits and inspections of chemical sources to determine compliance with the bill. 

The Secretary may also set requirements for these inspections and 

audits by rule, regulation or order. 

Subsection (b)(2(C)—Higher Risk Tiers. The Secretary must inspect or audit higher risk tier facilities at least once per year. If 

a higher risk tier facility has been found in compliance with this 

bill based upon 5 consecutive years of audits or inspections, then 

the Secretary may exempt a chemical source from this annual requirement. If the Secretary makes an exemption, such facility must 

be audited or and unannounced inspection must occur at least once 

per every 5 years after the exemption determination. For higher 

risk tier chemical sources that are also MTSA-regulated facilities, 

an audit or inspection conducted by the Coast Guard pursuant to 

the MTSA shall qualify as an audit or inspection under this section. 

Section 6—Infrastructure protection and implementation 

The Secretary is directed to model the implementation of this 

section on MTSA. Moreover, the Department is directed to coordinate with the MTSA Federal area security and response committees already in place in order to provide a unified and effective 

Federal security effort. DHS is directed to establish an office within 

the Infrastructure Protection (IP) directorate that will be responsible for implementing and enforcing this bill. The Department is 

directed to create regional IP offices, aligned with the FEMA regions, or the regional office of any successor agency of FEMA, to 

implement this bill and coordinate regional security. These regional 

offices will oversee chemical facility compliance, conduct security 

inspections, audits and drills. Further, DHS is directed to create 

‘‘areas’’ and assign a Federal security coordinator to oversee an 

area committee comprised of qualified and affected security and response personnel, including State and local government officials, 

chemical facilities and local emergency planning and response entities. Area committees would provide enhanced coordination for security and emergency response planning. Each area must create an 

area security plan and submit it to DHS for approval. An area plan 

must coordinate the resources of the area to deter or respond to a 

terrorist attack in the area, including coordinating with the appropriate Federal, State and local government agencies or local emergency planning entities. DHS must also conduct periodic drills and 

exercises of security and response capabilities for these areas. The 

Secretary must publish an annual report on the drills under this 

provision, including an assessment of the effectiveness of the area 

plans, lessons learned, and recommendations, if any, to improve 

programs, plans and procedures. 

Section 7—Heightened security measures 

The Secretary is authorized to issue an order to the owner or operator of a chemical source mandating that the source implement 

the ‘‘heightened security measures’’ provision described in its site 

security plan pursuant to Section 4(a)(6)(H), if the Secretary determines that additional security measures are necessary to respond 

to a threat. An order issued pursuant to this authority shall not 


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remain in effect for a more than 90 days, unless the Secretary files 

an action in Federal district court and the court authorizes an extension. 

Section 8—Penalties 

Administrative penalties for failure to comply with an order or 

directive issued under this bill are authorized for not more than 

$25,000 per day and not more than $1 million per year, but only 

after the Secretary has provided written notice of the proposed penalty and 30 days, during which the owner or operator may request 

a hearing. The Secretary must issue regulations establishing procedures for administrative hearings and reviews. The Secretary is authorized to pursue civil penalties by bringing an action in U.S. district court against an owner or operator who violates or fails to 

comply with an order or directive under this bill or his approved 

site security plan. The court may issue an order for injunctive relief 

and award a civil penalty of not more than $50,000 per day. Criminal penalties are authorized for of up to $50,000 per day and/or imprisonment for up to 2 years for an owner or operator of a chemical 

source who knowingly and willfully violates any order issued by the 

Secretary or knowingly and willfully fails to comply with an approved site security plan. 

Section 9—Protection of Information 

As noted above, the bill defines ‘‘protected information’’ to include: vulnerability assessments, site security plans, area security 

plans, and security addenda to emergency response plans, materials obtained by DHS and developed or produced by a chemical 

source exclusively in preparation of the information listed immediately above (e.g., vulnerability assessments, etc.; and (1) documents or other information obtained by DHS or a State or local 

government, but only to the extent that the documents or information (noted in both (1) and (2)) contain an item of information that 

describes a chemical source or its vulnerabilities, was taken from 

a vulnerability assessment or the other plans noted above, and, if 

disclosed, would be detrimental to the security of the chemical 

source. 

Subsection (a)—Disclosure Exemptions. The new regulatory 

scheme proposed under the bill requires the Secretary to keep information defined as ‘‘protected information’’ secure and exempts 

such information from the public disclosure requirements of the 

Freedom of Information Act (FOIA) or any State or local law providing for public access to information. The specific legislative language employed is that the Department ‘‘shall not be required 

under [FOIA] to make available to the public protected information’’; other Federal agencies that receive a FOIA request for protected information ‘‘shall not disclose the record’’ and shall refer 

the request to the Department; and ‘‘[a] State or local government 

agency shall not be required under any State or local law providing 

for public access to information to make available to the public protected information’’; and, in Section 9(c), that the Secretary shall 

establish confidentiality protocols that ensure records are maintained securely and that access is appropriately limited. These provisions together mandate that DHS and other agencies will maintain the secrecy and integrity of protected information, while not 


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117See 46 U.S.C. §70103(d) (emphasis added). 

precluding the Secretary from disclosing specific information if he 

or she decides to grant public access to specific information pursuant to a proper FOIA request if the Secretary determines circumstances so warrant. 

The Maritime Transportation Security Act (MTSA), enacted in 

2002, employs similar language regarding Sensitive Security Information (SSI) obtained by the Department for purposes of MTSA. 

The relevant MTSA provision states that, ‘‘[n]otwithstanding any 

other provision of law, information developed under this chapter is 

not required to be disclosed to the public.’’ 117

Subsection (b)—Certifications and Orders. The bill provides guidance with respect to the handling of certifications and orders. The 

bill, under Section 9(b)(1)(A), directs that, generally, certifications 

of compliance from a chemical source to DHS (under Section 

4(b)(1)); failure to comply orders from DHS to a chemical source 

(under Section 4(b)(3)); compliance certifications from DHS to a 

chemical source (under Section 9(b)(2)); and other disapprovals and 

orders issued under the bill shall not be made available to the public under FOIA. However, Section 9(b)(1)(B)(i) provides for an exception to this rule where the Secretary makes a specific finding 

that releasing certifications of compliance from a chemical source 

to DHS or compliance certifications from DHS to a chemical source 

will not increase risk to a chemical source, the Secretary may make 

the record available to the public under FOIA. 

Under Section 9(b)(2), when the Secretary makes a determination that a chemical source is in compliance with the requirements 

of the bill, he or she must provide a certificate of approval to the 

chemical facility noting that the facility ‘‘is in compliance with the 

Chemical Facility Anti-Terrorism Act of 2006.’’ As a means of measuring the overall success of chemical facilities 

in implementing the requirements of the bill, Section 9(b)(3) requires that the Secretary, at least once a year, ‘‘submit to Congress 

a public report on the performance of chemical sources under the 

bill, in the aggregate, including a description of common problems, 

solutions, and industry best practices.’’ This clause is intended to 

have the Secretary inform Congress regarding both the advancements made, and the problems encountered, by chemical facilities 

pursuant to the requirements under the bill. 

Subsection (c)—Development of Protocols. Under Section 9(c)(1) of 

the bill, the Secretary, in consultation with the Director of the Office of Management and Budget and the 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 the 

maintenance and use of records containing protected information. 

This clause explicitly acknowledges other regulatory schemes relating to sensitive or classified and states that the regulations promulgated under this bill should be consistent with such regulatory 

schemes. In drafting this legislation, the drafters were well aware 

of the sensitive and classified information protection protocols in effect, and specifically noted that the regulations promulgated under 

this bill must be consistent with such information protection regulatory schemes. 


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118See Section 2(8)(B), (C), and (D) of the bill. 

Section 9(c)(2) articulates the requirements for the regulatory 

protocols promulgated under the bill and contemplated under Section 9(c)(1). The clause states that the protocols ‘‘shall ensure, to 

the maximum extent practicable, that’’ the records shall be securely maintained, and access to such records shall be limited as 

may be necessary to: ‘‘enable enforcement of th[e] Act,’’ or ‘‘address 

an imminent and substantial threat to security, health, safety, or 

the environment;’’ State or local law enforcement officials, first responders, or other officials granted access to such records for the 

purpose of carrying out the bill; and ‘‘other persons granted access 

for the purpose of carrying out this Act.’’ This bill, while fostering 

an atmosphere of appropriate information sharing between DHS 

and State and local law enforcement, first responders and other officials, still contemplates protocols based on a ‘‘need to know’’ standard. 

