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[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1562 Introduced in House (IH)]

109th CONGRESS
  1st Session
                                H. R. 1562

    To protect human health and the environment from the release of 
               hazardous substances by acts of terrorism.

_______________________________________________________________________

                    IN THE HOUSE OF REPRESENTATIVES

                             April 12, 2005

 Mr. Fossella introduced the following bill; which was referred to the 
  Committee on Homeland Security, and in addition to the Committee on 
Energy and Commerce, for a period to be subsequently determined by the 
  Speaker, in each case for consideration of such provisions as fall 
           within the jurisdiction of the committee concerned

_______________________________________________________________________

                                 A BILL

 
    To protect human health and the environment from the release of 
               hazardous substances by acts of terrorism.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Chemical Facility Security Act of 
2005''.

SEC. 2. FINDINGS.

    The Congress finds the following:
            (1) Industries that manufacture, distribute, and process 
        chemicals are crucial components of the national economy and 
        the critical infrastructure of the United States--
                    (A) in their own right; and
                    (B) because those industries supply resources 
                essential to the functioning of other critical 
                infrastructure.
            (2) A terrorist attack on a facility that manufactures, 
        processes, or uses potentially dangerous chemicals, or a theft 
        of those chemicals from such a facility for use in a terrorist 
        attack, could pose a serious threat to--
                    (A) public health, safety, and welfare;
                    (B) critical infrastructure; and
                    (C) national security.
            (3) While Federal, State, and local governments share 
        primary responsibility for preventing, detecting, and 
        responding to terrorist attacks, the owners and operators of 
        facilities that manufacture, process, or use potentially 
        dangerous chemicals should make every reasonable effort to 
        protect those facilities against the threat of such attacks.
            (4) While programs to protect the health and safety of 
        workers, the public, and the environment by reducing the 
        potential for accidental releases of potentially dangerous 
        chemicals, including the consequences of worst-case releases of 
        those chemicals, are in place as required by numerous Federal 
        and State laws, the events of September 11, 2001, demonstrate 
        the need to ensure that appropriate security measures are taken 
        to address the threat of acts of terrorism against facilities 
        that manufacture, use, or process potentially dangerous 
        chemicals.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) Administrator.--The term ``Administrator'' means the 
        Administrator of the Environmental Protection Agency.
            (2) Chemical source.--The term ``chemical source'' means a 
        stationary source as defined in section 112(r)(2)(C) of the 
        Clean Air Act (42 U.S.C. 7412(r)(2)(C)) at which a substance of 
        concern is present in more than a threshold quantity, as 
        defined in or established under paragraphs (3) and (5) of 
        section 112(r) of the Clean Air Act (42 U.S.C. 7412(r)), 
        subject to the authority of the Secretary under section 5(f) to 
        designate additional categories of stationary sources as 
        chemical sources or to exempt categories of existing chemical 
        sources from such designation.
            (3) Department.--The term ``Department'' means the 
        Department of Homeland Security.
            (4) Environment.--The term ``environment'' has the meaning 
        given the term in section 101 of the Comprehensive 
        Environmental Response, Compensation, and Liability Act of 1980 
        (42 U.S.C. 9601).
            (5) Owner or operator.--The term ``owner or operator'' has 
        the meaning given the term in section 112(a) of the Clean Air 
        Act (42 U.S.C. 7412(a)).
            (6) Release.--The term ``release'' has the meaning given 
        the term in section 101 of the Comprehensive Environmental 
        Response, Compensation, and Liability Act of 1980 (42 U.S.C. 
        9601).
            (7) Secretary.--The term ``Secretary'' means the Secretary 
        of Homeland Security.
            (8) Security measure.--
                    (A) In general.--The term ``security measure'' 
                means an action carried out to ensure or enhance the 
                security of a chemical source.
                    (B) Inclusions.--The term ``security measure'', 
                with respect to a chemical source, includes measures 
                such as--
                            (i) employee training and background 
                        checks;
                            (ii) the limitation and prevention of 
                        access to controls of the chemical source;
                            (iii) the protection of the perimeter of 
                        the chemical source;
                            (iv) the installation and operation of 
                        intrusion detection sensors;
                            (v) the implementation of measures to 
                        increase computer or computer network security;
                            (vi) the implementation of other security-
                        related measures to protect against or reduce 
                        the threat of--
                                    (I) a terrorist attack on the 
                                chemical source; or
                                    (II) the theft of a substance of 
                                concern for offsite release in 
                                furtherance of an act of terrorism; and
                            (vii) conduct of any similar security-
                        related activity, as determined by the 
                        Secretary.
            (9) Substance of concern.--The term ``substance of 
        concern'' means a chemical substance present at a chemical 
        source in more than a threshold quantity, subject to the 
        authority of the Secretary under section 5(g) to designate new 
        substances as substances of concern, exempt existing substances 
        of concern from such designation, or adjust the threshold 
        quantity for a substance of concern.
            (10) Terrorism.--The term ``terrorism'' has the meaning 
        given the term in section 2 of the Homeland Security Act of 
        2002 (6 U.S.C. 101).
            (11) Terrorist release.--The term ``terrorist release'' 
        means--
                    (A) a release from a chemical source into the 
                environment of a substance of concern that is caused by 
                an act of terrorism; or
                    (B) the theft of a substance of concern by a person 
                for offsite release in furtherance of an act of 
                terrorism.

