IIB 

111TH CONGRESS 

1ST SESSION H. R. 2868 

IN THE SENATE OF THE UNITED STATES 

NOVEMBER 9, 2009 

Received; read twice and referred to the Committee on Homeland Security and 

Governmental Affairs 

AN ACT 

To amend the Homeland Security Act of 2002 to enhance 

security and protect against acts of terrorism against 

chemical facilities, to amend the Safe Drinking Water 

Act to enhance the security of public water systems, 

and to amend the Federal Water Pollution Control Act 

to enhance the security of wastewater treatment works, 

and for other purposes. 


wwoods2 on DSK1DXX6B1PROD with BILLS
2 

HR 2868 RFS 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Chemical and Water Security Act of 2009’’. 

6 (b) TABLE OF CONTENTS.—The table of contents for 

7 this Act is as follows: 

Sec. 1. Short title; table of contents. 

TITLE I—CHEMICAL FACILITY SECURITY 

Sec. 101. Short title. 

Sec. 102. Findings and purpose. 

Sec. 103. Extension, modification, and recodification of authority of Secretary 

of Homeland Security to regulate security practices at chemical 

facilities. 

TITLE II—DRINKING WATER SECURITY 

Sec. 201. Short title. 

Sec. 202. Intentional acts affecting the security of covered water systems. 

Sec. 203. Study to assess the threat of contamination of drinking water distribution systems. 

TITLE III—WASTEWATER TREATMENT WORKS SECURITY 

Sec. 301. Short title. 

Sec. 302. Wastewater treatment works security. 

8 TITLE I—CHEMICAL FACILITY 

9 SECURITY 

10 SEC. 101. SHORT TITLE. 

11 This title may be cited as the ‘‘Chemical Facility 

12 Anti-Terrorism Act of 2009’’. 

13 SEC. 102. FINDINGS AND PURPOSE. 

14 (a) FINDINGS.—Congress makes the following find15 ings: 


wwoods2 on DSK1DXX6B1PROD with BILLS
3 

HR 2868 RFS 

1 (1) The Nation’s chemical sector represents a 

2 target that terrorists could exploit to cause con3 sequences, including death, injury, or serious adverse 

4 effects to human health, the environment, critical in5 frastructure, public health, homeland security, na6 tional security, and the national economy. 

7 (2) Chemical facilities that pose such potential 

8 consequences and that are vulnerable to terrorist at9 tacks must be protected. 

10 (3) The Secretary of Homeland Security has 

11 statutory authority pursuant to section 550 of the 

12 Department of Homeland Security Appropriations 

13 Act, 2007 (Public Law 109–295) to regulate the se14 curity practices at chemical facilities that are at sig15 nificant risk of being terrorist targets. 

16 (4) The Secretary of Homeland Security issued 

17 interim final regulations called the Chemical Facility 

18 Anti-Terrorism Standards, which became effective 

19 on June 8, 2007. 

20 (b) PURPOSE.—The purpose of this title is to modify 

21 and make permanent the authority of the Secretary of 

22 Homeland Security to regulate security practices at chem23 ical facilities. 


wwoods2 on DSK1DXX6B1PROD with BILLS
4 

HR 2868 RFS 

1 SEC. 103. EXTENSION, MODIFICATION, AND RECODIFICA2 TION OF AUTHORITY OF SECRETARY OF 

3 HOMELAND SECURITY TO REGULATE SECU4 RITY PRACTICES AT CHEMICAL FACILITIES. 

5 (a) IN GENERAL.—The Homeland Security Act of 

6 2002 (6 U.S.C. 101 et seq.) is amended by adding at the 

7 end the following new title: 

8 ‘‘TITLE XXI—REGULATION OF SE9 CURITY PRACTICES AT CHEM10 ICAL FACILITIES 

11 ‘‘SEC. 2101. DEFINITIONS. 

12 ‘‘In this title, the following definitions apply: 

13 ‘‘(1) The term ‘chemical facility’ means any fa14 cility— 

15 ‘‘(A) at which the owner or operator of the 

16 facility possesses or plans to possess at any rel17 evant point in time a substance of concern; or 

18 ‘‘(B) that meets other risk-related criteria 

19 identified by the Secretary. 

20 ‘‘(2) The term ‘chemical facility security per21 formance standards’ means risk-based standards es22 tablished by the Secretary to ensure or enhance the 

23 security of a chemical facility against a chemical fa24 cility terrorist incident that are designed to address 

25 the following: 

26 ‘‘(A) Restricting the area perimeter. 


wwoods2 on DSK1DXX6B1PROD with BILLS
5 

HR 2868 RFS 

1 ‘‘(B) Securing site assets. 

2 ‘‘(C) Screening and controlling access to 

3 the facility and to restricted areas within the 

4 facility by screening or inspecting individuals 

5 and vehicles as they enter, including— 

6 ‘‘(i) measures to deter the unauthor7 ized introduction of dangerous substances 

8 and devices that may facilitate a chemical 

9 facility terrorist incident or actions having 

10 serious negative consequences for the pop11 ulation surrounding the chemical facility; 

12 and 

13 ‘‘(ii) measures implementing a regu14 larly updated identification system that 

15 checks the identification of chemical facil16 ity personnel and other persons seeking ac17 cess to the chemical facility and that dis18 courages abuse through established dis19 ciplinary measures. 

20 ‘‘(D) Methods to deter, detect, and delay a 

21 chemical facility terrorist incident, creating suf22 ficient time between detection of a chemical fa23 cility terrorist incident and the point at which 

24 the chemical facility terrorist incident becomes 

25 successful, including measures to— 


wwoods2 on DSK1DXX6B1PROD with BILLS
6 

HR 2868 RFS 

1 ‘‘(i) deter vehicles from penetrating 

2 the chemical facility perimeter, gaining un3 authorized access to restricted areas, or 

4 otherwise presenting a hazard to poten5 tially critical targets; 

6 ‘‘(ii) deter chemical facility terrorist 

7 incidents through visible, professional, well8 maintained security measures and systems, 

9 including security personnel, detection sys10 tems, barriers and barricades, and hard11 ened or reduced value targets; 

12 ‘‘(iii) detect chemical facility terrorist 

13 incidents at early stages through counter14 surveillance, frustration of opportunity to 

15 observe potential targets, surveillance and 

16 sensing systems, and barriers and barri17 cades; and 

18 ‘‘(iv) delay a chemical facility terrorist 

19 incident for a sufficient period of time so 

20 as to allow appropriate response through 

21 on-site security response, barriers and bar22 ricades, hardened targets, and well-coordi23 nated response planning. 


wwoods2 on DSK1DXX6B1PROD with BILLS
7 

HR 2868 RFS 

1 ‘‘(E) Securing and monitoring the ship2 ping, receipt, and storage of a substance of con3 cern for the chemical facility. 

4 ‘‘(F) Deterring theft or diversion of a sub5 stance of concern. 

6 ‘‘(G) Deterring insider sabotage. 

7 ‘‘(H) Deterring cyber sabotage, including 

8 by preventing unauthorized onsite or remote ac9 cess to critical process controls, including super10 visory control and data acquisition systems, dis11 tributed control systems, process control sys12 tems, industrial control systems, critical busi13 ness systems, and other sensitive computerized 

14 systems. 

15 ‘‘(I) Developing and exercising an internal 

16 emergency plan for owners, operators, and cov17 ered individuals of a covered chemical facility 

18 for responding to chemical facility terrorist inci19 dents at the facility, including the provision of 

20 appropriate information to any local emergency 

21 planning committee, local law enforcement offi22 cials, and emergency response providers to en23 sure an effective, collective response to terrorist 

24 incidents. 


wwoods2 on DSK1DXX6B1PROD with BILLS
8 

HR 2868 RFS 

1 ‘‘(J) Maintaining effective monitoring, 

2 communications, and warning systems, includ3 ing— 

4 ‘‘(i) measures designed to ensure that 

5 security systems and equipment are in 

6 good working order and inspected, tested, 

7 calibrated, and otherwise maintained; 

8 ‘‘(ii) measures designed to regularly 

9 test security systems, note deficiencies, 

10 correct for detected deficiencies, and record 

11 results so that they are available for in12 spection by the Secretary; and 

13 ‘‘(iii) measures to allow the chemical 

14 facility to promptly identify and respond to 

15 security system and equipment failures or 

16 malfunctions. 

17 ‘‘(K) Ensuring mandatory annual security 

18 training, exercises, and drills of chemical facil19 ity personnel appropriate to their roles, respon20 sibilities, and access to a substance of concern, 

21 including participation by local law enforce22 ment, and local emergency response providers, 

23 and appropriate supervisory and non-super24 visory facility employees and their employee 

25 representatives, if any. 


wwoods2 on DSK1DXX6B1PROD with BILLS
9 

HR 2868 RFS 

1 ‘‘(L) Performing personnel surety for indi2 viduals with access to restricted areas or critical 

3 assets by conducting appropriate background 

4 checks and ensuring appropriate credentials for 

5 unescorted visitors and chemical facility per6 sonnel, including permanent and part-time per7 sonnel, temporary personnel, and contract per8 sonnel, including— 

9 ‘‘(i) measures designed to verify and 

10 validate identity; 

11 ‘‘(ii) measures designed to check 

12 criminal history; 

13 ‘‘(iii) measures designed to verify and 

14 validate legal authorization to work; and 

15 ‘‘(iv) measures designed to identify 

16 people with terrorist ties. 

17 ‘‘(M) Escalating the level of protective 

18 measures for periods of elevated threat. 

19 ‘‘(N) Specific threats, vulnerabilities, or 

20 risks identified by the Secretary for that chem21 ical facility. 

22 ‘‘(O) Reporting of significant security inci23 dents to the Secretary and to appropriate local 

24 law enforcement officials. 


wwoods2 on DSK1DXX6B1PROD with BILLS
10 

HR 2868 RFS 

1 ‘‘(P) Identifying, investigating, reporting, 

2 and maintaining records of significant security 

3 incidents and suspicious activities at or near the 

4 covered chemical facility. 

5 ‘‘(Q) Establishing one or more officials and 

6 an organization responsible for— 

7 ‘‘(i) security; 

8 ‘‘(ii) compliance with the standards 

9 under this paragraph; 

10 ‘‘(iii) serving as the point of contact 

11 for incident management purposes with 

12 Federal, State, local, and tribal agencies, 

13 law enforcement, and emergency response 

14 providers; and 

15 ‘‘(iv) coordination with Federal, State, 

16 local, and tribal agencies, law enforcement, 

17 and emergency response providers regard18 ing plans and security measures for the 

19 collective response to a chemical facility 

20 terrorist incident. 

21 ‘‘(R) Maintaining appropriate records re22 lating to the security of the facility, including a 

23 copy of the most recent security vulnerability 

24 assessment and site security plan, at the chem25 ical facility. 


wwoods2 on DSK1DXX6B1PROD with BILLS
11 

HR 2868 RFS 

1 ‘‘(S) Assessing and, as appropriate, uti2 lizing methods to reduce the consequences of a 

3 terrorist attack. 

4 ‘‘(T) Methods to recover or mitigate the 

5 release of a substance of concern in the event 

6 of a chemical facility terrorist incident. 

7 ‘‘(U) Any additional security performance 

8 standards the Secretary may specify. 

9 ‘‘(3) The term ‘chemical facility terrorist inci10 dent’ means any act or attempted act of terrorism 

11 or terrorist activity committed at, near, or against a 

12 chemical facility, including— 

13 ‘‘(A) the release of a substance of concern 

14 from a chemical facility; 

15 ‘‘(B) the theft, misappropriation, or misuse 

16 of a substance of concern from a chemical facil17 ity; or 

18 ‘‘(C) the sabotage of a chemical facility or 

19 a substance of concern at a chemical facility. 

20 ‘‘(4) The term ‘employee representative’ means 

21 the representative of the certified or recognized bar22 gaining agent engaged in a collective bargaining re23 lationship with a private or public owner or operator 

24 of a chemical facility. 


wwoods2 on DSK1DXX6B1PROD with BILLS
12 

HR 2868 RFS 

1 ‘‘(5) The term ‘covered individual’ means a per2 manent, temporary, full-time, or part-time employee 

3 of a covered chemical facility or an employee of an 

4 entity with which the covered chemical facility has 

5 entered into a contract who is performing respon6 sibilities at the facility pursuant to the contract. 

7 ‘‘(6) The term ‘covered chemical facility’ means 

8 a chemical facility that meets the criteria of section 

9 2102(b)(1). 

10 ‘‘(7) The term ‘environment’ means— 

11 ‘‘(A) the navigable waters, the waters of 

12 the contiguous zone, and the ocean waters of 

13 which the natural resources are under the ex14 clusive management authority of the United 

15 States under the Magnuson-Stevens Fishery 

16 Conservation and Management Act (16 U.S.C. 

17 1801 et seq.); and 

18 ‘‘(B) any other surface water, ground 

19 water, drinking water supply, land surface or 

20 subsurface strata, or ambient air within the 

21 United States or under the jurisdiction of the 

22 United States. 

23 ‘‘(8) The term ‘owner or operator’ with respect 

24 to a facility means any of the following: 

25 ‘‘(A) The person who owns the facility. 


wwoods2 on DSK1DXX6B1PROD with BILLS
13 

HR 2868 RFS 

1 ‘‘(B) The person who has responsibility for 

2 daily operation of the facility. 

3 ‘‘(C) The person who leases the facility. 

4 ‘‘(9) The term ‘person’ means an individual, 

5 trust, firm, joint stock company, corporation (includ6 ing a government corporation), partnership, associa7 tion, State, municipality, commission, political sub8 division of a State, or any interstate body and shall 

9 include each department, agency, and instrumen10 tality of the United States. 

11 ‘‘(10) The term ‘release’ means any spilling, 

12 leaking, pumping, pouring, emitting, emptying, dis13 charging, injecting, escaping, leaching, dumping, or 

14 disposing into the environment (including the aban15 donment or discarding of barrels, containers, and 

16 other closed receptacles containing any hazardous 

17 substance or pollutant or contaminant). 

18 ‘‘(11) The term ‘substance of concern’ means a 

19 chemical substance in quantity and form that is so 

20 designated by the Secretary under section 2102(a). 

21 ‘‘(12) The term ‘method to reduce the con22 sequences of a terrorist attack’ means a measure 

23 used at a chemical facility that reduces or eliminates 

24 the potential consequences of a chemical facility ter25 rorist incident, including— 


wwoods2 on DSK1DXX6B1PROD with BILLS
14 

HR 2868 RFS 

1 ‘‘(A) the elimination or reduction in the 

2 amount of a substance of concern possessed or 

3 planned to be possessed by an owner or oper4 ator of a covered chemical facility through the 

5 use of alternate substances, formulations, or 

6 processes; 

7 ‘‘(B) the modification of pressures, tem8 peratures, or concentrations of a substance of 

9 concern; and 

10 ‘‘(C) the reduction or elimination of onsite 

11 handling of a substance of concern through im12 provement of inventory control or chemical use 

13 efficiency. 

14 ‘‘(13) The term ‘academic laboratory’ means a 

15 facility or area owned by an institution of higher 

16 education (as defined under section 101 of the High17 er Education Act of 1965 (20 U.S.C. 1001)) or a 

18 non-profit research institute or teaching hospital 

19 that has a formal affiliation with an institution of 

20 higher education, including photo laboratories, art 

21 studios, field laboratories, research farms, chemical 

22 stockrooms, and preparatory laboratories, where rel23 atively small quantities of chemicals and other sub24 stances, as determined by the Secretary, are used on 

25 a non-production basis for teaching, research, or diVerDate Nov 24 2008 23:44 Nov 09, 2009 Jkt 089200 PO 00000 Frm 00014 Fmt 6652 Sfmt 6201 E:\BILLS\H2868.RFS H2868

wwoods2 on DSK1DXX6B1PROD with BILLS
15 

HR 2868 RFS 

1 agnostic purposes, and are stored and used in con2 tainers that are typically manipulated by one person. 