Section 9(c)(3) requires the establishment of other procedures in 

the regulatory protocols. Under Section 9(c)(3)(A), the regulations 

are to provide for the labeling of any record containing protected 

information to enable the information contained therein ‘‘to be 

traced back to the specific document from which the information 

was derived.’’ Section 9(c)(3)(A) of this bill requires that the labeling of a record containing protected information be sufficient to enable a determination of ‘‘the specific document from which the information was derived.’’ This requirement is based on the fact that 

it is necessary to properly account for the genesis of protected information given that the definition of protected information not 

only specifically includes vulnerability assessments, site security 

plans, area security plans, and security addenda to emergency response plans, but also information and materials ‘‘developed or produced exclusively in preparation of’’ such documents, and information ‘‘taken from’’ such documents.118

Section 9(c)(3)(B) states that the protocols shall ‘‘accommodate’’ the making of disclosures under 5 U.S.C. § 2302(b)(8) and an employee’s right to petition Congress under 5 U.S.C. § 7211. Moreover, 

this section mandates that the protocols must also provide guidance to employees as to how to make these types of disclosures 

without compromising security. This section reflects that the integrity of protected information must be maintained without infringing upon the protections afforded to Federal employees for proper 

public interest disclosures and their right to petition Congress. 

Section 9(c)(3)(C) states that the protocols shall include procedures applicable to a FOIA request, ‘‘requiring that any portion of 

a record that reasonably may be separated shall be provided to a 

person requesting the record after redaction of any portion that is 

exempt from disclosure.’’ This mandate is intended to ensure that 

information that is not designated as protected information under 

the bill is not shielded from the public under a proper FOIA request merely because the non-protected information exists in a document along with some protected information. 

Section 9(c)(3)(D) ensures that information designated as protected information shall not be shielded from the public under a 

proper FOIA request in perpetuity if, ‘‘because of changed circumstances or the passage of time, disclosure of the record would 


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not be detrimental to the security of a chemical source.’’ There are 

circumstances where information once designated as protected information under the bill no longer needs the sort of heightened protection provided for under the bill. This section of the bill therefore 

requires the DHS Secretary to establish procedures by which a 

record containing protected information may lose its protected status under the bill and become subject to the requirements of public 

disclosure under FOIA if—because of the passage of time or 

changed circumstances—disclosure of the record would not be detrimental to the security of a chemical source. 

Subsection (d)—Process for Reporting Problems. Under Section 

9(d)(1), the Secretary is required to establish and provide information to the public regarding a process by which a person may submit a report to the Secretary regarding ‘‘problems, deficiencies, or 

vulnerabilities at a chemical source.’’ In an effort to encourage such 

reporting, Section 9(d)(2) states that the Secretary shall keep the 

identity of any person submitting such a report confidential and 

that the report itself will be treated as protected information under 

the bill to the extent it does not contain information readily available to the public. 

If a report under Section 9(d)(1) identified the individual making 

the report, Section 9(d)(3) requires that the Secretary ‘‘promptly respond to such person and acknowledge receipt of the report.’’

Section 9(d)(4) ensures that the issues noted in a report submitted under Section 9(d)(1) are properly reviewed, by requiring 

that the Secretary ‘‘review and consider the information provided’’

and ‘‘take appropriate steps’’ under the bill to fully address the 

issues, problems, or deficiencies identified in the report. 

Section 9(d)(5) forbids an employer from discharging or otherwise 

discriminating against an employee (or a person acting pursuant to 

the request of the employee) for making a report under Section 

9(d)(1). 

Section 9(d)(6) requires the Comptroller General of the United 

States to describe the number and type of problems, deficiencies 

and vulnerabilities identified in reports provided to the Secretary 

under Section 9(d)(1). Moreover, Section 9(d)(6) also requires that 

the Comptroller General’s report evaluate the Secretary’s efforts to 

address the problems, deficiencies and vulnerabilities identified in 

the Section 9(d)(1) reports. The Comptroller General’s reports 

under Section 9(d)(6) are to be included in the annual reviews by 

the Governmental Accountability Office required under Section 12 

of the bill. 

Subsection (e)—Protected Disclosures. The spirit of Section 9(e) is 

similar to that of Sections 9(c)(3)(B) and 9(d)(5) as described above. 

Section 9(e)(1) states that nothing in the bill shall limit the right 

of a person to make disclosures under 5 U.S.C. § 2302(b)(8) or a 

person’s right to petition Congress under 5 U.S.C. § 7211. Moreover, Section 9(e)(2) preserves a person’s right to make a disclosure 

under any other Federal or State law that protects the disclosing 

individual against retaliation or discrimination for having made a 

disclosure in the public interest. Lastly, Section 9(e)(3) preserves a 

person’s right to make a disclosure to the Special Counsel, the inspector general of an agency, or any other employee designated by 

the head of an agency to receive such disclosures. 


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Subsection (f)—Materials Not Held by Agencies. Section 9(f) notes 

that nothing under the bill shall be interpreted to limit the rights 

or obligations of a chemical source or any other entity that is not 

a Federal, State or local government entity in possession of a 

record containing protected information with respect to the withholding or disclosure of any information or record held by the 

chemical source or the entity ‘‘regardless of whether or not the Department has received or possesses similar or identical information 

or a similar or identical record.’’ Consistent with other sections of 

the bill, this section reflects the drafters’ intention that the information protection clauses of the bill do not affect any rights and 

obligations of a private-sector entity with respect to a document or 

information in its possession, and generally do not interfere with 

disclosure rights and obligations in effect, other than those specifically noted in the bill. 

Subsection (g)—Disclosure of Independently Furnished Information. Section 9(g)(1) establishes that the provisions of the bill do not 

affect the handling or disclosure of a record or information obtained 

from a chemical source under any other law. Moreover, Section 

9(g)(2) states that the bill does not affect any authority or obligation of an agency to disclose any record that the agency has received independently of a record exempt from FOIA requests under 

Section 9, ‘‘regardless of whether or not the Department has an 

identical or similar record that is so exempt.’’ These two provisions 

make it clear that if a record is produced to or obtained by an agency independently of this bill, even if the record contains protected 

information, the Chemical Facility Anti-Terrorism Act of 2006 does 

not affect or control the handling, treatment, or public disclosure 

of the record. The same principle for independently furnished information can be found at 6 CFR § 29.3(d) with respect to Protected 

Critical Infrastructure Information (PCII) governed by the Homeland Security Act of 2002. 

Subsection (h)—Other Obligations Unaffected. Under Section 

9(h)(1), the bill does not change any existing obligation of an owner 

or operator of a chemical facility to provide information to a Federal, State, or local government agency under any other law. Section 9(h) ensures that the bill is not intended to affect disclosure 

or submittal obligations under any other law not specifically mentioned in the bill. Moreover, under Section 9(h)(2), the owner or operator of a chemical facility may not use a record containing protected information to meet a legal requirement other than a requirement under the bill; nor may such a record be used to obtain 

a grant, permit, contract, benefit, or other governmental approval. 

Subsection (i)—Availability of Information to Congress. Section 

9(i) ensures that the bill may not be used in any way to authorize 

the withholding of information from Congress. 

Subsection (j)—Penalties for Unauthorized Disclosure. Section 9(j) 

states that any Federal, State, or local government officer or employee who, in a manner not permitted by law, ‘‘knowingly discloses’’ any record containing protected information will be imprisoned for not more than one year, fined (under Chapter 227 of title 

18, United States Code), or both. Moreover, if the person who 

knowingly makes the non-lawful disclosure is an officer or employee of the Federal government, then he or she shall be removed 

from his or her position. 


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Subsection (k)—Public Availability of Information in Reports. 

Section 9(k) establishes that the Government Accountability Office 

may not disclose any protected information to the public in any report required of it under Section 12. 

Section 10—State and other laws 

Nothing in this bill denies States or localities from adopting or 

enforcing chemical security requirements that are more stringent 

than the standard under this bill, unless there is an actual conflict 

between a provision of this bill and the law of a State or locality. 