SEC. 4. DESIGNATION OF AND REQUIREMENTS FOR HIGH-PRIORITY CATEGORIES.

    (a) Designation and Regulation of High-Priority Categories by the 
Secretary.--Not later than 1 year after the date of enactment of this 
Act, the Secretary, in consultation with the Administrator, shall 
promulgate regulations to designate certain combinations of chemical 
sources and substances of concern as high-priority categories based on 
the severity of the threat posed by a terrorist release from the 
chemical sources.
    (b) Factors to Be Considered.--In designating high-priority 
categories under subsection (a), the Secretary, in consultation with 
the Administrator, shall consider--
            (1) the severity of the harm that could be caused by a 
        terrorist release;
            (2) the proximity to population centers;
            (3) the threats to national security;
            (4) the threats to critical infrastructure;
            (5) the nature and quantity of substances of concern at a 
        given facility; and
            (6) such other security-related factors as the Secretary, 
        in consultation with the Administrator, determines to be 
        appropriate.

SEC. 5. VULNERABILITY ASSESSMENTS AND SITE SECURITY PLANS.

    (a) Requirement.--
            (1) In general.--Not later than 1 year after the date of 
        enactment of this Act, the Secretary shall promulgate 
        regulations that require the owner or operator of each chemical 
        source--
                    (A) to conduct an assessment of the vulnerability 
                of the chemical source to a terrorist release, 
                including identifying hazards that may result from a 
                terrorist release;
                    (B) to prepare and implement a site security plan 
                that addresses the results of the vulnerability 
                assessment;
                    (C) in the case of a chemical source that is in a 
                high-priority category under regulations under section 
                4, to provide to the Secretary a copy of the 
                vulnerability assessment conducted under subparagraph 
                (A) and the site security plan prepared under 
                subparagraph (B); and
                    (D) in the case of a chemical source that is not in 
                a high-priority category under regulations promulgated 
                under section 4, to provide to the Department, on 
                request, copies of the vulnerability assessment and 
                site security plan for review.
            (2) Deadlines.--
                    (A) In general.--The Secretary shall specify in 
                regulations promulgated under paragraph (1) specific 
                deadlines for the completion and certification of 
                vulnerability assessments and site security plans under 
                subsection (b).
                    (B) Alternative deadlines.--The Secretary may 
                establish deadlines other than deadlines described in 
                subparagraph (A) for different categories of chemical 
                sources based on the regulatory criteria specified in 
                subsection (e).
            (3) Contents of site security plan.--A site security plan 
        required under the regulations promulgated under paragraph 
        (1)--
                    (A)(i) shall include security measures to reduce 
                the vulnerability of the chemical source covered by the 
                plan to a terrorist release; and
                    (ii) may include other actions and procedures 
                appropriate to reduce the vulnerability of the chemical 
                source to a terrorist release; and
                    (B) shall describe, at a minimum, particular 
                equipment, plans, and procedures that could be 
                implemented or used by or at the chemical source in the 
                event of a terrorist release.
            (4) Threat information.--To the maximum extent practicable 
        under applicable authority and in the interests of national 
        security, the Secretary shall provide to an owner or operator 
        of a chemical source required to prepare a vulnerability 
        assessment and site security plan threat information that is 
        relevant to the chemical source.
    (b) Certification and Submission.--
            (1) In general.--Each owner or operator of a chemical 
        source that is not in a high-priority category shall certify in 
        writing to the Secretary that the owner or operator has 
        completed a vulnerability assessment, and has developed and 
        implemented or is implementing a site security plan, in 
        accordance with this Act, including--
                    (A) regulations promulgated under subsection 
                (a)(1); and
                    (B) any applicable procedures, protocols, or 
                standards endorsed or recognized by the Secretary under 
                subsection (c)(2).
            (2) Oversight.--The Secretary shall, at such times and 
        places as the Secretary determines to be appropriate, conduct 
        or require the conduct of vulnerability assessments and other 
        activities to ensure and evaluate compliance with--
                    (A) this Act (including regulations promulgated 
                under subsection (a)(1)); and
                    (B) other applicable procedures, protocols, or 
                standards endorsed or recognized by the Secretary under 
                subsection (c)(2).
    (c) Specified Standards.--
            (1) In general.--The Secretary may--
                    (A) establish procedures, protocols, and standards 
                for vulnerability assessments and site security plans;
                    (B) establish provisions identifying security 