3 ‘‘SEC. 2102. RISK-BASED DESIGNATION AND RANKING OF 

4 CHEMICAL FACILITIES. 

5 ‘‘(a) SUBSTANCES OF CONCERN.— 

6 ‘‘(1) DESIGNATION BY THE SECRETARY.—The 

7 Secretary may designate any chemical substance as 

8 a substance of concern and establish the threshold 

9 quantity for each such substance of concern. 

10 ‘‘(2) MATTERS FOR CONSIDERATION.—In desig11 nating a chemical substance or establishing or ad12 justing the threshold quantity for a chemical sub13 stance under paragraph (1), the Secretary shall con14 sider the potential extent of death, injury, and seri15 ous adverse effects to human health, the environ16 ment, critical infrastructure, public health, homeland 

17 security, national security, and the national economy 

18 that could result from a chemical facility terrorist 

19 incident. 

20 ‘‘(b) LIST OF COVERED CHEMICAL FACILITIES.— 

21 ‘‘(1) CRITERIA FOR LIST OF FACILITIES.—The 

22 Secretary shall maintain a list of covered chemical 

23 facilities that the Secretary determines are of suffi24 cient security risk for inclusion on the list based on 

25 the following criteria: 


wwoods2 on DSK1DXX6B1PROD with BILLS
16 

HR 2868 RFS 

1 ‘‘(A) The potential threat or likelihood that 

2 the chemical facility will be the target of a 

3 chemical facility terrorist incident. 

4 ‘‘(B) The potential extent and likelihood of 

5 death, injury, or serious adverse effects to 

6 human health, the environment, critical infra7 structure, public health, homeland security, na8 tional security, and the national economy that 

9 could result from a chemical facility terrorist 

10 incident. 

11 ‘‘(C) The proximity of the chemical facility 

12 to large population centers. 

13 ‘‘(2) SUBMISSION OF INFORMATION.—The Sec14 retary may require the submission of information 

15 with respect to the quantities of substances of con16 cern that an owner or operator of a chemical facility 

17 possesses or plans to possess in order to determine 

18 whether to designate a chemical facility as a covered 

19 chemical facility for purposes of this title. 

20 ‘‘(c) ASSIGNMENT OF CHEMICAL FACILITIES TO

21 RISK-BASED TIERS.— 

22 ‘‘(1) ASSIGNMENT.—The Secretary shall assign 

23 each covered chemical facility to one of four risk24 based tiers established by the Secretary, with tier 


wwoods2 on DSK1DXX6B1PROD with BILLS
17 

HR 2868 RFS 

1 one representing the highest degree of risk and tier 

2 four the lowest degree of risk. 

3 ‘‘(2) PROVISION OF INFORMATION.—The Sec4 retary may request, and the owner or operator of a 

5 covered chemical facility shall provide, any additional 

6 information beyond any information required to be 

7 submitted under subsection (b)(2) that may be nec8 essary for the Secretary to assign the chemical facil9 ity to the appropriate tier under paragraph (1). 

10 ‘‘(3) NOTIFICATION.—Not later than 60 days 

11 after the date on which the Secretary determines 

12 that a chemical facility is a covered chemical facility 

13 or is no longer a covered chemical facility or changes 

14 the tier assignment under paragraph (1) of a cov15 ered chemical facility, the Secretary shall notify the 

16 owner or operator of that chemical facility of that 

17 determination or change together with the reason for 

18 the determination or change and, upon the request 

19 of the owner or operator of a covered chemical facil20 ity, provide to the owner or operator of the covered 

21 chemical facility the following information: 

22 ‘‘(A) The number of individuals at risk of 

23 death, injury, or severe adverse effects to 

24 human health as a result of a worst case chemVerDate Nov 24 2008 23:44 Nov 09, 2009 Jkt 089200 PO 00000 Frm 00017 Fmt 6652 Sfmt 6201 E:\BILLS\H2868.RFS H2868

wwoods2 on DSK1DXX6B1PROD with BILLS
18 

HR 2868 RFS 

1 ical facility terrorist incident at the covered 

2 chemical facility. 

3 ‘‘(B) Information related to the criticality 

4 of the covered chemical facility. 

5 ‘‘(C) The proximity or interrelationship of 

6 the covered chemical facility to other critical in7 frastructure. 

8 ‘‘(d) REQUIREMENT FOR REVIEW.—The Secretary— 

9 ‘‘(1) shall periodically review— 

10 ‘‘(A) the designation of a chemical sub11 stance as a substance of concern and the 

12 threshold quantity for the substance under sub13 section (a)(1); and 

14 ‘‘(B) the criteria under subsection (b)(1); 

15 and 

16 ‘‘(2) may, at any time, determine whether a 

17 chemical facility is a covered chemical facility or 

18 change the tier to which such a facility is assigned 

19 under subsection (c)(1). 

20 ‘‘(e) PROVISION OF THREAT-RELATED INFORMA21 TION.—In order to effectively assess the vulnerabilities to 

22 a covered chemical facility, the Secretary shall provide to 

23 the owner, operator, or security officer of a covered chem24 ical facility threat information regarding probable threats 


wwoods2 on DSK1DXX6B1PROD with BILLS
19 

HR 2868 RFS 

1 to the facility and methods that could be used in a chem2 ical facility terrorist incident. 

3 ‘‘SEC. 2103. SECURITY VULNERABILITY ASSESSMENTS AND 

4 SITE SECURITY PLANS. 

5 ‘‘(a) IN GENERAL.— 

6 ‘‘(1) REQUIREMENT.—The Secretary shall— 

7 ‘‘(A) establish standards, protocols, and 

8 procedures for security vulnerability assess9 ments and site security plans to be required for 

10 covered chemical facilities; 

11 ‘‘(B) require the owner or operator of each 

12 covered chemical facility to— 

13 ‘‘(i) conduct an assessment of the vul14 nerability of the covered chemical facility 

15 to a range of chemical facility terrorist in16 cidents, including an incident that results 

17 in a worst-case release of a substance of 

18 concern, and submit such assessment to 

19 the Secretary; 

20 ‘‘(ii) prepare and implement a site se21 curity plan for that covered chemical facil22 ity that addresses the security vulnerability 

23 assessment and meets the risk-based chem24 ical security performance standards under 


wwoods2 on DSK1DXX6B1PROD with BILLS
20 

HR 2868 RFS 

1 subsection (c) and submit such plan to the 

2 Secretary; 

3 ‘‘(iii) include at least one supervisory 

4 and at least one non-supervisory employee 

5 of the covered chemical facility, and at 

6 least one employee representative from 

7 each bargaining agent at the covered 

8 chemical facility, if any, in developing the 

9 security vulnerability assessment and site 

10 security plan required under this section; 

11 and 

12 ‘‘(iv) include, with the submission of a 

13 security vulnerability assessment and the 

14 site security plan of the covered chemical 

15 facility under this section, a signed state16 ment by the owner or operator of the cov17 ered chemical facility that certifies that the 

18 submission is provided to the Secretary 

19 with knowledge of the penalty provisions 

20 under section 2107; 

21 ‘‘(C) set deadlines, by tier, for the comple22 tion of security vulnerability assessments and 

23 site security plans; 

24 ‘‘(D) upon request, as necessary, and to 

25 the extent that resources permit, provide techVerDate Nov 24 2008 23:44 Nov 09, 2009 Jkt 089200 PO 00000 Frm 00020 Fmt 6652 Sfmt 6201 E:\BILLS\H2868.RFS H2868

wwoods2 on DSK1DXX6B1PROD with BILLS
21 

HR 2868 RFS 

1 nical assistance to a covered chemical facility 

2 conducting a vulnerability assessment or site se3 curity plan required under this section; 

4 ‘‘(E) establish specific deadlines and re5 quirements for the submission by a covered 

6 chemical facility of information describing— 

7 ‘‘(i) any change in the use by the cov8 ered chemical facility of more than a 

9 threshold amount of any substance of con10 cern that may affect the requirements of 

11 the chemical facility under this title; or 

12 ‘‘(ii) any material modification to a 

13 covered chemical facility’s operations or 

14 site that may affect the security vulner15 ability assessment or site security plan 

16 submitted by the covered chemical facility; 

17 ‘‘(F) require the owner or operator of a 

18 covered chemical facility to review and resubmit 

19 a security vulnerability assessment or site secu20 rity plan not less frequently than once every 5 

21 years; 

22 ‘‘(G) not later than 180 days after the 

23 date on which the Secretary receives a security 

24 vulnerability assessment or site security plan 

25 under this title, review and approve or disVerDate Nov 24 2008 23:44 Nov 09, 2009 Jkt 089200 PO 00000 Frm 00021 Fmt 6652 Sfmt 6201 E:\BILLS\H2868.RFS H2868

wwoods2 on DSK1DXX6B1PROD with BILLS
22 

HR 2868 RFS 

1 approve such assessment or plan and notify the 

2 covered chemical facility of such approval or 

3 disapproval; and 

4 ‘‘(H) establish, as appropriate, modified or 

5 separate standards, protocols, and procedures 

6 for security vulnerability assessments and site 

7 security plans for covered chemical facilities 

8 that are also academic laboratories. 

9 ‘‘(2) INHERENTLY GOVERNMENTAL FUNC10 TION.—The approval or disapproval of a security 

11 vulnerability assessment or site security plan under 

12 this section is an inherently governmental function. 

13 ‘‘(b) PARTICIPATION IN PREPARATION OF SECURITY

14 VULNERABILITY ASSESSMENTS OR SITE SECURITY

15 PLANS.—Any person selected by the owner or operator of 

16 a covered chemical facility or by a certified or recognized 

17 bargaining agent of a covered chemical facility to partici18 pate in the development of the security vulnerability as19 sessment or site security plan required under this section 

20 for such covered chemical facility shall be permitted to 

21 participate if the person possesses knowledge, experience, 

22 training, or education relevant to the portion of the secu23 rity vulnerability assessment or site security plan on which 

24 the person is participating. 


wwoods2 on DSK1DXX6B1PROD with BILLS
23 

HR 2868 RFS 

1 ‘‘(c) RISK-BASED CHEMICAL SECURITY PERFORM2 ANCE STANDARDS.—The Secretary shall establish risk3 based chemical security performance standards for the site 

4 security plans required to be prepared by covered chemical 

5 facilities. In establishing such standards, the Secretary 

6 shall— 

7 ‘‘(1) require separate and, as appropriate, in8 creasingly stringent risk-based chemical security per9 formance standards for site security plans as the 

10 level of risk associated with the tier increases; and 

11 ‘‘(2) permit each covered chemical facility sub12 mitting a site security plan to select a combination 

13 of security measures that satisfy the risk-based 

14 chemical security performance standards established 

15 by the Secretary under this subsection. 

16 ‘‘(d) CO-LOCATED CHEMICAL FACILITIES.—The Sec17 retary may allow an owner or operator of a covered chem18 ical facility that is located geographically close, as deter19 mined by the Secretary, to another covered chemical facil20 ity to develop and implement coordinated security vulner21 ability assessments and site security plans. 

22 ‘‘(e) ALTERNATE SECURITY PROGRAMS SATISFYING

23 REQUIREMENTS FOR SECURITY VULNERABILITY ASSESS24 MENT AND SITE SECURITY PLAN.— 


wwoods2 on DSK1DXX6B1PROD with BILLS
24 

HR 2868 RFS 

1 ‘‘(1) ACCEPTANCE OF PROGRAM.—In response 

2 to a request by an owner or operator of a covered 

3 chemical facility, the Secretary may accept an alter4 nate security program submitted by the owner or op5 erator of the facility as a component of the security 

6 vulnerability assessment or site security plan re7 quired under this section, if the Secretary deter8 mines that such alternate security program, in com9 bination with other components of the security vul10 nerability assessment and site security plan sub11 mitted by the owner or operator of the facility— 

12 ‘‘(A) meets the requirements of this title 

13 and the regulations promulgated pursuant to 

14 this title; 

15 ‘‘(B) provides an equivalent level of secu16 rity to the level of security established pursuant 

17 to the regulations promulgated pursuant to this 

18 title; and 

19 ‘‘(C) includes employee participation as re20 quired under subsection (a)(1)(B)(iii). 

21 ‘‘(2) SECRETARIAL REVIEW REQUIRED.—Noth22 ing in this subsection shall relieve the Secretary of 

23 the obligation— 


wwoods2 on DSK1DXX6B1PROD with BILLS
25 

HR 2868 RFS 

1 ‘‘(A) to review a security vulnerability as2 sessment and site security plan submitted by a 

3 covered chemical facility under this section; and 

4 ‘‘(B) to approve or disapprove each such 

5 assessment or plan on an individual basis ac6 cording to the deadlines established under sub7 section (a). 

8 ‘‘(3) COVERED FACILITY’S OBLIGATIONS UNAF9 FECTED.—Nothing in this subsection shall relieve 

10 any covered chemical facility of the obligation and 

11 responsibility to comply with all of the requirements 

12 of this title. 

13 ‘‘(4) PERSONNEL SURETY ALTERNATE SECU14 RITY PROGRAM.—In response to an application from 

15 a non-profit, personnel surety accrediting organiza16 tion acting on behalf of, and with written authoriza17 tion from, the owner or operator of a covered chem18 ical facility, the Secretary may accept a personnel 

19 surety alternate security program that meets the re20 quirements of section 2115 and provides for a back21 ground check process that is— 

22 ‘‘(A) expedited, affordable, reliable, and ac23 curate; 

24 ‘‘(B) fully protective of the rights of cov25 ered individuals through procedures that are 


wwoods2 on DSK1DXX6B1PROD with BILLS
26 

HR 2868 RFS 

1 consistent with the privacy protections available 

2 under the Fair Credit Reporting Act (15 U.S.C. 

3 1681 et seq.); and 

4 ‘‘(C) a single background check consistent 

5 with a risk-based tiered program. 

6 ‘‘(f) OTHER AUTHORITIES.— 

7 ‘‘(1) REGULATION OF MARITIME FACILITIES.— 

8 ‘‘(A) RISK-BASED TIERING.—Notwith9 standing any other provision of law, the owner 

10 or operator of a chemical facility required to 

11 submit a facility security plan under section 

12 70103(c) of title 46, United States Code, shall 

13 be required to submit information to the Sec14 retary necessary to determine whether to des15 ignate such a facility as a covered chemical fa16 cility and to assign the facility to a risk-based 

17 tier under section 2102 of this title. 

18 ‘‘(B) ADDITIONAL MEASURES.—In the case 

19 of a facility designated as a covered chemical 

20 facility under this title for which a facility secu21 rity plan is required to be submitted under sec22 tion 70103(c) of title 46, United States Code, 

23 the Commandant of the Coast Guard, after con24 sultation with the Secretary, shall require the 

25 owner or operator of such facility to update the 


wwoods2 on DSK1DXX6B1PROD with BILLS
27 

HR 2868 RFS 

1 vulnerability assessments and facility security 

2 plans required under that section, if necessary, 

3 to ensure an equivalent level of security for sub4 stances of concern, including the requirements 

5 under section 2111, in the same manner as 

6 other covered chemical facilities in this title. 

7 ‘‘(C) PERSONNEL SURETY.— 

8 ‘‘(i) EXCEPTION.—A facility des9 ignated as a covered chemical facility 

10 under this title that has had its facility se11 curity plan approved under section 

12 70103(c) of title 46, United States Code, 

13 shall not be required to update or amend 

14 such plan in order to meet the require15 ments of section 2115 of this title. 