In addition, nothing in this bill would preclude or deny the right 

of any State or locality to adopt or enforce any requirement, including air or water pollution requirements that are directed at problems other than reducing damage from terrorist attacks. 

Section 11—National strategy for chemical security 

The Secretary is directed, within 6 months following enactment 

of this bill, to submit to the Senate Homeland Security and Governmental Affairs Committee, and the Homeland Security Committee 

and the Energy and Commerce Committees of the House of Representatives, an update of its national strategy for securing the 

chemical sector. 

Section 12—Government accountability office review 

The Department is directed to provide the U.S. Government Accountability Office (GAO) with access to any document or information required to be submitted to, generated by, or otherwise in the 

possession of the Department under this Act. GAO is required to 

submit a report annually to the Senate Homeland Security and 

Governmental Affairs Committee and Committee on Homeland Security of the House of Representatives and the Energy and Commerce Committee of the House of Representatives, a review of vulnerability assessments, site security plans and emergency response 

plans under this bill, and a determination of whether such plans 

and assessments are in compliance with this bill. 

Section 13—Judicial actions 

Any person is permitted 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 court is directed to review 

rules in accordance with the Administrative Procedure Act (5 

U.S.C. § 701 et seq.). The bill allows only an owner or operator 

whose facility is affected by a final agency action to file a petition 

in U.S. district court within 60 days of its issuance. Only the owner 

or operator and the Secretary may participate in such civil actions. 

The bill precludes judicial review of final agency actions except as 

specified in this section and Section 7(b). The bill prohibits private 

civil actions against an owner or operator to enforce provisions of 

this bill. 

Section 14—Ammonium nitrate 

The Secretary, in consultation with the Secretary of Agriculture, 

is directed to regulate the handling and sale of ammonium nitrate 

to prevent misappropriation or use in violation of law. The bill requires the registration of facilities and purchasers. The bill reVerDate Aug 31 2005 23:43 Sep 14, 2006 Jkt 049010 PO 00000 Frm 00048 Fmt 6659 Sfmt 6602 E:\HR\OC\SR332.XXX SR332

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stricts sales to registered producers, sellers, and purchasers, and 

further requires that records of sales or distribution must be maintained. The registration information shall be treated as protected 

information under this bill. The Secretary of Homeland Security is 

authorized to establish a process for auditing handler records to determine compliance. Penalties for violations and compliance failures are authorized. 

Section 15—Authorization of appropriations 

The bill authorizes such sums as are necessary to carry out this 

Act. 

VI. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

JULY 25, 2006. 

Hon. SUSAN M. COLLINS, 

Chairman, Committee on Homeland Security and Governmental Affairs, U.S. Senate, Washington, DC. 

DEAR MADAM CHAIRMAN: The Congressional Budget Office has 

prepared the enclosed cost estimate for S. 2145, the Chemical Facilities Anti-Terrorism Act of 2006. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contacts are Susanne S. Mehlman 

(for federal costs), who can be reached at 226–2860, Melissa 

Merrell (for the state and local impact) and Paige Piper/Bach (for 

the private-sector impact). 

Sincerely, 

DONALD B. MARRON, 

Acting Director. 

Enclosure. 

S. 2145—Chemical Facilities Anti-Terrorism Act of 2006 

Summary: S. 2145 would authorize the Department of Homeland 

Security (DHS) to regulate the security of chemical facilities across 

the United States. Under the bill, DHS would identify such facilities and estimate the level of risk they pose to the nation’s security. 

DHS would develop regulations to require the owners and operators of those facilities to perform vulnerability assessments and to 

establish site security plans and emergency response plans. The 

legislation would establish a chemical security office at DHS headquarters and offices at the regional level that would be responsible 

for auditing and inspecting the security of the nation’s chemical facilities. In addition, DHS would be responsible for maintaining the 

information it receives on chemical facilities in a secure location. 

Finally, S. 2145 would require DHS to regulate the handling and 

purchase of ammonium nitrate. 

CBO estimates that implementing S. 2145 would cost $255 million over the next five years, assuming appropriation of the necessary amounts. Of that amount, $210 million would be used to 

regulate and oversee an estimated 15,000 to 18,000 chemical facilities. The remaining $45 million would be used by DHS to regulate 

the handling and purchase of ammonium nitrate. Enacting S. 2145 

could affect direct spending and receipts because the bill would establish new civil and criminal penalties against owners and operators of chemical facilities, handlers of ammonium nitrate, and offiVerDate Aug 31 2005 23:43 Sep 14, 2006 Jkt 049010 PO 00000 Frm 00049 Fmt 6659 Sfmt 6602 E:\HR\OC\SR332.XXX SR332

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cers or employees of federal, state, or local government agencies 

who fail to comply with the bill’s requirements. However, CBO estimates that any collections from such civil and criminal penalties 

would not be significant. 

S. 2145 contains intergovernmental mandates, as defined in the 

Unfunded Mandates Reform Act (UMRA), because it would require 

the owners and operators of certain facilities, including those that 

provide public drinking water and wastewater treatment, to undertake measures to protect against the unauthorized release of chemical substances. It also would exempt certain security plans and 

documents from state and local laws that provide public access to 

information and preempt the authority of states to regulate the 

sale of ammonium nitrate in a manner that is less stringent that 

the requirements of the bill. 

Because some of the mandates are dependent upon future actions 

of the Department of Homeland Security, CBO cannot determine 

their exact costs. However, based on information from DHS and 

representatives of public water facilities, CBO estimates that, because it is likely those public facilities would be assigned to the 

lowest tier of risk and that DHS likely would consider activities 

that the facilities are currently doing to be sufficient to meet the 

requirements of this bill, additional costs for those public facilities 

would not exceed the annual threshold established in UMRA ($64 

million for intergovernmental mandates in 2006, adjusted annually 

for inflation). 

S. 2145 also would impose private-sector mandates, as defined in 

UMRA on owners and operators of certain chemical facilities and 

handlers and purchasers of ammonium nitrate. Based on information from industry and government sources, CBO expects that the 

aggregate direct cost of complying with those mandates would exceed the annual threshold established by UMRA for private-sector 

mandates ($128 million in 2006, adjusted annually for inflation) in 

at least one of the first five years the mandates are in effect. 

Estimated cost to the Federal Government: The estimated budgetary impact of S. 2145 is shown in the following table. For this 

estimate, CBO assumes that the bill will be enacted near the end 

of fiscal year 2006, that the necessary amounts will be appropriated for each year, and that outlays will follow historical spending patterns for similar activities. The costs of this legislation fall 

within budget function 750 (administration of justice). 

By fiscal year, in millions of dollars— 

2006 2007 2008 2009 201O 2011 

SPENDING SUBJECT TO APPROPRIATION 

DHS Spending on Security of Chemical Sites Under Current Law: 

Budget Authority 1 ........................................................................... 15 0 0 0 0 0 

Estimated Outlays ........................................................................... 10 5 0 0 0 0 

Proposed Changes: 

Regulation Development, Review of Vulnerability Assessments, 

Site Security Plans, and Emergency Response Plans: 

Estimated Authorization Level ................................................ 0 13 1 1 1 1 

Estimated Outlays .................................................................. 0 11 3 1 1 1 

Establish Chemical Security Office and Regional Offices for Site 

Audits and Inspections: 

Estimated Authorization Level ................................................ 0 (*) 30 45 45 45 

Estimated Outlays .................................................................. 0 (*) 30 45 45 45 

Maintain Chemical Site Information: 

Estimated Authorization Level ................................................ 0 20 2 2 2 2 


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By fiscal year, in millions of dollars—

2006 2007 2008 2009 201O 2011 

Estimated Outlays .................................................................. 0 18 4 2 2 2 

Regulate Handlers and Purchasers of Ammonium Nitrate: 

Estimated Authorization Level ................................................ 0 6 10 10 10 11 

Estimated Outlays .................................................................. 0 5 9 10 10 11 

Total Proposed Changes: 

Estimated Authorization Level ....................................... 0 39 43 58 58 59 

Estimated Outlays ......................................................... 0 34 46 58 58 59 

DHS Spending. on Security of Chemical Sites Under S. 2145: 

Estimated Authorization Level 1 ...................................................... 15 39 43 58 58 59 

Estimated Outlays ........................................................................... 10 39 46 58 58 59 

1 The 2006 level is the amount appropriated for DHS to address security issues at chemical facilities in that year. 

Note: * = less than $500,000. 