                measures that, if implemented, would establish the 
                sufficiency of a vulnerability assessment or site 
                security plan; and
                    (C) require that a vulnerability assessment and 
                site security plan address a particular threat or type 
                of threat.
            (2) Existing procedures, protocols, and standards.--Upon 
        petition by any person of the Secretary, any procedures, 
        protocols, and standards established by the Secretary under 
        paragraph (1)(A) shall endorse or recognize procedures, 
        protocols, and standards--
                    (A) that are established by--
                            (i) industry;
                            (ii) Federal, State, or local authorities; 
                        or
                            (iii) other applicable law; and
                    (B) the requirements of which the Secretary 
                determines to be--
                            (i) substantially equivalent to the 
                        requirements under subsection (a); and
                            (ii) in effect on or after the date of 
                        enactment of this Act.
            (3) No action by secretary.--If the Secretary does not 
        endorse or recognize existing procedures, protocols, and 
        standards described in paragraph (2)(A), the Secretary shall 
        provide to each person that submitted a petition under 
        paragraph (2) a written notification that includes a clear 
        explanation of the reasons why the endorsement or recognition 
        was not made.
    (d) Preparation of Assessments and Plans.--As of the date of 
endorsement or recognition by the Secretary of a particular procedure, 
protocol, or standard under subsection (c)(2), any vulnerability 
assessment or site security plan that is prepared by a chemical source 
before, on, or after the date of endorsement or recognition of, and in 
accordance with, that procedure, protocol, or standard, shall be exempt 
from subsection (c) and paragraphs (1) and (3) of subsection (a) 
(including such a vulnerability assessment or site security plan 
prepared before, on, or after the date of enactment of this Act).
    (e) Regulatory Criteria.--In exercising the authority under 
subsections (a) and (c) with respect to a chemical source, the 
Secretary shall consider--
            (1) the likelihood that a chemical source will be the 
        target of terrorism;
            (2) the nature and quantity of the substances of concern 
        present at a chemical source;
            (3) the potential extent of death, injury, or serious 
        adverse effects to human health or the environment that would 
        result from a terrorist release;
            (4) the potential harm to critical infrastructure and 
        national security from a terrorist release;
            (5) cost and technical feasibility;
            (6) scale of operations; and
            (7) such other security-related factors as the Secretary 
        determines to be appropriate and necessary to protect the 
        public health and welfare, critical infrastructure, and 
        national security.
    (f) Designation and Exemption of Chemical Sources.--
            (1) In general.--The Secretary may, from time to time, by 
        regulation--
                    (A) designate certain categories of stationary 
                sources as chemical sources under this Act; or
                    (B) exempt certain categories of stationary sources 
                from designation as chemical sources,
        without regard to whether a substance of concern is present at 
        such sources in more than a threshold quantity.
            (2) Considerations.--In designating or exempting a chemical 
        source under paragraph (1), the Secretary shall consider the 
        factors described in subsection (e).
            (3) Regulations.--The Secretary may make a designation or 
        exemption under paragraph (1) in regulations promulgated under 
        subsection (a)(1).
            (4) Future determinations.--Not later than 3 years after 
        the date of promulgation of regulations under subsections 
        (a)(1) and (c), and every 3 years thereafter, the Secretary 
        shall, after considering the criteria described in subsection 
        (e), determine whether to designate or exempt particular 
        categories of chemical sources under this subsection.
    (g) Designation, Exemption, and Adjustment of Threshold Quantities 
of Substances of Concern.--
            (1) In general.--The Secretary may, by regulation--
                    (A) designate certain chemical substances in 
                particular threshold quantities as substances of 
                concern under this Act;
                    (B) exempt certain chemical substances from 
                designation as substances of concern under this Act; 
                and
                    (C) adjust the threshold quantity of a chemical 
                substance.
            (2) Considerations.--In designating or exempting a chemical 
        substance or adjusting the threshold quantity of a chemical 
        substance under paragraph (1), the Secretary shall consider the 
        potential extent of death, injury, or serious adverse effects 
        to human health or the environment that would result from a 
        terrorist release of the chemical substance.
            (3) Regulations.--The Secretary may make a designation, 
        exemption, or adjustment under paragraph (1) in regulations 
        promulgated under subsection (a)(1).
    (h) Five-Year Review.--Not later than 5 years after the date of 
certification of a vulnerability assessment and a site security plan 
under subsection (b)(1), and not less often than every 5 years 