16 ‘‘(ii) EQUIVALENT ACCESS.—An indi17 vidual described in section 2115(a)(1)(B) 

18 who has been granted access to restricted 

19 areas or critical assets by the owner or op20 erator of a facility for which a security 

21 plan is required to be submitted under sec22 tion 70103(c) of title 46, United States 

23 Code, may be considered by that owner or 

24 operator to have satisfied the requirement 

25 for passing a security background check 


wwoods2 on DSK1DXX6B1PROD with BILLS
28 

HR 2868 RFS 

1 otherwise required under section 2115 for 

2 purposes of granting the individual access 

3 to restricted areas or critical assets of a 

4 covered chemical facility that is owned or 

5 operated by the same owner or operator. 

6 ‘‘(D) INFORMATION SHARING AND PRO7 TECTION.—Notwithstanding section 70103(d) 

8 of title 46, United States Code, the Com9 mandant of the Coast Guard, after consultation 

10 with the Secretary, shall apply the information 

11 sharing and protection requirements in section 

12 2110 of this title to a facility described in sub13 paragraph (B). 

14 ‘‘(E) ENFORCEMENT.—The Secretary shall 

15 establish, by rulemaking, procedures to ensure 

16 that an owner or operator of a covered chemical 

17 facility required to update the vulnerability as18 sessment and facility security plan for the facil19 ity under subparagraph (B) is in compliance 

20 with the requirements of this title. 

21 ‘‘(F) FORMAL AGREEMENT.—The Sec22 retary shall— 

23 ‘‘(i) require the Office of Infrastruc24 ture Protection and the Coast Guard to 

25 enter into a formal agreement detailing 


wwoods2 on DSK1DXX6B1PROD with BILLS
29 

HR 2868 RFS 

1 their respective roles and responsibilities in 

2 carrying out the requirements of this title, 

3 which shall ensure that the enforcement 

4 and compliance requirements under this 

5 title and section 70103 of title 46, United 

6 States Code, are not conflicting or duplica7 tive; and 

8 ‘‘(ii) designate the agency responsible 

9 for enforcing the requirements of this title 

10 with respect to covered chemical facilities 

11 for which facility security plans are re12 quired to be submitted under section 

13 70103(c) of title 46, United States Code, 

14 consistent with the requirements of sub15 paragraphs (B) and (D). 

16 ‘‘(2) COORDINATION OF STORAGE LICENSING

17 OR PERMITTING REQUIREMENT.—In the case of any 

18 storage required to be licensed or permitted under 

19 chapter 40 of title 18, United States Code, the Sec20 retary shall prescribe the rules and regulations for 

21 the implementation of this section with the concur22 rence of the Attorney General and avoid unnecessary 

23 duplication of regulatory requirements. 

24 ‘‘(g) ROLE OF EMPLOYEES.— 


wwoods2 on DSK1DXX6B1PROD with BILLS
30 

HR 2868 RFS 

1 ‘‘(1) DESCRIPTION OF ROLE REQUIRED.—Site 

2 security plans required under this section shall de3 scribe the roles or responsibilities that covered indi4 viduals are expected to perform to deter or respond 

5 to a chemical facility terrorist incident. 

6 ‘‘(2) ANNUAL TRAINING FOR EMPLOYEES.—The 

7 owner or operator of a covered chemical facility re8 quired to submit a site security plan under this sec9 tion shall annually provide each covered individual 

10 with a role or responsibility referred to in paragraph 

11 (1) at the facility with a minimum of 8 hours of 

12 training. Such training shall, as relevant to the role 

13 or responsibility of such covered individual— 

14 ‘‘(A) include an identification and discus15 sion of substances of concern; 

16 ‘‘(B) include a discussion of possible con17 sequences of a chemical facility terrorist inci18 dent; 

19 ‘‘(C) review and exercise the covered chem20 ical facility’s site security plan, including any 

21 requirements for differing threat levels; 

22 ‘‘(D) include a review of information pro23 tection requirements; 

24 ‘‘(E) include a discussion of physical and 

25 cyber security equipment, systems, and methods 


wwoods2 on DSK1DXX6B1PROD with BILLS
31 

HR 2868 RFS 

1 used to achieve chemical security performance 

2 standards; 

3 ‘‘(F) allow training with other relevant 

4 participants, including Federal, State, local, 

5 and tribal authorities, and first responders, 

6 where appropriate; 

7 ‘‘(G) use existing national voluntary con8 sensus standards, chosen jointly with employee 

9 representatives, if any; 

10 ‘‘(H) allow instruction through government 

11 training programs, chemical facilities, academic 

12 institutions, nonprofit organizations, industry 

13 and private organizations, employee organiza14 tions, and other relevant entities that provide 

15 such training; 

16 ‘‘(I) use multiple training media and meth17 ods; and 

18 ‘‘(J) include a discussion of appropriate 

19 emergency response procedures, including pro20 cedures to mitigate the effects of a chemical fa21 cility terrorist incident. 

22 ‘‘(3) EQUIVALENT TRAINING.—During any 

23 year, with respect to any covered individual with 

24 roles or responsibilities under paragraph (1), an 

25 owner or operator of a covered chemical facility may 


wwoods2 on DSK1DXX6B1PROD with BILLS
32 

HR 2868 RFS 

1 satisfy any of the training requirements for such 

2 covered individual under subparagraph (A), (B), (C), 

3 (D), (E), or (J) of paragraph (2) through training 

4 that such owner or operator certifies, in a manner 

5 prescribed by the Secretary, is equivalent. 

6 ‘‘(4) WORKER TRAINING GRANT PROGRAM.— 

7 ‘‘(A) AUTHORITY.—The Secretary shall es8 tablish a grant program to award grants to or 

9 enter into cooperative agreements with eligible 

10 entities to provide for the training and edu11 cation of covered individuals with roles or re12 sponsibilities described in paragraph (1) and 

13 first responders and emergency response pro14 viders who would respond to a chemical facility 

15 terrorist incident. 

16 ‘‘(B) ADMINISTRATION.—The Secretary 

17 shall seek to enter into an agreement with the 

18 Director of the National Institute for Environ19 mental Health Sciences, or with the head of an20 other Federal or State agency, to make and ad21 minister grants or cooperative agreements 

22 under this paragraph. 

23 ‘‘(C) USE OF FUNDS.—The recipient of 

24 funds under this paragraph shall use such 

25 funds to provide for the training and education 


wwoods2 on DSK1DXX6B1PROD with BILLS
33 

HR 2868 RFS 

1 of covered individuals with roles or responsibil2 ities described in paragraph (1), first respond3 ers, and emergency response providers, includ4 ing— 

5 ‘‘(i) the annual mandatory training 

6 specified in paragraph (2); and 

7 ‘‘(ii) other appropriate training to 

8 protect nearby persons, property, critical 

9 infrastructure, or the environment from 

10 the effects of a chemical facility terrorist 

11 incident. 

12 ‘‘(D) ELIGIBLE ENTITIES.—For purposes 

13 of this paragraph, an eligible entity is a non14 profit organization with demonstrated experi15 ence in implementing and operating successful 

16 worker or first responder health and safety or 

17 security training programs. 

18 ‘‘(E) PRESUMPTION OF CONGRESS RELAT19 ING TO COMPETITIVE PROCEDURES.— 

20 ‘‘(i) PRESUMPTION.—It is the pre21 sumption of Congress that grants awarded 

22 under this paragraph will be awarded 

23 using competitive procedures based on 

24 merit. 


wwoods2 on DSK1DXX6B1PROD with BILLS
34 

HR 2868 RFS 

1 ‘‘(ii) REPORT TO CONGRESS.—If 

2 grants are awarded under this paragraph 

3 using procedures other than competitive 

4 procedures, the Secretary shall submit to 

5 Congress a report explaining why competi6 tive procedures were not used. 

7 ‘‘(F) PROHIBITION ON EARMARKS.—None 

8 of the funds appropriated to carry out this 

9 paragraph may be used for a congressional ear10 mark as defined in clause 9d, of Rule XXI of 

11 the rules of the House of Representatives of the 

12 111th Congress. 

13 ‘‘(h) STATE, REGIONAL, OR LOCAL GOVERNMENTAL

14 ENTITIES.—No covered chemical facility shall be required 

15 under State, local, or tribal law to provide a vulnerability 

16 assessment or site security plan described under this title 

17 to any State, regional, local, or tribal government entity 

18 solely by reason of the requirement under subsection (a) 

19 that the covered chemical facility submit such an assess20 ment and plan to the Secretary. 

21 ‘‘SEC. 2104. SITE INSPECTIONS. 

22 ‘‘(a) RIGHT OF ENTRY.—For purposes of carrying 

23 out this title, the Secretary shall have, at a reasonable 

24 time and on presentation of credentials, a right of entry 

25 to, on, or through any property of a covered chemical facilVerDate Nov 24 2008 23:44 Nov 09, 2009 Jkt 089200 PO 00000 Frm 00034 Fmt 6652 Sfmt 6201 E:\BILLS\H2868.RFS H2868

wwoods2 on DSK1DXX6B1PROD with BILLS
35 

HR 2868 RFS 

1 ity or any property on which any record required to be 

2 maintained under this section is located. 

3 ‘‘(b) INSPECTIONS AND VERIFICATIONS.— 

4 ‘‘(1) IN GENERAL.—The Secretary shall, at 

5 such time and place as the Secretary determines to 

6 be reasonable and appropriate, conduct chemical fa7 cility security inspections and verifications. 

8 ‘‘(2) REQUIREMENTS.—To ensure and evaluate 

9 compliance with this title, including any regulations 

10 or requirements adopted by the Secretary in further11 ance of the purposes of this title, in conducting an 

12 inspection or verification under paragraph (1), the 

13 Secretary shall have access to the owners, operators, 

14 employees, and employee representatives, if any, of 

15 a covered chemical facility. 

16 ‘‘(c) UNANNOUNCED INSPECTIONS.—In addition to 

17 any inspection conducted pursuant to subsection (b), the 

18 Secretary shall require covered chemical facilities assigned 

19 to tier 1 and tier 2 under section 2102(c)(1) to undergo 

20 unannounced facility inspections. The inspections required 

21 under this subsection shall be— 

22 ‘‘(1) conducted without prior notice to the facil23 ity; 

24 ‘‘(2) designed to evaluate at the chemical facil25 ity undergoing inspection— 


wwoods2 on DSK1DXX6B1PROD with BILLS
36 

HR 2868 RFS 

1 ‘‘(A) the ability of the chemical facility to 

2 prevent a chemical facility terrorist incident 

3 that the site security plan of the facility is in4 tended to prevent; 

5 ‘‘(B) the ability of the chemical facility to 

6 protect against security threats that are re7 quired to be addressed by the site security plan 

8 of the facility; and 

9 ‘‘(C) any weaknesses in the site security 

10 plan of the chemical facility; 

11 ‘‘(3) conducted so as not to affect the actual se12 curity, physical integrity, safety, or regular oper13 ations of the chemical facility or its employees while 

14 the inspection is conducted; and 

15 ‘‘(4) conducted— 

16 ‘‘(A) every two years in the case of a cov17 ered chemical facility assigned to tier 1; and 

18 ‘‘(B) every four years in the case of a cov19 ered chemical facility assigned to tier 2. 

20 ‘‘(d) CHEMICAL FACILITY INSPECTORS AUTHOR21 IZED.—During fiscal years 2011 and 2012, subject to the 

22 availability of appropriations for such purpose, the Sec23 retary shall increase by not fewer than 100 the total num24 ber of chemical facility inspectors within the Department 

25 to ensure compliance with this title. 


wwoods2 on DSK1DXX6B1PROD with BILLS
37 

HR 2868 RFS 

1 ‘‘(e) CONFIDENTIAL COMMUNICATIONS.—The Sec2 retary shall offer non-supervisory employees the oppor3 tunity to confidentially communicate information relevant 

4 to the employer’s compliance or non-compliance with this 

5 title, including compliance or non-compliance with any 

6 regulation or requirement adopted by the Secretary in fur7 therance of the purposes of this title. An employee rep8 resentative of each certified or recognized bargaining 

9 agent at the covered chemical facility, if any, or, if none, 

10 a non-supervisory employee, shall be given the opportunity 

11 to accompany the Secretary during a physical inspection 

12 of such covered chemical facility for the purpose of aiding 

13 in such inspection, if representatives of the owner or oper14 ator of the covered chemical facility will also be accom15 panying the Secretary on such inspection. 

16 ‘‘SEC. 2105. RECORDS. 

17 ‘‘(a) REQUEST FOR RECORDS.—In carrying out this 

18 title, the Secretary may require submission of, or on pres19 entation of credentials may at reasonable times obtain ac20 cess to and copy, any records, including any records main21 tained in electronic format, necessary for— 

22 ‘‘(1) reviewing or analyzing a security vulner23 ability assessment or site security plan submitted 

24 under section 2103; or 


wwoods2 on DSK1DXX6B1PROD with BILLS
38 

HR 2868 RFS 

1 ‘‘(2) assessing the implementation of such a site 

2 security plan. 

3 ‘‘(b) PROPER HANDLING OF RECORDS.—In accessing 

4 or copying any records under subsection (a), the Secretary 

5 shall ensure that such records are handled and secured 

6 appropriately in accordance with section 2110. 

7 ‘‘SEC. 2106. TIMELY SHARING OF THREAT INFORMATION. 

8 ‘‘(a) RESPONSIBILITIES OF SECRETARY.—Upon the 

9 receipt of information concerning a threat that is relevant 

10 to a certain covered chemical facility, the Secretary shall 

11 provide such information in a timely manner, to the max12 imum extent practicable under applicable authority and in 

13 the interests of national security, to the owner, operator, 

14 or security officer of that covered chemical facility, to a 

15 representative of each recognized or certified bargaining 

16 agent at the facility, if any, and to relevant State, local, 

17 and tribal authorities, including the State Homeland Secu18 rity Advisor, if any. 

19 ‘‘(b) RESPONSIBILITIES OF OWNER OR OPERATOR.— 

20 The Secretary shall require the owner or operator of a 

21 covered chemical facility to provide to the Secretary in a 

22 timely manner, information concerning a threat about any 

23 significant security incident or threat to the covered chem24 ical facility or any intentional or unauthorized penetration 


wwoods2 on DSK1DXX6B1PROD with BILLS
39 

HR 2868 RFS 

1 of the physical security or cyber security of the covered 

2 chemical facility whether successful or unsuccessful. 

3 ‘‘SEC. 2107. ENFORCEMENT. 

4 ‘‘(a) REVIEW OF SECURITY VULNERABILITY ASSESS5 MENT AND SITE SECURITY PLAN.— 

6 ‘‘(1) DISAPPROVAL.—The Secretary shall dis7 approve a security vulnerability assessment or site 

8 security plan submitted under this title if the Sec9 retary determines, in his or her discretion, that— 

10 ‘‘(A) the security vulnerability assessment 

11 or site security plan does not comply with the 

12 standards, protocols, or procedures under sec13 tion 2103(a)(1)(A); or 

14 ‘‘(B) in the case of a site security plan— 

15 ‘‘(i) the plan or the implementation of 

16 the plan is insufficient to address 

17 vulnerabilities identified in a security vul18 nerability assessment, site inspection, or 

19 unannounced inspection of the covered 

20 chemical facility; or 

21 ‘‘(ii) the plan fails to meet all applica22 ble chemical facility security performance 

23 standards. 