Basis of estimate: CBO estimates that implementing this legislation would cost $34 million in 2007 and $255 million over the 

2007–2011 period, subject to appropriation of the necessary 

amounts. In addition, CBO estimates that enacting S. 2145 could 

have an insignificant effect on direct spending and receipts by creating new criminal and civil penalties related to compliance with 

the bill’s provisions. 

Regulation development and risk assessment 

S. 2145 would require DHS to develop various regulations identifying facilities as chemical sources, determining the risk to the nation’s security associated with those facilities, setting security performance standards for chemical facilities, and detailing the requirements for vulnerability assessments, security plans, and 

emergency response plans for chemical facilities. CBO estimates 

that implementing these provisions of the legislation would cost 

$17 million over the next five years, subject to appropriation of the 

necessary amounts. 

Based on information from DHS, CBO estimates that over the 

2007–2008 period, efforts to develop necessary regulations would 

require about 15 staff-years at a cost of about $2 million, and $8 

million for related contractor support for information technology, 

meeting and conference planning, and assistance in conducting various studies. In addition, under the bill, facilities that involve higher security risks would have to undergo a more detailed facility assessment. Currently, DHS is in the process of developing a risk assessment framework known as Risk Analysis and Management for 

Critical Asset Protection (RAMCAP). According to DHS, additional 

funding would be required to refine and manage the RAMCAP 

process to meet the bill’s requirements for assessing risk. Based on 

information from DHS, CBO estimates that $3 million in 2007 and 

$1 million a year in subsequent years would be needed for additional training and technical modifications to RAMCAP to comply 

with requirements of S. 2145. 

Chemical security office and regional offices 

The bill would direct DHS to create a chemical security office. 

The new office would be responsible for planning, management, assignment of facilities to risk tiers, review and maintenance of site 

vulnerability assessments and plans, and enforcement. Regional 

employees of the chemical security office would oversee facility 

compliance, conduct large-scale emergency response exercises, and 


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work with local law enforcement and first responders on security 

and emergency planning. In addition, DHS expects that the regional offices would have primary responsibility for conducting audits and inspections of the facilities to verify whether they are 

meeting applicable requirements. Under the bill, most of the nation’s 15,000 to 18,000 chemical facilities would be audited or inspected over the next 10 years. In total, CBO estimates these efforts would cost $165 million over the 2007–2010 period, subject to 

appropriation of the necessary amounts. 

Based on information from DHS, CBO expects that the chemical 

security office would be operational by 2008 and fully staffed by 

2009. We estimate that the office would require a staff of 20 with 

a first-year cost of about $2 million, and would need about $13 million for contractor support and information technology in 2008. In 

subsequent years, CBO estimates that $20 million would be required, including $5 million for a staff of 50 and $15 million for 

contractor costs, travel expenses, and information technology. According to DHS, the agency would spend less than $500,000 in 

2007 to study how the field offices should be structured to meet the 

requirements of this legislation. DHS would need additional resources to audit and inspect chemical facilities and to oversee 

large-scale emergency response exercises and to coordinate efforts 

with local first responders. CBO estimates that DHS would spend 

about $15 million in 2008 to begin these effects, using a staff of 35 

at a cost of about $4 million, and $11 million for contractor support, travel expenses, and information technology. After these initial efforts, we estimate that DHS would spend about $12 million 

on a staff of 120 plus $13 million for related costs each year over 

the 2009–2011 period. 

Maintain chemical site information 

Based on information from DHS, CBO estimates that DHS would 

need about $20 million in 2007 to construct facilities to store the 

site chemical information it collects in a secure environment and 

to provide funding for information technology and support services 

for tracking such information. In subsequent years, CBO estimates 

that DHS would require $2 million to provide ongoing support to 

maintain the site information. 

Regulate handlers and purchasers of ammonium nitrate 

S. 2145 would require DHS to regulate the handling and purchase of ammonium nitrate. To meet this requirement, DHS would 

develop regulations requiring handlers of ammonium nitrate to register facilities, to sell or distribute ammonium nitrate only to registered handlers and purchasers, and to maintain records of sale. 

S. 2145 also would direct DHS to periodically inspect and audit 

these records. 

Based on information from industry associations, CBO estimates 

that there are about 2,000 handlers of ammonium nitrate in the 

United States. Based on the number of personnel employed by the 

Bureau of Alcohol, Tobacco, Firearms, and Explosives to inspect 

handlers of firearms and explosives, CBO expects that DHS would 

need to hire about 60 people to carry out field inspections and audits of ammonium nitrate handlers. Once fully phased in, CBO estimates that the costs of these additional employees would reach $8 


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million annually, including salaries, benefits, training, and support 

costs. For this estimate, we assume that the new positions would 

be fully staffed by fiscal year 2008. 

In addition, we estimate that DHS would need to hire about 20 

people to register and communicate with handlers of ammonium 

nitrate, write regulations, and administer this new program. We 

estimate that costs for these personnel would total $2 million annually. 

S. 2145 would permit DHS to enter into agreements with states 

to register and inspect handlers of ammonium nitrate. Under the 

bill, DHS would reimburse states for their costs to carry out those 

responsibilities if states chose to enter into such agreements with 

DHS. CBO expects that the cost to carry out those registrations 

and inspections would be similar whether conducted by states or 

DHS. 

Government Accountability Office (GAO) studies 

The legislation also would require GAO to prepare annual reports that would review the vulnerability assessments, site security 

plans, and emergency response plans submitted by the facilities no 

later than January 1 of the first year following the calendar year 

in which the regulations are developed and annually thereafter. 

CBO estimates that GAO would require less than $500,000 annually beginning in 2008 for such reports. 

Estimated impact on State, local, and tribal governments: S. 

2145 contains several intergovernmental mandates as defined in 

UMRA. First it would require owners and operators of certain 

chemical facilities to undertake specific measures to protect against 

terrorist attacks, criminal acts, or other categories of chemical releases, based on regulations to be developed by DHS. Because the 

sites would be selected from public and private entities (including 

public drinking water and wastewater treatment facilities), the bill 

would impose intergovernmental mandates as defined in UMRA. 

The bill also includes two preemptions of state and local authority. It would exempt certain security plans and documents from 

state and local laws that provide public access to information and 

preempt the authority of states to regulate the sale of ammonium 

nitrate in a manner that is less stringent than the requirements 

of the bill. CBO estimates that the cost for state and local governments to comply with those mandates would be small and therefore 

would not exceed the annual threshold established in UMRA ($64 

million for intergovernmental mandates in 2006, adjusted annually 

for inflation). 

Requirement for vulnerability assessments and security plans 

S. 2145 would require that owners and operators of affected facilities conduct an assessment of the vulnerability of their facility, 

identify the hazards that may result from a substance’s release, 

and develop and implement a security plan to prevent or respond 

to those releases. S. 2145 would further require that owners and 

operators certify completion of both the assessment and plan, submit copies to DHS, maintain records at the facility, and complete 

a periodic review of the assessment and plan. 

According to government and industry representatives, many of 

the facilities potentially affected by the bill’s provisions are curVerDate Aug 31 2005 23:43 Sep 14, 2006 Jkt 049010 PO 00000 Frm 00053 Fmt 6659 Sfmt 6602 E:\HR\OC\SR332.XXX SR332

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rently engaged in activities similar to those that would be required 

under S. 2145. Such facilities are acting either in response to the 

terrorist attacks of September 11, 2001, as a condition of membership with chemical industry associations, or to comply with the 

Public Health Security and Bioterrorism Preparedness and Response Act of 2002, the Maritime Transportation Security Act, or 

other federal regulations. Information from DHS indicates that 

public water facilities likely would be assigned to the lowest tier of 

risk and that the department likely would consider activities that 

the facilities are currently doing to be sufficient. Assuming public 

facilities would not be required to undertake significant new activities, CBO expects that these mandates would impose little additional costs on those facilities. 

Preemption of State authority to regulate ammonium nitrate 

S. 2145 would preempt the authority of states to regulate the 

sale of ammonium nitrate in a manner that is less stringent than 

the requirements of this bill. Currently nine states regulate the 

sale of ammonium nitrate, though none of those regulations are the 

same as the provisions of this bill, and all would be preempted. 