thereafter (or on such a schedule as the Secretary may establish by 
regulation), the owner or operator of the chemical source covered by 
the vulnerability assessment or site security plan shall--
            (1) review the adequacy of the vulnerability assessment and 
        site security plan; and
            (2)(A) certify to the Secretary that the chemical source 
        has completed the review and implemented any modifications to 
        the site security plan; and
            (B) upon request by the Secretary, submit to the Secretary 
        a description of any changes to the vulnerability assessment or 
        site security plan.
    (i) Submission of Changes for High-Priority Chemical Sources.--The 
owner or operator of a chemical source that is in a high-priority 
category under regulations under section 4 shall provide to the 
Secretary a description of any change made to the vulnerability 
assessment or site security plan required for the chemical source under 
this section, by not later than 90 days after the date the change is 
made.
    (j) Protection of Information.--
            (1) Disclosure exemption.--All information obtained in 
        accordance with this Act, and all information derived from that 
        information (including information shared with Federal, State, 
        and local governmental entities under paragraphs (2) and (3))--
                    (A) shall not be disclosed by any Federal agency, 
                under section 552 of title 5, United States Code, or 
                otherwise;
                    (B) shall not be disclosed under any State or local 
                law providing for public access to information; and
                    (C) shall not be subject to discovery or admitted 
                into evidence in any Federal or State civil judicial or 
                administrative proceeding, other than an action under 
                section 10.
            (2) Development of protocols.--
                    (A) In general.--The Secretary, in consultation 
                with the Director of the Office of Management and 
                Budget and appropriate Federal law enforcement and 
                intelligence officials, and in a manner consistent with 
                existing protections for sensitive or classified 
                information, shall, by regulation, establish 
                confidentiality protocols for maintenance and use of 
                information that is obtained from owners or operators 
                of chemical sources and provided to the Secretary under 
                this Act.
                    (B) Requirements for protocols.--A protocol 
                established under subparagraph (A) shall ensure that--
                            (i) each copy of a vulnerability assessment 
                        or site security plan submitted to the 
                        Secretary, all information contained in or 
                        derived from that assessment or plan, and other 
                        information obtained under section 8, is 
                        maintained in a secure location; and
                            (ii) except as provided in paragraph 
                        (3)(B), access to the copies of the 
                        vulnerability assessments and site security 
                        plans submitted to the Secretary, and other 
                        information obtained under section 8, shall be 
                        limited to persons designated by the Secretary.
            (3) Penalties for unauthorized disclosure.--
                    (A) In general.--Except as provided in subparagraph 
                (B), any individual who acquires any information 
                described in paragraph (2)(A) (including any 
                reproduction of that information or any information 
                derived from that information), and who knowingly or 
                recklessly discloses the information, shall--
                            (i) be imprisoned not more than 1 year, 
                        fined in accordance with chapter 227 of title 
                        18, United States Code (applicable to class A 
                        misdemeanors), or both; and
                            (ii) if a Federal employee, be removed from 
                        Federal office or employment.
                    (B) Exceptions.--
                            (i) In general.--Subparagraph (A) shall not 
                        apply to a person described in that 
                        subparagraph that discloses information 
                        described in paragraph (2)(A)--
                                    (I) to an individual designated by 
                                the Secretary under paragraph 
                                (2)(B)(ii); or
                                    (II) for use in any administrative 
                                or judicial proceeding to impose a 
                                penalty for failure to comply with a 
                                requirement of this Act.
                            (ii) Law enforcement officials and first 
                        responders.--Notwithstanding subparagraph (A), 
                        an individual referred to in paragraph 
                        (2)(B)(ii) who is an officer or employee of the 
                        United States may share with a State or local 
                        law enforcement or other official (including a 
                        first responder) the contents of a 
                        vulnerability assessment or site security plan, 
                        or other information described in that 
                        paragraph, to the extent disclosure is 
                        necessary to carry out this Act.