24 ‘‘(2) NOTIFICATION OF DISAPPROVAL.—If the 

25 Secretary disapproves the security vulnerability asVerDate Nov 24 2008 23:44 Nov 09, 2009 Jkt 089200 PO 00000 Frm 00039 Fmt 6652 Sfmt 6201 E:\BILLS\H2868.RFS H2868

wwoods2 on DSK1DXX6B1PROD with BILLS
40 

HR 2868 RFS 

1 sessment or site security plan submitted by a cov2 ered chemical facility under this title or the imple3 mentation of a site security plan by such a chemical 

4 facility, the Secretary shall provide the owner or op5 erator of the covered chemical facility a written noti6 fication of the disapproval not later than 14 days 

7 after the date on which the Secretary disapproves 

8 such assessment or plan, that— 

9 ‘‘(A) includes a clear explanation of defi10 ciencies in the assessment, plan, or implementa11 tion of the plan; and 

12 ‘‘(B) requires the owner or operator of the 

13 covered chemical facility to revise the assess14 ment or plan to address any deficiencies and, 

15 by such date as the Secretary determines is ap16 propriate, to submit to the Secretary the re17 vised assessment or plan. 

18 ‘‘(b) REMEDIES.— 

19 ‘‘(1) ORDER FOR COMPLIANCE.—Whenever the 

20 Secretary determines that the owner or operator of 

21 a covered chemical facility has violated or is in viola22 tion of any requirement of this title or has failed or 

23 is failing to address any deficiencies in the assess24 ment, plan, or implementation of the plan by such 


wwoods2 on DSK1DXX6B1PROD with BILLS
41 

HR 2868 RFS 

1 date as the Secretary determines to be appropriate, 

2 the Secretary may— 

3 ‘‘(A) after providing notice to the owner or 

4 operator of the covered chemical facility and an 

5 opportunity, pursuant to the regulations issued 

6 under this title, for such owner or operator to 

7 seek departmental review of the Secretary’s de8 termination, issue an order assessing an admin9 istrative penalty of not more than $25,000 for 

10 each day on which a past or current violation 

11 occurs or a failure to comply continues, requir12 ing compliance immediately or within a speci13 fied time period, or both; or 

14 ‘‘(B) in a civil action, obtain appropriate 

15 equitable relief, a civil penalty of not more than 

16 $25,000 for each day on which a past or cur17 rent violation occurs or a failure to comply con18 tinues, or both. 

19 ‘‘(2) ORDER TO CEASE OPERATIONS.—When20 ever the Secretary determines that the owner or op21 erator of a covered chemical facility continues to be 

22 in noncompliance after an order for compliance is 

23 issued under paragraph (1), the Secretary may issue 

24 an order to the owner or operator to cease operVerDate Nov 24 2008 23:44 Nov 09, 2009 Jkt 089200 PO 00000 Frm 00041 Fmt 6652 Sfmt 6201 E:\BILLS\H2868.RFS H2868

wwoods2 on DSK1DXX6B1PROD with BILLS
42 

HR 2868 RFS 

1 ations at the facility until compliance is achieved to 

2 the satisfaction of the Secretary. 

3 ‘‘(c) APPLICABILITY OF PENALTIES.—A penalty 

4 under subsection (b)(1) may be awarded for any violation 

5 of this title, including a violation of the whistleblower pro6 tections under section 2108. 

7 ‘‘SEC. 2108. WHISTLEBLOWER PROTECTIONS. 

8 ‘‘(a) ESTABLISHMENT.—The Secretary shall estab9 lish and provide information to the public regarding a 

10 process by which any person may submit a report to the 

11 Secretary regarding problems, deficiencies, or 

12 vulnerabilities at a covered chemical facility associated 

13 with the risk of a chemical facility terrorist incident. 

14 ‘‘(b) CONFIDENTIALITY.—The Secretary shall keep 

15 confidential the identity of a person who submits a report 

16 under subsection (a), and any such report shall be treated 

17 as protected information under section 2110 to the extent 

18 that it does not consist of publicly available information. 

19 ‘‘(c) ACKNOWLEDGMENT OF RECEIPT.—If a report 

20 submitted under subsection (a) identifies the person sub21 mitting the report, the Secretary shall respond promptly 

22 to such person to acknowledge receipt of the report. 

23 ‘‘(d) STEPS TO ADDRESS PROBLEMS.—The Sec24 retary shall review and consider the information provided 

25 in any report submitted under subsection (a) and shall, 


wwoods2 on DSK1DXX6B1PROD with BILLS
43 

HR 2868 RFS 

1 as necessary, take appropriate steps under this title to ad2 dress any problem, deficiency, or vulnerability identified 

3 in the report. 

4 ‘‘(e) RETALIATION PROHIBITED.— 

5 ‘‘(1) PROHIBITION.—No owner or operator of a 

6 covered chemical facility, for-profit or not-for-profit 

7 corporation, association, or any contractor, subcon8 tractor or agent thereof, may discharge any em9 ployee or otherwise discriminate against any em10 ployee with respect to the employee’s compensation, 

11 terms, conditions, or other privileges of employment 

12 because the employee (or any person acting pursu13 ant to a request of the employee)— 

14 ‘‘(A) notified the Secretary, the owner or 

15 operator of a covered chemical facility, or the 

16 employee’s employer of an alleged violation of 

17 this title, including notification of such an al18 leged violation through communications related 

19 to carrying out the employee’s job duties; 

20 ‘‘(B) refused to participate in any conduct 

21 that the employee reasonably believes is in non22 compliance with a requirement of this title, if 

23 the employee has identified the alleged non24 compliance to the employer; 


wwoods2 on DSK1DXX6B1PROD with BILLS
44 

HR 2868 RFS 

1 ‘‘(C) testified before or otherwise provided 

2 information relevant for Congress or for any 

3 Federal or State proceeding regarding any pro4 vision (or proposed provision) of this title; 

5 ‘‘(D) commenced, caused to be commenced, 

6 or is about to commence or cause to be com7 menced a proceeding under this title; 

8 ‘‘(E) testified or is about to testify in any 

9 such proceeding; or 

10 ‘‘(F) assisted or participated or is about to 

11 assist or participate in any manner in such a 

12 proceeding or in any other manner in such a 

13 proceeding or in any other action to carry out 

14 the purposes of this title. 

15 ‘‘(2) ENFORCEMENT ACTION.—Any employee 

16 covered by this section who alleges discrimination by 

17 an employer in violation of paragraph (1) may bring 

18 an action governed by the rules and procedures, 

19 legal burdens of proof, and remedies applicable 

20 under subsections (d) through (h) of section 20109 

21 of title 49, United States Code. A party may seek 

22 district court review as set forth in subsection (d)(3) 

23 of such section not later than 90 days after receiving 

24 a written final determination by the Secretary of 

25 Labor. 


wwoods2 on DSK1DXX6B1PROD with BILLS
45 

HR 2868 RFS 

1 ‘‘(3) PROHIBITED PERSONNEL PRACTICES AF2 FECTING THE DEPARTMENT.— 

3 ‘‘(A) IN GENERAL.—Notwithstanding any 

4 other provision of law, any individual holding or 

5 applying for a position within the Department 

6 shall be covered by— 

7 ‘‘(i) paragraphs (1), (8), and (9) of 

8 section 2302(b) of title 5, United States 

9 Code; 

10 ‘‘(ii) any provision of law imple11 menting any of such paragraphs by pro12 viding any right or remedy available to an 

13 employee or applicant for employment in 

14 the civil service; and 

15 ‘‘(iii) any rule or regulation prescribed 

16 under any such paragraph. 

17 ‘‘(B) RULE OF CONSTRUCTION.—Nothing 

18 in this paragraph shall be construed to affect 

19 any rights, apart from those referred to in sub20 paragraph (A), to which an individual described 

21 in that subparagraph might otherwise be enti22 tled to under law. 

23 ‘‘SEC. 2109. FEDERAL PREEMPTION. 

24 ‘‘This title does not preclude or deny any right of any 

25 State or political subdivision thereof to adopt or enforce 


wwoods2 on DSK1DXX6B1PROD with BILLS
46 

HR 2868 RFS 

1 any regulation, requirement, or standard of performance 

2 with respect to a covered chemical facility that is more 

3 stringent than a regulation, requirement, or standard of 

4 performance issued under this title, or otherwise impair 

5 any right or jurisdiction of any State or political subdivi6 sion thereof with respect to covered chemical facilities 

7 within that State or political subdivision thereof. 

8 ‘‘SEC. 2110. PROTECTION OF INFORMATION. 

9 ‘‘(a) PROHIBITION OF PUBLIC DISCLOSURE OF PRO10 TECTED INFORMATION.—Protected information, as de11 scribed in subsection (g)— 

12 ‘‘(1) shall be exempt from disclosure under sec13 tion 552 of title 5, United States Code; and 

14 ‘‘(2) shall not be made available pursuant to 

15 any State, local, or tribal law requiring disclosure of 

16 information or records. 

17 ‘‘(b) INFORMATION SHARING.— 

18 ‘‘(1) IN GENERAL.—The Secretary shall pre19 scribe such regulations, and may issue such orders, 

20 as necessary to prohibit the unauthorized disclosure 

21 of protected information, as described in subsection 

22 (g). 

23 ‘‘(2) SHARING OF PROTECTED INFORMATION.— 

24 The regulations under paragraph (1) shall provide 

25 standards for and facilitate the appropriate sharing 


wwoods2 on DSK1DXX6B1PROD with BILLS
47 

HR 2868 RFS 

1 of protected information with and between Federal, 

2 State, local, and tribal authorities, emergency re3 sponse providers, law enforcement officials, des4 ignated supervisory and nonsupervisory covered 

5 chemical facility personnel with security, operational, 

6 or fiduciary responsibility for the facility, and des7 ignated facility employee representatives, if any. 

8 Such standards shall include procedures for the 

9 sharing of all portions of a covered chemical facili10 ty’s vulnerability assessment and site security plan 

11 relating to the roles and responsibilities of covered 

12 individuals under section 2103(g)(1) with a rep13 resentative of each certified or recognized bargaining 

14 agent representing such covered individuals, if any, 

15 or, if none, with at least one supervisory and at least 

16 one non-supervisory employee with roles or respon17 sibilities under section 2103(g)(1). 

18 ‘‘(3) PENALTIES.—Protected information, as 

19 described in subsection (g), shall not be shared ex20 cept in accordance with the regulations under para21 graph (1). Whoever discloses protected information 

22 in knowing violation of the regulations and orders 

23 issued under paragraph (1) shall be fined under title 

24 18, United States Code, imprisoned for not more 

25 than one year, or both, and, in the case of a Federal 


wwoods2 on DSK1DXX6B1PROD with BILLS
48 

HR 2868 RFS 

1 officeholder or employee, shall be removed from Fed2 eral office or employment. 

3 ‘‘(c) TREATMENT OF INFORMATION IN ADJUDICA4 TIVE PROCEEDINGS.—In any judicial or administrative 

5 proceeding, protected information described in subsection 

6 (g) shall be treated in a manner consistent with the treat7 ment of sensitive security information under section 525 

8 of the Department of Homeland Security Appropriations 

9 Act, 2007 (Public Law 109–295; 120 Stat. 1381). 

10 ‘‘(d) OTHER OBLIGATIONS UNAFFECTED.—Except 

11 as provided in section 2103(h), nothing in this section af12 fects any obligation of the owner or operator of a chemical 

13 facility under any other law to submit or make available 

14 information required by such other law to facility employ15 ees, employee organizations, or a Federal, State, tribal, 

16 or local government. 

17 ‘‘(e) SUBMISSION OF INFORMATION TO CONGRESS.— 

18 Nothing in this title shall permit or authorize the with19 holding of information from Congress or any committee 

20 or subcommittee thereof. 

21 ‘‘(f) DISCLOSURE OF INDEPENDENTLY FURNISHED

22 INFORMATION.—Nothing in this title shall affect any au23 thority or obligation of a Federal, State, local, or tribal 

24 government agency to protect or disclose any record or 

25 information that the Federal, State, local, or tribal governVerDate Nov 24 2008 23:44 Nov 09, 2009 Jkt 089200 PO 00000 Frm 00048 Fmt 6652 Sfmt 6201 E:\BILLS\H2868.RFS H2868

wwoods2 on DSK1DXX6B1PROD with BILLS
49 

HR 2868 RFS 

1 ment agency obtains from a chemical facility under any 

2 other law. 

3 ‘‘(g) PROTECTED INFORMATION.— 

4 ‘‘(1) IN GENERAL.—For purposes of this title, 

5 the term ‘protected information’ means any of the 

6 following: 

7 ‘‘(A) Security vulnerability assessments 

8 and site security plans, including any assess9 ment required under section 2111. 

10 ‘‘(B) Portions of the following documents, 

11 records, orders, notices, or letters that the Sec12 retary has determined by regulation would be 

13 detrimental to chemical facility security if dis14 closed and that are developed by the Secretary 

15 or the owner or operator of a covered chemical 

16 facility for the purposes of this title: 

17 ‘‘(i) Documents directly related to the 

18 Secretary’s review and approval or dis19 approval of vulnerability assessments and 

20 site security plans under this title. 

21 ‘‘(ii) Documents directly related to in22 spections and audits under this title. 

23 ‘‘(iii) Orders, notices, or letters re24 garding the compliance of a covered chemVerDate Nov 24 2008 23:44 Nov 09, 2009 Jkt 089200 PO 00000 Frm 00049 Fmt 6652 Sfmt 6201 E:\BILLS\H2868.RFS H2868

wwoods2 on DSK1DXX6B1PROD with BILLS
50 

HR 2868 RFS 

1 ical facility with the requirements of this 

2 title. 

3 ‘‘(iv) Information, documents, or 

4 records required to be provided to or cre5 ated by the Secretary under subsection (b) 

6 or (c) of section 2102. 

7 ‘‘(v) Documents directly related to se8 curity drills and training exercises, security 

9 threats and breaches of security, and 

10 maintenance, calibration, and testing of se11 curity equipment. 

12 ‘‘(C) Other information, documents, or 

13 records developed exclusively for the purposes of 

14 this title that the Secretary has determined by 

15 regulation would, if disclosed, be detrimental to 

16 chemical facility security. 

17 ‘‘(2) EXCLUSIONS.—Notwithstanding para18 graph (1), the term ‘protected information’ does not 

19 include— 

20 ‘‘(A) information, other than a security 

21 vulnerability assessment or site security plan, 

22 that the Secretary has determined by regulation 

23 to be— 

24 ‘‘(i) appropriate to describe facility 

25 compliance with the requirements of this 


wwoods2 on DSK1DXX6B1PROD with BILLS
51 

HR 2868 RFS 

1 title and the Secretary’s implementation of 

2 such requirements; and 

3 ‘‘(ii) not detrimental to chemical facil4 ity security if disclosed; or 

5 ‘‘(B) information, whether or not also con6 tained in a security vulnerability assessment, 

7 site security plan, or in a document, record, 

8 order, notice, or letter, or portion thereof, de9 scribed in subparagraph (B) or (C) of para10 graph (1), that is obtained from another source 

11 with respect to which the Secretary has not 

12 made a determination under either such sub13 paragraph, including— 

14 ‘‘(i) information that is required to be 

15 made publicly available under any other 

16 provision of law; and 

17 ‘‘(ii) information that a chemical facil18 ity has lawfully disclosed other than in a 

19 submission to the Secretary pursuant to a 

20 requirement of this title. 

21 ‘‘SEC. 2111. METHODS TO REDUCE THE CONSEQUENCES OF 

22 A TERRORIST ATTACK. 

23 ‘‘(a) ASSESSMENT REQUIRED.— 

24 ‘‘(1) ASSESSMENT.—The owner or operator of 

25 a covered chemical facility shall include in the site 


wwoods2 on DSK1DXX6B1PROD with BILLS
52 

HR 2868 RFS 

1 security plan conducted pursuant to section 2103, 

2 an assessment of methods to reduce the con3 sequences of a terrorist attack on that chemical fa4 cility, including— 

5 ‘‘(A) a description of the methods to re6 duce the consequences of a terrorist attack im7 plemented and considered for implementation 

8 by the covered chemical facility; 

9 ‘‘(B) the degree to which each method to 

10 reduce the consequences of a terrorist attack, if 

11 already implemented, has reduced, or, if imple12 mented, could reduce, the potential extent of 

13 death, injury, or serious adverse effects to 

14 human health resulting from a release of a sub15 stance of concern; 

16 ‘‘(C) the technical feasibility, costs, avoided 

17 costs (including liabilities), personnel implica18 tions, savings, and applicability of implementing 

19 each method to reduce the consequences of a 

20 terrorist attack; and 

21 ‘‘(D) any other information that the owner 

22 or operator of the covered chemical facility con23 sidered in conducting the assessment. 