This bill would not require states to upgrade those regulations; 

rather the states could choose to stop regulating such sales and 

allow the federal government to do so. CBO estimates the states 

would incur little, if any, direct costs as a result of that preemption. The bill would allow states to enter into cooperative agreements with the federal government to implement the requirements 

of the bill and the Secretary of DHS would be authorized to provide 

those states with sufficient funds to carry out such duties. CBO 

cannot estimate how many states may opt to implement those regulations, but assuming appropriation of funds, any costs incurred 

by those states would be paid for by the federal government. 

Estimated impact on the private sector: S. 2145 would impose 

private-sector mandates, as defined in UMRA, on owners and operators of certain chemical facilities and handlers and purchasers of 

ammonium nitrate. Based on information from industry and government sources, CBO expects that the aggregate direct cost of 

complying with those mandates would exceed the annual threshold 

established by UMRA for private-sector mandates ($128 million in 

2006, adjusted annually for inflation) in at least one of the first five 

years the mandates are in effect. 

Chemical facilities 

S. 2145 would require the Secretary of Homeland Security to 

issue regulations regarding the security of the chemical industry. 

The bill would require that not later than one year after the date 

of enactment, the Secretary would be required to establish security 

performance standards for chemical sources based on a risk-based 

tier system. Each chemical facility would be required to file a petition with DHS for a determination on whether the facility should 

be designated as a chemical source. In addition, not later than one 

year after the date of enactment of the bill, the Secretary of DHS 

would be required to promulgate regulations that would require the 

owner or operator of each chemical source to conduct a vulnerability assessment, to prepare and implement a site security plan, 

and to prepare and implement an emergency response plan. The 


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owner or operator of a chemical source also would be required to 

retain a copy of the assessment, the site security plan and the 

emergency response plan for not less than five years after the assessment and plans are approved by the Secretary. 

According to industry and government sources, a large number 

of facilities are currently engaged in activities similar to the types 

of assessments and planning that would be required under this bill. 

According to those sources, approximately 15,000 to 18,000 chemical facilities would be affected by the security regulations. While 

the direct cost of complying with those mandates would depend on 

the regulations to be issued by DHS, based on information from industry and government sources, CBO expects that the incremental 

cost to comply with the security standards outlined in the bill 

would be substantial and would exceed the annual threshold established in UMRA in at least one of the first five years those requirements are in effect. 

Whistleblower protection 

The bill also would prohibit owners or operators of chemical facilities from discharging any employee, or otherwise discriminating 

against such employees in the terms, conditions, or privileges of 

their employment because the employee submitted a report to the 

Secretary regarding problems or vulnerabilities at a chemical facility. Based on information from government sources, CBO estimates 

that those chemical sources would incur minimal, if any, direct cost 

to comply with such protection requirements for their employees. 

Ammonium nitrate 

The bill also would impose mandates on producers, sellers, and 

purchasers of ammonium nitrate by requiring the Secretary of 

Homeland Security to regulate the handling and purchasing of the 

fertilizer. The Secretary would be required to promulgate regulations that would require producers and sellers of ammonium nitrate: 

• To register facilities where ammonium nitrate is produced 

or sold; 

• To sell or distribute ammonium nitrate only to registered 

handlers and purchasers; and 

• To maintain records of sale or distribution that include the 

name, address, telephone number, and registration number of 

certain purchasers. 

In addition, the regulations would require purchasers of ammonium nitrate to be registered. 

Under current law, some producers and sellers of ammonium nitrate are required to submit information to the Attorney General. 

According to government and industry sources, the regulations 

would result in a modest increase in administrative costs to ammonium nitrate handlers and purchasers. Based on that information, 

CBO estimates that the direct cost to comply with those mandates 

would be small relative to the annual threshold. 

Previous CBO Estimate: On June 11, 2006, CBO transmitted a 

cost estimate for H.R. 3197, the Secure Handling of Ammonium Nitrate Act of 2006, as ordered reported by the House Committee on 

Homeland Security on June 14, 2006. Section 14 of S. 2145 is simiVerDate Aug 31 2005 23:43 Sep 14, 2006 Jkt 049010 PO 00000 Frm 00055 Fmt 6659 Sfmt 6602 E:\HR\OC\SR332.XXX SR332

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lar to that bill and CBO’s estimates of the costs for H.R. 3197 and 

section 14 of S. 2145 are identical. 

Estimate prepared by: Federal Costs: Susanne S. Mehlman. Impact on State, Local, and Tribal Governments: Melissa Merrell. Impact on the Private Sector: Paige Piper/Bach. 

Estimate approved by: Peter H. Fontaine, Deputy Assistant Director for Budget Analysis. 

VII. CHANGES IN EXISTING LAW

In compliance with paragraph 12 of the Standing Rules of the 

Senate, changes in existing law made by S. 2145, as reported, are 

shown as follows: there is no change to existing law. 


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VIII. ADDITIONAL VIEWS 

ADDITIONAL VIEWS OF SENATOR VOINOVICH 

I commend the Committee Chairman and Ranking Member for 

their leadership on S. 2145, the Chemical Facility Anti-Terrorism 

Act of 2005. 

The U.S. chemical sector is a major part of our nation’s economic 

infrastructure and vitality. It includes chemical manufacturing, agriculture, healthcare, oil and natural gas, forest and paper, mining, 

dairy, and energy. Accordingly, chemical security legislation is of 

critical importance to our homeland security. 

I am pleased that legislation has been advanced that would provide comprehensive, risk-based standards that will protect chemical facilities and surrounding communities from terrorist attack. I 

am also pleased that agreement was reached on several of the 

amendments brought before the Homeland Security and Governmental Affairs Committee. However, I must express my serious 

concerns with certain provisions of S. 2145 as passed by the Committee on June 15, 2006. 

The bill reported out of Committee could make communities 

more vulnerable by: 

• Promoting an unnecessary, redundant, complex and confusing patchwork of local, state and federal security regulations that would provide for inconsistent levels of security 

across the country; 

• Allowing the release of sensitive security information to 

potential terrorists; 

• Disrupting ongoing security operations; 

• Creating the opportunity to define private sector process 

change as a security measure; and 

• Placing regulated industries at a competitive disadvantage 

with the potential to lead to facility closures and the loss of 

jobs to overseas competitors, hurting the surrounding communities that ironically, this bill intends to protect. 

While I wholeheartedly support the goal of ensuring the security 

of our nation’s critical infrastructure, these issues must be addressed before S. 2145 becomes law. 

Federal preemption 

Throughout Section II of the Committee Report, the need for ‘‘a 

comprehensive national chemical security strategy’’ is emphasized. 

The report concludes that nearly five years after the attacks of September 11, 2001, ‘‘the Federal government is authorized to regulate 

only segments of the chemical sector, creating a patchwork of regulation.’’ Additionally, numerous witnesses testified regarding the 


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importance of Federal preemption and the need to eliminate the 

patchwork of regulatory authority. 

In the Discussion of Legislation, Section III of the Committee Report states that S. 2145 ‘‘will replace an existing patchwork of voluntary and regulatory’’ measures. I strongly agree with the need to 

have a strong federal regulatory authority, but S. 2145 does not accomplish this goal. Rather the bill encourages states to further regulate facilities by declaring that none of its provisions affect any 

‘‘right’’ of states to impose ‘‘more stringent’’ requirements. The bill’s 

only limit on state regulation is if they ‘‘actual[ly] conflict’’ with a 

provision of the bill. Without strict federal preemption, the States 

will have incentive to further regulate facilities, regardless of this 

language. 

Article I Section 8 of the Constitution clearly states that Congress is delegated the power to provide for the common defense. 

We, in the Congress, have the duty to provide for the security of 

our states and our people. The absence of strong preemption language is an abdication of the Federal Government’s Constitutional 

responsibility to national defense. 

Without Federal preemption, we also run the risk of disparate 

regulatory standards as states establish their own regulatory regimes in addition to the federal standard. Federal preemption of 

state regulation is necessary to establish a single set of national 

standards to avoid a confusing, costly, and inconsistent patchwork 

of security regulations with which the chemical industry has to 

comply. 