SEC. 6. ENFORCEMENT.

    (a) Failure to Certify or Submit.--If an owner or operator of a 
chemical source fails to certify or submit a vulnerability assessment 
or site security plan in accordance with this Act, the Secretary may 
issue an order requiring the certification and submission of a 
vulnerability assessment or site security plan in accordance with this 
Act.
    (b) Disapproval.--The Secretary may disapprove a vulnerability 
assessment or site security plan if the Secretary determines that--
            (1) the vulnerability assessment or site security plan does 
        not comply with regulations promulgated under subsections 
        (a)(1) and (c) of section 5; or
            (2) the site security plan, or the implementation of the 
        site security plan, is insufficient to address--
                    (A) the results of a vulnerability assessment of a 
                chemical source; or
                    (B) a threat of a terrorist release.
    (c) Compliance.--If the Secretary disapproves a vulnerability 
assessment or site security plan of a chemical source under subsection 
(b), the Secretary shall--
            (1) provide the owner or operator of the chemical source a 
        written notification of the determination that includes a clear 
        explanation of deficiencies in the vulnerability assessment, 
        site security plan, or implementation of the assessment or 
        plan;
            (2) consult with the owner or operator of the chemical 
        source to identify appropriate steps to achieve compliance; and
            (3) if, following that consultation, the owner or operator 
        of the chemical source does not achieve compliance in 
        accordance by such date as the Secretary determines to be 
        appropriate under the circumstances, issue an order requiring 
        the owner or operator to revise, recertify, and submit the 
        assessment or plan to correct deficiencies specified in the 
        order.
    (d) Protection of Information.--Any determination of disapproval or 
order made or issued under this section--
            (1) shall not be disclosed by any Federal agency, under 
        section 552 of title 5, United States Code, or otherwise;
            (2) shall not be disclosed under any State or local law 
        providing for public access to information; and
            (3) shall not be subject to discovery or admitted into 
        evidence in any Federal or State civil judicial or 
        administrative proceeding, other than an action under section 
        10.

SEC. 7. INTERAGENCY TECHNICAL SUPPORT AND COOPERATION.

    The Secretary--
            (1) may request other Federal agencies to provide technical 
        and analytical support (other than field work) in implementing 
        this Act; and
            (2) may provide reimbursement for such technical and 
        analytical support received as the Secretary determines to be 
        appropriate.

SEC. 8. RECORDKEEPING; SITE INSPECTIONS; PRODUCTION OF INFORMATION.