24 ‘‘(2) FEASIBLE.—For the purposes of this sec25 tion, the term ‘feasible’ means feasible with the use 


wwoods2 on DSK1DXX6B1PROD with BILLS
53 

HR 2868 RFS 

1 of best technology, techniques, and other means that 

2 the Secretary finds, after examination for efficacy 

3 under field conditions and not solely under labora4 tory conditions, are available for use at the covered 

5 chemical facility. 

6 ‘‘(b) IMPLEMENTATION.— 

7 ‘‘(1) IMPLEMENTATION.— 

8 ‘‘(A) IN GENERAL.—The owner or operator 

9 of a covered chemical facility that is assigned to 

10 tier 1 or tier 2 because of the potential extent 

11 and likelihood of death, injury, and serious ad12 verse effects to human health, the environment, 

13 critical infrastructure, public health, homeland 

14 security, national security, and the national 

15 economy from a release of a substance of con16 cern at the covered chemical facility, shall im17 plement methods to reduce the consequences of 

18 a terrorist attack on the chemical facility if the 

19 Director of the Office of Chemical Facility Se20 curity determines, in his or her discretion, using 

21 the assessment conducted pursuant to sub22 section (a), that the implementation of such 

23 methods at the facility— 

24 ‘‘(i) would significantly reduce the 

25 risk of death, injury, or serious adverse efVerDate Nov 24 2008 23:44 Nov 09, 2009 Jkt 089200 PO 00000 Frm 00053 Fmt 6652 Sfmt 6201 E:\BILLS\H2868.RFS H2868

wwoods2 on DSK1DXX6B1PROD with BILLS
54 

HR 2868 RFS 

1 fects to human health resulting from a 

2 chemical facility terrorist incident but— 

3 ‘‘(I) would not increase the in4 terim storage of a substance of con5 cern outside the facility; 

6 ‘‘(II) would not directly result in 

7 the creation of a new covered chemical 

8 facility assigned to tier 1 or tier 2 be9 cause of the potential extent and like10 lihood of death, injury, and serious 

11 adverse effects to human health, the 

12 environment, critical infrastructure, 

13 public health, homeland security, na14 tional security, and the national econ15 omy from a release of a substance of 

16 concern at the covered chemical facil17 ity; 

18 ‘‘(III) would not result in the re19 assignment of an existing covered 

20 chemical facility from tier 3 or tier 4 

21 to tier 1 or tier 2 because of the po22 tential extent and likelihood of death, 

23 injury, and serious adverse effects to 

24 human health, the environment, crit25 ical infrastructure, public health, 


wwoods2 on DSK1DXX6B1PROD with BILLS
55 

HR 2868 RFS 

1 homeland security, national security, 

2 and the national economy from a re3 lease of a substance of concern at the 

4 covered chemical facility; and 

5 ‘‘(IV) would not significantly in6 crease the potential extent and likeli7 hood of death, injury, and serious ad8 verse effects to human health, the en9 vironment, critical infrastructure, 

10 public health, homeland security, na11 tional security, and the national econ12 omy from a release of a substance of 

13 concern due to a terrorist attack on 

14 the transportation infrastructure of 

15 the United States; 

16 ‘‘(ii) can feasibly be incorporated into 

17 the operation of the covered chemical facil18 ity; and 

19 ‘‘(iii) would not significantly and de20 monstrably impair the ability of the owner 

21 or operator of the covered chemical facility 

22 to continue the business of the facility at 

23 its location. 

24 ‘‘(B) WRITTEN DETERMINATION.—A de25 termination by the Director of the Office of 


wwoods2 on DSK1DXX6B1PROD with BILLS
56 

HR 2868 RFS 

1 Chemical Facility Security pursuant to sub2 paragraph (A) shall be made in writing and in3 clude the basis and reasons for such determina4 tion, including the Director’s analysis of the 

5 covered chemical facility’s assessment of the 

6 technical feasibility, costs, avoided costs (includ7 ing liabilities), personnel implications, savings, 

8 and applicability of implementing each method 

9 to reduce the consequences of a terrorist attack. 

10 ‘‘(C) MARITIME FACILITIES.—With respect 

11 to a covered chemical facility for which a secu12 rity plan is required under section 70103(c) of 

13 title 46, United States Code, a written deter14 mination pursuant to subparagraph (A) shall be 

15 made only after consultation with the Captain 

16 of the Port for the area in which the covered 

17 chemical facility is located. 

18 ‘‘(2) REVIEW OF INABILITY TO COMPLY.— 

19 ‘‘(A) IN GENERAL.—An owner or operator 

20 of a covered chemical facility who is unable to 

21 comply with the Director’s determination under 

22 paragraph (1) shall, within 120 days of receipt 

23 of the Director’s determination, provide to the 

24 Secretary a written explanation that includes 

25 the reasons therefor. Such written explanation 


wwoods2 on DSK1DXX6B1PROD with BILLS
57 

HR 2868 RFS 

1 shall specify whether the owner or operator’s in2 ability to comply arises under clause (ii) or (iii) 

3 of paragraph (1)(A), or both. 

4 ‘‘(B) REVIEW.—Not later than 120 days 

5 after receipt of an explanation submitted under 

6 subparagraph (A), the Secretary, after con7 sulting with the owner or operator of the cov8 ered chemical facility who submitted such expla9 nation, as well as experts in the subjects of en10 vironmental health and safety, security, chem11 istry, design and engineering, process controls 

12 and implementation, maintenance, production 

13 and operations, chemical process safety, and oc14 cupational health, as appropriate, shall provide 

15 to the owner or operator a written determina16 tion, in his or her discretion, of whether imple17 mentation shall be required pursuant to para18 graph (1). If the Secretary determines that im19 plementation is required, the Secretary shall 

20 issue an order that establishes the basis for 

21 such determination, including the findings of 

22 the relevant experts, the specific methods se23 lected for implementation, and a schedule for 

24 implementation of the methods at the facility. 

25 ‘‘(c) AGRICULTURAL SECTOR.— 


wwoods2 on DSK1DXX6B1PROD with BILLS
58 

HR 2868 RFS 

1 ‘‘(1) GUIDANCE FOR FARM SUPPLIES MER2 CHANT WHOLESALERS.—The Secretary shall provide 

3 guidance and, as appropriate, tools, methodologies or 

4 computer software, to assist farm supplies merchant 

5 wholesalers in complying with the requirements of 

6 this section. The Secretary may award grants to 

7 farm supplies merchant wholesalers to assist with 

8 compliance with subsection (a), and in awarding 

9 such grants, shall give priority to farm supplies mer10 chant wholesalers that have the greatest need for 

11 such grants. 

12 ‘‘(2) ASSESSMENT OF AGRICULTURAL IM13 PACTS.—Not later than 6 months after the date of 

14 the enactment of this title, the Secretary shall trans15 mit an assessment of the potential impacts of com16 pliance with provisions of this section regarding the 

17 assessment and, as appropriate, implementation, of 

18 methods to reduce the consequences of a terrorist 

19 attack on the agricultural sector to the Committee 

20 on Energy and Commerce of the House of Rep21 resentatives, the Committee on Homeland Security 

22 of the House of Representatives, the Committee on 

23 Homeland Security and Governmental Affairs of the 

24 Senate, the Committee on Agriculture of the House 

25 of Representatives, and the Committee on AgriVerDate Nov 24 2008 23:44 Nov 09, 2009 Jkt 089200 PO 00000 Frm 00058 Fmt 6652 Sfmt 6201 E:\BILLS\H2868.RFS H2868

wwoods2 on DSK1DXX6B1PROD with BILLS
59 

HR 2868 RFS 

1 culture, Nutrition and Forestry of the Senate.

2 Such assessment shall be conducted by the Secretary 

3 in consultation with other appropriate Federal agen4 cies and shall include the following: 

5 ‘‘(A) Data on the scope of agricultural fa6 cilities covered by this title, including the num7 ber and type of manufacturers, retailers, aerial 

8 commercial applicators and distributors of pes9 ticide and fertilizer required to assess methods 

10 to reduce the consequences of a terrorist attack 

11 under subsection (a) and the number and type 

12 of manufacturers, retailers, aerial commercial 

13 applicators and distributors of pesticide and 

14 fertilizer assigned to tier 1 or tier 2 by the Sec15 retary because of the potential extent and

16 likelihood of death, injury, and serious adverse 

17 effects to human health, the environment, crit18 ical infrastructure, public health, homeland se19 curity, national security, and the national econ20 omy from the release of a substance of concern 

21 at the facility. 

22 ‘‘(B) A survey of known methods, proc23 esses or practices, other than elimination of or 

24 cessation of manufacture of the pesticide or fer25 tilizer, that manufacturers, retailers, aerial 


wwoods2 on DSK1DXX6B1PROD with BILLS
60 

HR 2868 RFS 

1 commercial applicators, and distributors of pes2 ticide and fertilizer could use to reduce the con3 sequences of a terrorist attack, including an as4 sessment of the costs and technical feasibility of 

5 each such method, process, or practice. 

6 ‘‘(C) An analysis of how the assessment 

7 of methods to reduce the consequences of a

8 terrorist attack under subsection (a) by manu9 facturers, retailers, aerial commercial applica10 tors, and distributors of pesticide and fertilizer,

11 and, as appropriate, the implementation of 

12 methods to reduce the consequences of a ter13 rorist attack by such manufacturers, retailers, 

14 aerial commercial applicators, and distributors 

15 of pesticide and fertilizer subject to sub16 section (b), are likely to impact agricultural 

17 endusers. 

18 ‘‘(D) Recommendations for how to miti19 gate any adverse impacts identified pursuant to 

20 subparagraph (C). 

21 ‘‘(3) DEFINITIONS.—In this subsection: 

22 ‘‘(A) FARM SUPPLIES MERCHANT WHOLE23 SALER.—The term ‘farm supplies merchant 

24 wholesaler’ means a covered chemical facility 

25 that is primarily engaged in the merchant 


wwoods2 on DSK1DXX6B1PROD with BILLS
61 

HR 2868 RFS 

1 wholesale distribution of farm supplies, such as 

2 animal feeds, fertilizers, agricultural chemicals, 

3 pesticides, plant seeds, and plant bulbs. 

4 ‘‘(B) AGRICULTURAL END-USERS.—The 

5 term ‘agricultural end-users’ means facilities 

6 such as— 

7 ‘‘(i) farms, including crop, fruit, nut, 

8 and vegetable farms; 

9 ‘‘(ii) ranches and rangeland; 

10 ‘‘(iii) poultry, dairy, and equine facili11 ties; 

12 ‘‘(iv) turfgrass growers; 

13 ‘‘(v) golf courses; 

14 ‘‘(vi) nurseries; 

15 ‘‘(vii) floricultural operations; and 

16 ‘‘(viii) public and private parks. 

17 ‘‘(d) SMALL COVERED CHEMICAL FACILITIES.— 

18 ‘‘(1) GUIDANCE FOR SMALL COVERED CHEM19 ICAL FACILITIES.—The Secretary may provide guid20 ance and, as appropriate, tools, methodologies, or 

21 computer software, to assist small covered chemical 

22 facilities in complying with the requirements of this 

23 section. 

24 ‘‘(2) ASSESSMENT OF IMPACTS ON SMALL COV25 ERED CHEMICAL FACILITIES.—Not later than 6 


wwoods2 on DSK1DXX6B1PROD with BILLS
62 

HR 2868 RFS 

1 months after the date of the enactment of this title, 

2 the Secretary shall transmit to the Committee on 

3 Energy and Commerce of the House of Representa4 tives, the Committee on Homeland Security of the 

5 House of Representatives, and the Committee on 

6 Homeland Security and Governmental Affairs of the 

7 Senate an assessment of the potential effects on 

8 small covered chemical facilities of compliance with 

9 provisions of this section regarding the assessment 

10 and, as appropriate, implementation, of methods to 

11 reduce the consequences of a terrorist attack. Such 

12 assessment shall include— 

13 ‘‘(A) data on the scope of facilities covered 

14 by this title, including the number and type of 

15 small covered chemical facilities that are re16 quired to assess methods to reduce the con17 sequences of a terrorist attack under subsection 

18 (a) and the number and type of small covered 

19 chemical facilities assigned to tier 1 or tier 2 

20 under section 2102(c)(1) by the Secretary be21 cause of the potential extent and likelihood of 

22 death, injury, and serious adverse effects to 

23 human health, the environment, critical infra24 structure, public health, homeland security, na25 tional security, and the national economy from 


wwoods2 on DSK1DXX6B1PROD with BILLS
63 

HR 2868 RFS 

1 the release of a substance of concern at the fa2 cility; and 

3 ‘‘(B) a discussion of how the Secretary 

4 plans to apply the requirement that before re5 quiring a small covered chemical facility that is 

6 required to implement methods to reduce the 

7 consequences of a terrorist attack under sub8 section (b) the Secretary shall first determine 

9 that the implementation of such methods at the 

10 small covered chemical facility not significantly 

11 and demonstrably impair the ability of the 

12 owner or operator of the covered chemical facil13 ity to continue the business of the facility at its 

14 location. 

15 ‘‘(3) DEFINITION.—For purposes of this sub16 section, the term ‘small covered chemical facility’ 

17 means a covered chemical facility that has fewer 

18 than 350 employees employed at the covered chem19 ical facility, and is not a branch or subsidiary of an20 other entity. 

21 ‘‘(e) PROVISION OF INFORMATION ON ALTERNATIVE

22 APPROACHES.— 

23 ‘‘(1) IN GENERAL.—The Secretary shall make 

24 available information on the use and availability of 


wwoods2 on DSK1DXX6B1PROD with BILLS
64 

HR 2868 RFS 

1 methods to reduce the consequences of a chemical 

2 facility terrorist incident. 

3 ‘‘(2) INFORMATION TO BE INCLUDED.—The in4 formation under paragraph (1) may include informa5 tion about— 

6 ‘‘(A) general and specific types of such 

7 methods; 

8 ‘‘(B) combinations of chemical sources, 

9 substances of concern, and hazardous processes 

10 or conditions for which such methods could be 

11 appropriate; 

12 ‘‘(C) the availability of specific methods to 

13 reduce the consequences of a terrorist attack; 

14 ‘‘(D) the costs and cost savings resulting 

15 from the use of such methods; 

16 ‘‘(E) emerging technologies that could be 

17 transferred from research models or prototypes 

18 to practical applications; 

19 ‘‘(F) the availability of technical assistance 

20 and best practices; and 

21 ‘‘(G) such other matters that the Secretary 

22 determines are appropriate. 

23 ‘‘(3) PUBLIC AVAILABILITY.—Information made 

24 available under this subsection shall not identify any 

25 specific chemical facility, violate the protection of inVerDate Nov 24 2008 23:44 Nov 09, 2009 Jkt 089200 PO 00000 Frm 00064 Fmt 6652 Sfmt 6201 E:\BILLS\H2868.RFS H2868

wwoods2 on DSK1DXX6B1PROD with BILLS
65 

HR 2868 RFS 

1 formation provisions under section 2110, or disclose 

2 any proprietary information. 