Strong protection of information 

S. 2145 as introduced limited the degree of protection it provided 

for sensitive security information that DHS obtains from a chemical facility under the bill. Though I am pleased that many of these 

shortcomings were addressed during the Committee’s consideration 

of the bill, S. 2145 still does not adequately protect sensitive security information. It contains no provision for protecting ‘‘protected 

information’’ submitted by DHS to a court or administrative law 

judge in the course of an enforcement action. It does not protect 

‘‘protected information’’ in the hands of facility owners and operators from civil discovery. Further, it does not forbid the release of 

‘‘protected’’ information by anyone at the Federal, State or local 

level. 

When the Federal government compels the disclosure of sensitive 

security and business related information from the private sector 

for the purpose of national security, this information should be 

comprehensively protected from public disclosure. Inadequate protection of information could provide terrorists and other criminals 

with a blue-print of the vulnerabilities of this nation’s chemical sector. Congress must adequately protect sensitive security information by ensuring that the information shall not be subject to release 

or discovery in judicial or administrative proceedings, and that sensitive security information shall not be disclosed under any State 

or local law providing for public access to information. 


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Current security operations 

The U.S. Coast Guard enforces the performance-based standards 

of the Maritime Transportation Security Act (MTSA) for many of 

the nation’s largest chemical plants. This bill would require those 

facilities that are already complying with MTSA to also comply 

with this act. The report states that ‘‘the Committee does not want 

to duplicate efforts;’’ however, the language in S. 2145 would do exactly that. S. 2145 subjects those facilities already regulated under 

MTSA to unnecessary additional regulation. This requirement 

would be unduly burdensome for companies that have already gone 

to great lengths to secure their facilities. 

On July 17, 2005, Coast Guard Admiral Craig E. Bone testified 

before the Committee that under MTSA, the Coast Guard reviews 

and approves federal security plans for over 300 chemical facilities. 

In addition to that, the Coast Guard has completed inspections of 

all facilities that currently have Facility Security Plans or Alternative Security Plans to verify that they are in compliance. Admiral Bone described the compliance by the industry as ‘‘commendable.’’ We should not only allow, but encourage the Coast Guard to 

maintain the working relationship that it has established with 

those chemical facilities it regulates. S. 2145 should not disrupt 

this effective regulatory regime. We must harmonize the regulatory 

regime that this bill would establish with existing Federal law and 

private sector efforts to provide for the security of chemical facilities. With seamless integration, we will both enhance security and 

preserve the working relationship between the Coast Guard and 

those facilities regulated under MTSA. 

Environmental provisions 

The report notes that the bill’s definition of a security measure 

might include ‘‘the modification, processing, substitution, or reduction of substances of concern’’ as indicated in Section 

2(11)(B)(vii)(III).’’ It further states that, although the terms are recognized as elements of the concept of inherently safer technology 

(IST), they ‘‘are not included in the bill to provide the Secretary 

with the power to require a facility to implement IST.’’

First, there is no precedent for including the concept of process 

change in a security bill. The concept is not consistent with security precedent set by the BioTerrorism Act, the Maritime Transportation Security Act, the Atomic Energy Act, or the Homeland Security Act. These laws focus on hardening facilities, not mandating 

‘‘private sector’’ process change. 

Second, IST is a safety and environmental issue to be addressed 

before the Environment and Public Works Committee. Within the 

executive branch, safety and environmental concerns are addressed 

and regulated by the Occupational Safety and Health Administration and by the Environmental Protection Agency (EPA), respectively through their Process Safety Management and Risk Management Program rules, not the Department of Homeland Security. 

Though the EPA encourages consideration of IST, during the Clinton Administration, EPA consciously chose not to mandate either 

analyses or implementation of IST, in their Risk Management Program. The preamble to the RMP rulemaking states the following: 


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• EPA has decided not to mandate inherently safer technology analyses; • As many commenters, including those that support such 

analyses, pointed out, an assessment of inherently safer design 

alternatives has the most benefit in the development of new 

processes; • Although some existing processes may be superficially 

judged to be inherently less safer than other processes, EPA 

believes these processes can be safely operated through management and control of the hazards without spending resources 

searching for unavailable or unaffordable new process technologies’’; • ‘‘Inherently safer processes’’ is a developing concept and is 

not ready for general application; and • The implementation of IST frequently displaces risk rather 

than reducing it. 

Given this conclusion, it would be premature at best to include 

this concept in a security bill. The IST language should be removed 

from S. 2145. 

Conclusion 

Despite these concerns, I wholeheartedly support the goal of ensuring the security of our nation’s critical infrastructure. I look forward to continuing to work with all interested Senators to improve 

this important homeland security legislation. 

GEORGE V. VOINOVICH. 


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(59) 

ADDITIONAL VIEWS OF SENATORS LIEBERMAN, AKAKA 

AND LAUTENBERG 

This bill is the product of extensive work in the Homeland Security and Governmental Affairs Committee to explore the risks of a 

possible terrorist attack on our chemical facilities, as well as the 

best means to guard against those risks. 

The report well summarizes the background and need for this 

legislation, as well as the provisions of the bill. It reflects the 

strong bipartisan consensus behind most of the provisions of this 

legislation. We write separately, however, to express our distinct 

views on a few key areas of the legislation—the role of safer technologies to promote security, protection of information, and judicial 

review—and to underscore the importance of the bill’s language on 

preemption. 

Inherently Safer Technology (IST) 

This legislation recognizes that sometimes the best security will 

come not from adding guards and gates, but from reexamining the 

way chemical operations are carried out in order to reduce the 

amount of hazardous substances on site, improve the way they are 

stored or processed, or find safer substitutes for the chemicals 

themselves. These changes limit the loss of life or other damage in 

the event of an attack, and therefore make a facility a less inviting 

target for terrorists to begin with. They also have the added benefit 

of limiting the harm from an accidental release. This bill clearly requires facilities to look at the risks and consequences related to the 

dangerous chemicals on site and address those specific 

vulnerabilities in their security plan. And it includes these process 

changes among the menu of security measures that chemical facilities should examine when designing their security plans. 

Indeed, the central mission of this bill is to help these facilities 

reduce their risk. One of the most effective ways to reduce risk is 

to reduce the consequence of an attack, and the most effective way 

to eliminate consequence for certain facilities may be the reduction 

of deadly chemicals on site, the modification of the way they are 

made, or the substitution of safer chemicals. 

It is common sense that if a facility owner can replace a deadly 

chemical with a safer chemical that would not kill thousands of 

people, if released, then at the very least DHS should be able discuss such a consequence-reducing measure with an owner of a 

chemical facility. As repositories of extremely dangerous chemicals, 

too many of these facilities are—in the words of homeland security 

expert Steve Flynn—sitting ‘‘weapons of mass destruction.’’ But as 

soon as they switch to safer chemicals or processes, the weapon is 

disarmed. 

During our hearings, we heard from several experts about the 

importance and viability of this approach for enhancing security as 


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well as safety. The Honorable Gerald V. Poje, former Board Member, U.S. Chemical Safety and Hazard Investigation Board, testified on July 13, 2005 before the Committee, stressing the connection between safety and security, saying ‘‘I urge the Committee to 

see the development and maintenance of competent management 

systems for safety as essential underpinnings to enhanced security.’’ Also testifying before the Committee on the same day, Glenn 

Erwin, Project Director, Triangle of Prevention Program, United 

Steelworkers International Union, advocated substituting less toxic 

materials where possible to reduce the potential risk to human life 

or storing smaller volumes of these chemicals, and said a mandatory review of such options should be part of a chemical security 

program. 

Also on July 13, 2005, Carol L. Andress, Economic Development 

Specialist, Environmental Defense, testified that numerous water 

and wastewater facilities and refineries have already dramatically 

reduced their risk of a catastrophic accident or terrorist attack by 

switching to safer chemicals and processes. We had a powerful example of such an adjustment close by: after 9/11 focused our attention on potential targets in our midst, Washington D.C.’s water 

treatment facility ended the use of its potentially deadly liquid 

chlorine. Indeed, according to an April 2006 study by the Center 

for American Progress, almost 300 facilities that used acutely dangerous chemicals have dramatically reduced the risk to workers 

and surrounding communities by switching to less dangerous 

chemicals or processes. These include an array of facilities in fields 

ranging from electric power production to glass manufacturing to 

hazardous waste processing. 