    (a) Recordkeeping.--The owner or operator of a chemical source that 
is required to prepare a vulnerability assessment or site security plan 
under section 5(a) shall maintain a current copy of those documents.
    (b) Right of Entry.--In carrying out this Act, the Secretary (or a 
designee), on presentation of credentials, shall have a right of entry 
to, on, or through--
            (1) any premises of an owner or operator of a chemical 
        source described in subsection (a); and
            (2) any premises on which any record required to be 
        maintained under subsection (a) is located.
    (c) Requests for Records.--In carrying out this Act, the Secretary 
(or a designee) may require the submission of, or, on presentation of 
credentials, may at reasonable times seek access to and copy--
            (1) any records, reports, or other information described in 
        subsection (a); and
            (2) any other documentation necessary for--
                    (A) review or analysis of a vulnerability 
                assessment or site security plan; or
                    (B) implementation of a site security plan.
    (d) Compliance.--If the Secretary determines that an owner or 
operator of a chemical source is not maintaining, producing, or 
permitting access to records as required by this section, the Secretary 
may issue an order requiring compliance with the relevant provisions of 
this section.

SEC. 9. INTEGRATION WITH OTHER AUTHORITIES.

    A chemical source that is required to prepare a facility 
vulnerability assessment and a facility security plan or emergency 
response plan under the provisions of chapter 701 of title 46, United 
States Code, or section 1433 of the Safe Drinking Water Act (42 U.S.C. 
300i-2) shall not be subject to the requirements of this Act, unless 
the owner or operator petitions the Secretary to be subject to the 
requirements of this Act in lieu of those established by such 
provisions.

SEC. 10. PENALTIES.

    (a) Judicial Relief.--Any owner or operator of a chemical source 
that violates or fails to comply with any order issued by the Secretary 
under this Act or a site security plan submitted to the Secretary under 
this Act (or, in the case of an exemption described in section 5(d), a 
procedure, protocol, or standard endorsed or recognized by the 
Secretary under section 5(c)) may, in a civil action brought in United 
States district court, be subject, for each day on which the violation 
occurs or the failure to comply continues, to--
            (1) an order for injunctive relief; or
            (2) a civil penalty of not more than $50,000.
    (b) Administrative Penalties.--
            (1) Penalty orders.--The Secretary may issue an 
        administrative penalty of not more than $250,000 for failure to 
        comply with an order issued by the Secretary under this Act.
            (2) Notice and hearing.--Before issuing an order described 
        in paragraph (1), the Secretary shall provide to the person 
        against which the penalty is to be assessed--
                    (A) written notice of the proposed order; and
                    (B) the opportunity to request, not later than 30 
                days after the date on which the person receives the 
                notice, a hearing on the proposed order.
            (3) Procedures.--The Secretary may promulgate regulations 
        outlining the procedures for administrative hearings and 
        appropriate review, including necessary deadlines.
    (c) Treatment of Information in Judicial Proceedings.--Information 
submitted to or obtained by the Secretary, information derived from 
that information, and information submitted by the Secretary under this 
Act shall be treated in any judicial or administrative action as if the 
information were classified material.

SEC. 11. PROVISION OF TRAINING.

    The Secretary may provide training to State and local officials and 
owners and operators in furtherance of the purposes of this Act.

SEC. 12. PROVISION OF ASSESSMENTS AND RESPONSE PLANS UNDER SAFE 
              DRINKING WATER ACT.

    Section 1433 of the Safe Drinking Water Act (42 U.S.C. 300i-2) is 
amended by adding at the end the following:
    ``(f) Provision of Assessments and Response Plans to Secretary of 
Homeland Security.--Pursuant to section 202 of the Homeland Security 
Act of 2002 (Public Law 107-296; 6 U.S.C. 122), the Administrator 
shall, upon request by the Secretary of Homeland Security, provide to 
the Secretary any vulnerability assessment or emergency response plan 
received by the Administrator under this section.''.

SEC. 13. NO EFFECT ON REQUIREMENTS UNDER OTHER LAW.

    Except as provided in section 5(j), section 6(c), section 9, and 
section 12, nothing in this Act affects any duty or other requirement 
imposed under any other Federal or State law.
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