3 ‘‘(f) FUNDING FOR METHODS TO REDUCE THE CON4 SEQUENCES OF A TERRORIST ATTACK.—The Secretary 

5 may make funds available to help defray the cost of imple6 menting methods to reduce the consequences of a terrorist 

7 attack to covered chemical facilities that are required by 

8 the Secretary to implement such methods. 

9 ‘‘SEC. 2112. APPLICABILITY. 

10 ‘‘This title shall not apply to— 

11 ‘‘(1) any chemical facility that is owned and op12 erated by the Secretary of Defense; 

13 ‘‘(2) the transportation in commerce, including 

14 incidental storage, of any substance of concern regu15 lated as a hazardous material under chapter 51 of 

16 title 49, United States Code; 

17 ‘‘(3) all or a specified portion of any chemical 

18 facility that— 

19 ‘‘(A) is subject to regulation by the Nu20 clear Regulatory Commission (hereinafter in 

21 this paragraph referred to as the ‘Commission’) 

22 or a State that has entered into an agreement 

23 with the Commission under section 274 b. of 

24 the Atomic Energy Act of 1954 (42 U.S.C. 

25 2021 b.); 


wwoods2 on DSK1DXX6B1PROD with BILLS
66 

HR 2868 RFS 

1 ‘‘(B) has had security controls imposed by 

2 the Commission or State, whichever has the 

3 regulatory authority, on the entire facility or 

4 the specified portion of the facility; and 

5 ‘‘(C) has been designated by the Commis6 sion, after consultation with the State, if any, 

7 that regulates the facility, and the Secretary, as 

8 excluded from the application of this title; 

9 ‘‘(4) any public water system subject to the 

10 Safe Drinking Water Act (42 U.S.C. 300f et seq.); 

11 or 

12 ‘‘(5) any treatment works, as defined in section 

13 212 of the Federal Water Pollution Control Act (33 

14 U.S.C. 1292). 

15 ‘‘SEC. 2113. SAVINGS CLAUSE. 

16 ‘‘(a) IN GENERAL.—Nothing in this title shall affect 

17 or modify in any way any obligation or liability of any 

18 person under any other Federal law, including section 112 

19 of the Clean Air Act (42 U.S.C. 7412), the Federal Water 

20 Pollution Control Act (33 U.S.C. 1251 et seq.), the Re21 source Conservation and Recovery Act of 1976 (42 U.S.C. 

22 6901 et seq.), the National Environmental Policy Act of 

23 1969 (42 U.S.C. 4321 et seq.), the Occupational Safety 

24 and Health Act (29 U.S.C. 651 et seq.), the National 

25 Labor Relations Act (29 U.S.C. 151 et seq.), the EmerVerDate Nov 24 2008 23:44 Nov 09, 2009 Jkt 089200 PO 00000 Frm 00066 Fmt 6652 Sfmt 6201 E:\BILLS\H2868.RFS H2868

wwoods2 on DSK1DXX6B1PROD with BILLS
67 

HR 2868 RFS 

1 gency Planning and Community Right to Know Act of 

2 1986 (42 U.S.C. 11001 et seq.), the Safe Drinking Water 

3 Act (42 U.S.C. 300f et seq.), the Maritime Transportation 

4 Security Act of 2002 (Public Law 107–295), the Com5 prehensive Environmental Response, Compensation, and 

6 Liability Act of 1980 (42 U.S.C. 9601 et seq.), the Toxic 

7 Substances Control Act (15 U.S.C. 2601 et seq.), and the 

8 Fair Credit Reporting Act (15 U.S.C. 1681 et seq.). 

9 ‘‘(b) OTHER REQUIREMENTS.—Nothing in this title 

10 shall preclude or deny the right of any State or political 

11 subdivision thereof to adopt or enforce any regulation, re12 quirement, or standard of performance relating to environ13 mental protection, health, or safety. 

14 ‘‘(c) ACCESS.—Nothing in this title shall abridge or 

15 deny access to a chemical facility site to any person where 

16 required or permitted under any other law or regulation. 

17 ‘‘SEC. 2114. OFFICE OF CHEMICAL FACILITY SECURITY. 

18 ‘‘(a) IN GENERAL.—There is established in the De19 partment an Office of Chemical Facility Security, headed 

20 by a Director, who shall be a member of the Senior Execu21 tive Service in accordance with subchapter VI of chapter 

22 53 of title 5, United States Code, under section 5382 of 

23 that title, and who shall be responsible for carrying out 

24 the responsibilities of the Secretary under this title. 


wwoods2 on DSK1DXX6B1PROD with BILLS
68 

HR 2868 RFS 

1 ‘‘(b) PROFESSIONAL QUALIFICATIONS.—The indi2 vidual selected by the Secretary as the Director of the Of3 fice of Chemical Facility Security shall have professional 

4 qualifications and experience necessary for effectively di5 recting the Office of Chemical Facility Security and car6 rying out the requirements of this title, including a dem7 onstrated knowledge of physical infrastructure protection, 

8 cybersecurity, chemical facility security, hazard analysis, 

9 chemical process engineering, chemical process safety re10 views, or other such qualifications that the Secretary de11 termines to be necessary. 

12 ‘‘(c) SELECTION PROCESS.—The Secretary shall 

13 make a reasonable effort to select an individual to serve 

14 as the Director from among a group of candidates that 

15 is diverse with respect to race, ethnicity, age, gender, and 

16 disability characteristics and submit to the Committee on 

17 Homeland Security and the Committee on Energy and 

18 Commerce of the House of Representatives and the Com19 mittee on Homeland Security and Governmental Affairs 

20 of the Senate information on the selection process, includ21 ing details on efforts to assure diversity among the can22 didates considered for this position. 

23 ‘‘(d) OUTREACH SUPPORT.— 

24 ‘‘(1) POINT OF CONTACT.—The Secretary shall 

25 designate a point of contact for the Administrator of 


wwoods2 on DSK1DXX6B1PROD with BILLS
69 

HR 2868 RFS 

1 the Environmental Protection Agency, and the head 

2 of any other agency designated by the Secretary, 

3 with respect to the requirements of this title. 

4 ‘‘(2) OUTREACH.—The Secretary shall, as ap5 propriate, and in accordance with this title, inform 

6 State emergency response commissions appointed 

7 pursuant to section 301(a) of the Emergency Plan8 ning and Community Right-To-Know Act of 1986 

9 (42 U.S.C. 11001) and local emergency planning 

10 committees appointed pursuant to section 301(c) of 

11 such Act, and any other entity designated by the 

12 Secretary, of the findings of the Office of Chemical 

13 Facility Security so that such commissions and com14 mittees may update emergency planning and train15 ing procedures. 

16 ‘‘SEC. 2115. SECURITY BACKGROUND CHECKS OF COVERED 

17 INDIVIDUALS AT CERTAIN CHEMICAL FACILI18 TIES. 

19 ‘‘(a) REGULATIONS ISSUED BY THE SECRETARY.— 

20 ‘‘(1) IN GENERAL.— 

21 ‘‘(A) REQUIREMENT.—The Secretary shall 

22 issue regulations to require covered chemical fa23 cilities to establish personnel surety for individ24 uals described in subparagraph (B) by con25 ducting appropriate security background checks 


wwoods2 on DSK1DXX6B1PROD with BILLS
70 

HR 2868 RFS 

1 and ensuring appropriate credentials for 

2 unescorted visitors and chemical facility per3 sonnel, including permanent and part-time per4 sonnel, temporary personnel, and contract per5 sonnel, including— 

6 ‘‘(i) measures designed to verify and 

7 validate identity; 

8 ‘‘(ii) measures designed to check 

9 criminal history; 

10 ‘‘(iii) measures designed to verify and 

11 validate legal authorization to work; and 

12 ‘‘(iv) measures designed to identify 

13 people with terrorist ties. 

14 ‘‘(B) INDIVIDUALS DESCRIBED.—For pur15 poses of subparagraph (A), an individual de16 scribed in this subparagraph is— 

17 ‘‘(i) a covered individual who has 

18 unescorted access to restricted areas or 

19 critical assets or who is provided with a 

20 copy of a security vulnerability assessment 

21 or site security plan; 

22 ‘‘(ii) a person associated with a cov23 ered chemical facility, including any des24 ignated employee representative, who is 


wwoods2 on DSK1DXX6B1PROD with BILLS
71 

HR 2868 RFS 

1 provided with a copy of a security vulner2 ability assessment or site security plan; or 

3 ‘‘(iii) a person who is determined by 

4 the Secretary to require a security back5 ground check based on chemical facility se6 curity performance standards. 

7 ‘‘(2) REGULATIONS.—The regulations required 

8 by paragraph (1) shall set forth— 

9 ‘‘(A) the scope of the security background 

10 checks, including the types of disqualifying of11 fenses and the time period covered for each per12 son subject to a security background check 

13 under paragraph (1); 

14 ‘‘(B) the processes to conduct the security 

15 background checks; 

16 ‘‘(C) the necessary biographical informa17 tion and other data required in order to con18 duct the security background checks; 

19 ‘‘(D) a redress process for an adversely-af20 fected person consistent with subsections (b) 

21 and (c); and 

22 ‘‘(E) a prohibition on an owner or operator 

23 of a covered chemical facility misrepresenting to 

24 an employee or other relevant person, including 

25 an arbiter involved in a labor arbitration, the 


wwoods2 on DSK1DXX6B1PROD with BILLS
72 

HR 2868 RFS 

1 scope, application, or meaning of any rules, reg2 ulations, directives, or guidance issued by the 

3 Secretary related to security background check 

4 requirements for covered individuals when con5 ducting a security background check. 

6 ‘‘(b) MISREPRESENTATION OF ADVERSE EMPLOY7 MENT DECISIONS.—The regulations required by sub8 section (a)(1) shall set forth that it shall be a misrepresen9 tation under subsection (a)(2)(E) to attribute an adverse 

10 employment decision, including removal or suspension of 

11 the employee, to such regulations unless the owner or op12 erator finds, after opportunity for appropriate redress 

13 under the processes provided under subsection (c)(1) and 

14 (c)(2), that the person subject to such adverse employment 

15 decision— 

16 ‘‘(1) has been convicted of, has been found not 

17 guilty of by reason of insanity, or is under want, 

18 warrant, or indictment for, a permanent disquali19 fying criminal offense listed in part 1572 of title 49, 

20 Code of Federal Regulations; 

21 ‘‘(2) was convicted of, or found not guilty of by 

22 reason of insanity, an interim disqualifying criminal 

23 offense listed in part 1572 of title 49, Code of Fed24 eral Regulations, within 7 years of the date on which 


wwoods2 on DSK1DXX6B1PROD with BILLS
73 

HR 2868 RFS 

1 the covered chemical facility performs the security 

2 background check; 

3 ‘‘(3) was incarcerated for an interim disquali4 fying criminal offense listed in part 1572 of title 49, 

5 Code of Federal Regulations, and released from in6 carceration within 5 years of the date that the chem7 ical facility performs the security background check; 

8 ‘‘(4) is determined by the Secretary to be on 

9 the consolidated terrorist watchlist; or 

10 ‘‘(5) is determined, as a result of the security 

11 background check, not to be legally authorized to 

12 work in the United States. 

13 ‘‘(c) REDRESS PROCESSES.—Upon the issuance of 

14 regulations under subsection (a), the Secretary shall— 

15 ‘‘(1) require the owner or operator to provide 

16 an adequate and prompt redress process for a per17 son subject to a security background check under 

18 subsection (a)(1) who is subjected to an adverse em19 ployment decision, including removal or suspension 

20 of the employee, due to such regulations that is con21 sistent with the appeals process established for em22 ployees subject to consumer reports under the Fair 

23 Credit Reporting Act (15 U.S.C. 1681 et seq.), as 

24 in force on the date of the enactment of this title; 


wwoods2 on DSK1DXX6B1PROD with BILLS
74 

HR 2868 RFS 

1 ‘‘(2) provide an adequate and prompt redress 

2 process for a person subject to a security back3 ground check under subsection (a)(1) who is sub4 jected to an adverse employment decision, including 

5 removal or suspension of the employee, due to a de6 termination by the Secretary under subsection 

7 (b)(4), that is consistent with the appeals process es8 tablished under section 70105(c) of title 46, United 

9 States Code, including all rights to hearings before 

10 an administrative law judge, scope of review, and a 

11 review of an unclassified summary of classified evi12 dence equivalent to the summary provided in part 

13 1515 of title 49, Code of Federal Regulations; 

14 ‘‘(3) provide an adequate and prompt redress 

15 process for a person subject to a security back16 ground check under subsection (a)(1) who is sub17 jected to an adverse employment decision, including 

18 removal or suspension of the employee, due to a vio19 lation of subsection (a)(2)(E), which shall not pre20 clude the exercise of any other rights available under 

21 collective bargaining agreements or applicable laws; 

22 ‘‘(4) establish a reconsideration process de23 scribed in subsection (d) for a person subject to an 

24 adverse employment decision that was attributed by 


wwoods2 on DSK1DXX6B1PROD with BILLS
75 

HR 2868 RFS 

1 an owner or operator to the regulations required by 

2 subsection (a)(1); 

3 ‘‘(5) have the authority to order an appropriate 

4 remedy, including reinstatement of the person sub5 ject to a security background check under subsection 

6 (a)(1), if the Secretary determines that the adverse 

7 employment decision was made in violation of the 

8 regulations required under subsection (a)(1) or as a 

9 result of an erroneous determination by the Sec10 retary under subsection (b)(4); 

11 ‘‘(6) ensure that the redress processes required 

12 under paragraphs (1), (2), or (3) afford to the per13 son a full disclosure of any public-record event cov14 ered by subsection (b) that provides the basis for an 

15 adverse employment decision; and 

16 ‘‘(7) ensure that the person subject to a secu17 rity background check under subsection (a)(1) re18 ceives the person’s full wages and benefits until all 

19 redress processes under this subsection are ex20 hausted. 

21 ‘‘(d) RECONSIDERATION PROCESS.— 

22 ‘‘(1) IN GENERAL.—The reconsideration proc23 ess required under subsection (c)(4) shall— 

24 ‘‘(A) require the Secretary to determine, 

25 within 30 days after receiving a petition subVerDate Nov 24 2008 23:44 Nov 09, 2009 Jkt 089200 PO 00000 Frm 00075 Fmt 6652 Sfmt 6201 E:\BILLS\H2868.RFS H2868

wwoods2 on DSK1DXX6B1PROD with BILLS
76 

HR 2868 RFS 

1 mitted by a person subject to an adverse em2 ployment decision that was attributed by an 

3 owner or operator to the regulations required 

4 by subsection (a)(1), whether such person poses 

5 a security risk to the covered chemical facility; 

6 and 

7 ‘‘(B) include procedures consistent with 

8 section 70105(c) of title 46, United States 

9 Code, including all rights to hearings before an 

10 administrative law judge, scope of review, and 

11 a review of an unclassified summary of classi12 fied evidence equivalent to the summary pro13 vided in part 1515 of title 49, Code of Federal 

14 Regulations. 

15 ‘‘(2) DETERMINATION BY THE SECRETARY.—In 

16 making a determination described under paragraph 

17 (1)(A), the Secretary shall— 

18 ‘‘(A) give consideration to the cir19 cumstance of any disqualifying act or offense, 

20 restitution made by the person, Federal and 

21 State mitigation remedies, and other factors 

22 from which it may be concluded that the person 

23 does not pose a security risk to the covered 

24 chemical facility; and 


wwoods2 on DSK1DXX6B1PROD with BILLS
77 

HR 2868 RFS 

1 ‘‘(B) provide his or her determination as to 

2 whether such person poses a security risk to the 

3 covered chemical facility to the petitioner and to 

4 the owner or operator of the covered chemical 

5 facility. 