We know that many facilities, and many security experts, already look to these less dangerous technologies as a potent and 

cost-effective way to improve security against a possible terror attack. But we also know that, for some facilities, there can be reluctance or structural impediments to looking at these technological 

solutions. That is why we feel this bill should go further and include more explicit requirements for chemical facilities to consider 

less dangerous technologies when they make the security enhancements required under this bill. In particular, the riskier facilities—

some of which could endanger tens or hundreds of thousands of 

lives if attacked—should have to demonstrate that they have 

looked closely at options that would reduce the catastrophic consequences of a possible terrorist attack. 

During markup, Senator Lieberman and Senator Lautenberg offered an amendment that would have required that at least 360 of 

the most high risk chemical facilities examine safer technologies as 

a means to improve security, and implement them where feasible. 

This is not a question of forcing industry to conduct its operations off a government-issued play book. Companies would analyze for themselves whether there are less dangerous ways to conduct their business and would not be required to implement any 

changes that were not feasible or merely shifted risk elsewhere. 

But given the extraordinary risks involved, it makes little sense 

not to require companies to at least take a long hard look at some 

of the common-sense solutions that have been advocated or already 

adopted by others within the industry. 


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We regret that our colleagues did not adopt the Lieberman-Lautenberg amendment, and we will continue to work to try to have 

such a provision adopted as part of final chemical security legislation. 

Protection of information 

Of course, none of us would want to release sensitive information 

about a chemical plant that would be useful to a terrorist. However, excessive secrecy in a government security program can actually makes us less, not more safe. This is because some degree of 

transparency is necessary to help us make government programs 

more accountable and effective. Also, local communities and their 

elected officials deserve to know whether local facilities are being 

kept safe against a terrorist attack, and the community’s vigilance 

can help make us all safer. 

We believe that the S. 2145 bill that the Chairman and Senator 

Lieberman introduced achieved the right combination of protecting 

real security information, while allowing enough disclosure to create accountability. We regret, however, that the Committee agreed 

to an amendment offered by Senator Voinovich that would tilt that 

balance in the direction of undue secrecy. Under the original bill, 

orders and certifications would be released to enable the community to know whether they are being kept safe and to keep the program accountable. But the Secretary could postpone the release of 

any order or certification as long as necessary, whether to give the 

source time to fix a problem, or for any other reason if the Secretary thinks that release would risk security. Senator Voinovich’s 

amendment changed that and now the bill would require all orders 

to be kept secret, and would even make certifications and certificates of compliance secret unless the Secretary makes a specific 

finding that release would not create a security risk. Some have expressed concern that if DHS tells the public whether certain chemical plants are in compliance or not, terrorists will know where to 

devote their attention. However, we believe that concern is just not 

realistic. While the orders or certificates made public would identify the facility, they would not provide any detail about the facility 

or the kind of vulnerability involved. Moreover, if there ever actually were a potential risk from disclosing an order or certification, 

the original bill authorized the Secretary to protect this information, and keep it from being released to the public as long as necessary. 

Judicial review 

We deeply regret that during markup our colleagues adopted language that would restrict judicial review under the regulatory program that would be established by the bill. These restrictions were 

added in an amendment offered by Senator Voinovich and received 

almost no discussion at the markup. They create a one-sided regime in which chemical facilities can challenge a regulatory determination regarding their facility, but no other parties can bring 

such a challenge or even participate in a proceeding initiated by industry. It also appears to preclude an array of possible challenges 

regarding overall administration of the chemical security program, 


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including a lawsuit challenging lax administration or ‘‘failure to 

act’’ by the Department. 

We are unaware of any comparable restrictions for a similar program and proponents have not offered any clear justification for 

them. The Administrative Procedures Act, which governs these 

questions in the absence of overriding statutory language such as 

Senator Voinovich’s amendment, already contains a series of checks 

and balances that have been carefully developed over time. Courts 

have well established procedures for handling sensitive or classified 

information. No one has explained to us why this system is not 

adequate to handle the chemical security program proposed by this 

legislation. In the absence of a compelling need, we do not think 

we should tamper with the rights of concerned parties to seek judicial review under this critical program. We are dealing with an 

issue that has enormous consequences for the lives and safety of 

hundreds of thousands of people living within range of a chemical 

plant; we should not restrict the right to seek judicial review under 

the chemical security program unless we have identified an overriding need to do so. 

Anti-preemption 

Finally, we wish to emphasize the importance of this bill’s provision regarding preemption. This bill recognizes that Congress is not 

the only body that can and should help ensure the safety and security of the nation’s chemical facilities. States and localities have 

long regulated such facilities for various safety and environmental 

concerns. Since 9/11, some states have also moved to require security improvements at these facilities. These state and local protections are critical companions to our effort at the federal level, and 

we are pleased that this bill states clearly that it does not preempt 

state and local laws or regulations regarding the safety and security of chemical facilities. States and localities are free to enact 

more stringent chemical security legislation. Only if there is an absolute conflict, such that it is impossible for a facility to comply 

with both the federal law and a state or local law or regulation on 

chemical security, would the federal provision take precedence. The 

bill would not disrupt state and local safety and environmental law 

regarding chemical facilities, nor does it seek to dislodge or alter 

the operation of state common law with respect to such facilities. 

We are pleased that during markup the Committee voted to reject 

an amendment that would have weakened this non-preemption 

mandate in the bill. 

FRANK R. LAUTENBERG. 

DANIEL K. AKAKA. 

JOE LIEBERMAN. 

ADDITIONAL VIEWS OF SENATOR LAUTENBERG 

Securing our chemical facilities from terrorist or other criminal 

attacks is one of the most important steps that Congress can take 

to protect the public from grievous harm, and our infrastructure 

and economy from severe disruption. I am frustrated and disturbed 

at how difficult it has proven, in the wake of 9/11, for Congress and 

the President to ignore the clamor of special interests and pass a 

strong, meaningful chemical security bill. 


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I introduced the first chemical security bill in Congress in 1999. 

Since then, I have worked with my fellow New Jersey Senators, 

John Corzine and Robert Menendez, to advance federal chemical 

security legislation and protect the right of New Jersey and other 

states to adopt strong chemical security protections. 

This year, I introduced a new chemical security bill, S. 2486, the 

Chemical Security and Safety Act of 2006, with Senators Obama, 

Menendez, Kerry, Durbin and Biden. I did this in part because 

there are several important elements that I believe should be part 

of any chemical security bill Congress passes, that are not yet part 

of S. 2145. Some of these elements are briefly summarized below. 

Inherently safer technology 

We should not mislead people to believe that simply adding 

gates, guards, and guns at our chemical facilities will be sufficient 

to protect workers and nearby residents from a terrorist attack. 

The legislation that I introduced in 1999 required the nation’s 

highest risk chemical facilities to adopt ‘‘inherently safer technology’’ (IST) to the maximum extent possible. That approach made 

sense two years before 9/11, and it makes even greater sense now. 

The bill I introduced this year contains a similar approach, requiring the adoption of IST where possible. Whether substituting safer 

chemicals, adopting different manufacturing processes, reducing 

the amount of chemicals stored on site, or making other changes 

at these high-risk facilities, it is appropriate to improve the safety 

and security of the public from attacks or accidents where it is possible to do so. 

The Bush administration, the chemical industry, and others continue to suggest that IST is simply an environmental issue, unrelated to the issue of national security. But a recent report by the 

National Research Council of the National Academy of Sciences 

found ‘‘the most desirable solution to preventing chemical releases 

is to reduce or eliminate the hazard where possible, not to control 

it.’’ (Emphasis added) This study was requested by the Department 

of Homeland Security (DHS), and was written by a panel of chemical industry members, consultants, and academics. Their conclusion was about the benefits of IST for our security, not our environment. 

The presumed distinction between strong security measures and 

environmental protection is simply false. Our dependency on oil is 

a national security issue; while many of the ways to reduce that 

dependency would make us safer and would also benefit the environment. Similarly, requiring facilities to adopt IST where possible 

makes sense for security, productivity, profitability, and the environment. 

Hundreds of facilities have already adopted some form of IST. 

The citizens living near these facilities are now safer. We should 

ensure that the highest risk facilities in the nation make such 

changes where it is practical to do so. We don’t have the resources 

to protect every chemical facility that is a potential target. So we 

need to eliminate as many potential targets as possible. Adopting 

safer technologies will allow us to focus on those facilities where 

the risk of attack can’t be eliminated. 