6 ‘‘(3) OWNER OR OPERATOR RECONSIDER7 ATION.—If the Secretary determines pursuant to 

8 paragraph (1)(A) that the person does not pose a se9 curity risk to the covered chemical facility, it shall 

10 thereafter constitute a prohibited misrepresentation 

11 for the owner or operator of the covered chemical fa12 cility to continue to attribute the adverse employ13 ment decision to the regulations under subsection 

14 (a)(1). 

15 ‘‘(e) RESTRICTIONS ON USE AND MAINTENANCE OF

16 INFORMATION.—Information obtained under this section 

17 by the Secretary or the owner or operator of a covered 

18 chemical facility shall be handled as follows: 

19 ‘‘(1) Such information may not be made avail20 able to the public. 

21 ‘‘(2) Such information may not be accessed by 

22 employees of the facility except for such employees 

23 who are directly involved with collecting the informa24 tion or conducting or evaluating security background 

25 checks. 


wwoods2 on DSK1DXX6B1PROD with BILLS
78 

HR 2868 RFS 

1 ‘‘(3) Such information shall be maintained con2 fidentially by the facility and the Secretary and may 

3 be used only for making determinations under this 

4 section. 

5 ‘‘(4) The Secretary may share such information 

6 with other Federal, State, local, and tribal law en7 forcement agencies. 

8 ‘‘(f) SAVINGS CLAUSE.— 

9 ‘‘(1) RIGHTS AND RESPONSIBILITIES.—Nothing 

10 in this section shall be construed to abridge any 

11 right or responsibility of a person subject to a secu12 rity background check under subsection (a)(1) or an 

13 owner or operator of a covered chemical facility 

14 under any other Federal, State, local, or tribal law 

15 or collective bargaining agreement. 

16 ‘‘(2) EXISTING RIGHTS.—Nothing in this sec17 tion shall be construed as creating any new right or 

18 modifying any existing right of an individual to ap19 peal a determination by the Secretary as a result of 

20 a check against a terrorist watch list. 

21 ‘‘(g) PREEMPTION.—Nothing in this section shall be 

22 construed to preempt, alter, or affect a Federal, State, 

23 local, or tribal law that requires criminal history back24 ground checks, checks on the authorization of an indi25 vidual to work in the United States, or other background 


wwoods2 on DSK1DXX6B1PROD with BILLS
79 

HR 2868 RFS 

1 checks of persons subject to security background checks 

2 under subsection (a)(1). 

3 ‘‘(h) DEFINITION OF SECURITY BACKGROUND

4 CHECK.—The term ‘security background check’ means a 

5 review at no cost to any person subject to a security back6 ground check under subsection (a)(1) of the following for 

7 the purpose of identifying individuals who may pose a 

8 threat to chemical facility security, to national security, 

9 or of terrorism: 

10 ‘‘(1) Relevant databases to verify and validate 

11 identity. 

12 ‘‘(2) Relevant criminal history databases. 

13 ‘‘(3) In the case of an alien (as defined in sec14 tion 101 of the Immigration and Nationality Act (8 

15 U.S.C. 1101(a)(3))), the relevant databases to deter16 mine the status of the alien under the immigration 

17 laws of the United States. 

18 ‘‘(4) The consolidated terrorist watchlist. 

19 ‘‘(5) Other relevant information or databases, 

20 as determined by the Secretary. 

21 ‘‘(i) DEPARTMENT-CONDUCTED SECURITY BACK22 GROUND CHECK.—The regulations under subsection 

23 (a)(1) shall set forth a process by which the Secretary, 

24 on an ongoing basis, shall determine whether alternate se25 curity background checks conducted by the Secretary are 


wwoods2 on DSK1DXX6B1PROD with BILLS
80 

HR 2868 RFS 

1 sufficient to meet the requirements of this section such 

2 that no additional security background check under this 

3 section is required for an individual for whom such a 

4 qualifying alternate security background check was con5 ducted. The Secretary may require the owner or operator 

6 of a covered chemical facility to which the individual will 

7 have unescorted access to sensitive or restricted areas to 

8 submit identifying information about the individual and 

9 the alternate security background check conducted for 

10 that individual to the Secretary in order to enable the Sec11 retary to verify the validity of the alternate security back12 ground check. Such regulations shall provide that no secu13 rity background check under this section is required for 

14 an individual holding a transportation security card issued 

15 under section 70105 of title 46, United States Code. 

16 ‘‘(j) TERMINATION OF EMPLOYMENT.—If, as the re17 sult of a security background check, an owner or operator 

18 of a covered chemical facility finds that a covered indi19 vidual is not legally authorized to work in the United 

20 States, the owner or operator shall cease to employ the 

21 covered individual, subject to the appropriate redress proc22 esses available to such individual under this section. 


wwoods2 on DSK1DXX6B1PROD with BILLS
81 

HR 2868 RFS 

1 ‘‘SEC. 2116. CITIZEN ENFORCEMENT. 

2 ‘‘(a) IN GENERAL.—Except as provided in subsection 

3 (c), any person may commence a civil action on such per4 son’s own behalf— 

5 ‘‘(1) against any governmental entity (including 

6 the United States and any other governmental in7 strumentality or agency, to the extent permitted by 

8 the eleventh amendment to the Constitution, and 

9 any federally owned-contractor operated facility) al10 leged to be in violation of any order that has become 

11 effective pursuant to this title; or 

12 ‘‘(2) against the Secretary, for an alleged fail13 ure to perform any act or duty under this title that 

14 is not discretionary for the Secretary. 

15 ‘‘(b) COURT OF JURISDICTION.— 

16 ‘‘(1) IN GENERAL.—Any action under sub17 section (a)(1) shall be brought in the district court 

18 for the district in which the alleged violation oc19 curred. Any action brought under subsection (a)(2) 

20 may be brought in the district court for the district 

21 in which the alleged violation occurred or in the 

22 United States District Court for the District of Co23 lumbia. 

24 ‘‘(2) RELIEF.—The district court shall have ju25 risdiction, without regard to the amount in con26 troversy or the citizenship of the parties to enforce 


wwoods2 on DSK1DXX6B1PROD with BILLS
82 

HR 2868 RFS 

1 the order referred to in subsection (a)(1), to order 

2 such governmental entity to take such action as may 

3 be necessary, or both, or, in an action commenced 

4 under subsection (a)(2), to order the Secretary to 

5 perform the non-discretionary act or duty, and to 

6 order any civil penalties, as appropriate, under sec7 tion 2107. 

8 ‘‘(c) ACTIONS PROHIBITED.—No action may be com9 menced under subsection (a) prior to 60 days after the 

10 date on which the person commencing the action has given 

11 notice of the alleged violation to— 

12 ‘‘(1) the Secretary; and 

13 ‘‘(2) in the case of an action under subsection 

14 (a)(1), any governmental entity alleged to be in vio15 lation of an order. 

16 ‘‘(d) NOTICE.—Notice under this section shall be 

17 given in such manner as the Secretary shall prescribe by 

18 regulation. 

19 ‘‘(e) INTERVENTION.—In any action under this sec20 tion, the Secretary, if not a party, may intervene as a mat21 ter of right. 

22 ‘‘(f) COSTS; BOND.—The court, in issuing any final 

23 order in any action brought pursuant to this section, may 

24 award costs of litigation (including reasonable attorney 

25 and expert witness fees) to the prevailing or substantially 


wwoods2 on DSK1DXX6B1PROD with BILLS
83 

HR 2868 RFS 

1 prevailing party, whenever the court determines such an 

2 award is appropriate. The court may, if a temporary re3 straining order or preliminary injunction is sought, require 

4 the filing of a bond or equivalent security in accordance 

5 with the Federal Rules of Civil Procedure. 

6 ‘‘(g) OTHER RIGHTS PRESERVED.—Nothing in this 

7 section shall restrict any right which any person (or class 

8 of persons) may have under any statute or common law. 

9 ‘‘SEC. 2117. CITIZEN PETITIONS. 

10 ‘‘(a) REGULATIONS.—The Secretary shall issue regu11 lations to establish a citizen petition process for petitions 

12 described in subsection (b). Such regulations shall in13 clude— 

14 ‘‘(1) the format for such petitions; 

15 ‘‘(2) the procedure for investigation of petitions; 

16 ‘‘(3) the procedure for response to such peti17 tions, including timelines; 

18 ‘‘(4) the procedure for referral to and review by 

19 the Office of the Inspector General of the Depart20 ment without deference to the Secretary’s deter21 mination with respect to the petition; and 

22 ‘‘(5) the procedure for rejection or acceptance 

23 by the Secretary of the recommendation of the Of24 fice of the Inspector General. 


wwoods2 on DSK1DXX6B1PROD with BILLS
84 

HR 2868 RFS 

1 ‘‘(b) PETITIONS.—The regulations issued pursuant to 

2 subsection (a) shall allow any person to file a petition with 

3 the Secretary— 

4 ‘‘(1) identifying any person (including the 

5 United States and any other governmental instru6 mentality or agency, to the extent permitted by the 

7 eleventh amendment to the Constitution) alleged to 

8 be in violation of any standard, regulation, condi9 tion, requirement, prohibition, plan, or order that 

10 has become effective under this title; and 

11 ‘‘(2) describing the alleged violation of any 

12 standard, regulation, condition, requirement, prohi13 bition, plan, or order that has become effective 

14 under this title by that person. 

15 ‘‘(c) REQUIREMENTS.—Upon issuance of regulations 

16 under subsection (a), the Secretary shall— 

17 ‘‘(1) accept all petitions described under sub18 section (b) that meet the requirements of the regula19 tions promulgated under subsection (a); 

20 ‘‘(2) investigate all allegations contained in ac21 cepted petitions; 

22 ‘‘(3) determine whether enforcement action will 

23 be taken concerning the alleged violation or viola24 tions; 


wwoods2 on DSK1DXX6B1PROD with BILLS
85 

HR 2868 RFS 

1 ‘‘(4) respond to all accepted petitions promptly 

2 and in writing; 

3 ‘‘(5) include in all responses to petitions a brief 

4 and concise statement, to the extent permitted under 

5 section 2110, of the allegations, the steps taken to 

6 investigate, the determination made, and the reasons 

7 for such determination; 

8 ‘‘(6) maintain an internal record including all 

9 protected information related to the determination; 

10 ‘‘(7) with respect to any petition for which the 

11 Secretary has not made a timely response or the 

12 Secretary’s response is unsatisfactory to the peti13 tioner, provide the petitioner with the opportunity to 

14 request— 

15 ‘‘(A) a review of the full record by the In16 spector General of the Department, including a 

17 review of protected information; and 

18 ‘‘(B) the formulation of recommendations 

19 by the Inspector General and submittal of such 

20 recommendations to the Secretary and, to the 

21 extent permitted under section 2110, to the pe22 titioner; and 

23 ‘‘(8) respond to a recommendation submitted by 

24 the Inspector General under paragraph (7) by adopt25 ing or rejecting the recommendation. 


wwoods2 on DSK1DXX6B1PROD with BILLS
86 

HR 2868 RFS 

1 ‘‘SEC. 2118. NOTIFICATION SYSTEM TO ADDRESS PUBLIC 

2 CONCERNS. 

3 ‘‘(a) ESTABLISHMENT.—The Secretary shall estab4 lish a notification system, which shall provide any indi5 vidual the ability to report a suspected security deficiency 

6 or suspected non-compliance with this title. Such notifica7 tion system shall provide for the ability to report the sus8 pected security deficiency or non-compliance via telephonic 

9 and Internet-based means. 

10 ‘‘(b) ACKNOWLEDGMENT.—When the Secretary re11 ceives a report through the notification system established 

12 under subsection (a), the Secretary shall respond to such 

13 report in a timely manner, but in no case shall the Sec14 retary respond to such a report later than 30 days after 

15 receipt of the report. 

16 ‘‘(c) STEPS TO ADDRESS PROBLEMS.—The Secretary 

17 shall review each report received through the notification 

18 system established under subsection (a) and shall, as nec19 essary, take appropriate enforcement action under section 

20 2107. 

21 ‘‘(d) FEEDBACK REQUIRED.—Upon request, the Sec22 retary shall provide the individual who reported the sus23 pected security deficiency or non-compliance through the 

24 notification system established under subsection (a) a 

25 written response that includes the Secretary’s findings 

26 with respect to the report submitted by the individual and 


wwoods2 on DSK1DXX6B1PROD with BILLS
87 

HR 2868 RFS 

1 what, if any, compliance action was taken in response to 

2 such report. 

3 ‘‘(e) INSPECTOR GENERAL REPORT REQUIRED.— 

4 The Inspector General of the Department shall submit to 

5 the Committee on Homeland Security and the Committee 

6 on Energy and Commerce of the House of Representatives 

7 and the Committee on Homeland Security and Govern8 mental Affairs of the Senate an annual report on the re9 ports received under the notification system established 

10 under subsection (a) and the Secretary’s disposition of 

11 such reports. 

12 ‘‘SEC. 2119. ANNUAL REPORT TO CONGRESS. 

13 ‘‘(a) ANNUAL REPORT.—Not later than one year 

14 after the date of the enactment of this title, annually 

15 thereafter for the next four years, and biennially there16 after, the Secretary shall submit to the Committee on 

17 Homeland Security and the Committee on Energy and 

18 Commerce of the House of Representatives and the Com19 mittee on Homeland Security and Governmental Affairs 

20 of the Senate a report on progress in achieving compliance 

21 with this title. Each such report shall include the fol22 lowing: 

23 ‘‘(1) A qualitative discussion of how covered 

24 chemical facilities, differentiated by tier, have reVerDate Nov 24 2008 23:44 Nov 09, 2009 Jkt 089200 PO 00000 Frm 00087 Fmt 6652 Sfmt 6201 E:\BILLS\H2868.RFS H2868

wwoods2 on DSK1DXX6B1PROD with BILLS
88 

HR 2868 RFS 

1 duced the risks of chemical facility terrorist inci2 dents at such facilities, including— 

3 ‘‘(A) a generalized summary of measures 

4 implemented by covered chemical facilities in 

5 order to meet each risk-based chemical facility 

6 performance standard established by this title, 

7 and those that the facilities already had in 

8 place— 

9 ‘‘(i) in the case of the first report 

10 under this section, before the issuance of 

11 the final rule implementing the regulations 

12 known as the ‘Chemical Facility Anti-Ter13 rorism Standards’, issued on April 9, 

14 2007; and 

15 ‘‘(ii) in the case of each subsequent 

16 report, since the submittal of the most re17 cent report submitted under this section; 

18 and 

19 ‘‘(B) any other generalized summary the 

20 Secretary deems appropriate to describe the 

21 measures covered chemical facilities are imple22 menting to comply with the requirements of 

23 this title. 