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At the mark-up of S. 2145, Senator Lieberman and I offered an 

IST amendment. Unfortunately, that amendment was defeated. I 

have joined Senator Lieberman’s additional views, which contain 

additional discussion of the IST issue, and our amendment in particular. I appreciate Senator Lieberman’s leadership and commitment to this important aspect of a meaningful chemical security 

policy, and I will continue to work with him to improve any chemical security legislation by ensuring that IST provisions are included. 

A role for workers in ensuring chemical security 

My legislation contains several provisions that give workers at 

chemical facilities a role in developing vulnerability assessments, 

site security and response plans, participating in inspections, and 

ensuring the security and safety of their facilities generally. 

It is just common sense that workers at chemical plants should 

help develop assessments and plans, participate in inspections, and 

consult regularly with management. Workers have hands-on experience and up-close insights on how to improve safety and security 

where they work. They have the most to lose—their jobs and possibly their lives—if security falls short. 

We will have a weaker national chemical security policy if we 

don’t involve those who are working in the plants that are at risk 

of attack. There is no good argument against including workers in 

the development of chemical plant security plans, and I hope that 

provisions to that effect will be included in whatever legislation is 

ultimately adopted. 

General duty to protect the public from terrorist or other criminal 

attacks 

Under Section 112(r) of the Clean Air Act, chemical facilities 

have a ‘‘general duty’’ to operate in a manner to protect public 

health and safety and the environment from chemical releases. Facilities are required to develop Risk Management Plans (RMPs) 

which include detailed safety and emergency response plans in the 

event of an accidental chemical release. The legislation I introduced 

in 1999, as well as the legislation I introduced this year with Senators Obama, Menendez, and others would amend the current 

‘‘general duty’’ provision in the Clean Air Act to include a responsibility to protect workers and the surrounding public from the 

threat posed by a terrorist or other criminal attack on these highrisk facilities. 

The facilities covered under Section 112(r) are the highest risk 

facilities in the country because they store a sufficient amount of 

dangerous chemicals to be a significant threat to the surrounding 

community if they are not operated in a safe manner. It is hard 

to understand why we would want these facilities to have a general 

duty to protect the public from an accidental chemical release, but 

not a release that could result from a terrorist or other criminal attacks. 

I recognize that in implementing whatever chemical security legislation is ultimately enacted, DHS and its partners at the federal, 

state, and local levels will need to prioritize their focus on those facilities that pose the greatest risk. S. 2486 and S. 2145 both conVerDate Aug 31 2005 23:43 Sep 14, 2006 Jkt 049010 PO 00000 Frm 00066 Fmt 6604 Sfmt 6602 E:\HR\OC\SR332.XXX SR332

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tain provisions to allow for such prioritization. DHS and others 

have advocated for legislation with a scope narrower than the facilities currently covered under section 112(r). I continue to believe 

that a general duty to operate in a manner that ensures the security and safety of workers and surrounding communities is appropriate for all of the facilities that are currently required to have 

Risk Management Plans. 

Role of the environmental protection agency 

My legislation would ensure that, in establishing requirements 

for chemical facilities, and otherwise implementing a chemical security program, the Secretary of DHS consults with the Administrator of the Environmental Protection Agency (EPA). 

EPA has an enormous amount of institutional knowledge concerning chemical plants that can benefit DHS as it takes the lead 

role in implementing a national chemical security program. EPA 

has administered the nation’s chemical safety program pursuant to 

the Clean Air Act since 1990. 

Chemical security legislation adopted by Congress should require 

DHS to consult with EPA, to ensure that DHS has the best possible information and analysis at its disposal in implementing our 

national chemical security policy. One of the lessons of Hurricane 

Katrina is that we don’t want information to be ‘‘stove-piped’’ at 

different agencies. We need to ensure collaboration and cooperation 

across many departments and agencies to get the best results. That 

principle seems particularly important when the issue is preventing a terrorist attack on a chemical facility. 

I was very disturbed to hear that when the Government Accountability Office (GAO) recently recommended that DHS collaborate 

with EPA on studying the potential benefits of IST for improving 

chemical security, DHS rejected GAO’s recommendation, in part 

out of concern that doing so would upset the chemical industry. 

That should not be the basis for developing any part of our national security policy. I recognize that the chemical industry would 

like to exclude EPA from any role in our chemical security policy, 

but we should not cater to the industry on this point. 

As chemical security legislation continues to be debated by the 

Congress, Members should ask themselves: If EPA’s knowledge of 

chemical facilities is irrelevant to security concerns, why have we 

ceded responsibility for security at our wastewater and drinking 

water treatment facilities to EPA? 

Under S. 2486 and S. 2145, the Secretary of DHS will be in 

charge of our chemical security policy, but we should ensure that 

the Secretary and all other DHS personnel take advantage of the 

valuable institutional experience and knowledge residing at EPA. 

Anti-preemption 

Perhaps the most important issue for New Jersey with regard to 

federal chemical security legislation is whether our State will retain the authority to adopt more stringent protections than whatever Congress may enact. Some 700 people from New Jersey were 

killed on 9/11. New Jersey is one of the states most vulnerable to 

a terrorist attack: It is home to what counter-terrorism experts at 

the Federal Bureau of Investigation have called ‘‘the most danVerDate Aug 31 2005 23:43 Sep 14, 2006 Jkt 049010 PO 00000 Frm 00067 Fmt 6604 Sfmt 6602 E:\HR\OC\SR332.XXX SR332

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gerous two miles in America,’’ the stretch between Newark Airport 

and Port Elizabeth, in great part due to the presence of chemical 

facilities. Elsewhere in the State, twelve million people could be endangered if the Kuehne chemical plant in Kearny were to be attacked. 

New Jersey has a long and proud history of adopting strong legislation to protect the health and safety of its citizens, and the environment, without waiting for the Federal Government to act. In 

the wake of the catastrophic chemical leak in Bhopal, India, in 

1984, which killed thousands of innocent people, the New Jersey 

legislature passed the Toxic Catastrophe Prevention Act (TCPA). 

This law requires facilities that handle extraordinarily hazardous 

substances above certain inventory thresholds to prepare and implement risk management plans. The plans must include detailed 

procedures for safety reviews of design and operation, operating 

procedures, maintenance procedures, training activities, emergency 

response, process hazard analysis with risk assessment, and selfauditing procedures. The TCPA became the model for Section 

112(r) of the Clean Air Act, which established a similar requirement to develop risk management plans for the highest risk chemical facilities in the country, of which there are approximately 

15,000. 

Since 9/11, New Jersey has taken several steps to strengthen the 

TCPA, and to adopt additional measures to enhance the security of 

New Jersey citizens from terrorist or other criminal attacks on 

chemical plants. I find it unbelievable that five years after 9/11, 

with no meaningful action by Congress, the administration, or the 

chemical industry to adopt strong chemical security legislation; 

there is now a push to prevent states and local communities from 

taking the necessary steps to protect their citizens. The safety of 

the citizens of New Jersey or any other state or local community 

which wishes to protect itself should not be subject to the delaying 

tactics of industries that seek to avoid regulation and oversight. 

Nor should state or local governments be forced to settle for whatever compromises are ultimately reached at the federal level if, in 

their view, greater protections are needed for their citizens. 

An amendment was offered at the Homeland Security and Government Affairs Committee mark-up of S. 2145 to preempt states 

and local communities from adopting stronger chemical legislation. 

Fortunately, the amendment was defeated. I thank those Senators 

who voted against that amendment, and particularly want to express my appreciation to the Chair and Ranking Member for their 

steadfast opposition to adding preemption language to any chemical security legislation. 

Although I believe that my legislation is superior to S. 2145, I 

voted to report S. 2145 to the floor because I think it is imperative 

that we make progress in this critical area of our nation’s security. 

S. 2145—as long as it retains explicit anti-preemption language—

would be an improvement over the status quo. I appreciate the tremendous amount of work the Chair and Ranking Member and 

their staff put into developing this legislation, and I look forward 


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to the opportunity to work with them to make a good bill better 

when the full Senate considers it. 

FRANK R. LAUTENBERG. 

Æ 


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