24 ‘‘(2) A quantitative summary of how the cov25 ered chemical facilities, differentiated by tier, are 


wwoods2 on DSK1DXX6B1PROD with BILLS
89 

HR 2868 RFS 

1 complying with the requirements of this title during 

2 the period covered by the report and how the Sec3 retary is implementing and enforcing such require4 ments during such period, including— 

5 ‘‘(A) the number of chemical facilities that 

6 provided the Secretary with information about 

7 possessing substances of concern, as described 

8 in section 2102(b)(2); 

9 ‘‘(B) the number of covered chemical facili10 ties assigned to each tier; 

11 ‘‘(C) the number of security vulnerability 

12 assessments and site security plans submitted 

13 by covered chemical facilities; 

14 ‘‘(D) the number of security vulnerability 

15 assessments and site security plans approved 

16 and disapproved by the Secretary; 

17 ‘‘(E) the number of covered chemical facili18 ties without approved security vulnerability as19 sessments or site security plans; 

20 ‘‘(F) the number of chemical facilities that 

21 have been assigned to a different tier or are no 

22 longer regulated by the Secretary due to imple23 mentation of a method to reduce the con24 sequences of a terrorist attack and a descrip25 tion of such implemented methods; 


wwoods2 on DSK1DXX6B1PROD with BILLS
90 

HR 2868 RFS 

1 ‘‘(G) the number of orders for compliance 

2 issued by the Secretary; 

3 ‘‘(H) the administrative penalties assessed 

4 by the Secretary for non-compliance with the 

5 requirements of this title; 

6 ‘‘(I) the civil penalties assessed by the 

7 court for non-compliance with the requirements 

8 of this title; 

9 ‘‘(J) the number of terrorist watchlist 

10 checks conducted by the Secretary in order to 

11 comply with the requirements of this title, the 

12 number of appeals conducted by the Secretary 

13 pursuant to the processes described under para14 graphs (2), (3) and (4) of section 2115(c), ag15 gregate information regarding the time taken 

16 for such appeals, aggregate information regard17 ing the manner in which such appeals were re18 solved, and, based on information provided to 

19 the Secretary annually by each owner or oper20 ator of a covered chemical facility, the number 

21 of persons subjected to adverse employment de22 cisions that were attributed by the owner or op23 erator to the regulations required by section 

24 2115; and 


wwoods2 on DSK1DXX6B1PROD with BILLS
91 

HR 2868 RFS 

1 ‘‘(K) any other regulatory data the Sec2 retary deems appropriate to describe facility 

3 compliance with the requirements of this title 

4 and the Secretary’s implementation of such re5 quirements. 

6 ‘‘(b) PUBLIC AVAILABILITY.—A report submitted 

7 under this section shall be made publicly available. 

8 ‘‘SEC. 2120. AUTHORIZATION OF APPROPRIATIONS. 

9 ‘‘There is authorized to be appropriated to the Sec10 retary of Homeland Security to carry out this title— 

11 ‘‘(1) $325,000,000 for fiscal year 2011, of 

12 which $100,000,000 shall be made available to pro13 vide funding for methods to reduce the consequences 

14 of a terrorist attack, of which up to $3,000,000 shall 

15 be made available for grants authorized under sec16 tion 2111(c)(1); 

17 ‘‘(2) $300,000,000 for fiscal year 2012, of 

18 which $75,000,000 shall be made available to pro19 vide funding for methods to reduce the consequences 

20 of a terrorist attack, of which up to $3,000,000 shall 

21 be made available for grants authorized under sec22 tion 2111(c)(1); and 

23 ‘‘(3) $275,000,000 for fiscal year 2013, of 

24 which $50,000,000 shall be made available to pro25 vide funding for methods to reduce the consequences 


wwoods2 on DSK1DXX6B1PROD with BILLS
92 

HR 2868 RFS 

1 of a terrorist attack, of which up to $3,000,000 shall 

2 be made available for grants authorized under sec3 tion 2111(c)(1).’’. 

4 (b) CLERICAL AMENDMENT.—The table of contents 

5 in section 1(b) of such Act is amended by adding at the 

6 end the following: 

‘‘TITLE XXI—REGULATION OF SECURITY PRACTICES AT 

CHEMICAL FACILITIES 

‘‘Sec. 2101. Definitions. 

‘‘Sec. 2102. Risk-based designation and ranking of chemical facilities. 

‘‘Sec. 2103. Security vulnerability assessments and site security plans. 

‘‘Sec. 2104. Site inspections. 

‘‘Sec. 2105. Records. 

‘‘Sec. 2106. Timely sharing of threat information. 

‘‘Sec. 2107. Enforcement. 

‘‘Sec. 2108. Whistleblower protections. 

‘‘Sec. 2109. Federal preemption. 

‘‘Sec. 2110. Protection of information. 

‘‘Sec. 2111. Methods to reduce the consequences of a terrorist attack. 

‘‘Sec. 2112. Applicability. 

‘‘Sec. 2113. Savings clause. 

‘‘Sec. 2114. Office of Chemical Facility Security. 

‘‘Sec. 2115. Security background checks of covered individuals at certain chemical facilities. 

‘‘Sec. 2116. Citizen enforcement. 

‘‘Sec. 2117. Citizen petitions. 

‘‘Sec. 2118. Notification system to address public concerns. 

‘‘Sec. 2119. Annual report to Congress. 

‘‘Sec. 2120. Authorization of appropriations.’’. 

7 (c) CONFORMING REPEAL.— 

8 (1) REPEAL.—The Department of Homeland 

9 Security Appropriations Act, 2007 (Public Law 

10 109–295) is amended by striking section 550. 

11 (2) EFFECTIVE DATE.—The amendment made 

12 by paragraph (1) shall take effect on the date of the 

13 enactment of this title. 

14 (d) REGULATIONS.— 


wwoods2 on DSK1DXX6B1PROD with BILLS
93 

HR 2868 RFS 

1 (1) DEADLINE.—The Secretary shall issue pro2 posed rules to carry out title XXI of the Homeland 

3 Security Act of 2002, as added by subsection (a), by 

4 not later than 6 months after the date of the enact5 ment of this Act, and shall issue final rules to carry 

6 out such title by not later than 18 months after the 

7 date of the enactment of this Act. 

8 (2) CONSULTATION.—In developing and imple9 menting the rules required under paragraph (1), the 

10 Secretary shall consult with the Administrator of the 

11 Environmental Protection Agency, and other per12 sons, as appropriate, regarding— 

13 (A) the designation of substances of con14 cern; 

15 (B) methods to reduce the consequences of 

16 a terrorist attack; 

17 (C) security at drinking water facilities 

18 and wastewater treatment works; 

19 (D) the treatment of protected informa20 tion; and 

21 (E) such other matters as the Secretary 

22 determines necessary. 

23 (3) SENSE OF CONGRESS REGARDING CFATS.— 

24 It is the sense of Congress that the Secretary of 

25 Homeland Security was granted statutory authority 


wwoods2 on DSK1DXX6B1PROD with BILLS
94 

HR 2868 RFS 

1 under section 550 of the Department of Homeland 

2 Security Appropriations Act (Public Law 109–295) 

3 to regulate security practices at chemical facilities 

4 until October 1, 2009. Pursuant to that section the 

5 Secretary prescribed regulations known as the 

6 Chemical Facility Anti-Terrorism Standards, or 

7 ‘‘CFATS’’ (referred to in this section as ‘‘CFATS 

8 regulations’’). 

9 (4) INTERIM USE AND AMENDMENT OF

10 CFATS.—Until the final rules prescribed pursuant to 

11 paragraph (1) take effect, in carrying out title XXI 

12 of the Homeland Security Act of 2002, as added by 

13 subsection (a), the Secretary may, to the extent the 

14 Secretary determines appropriate— 

15 (A) continue to carry out the CFATS reg16 ulations, as in effect immediately before the 

17 date of the enactment of this title; 

18 (B) amend any of such regulations as may 

19 be necessary to ensure that such regulations are 

20 consistent with the requirements of this title 

21 and the amendments made by this title; and 

22 (C) continue using any tools developed for 

23 purposes of such regulations, including the list 

24 of substances of concern, usually referred to as 

25 ‘‘Appendix A’’, and the chemical security asVerDate Nov 24 2008 23:44 Nov 09, 2009 Jkt 089200 PO 00000 Frm 00094 Fmt 6652 Sfmt 6201 E:\BILLS\H2868.RFS H2868

wwoods2 on DSK1DXX6B1PROD with BILLS
95 

HR 2868 RFS 

1 sessment tool (which includes facility registra2 tion, a top-screen questionnaire, a security vul3 nerability assessment tool, a site security plan 

4 template, and a chemical vulnerability informa5 tion repository). 

6 (5) UPDATE OF FACILITY PLANS ASSESSMENTS

7 AND PLANS PREPARED UNDER CFATS.—The owner 

8 or operator of a covered chemical facility, who, be9 fore the effective date of the final regulations issued 

10 under title XXI of the Homeland Security Act of 

11 2002, as added by subsection (a), submits a security 

12 vulnerability assessment or site security plan under 

13 the CFATS regulations, shall be required to update 

14 or amend the facility’s security vulnerability assess15 ment and site security plan to reflect any additional 

16 requirements of this title or the amendments made 

17 by this title, according to a timeline established by 

18 the Secretary. 

19 (e) REVIEW OF DESIGNATION OF SODIUM

20 FLUOROACETATE AS A SUBSTANCE OF CONCERN.—The 

21 Secretary of Homeland Security shall review the designa22 tion of sodium fluoroacetate as a substance of concern 

23 pursuant to subsection (d) of section 2102 of the Home24 land Security Act of 2002, as added by subsection (a), 

25 by the earlier of the following dates: 


wwoods2 on DSK1DXX6B1PROD with BILLS
96 

HR 2868 RFS 

1 (1) The date of the first periodic review con2 ducted pursuant to such subsection after the date of 

3 the enactment of this title. 

4 (2) The date that is one year after the date of 

5 the enactment of this title. 

6 TITLE II—DRINKING WATER 

7 SECURITY 

8 SEC. 201. SHORT TITLE. 

9 This title may be cited as the ‘‘Drinking Water Sys10 tem Security Act of 2009’’. 

11 SEC. 202. INTENTIONAL ACTS AFFECTING THE SECURITY 

12 OF COVERED WATER SYSTEMS. 

13 (a) AMENDMENT OF SAFE DRINKING WATER ACT.— 

14 Section 1433 of the Safe Drinking Water Act (42 U.S.C. 

15 300i–2) is amended to read as follows: 

16 ‘‘SEC. 1433. INTENTIONAL ACTS. 

17 ‘‘(a) RISK-BASED PERFORMANCE STANDARDS; VUL18 NERABILITY ASSESSMENTS; SITE SECURITY PLANS; 

19 EMERGENCY RESPONSE PLANS.— 

20 ‘‘(1) IN GENERAL.—The Administrator shall 

21 issue regulations— 

22 ‘‘(A) establishing risk-based performance 

23 standards for the security of covered water sys24 tems; and 


wwoods2 on DSK1DXX6B1PROD with BILLS
97 

HR 2868 RFS 

1 ‘‘(B) establishing requirements and dead2 lines for each covered water system— 

3 ‘‘(i) to conduct a vulnerability assess4 ment or, if the system already has a vul5 nerability assessment, to revise the assess6 ment to be in accordance with this section, 

7 and submit such assessment to the Admin8 istrator; 

9 ‘‘(ii) to update and resubmit the vul10 nerability assessment not less than every 5 

11 years and promptly after any change at 

12 the system that could cause the reassign13 ment of the system to a different risk14 based tier under subsection (d); 

15 ‘‘(iii) to develop, implement, and, as 

16 appropriate, revise a site security plan not 

17 less than every 5 years and promptly after 

18 a revision to the vulnerability assessment 

19 and submit such plan to the Adminis20 trator; 

21 ‘‘(iv) to develop an emergency re22 sponse plan or, if the system has already 

23 developed an emergency response plan, to 

24 revise the plan to be in accordance with 


wwoods2 on DSK1DXX6B1PROD with BILLS
98 

HR 2868 RFS 

1 this section, and revise the plan not less 

2 than every 5 years thereafter; and 

3 ‘‘(v) to provide annual training to em4 ployees and contractor employees of cov5 ered water systems on implementing site 

6 security plans and emergency response 

7 plans. 

8 ‘‘(2) COVERED WATER SYSTEMS.—For purposes 

9 of this section, the term ‘covered water system’ 

10 means a public water system that— 

11 ‘‘(A) is a community water system serving 

12 a population greater than 3,300; or 

13 ‘‘(B) in the discretion of the Adminis14 trator, presents a security risk making regula15 tion under this section appropriate. 

16 ‘‘(3) CONSULTATION WITH STATE AUTHORI17 TIES.—In developing and carrying out the regula18 tions under paragraph (1), the Administrator shall 

19 consult with States exercising primary enforcement 

20 responsibility for public water systems. 

21 ‘‘(4) CONSULTATION WITH OTHER PERSONS.— 

22 In developing and carrying out the regulations under 

23 paragraph (1), the Administrator shall consult with 

24 the Secretary of Homeland Security, and, as appro25 priate, other persons regarding— 


wwoods2 on DSK1DXX6B1PROD with BILLS
99 

HR 2868 RFS 

1 ‘‘(A) provision of threat-related and other 

2 baseline information to covered water systems; 

3 ‘‘(B) designation of substances of concern; 

4 ‘‘(C) development of risk-based perform5 ance standards; 

6 ‘‘(D) establishment of risk-based tiers and 

7 process for the assignment of covered water 

8 systems to risk-based tiers; 

9 ‘‘(E) process for the development and eval10 uation of vulnerability assessments, site security 

11 plans, and emergency response plans; 

12 ‘‘(F) treatment of protected information; 

13 and 

14 ‘‘(G) such other matters as the Adminis15 trator determines necessary. 

16 ‘‘(5) SUBSTANCES OF CONCERN.—For purposes 

17 of this section, the Administrator, in consultation 

18 with the Secretary of Homeland Security— 

19 ‘‘(A) may designate any chemical sub20 stance as a substance of concern; 

21 ‘‘(B) at the time any substance is des22 ignated pursuant to subparagraph (A), shall es23 tablish by rule a threshold quantity for the re24 lease or theft of the substance, taking into ac25 count the toxicity, reactivity, volatility, 


wwoods2 on DSK1DXX6B1PROD with BILLS
100 

HR 2868 RFS 

1 dispersability, combustibility, and flammability 

2 of the substance and the amount of the sub3 stance that, as a result of a release, is known 

4 to cause or may be reasonably anticipated to 

5 cause death, injury, or serious adverse effects to 

6 human health or the environment; and 

7 ‘‘(C) in making such a designation, shall 

8 take into account appendix A to part 27 of title 

9 6, Code of Federal Regulations (or any suc10 cessor regulations). 

11 ‘‘(6) BASELINE INFORMATION.—The Adminis12 trator, after consultation with appropriate depart13 ments and agencies of the Federal Government and 

14 with State, local, and tribal governments, shall, for 

15 purposes of facilitating compliance with the require16 ments of this section, promptly after the effective 

17 date of the regulations under subsection (a)(1) and 

18 as appropriate thereafter, provide baseline informa19 tion to covered water systems regarding which kinds 

20 of intentional acts are the probable threats to— 

21 ‘‘(A) substantially disrupt the ability of the 

22 system to provide a safe and reliable supply of 

23 drinking water; 

24 ‘‘(B) cause the release of a substance of 

25 concern at the covered water system; or 


wwoods2 on DSK1DXX6B1PROD with BILLS
101 

HR 2868 RFS 

1 ‘‘(C) cause the theft, misuse, or misappro2 priation of a substance of concern. 

3 ‘‘(b) RISK-BASED PERFORMANCE STANDARDS.—The 

4 regulations under subsection (a)(1) shall set forth risk5 based performance standards for site security plans re6 quired by this section. The standards shall be separate 

7 and, as appropriate, increasingly stringent based on the 

8 level of risk associated with the covered water system’s 

9 risk-based tier assignment under subsection (d). In devel10 oping such standards, the Administrator shall take into 

11 account section 27.230 of title 6, Code of Federal Regula12 tions (or any successor regulations). 

13 ‘‘(c) VULNERABILITY ASSESSMENT.—The regula14 tions under subsection (a)(1) shall require each covered 

15 water system to assess the system’s vulnerability to a 

16 range of intentional acts, including an intentional act that 

17 results in a release of a substance of concern that is known 

18 to cause or may be reasonably anticipated to cause death, 

19 injury, or serious adverse effects to human health or the 

20 environment. At a minimum, the vulnerability assessment 

21 shall include a review of— 

22 ‘‘(1) pipes and constructed conveyances; 

23 ‘‘(2) physical barriers; 


wwoods2 on DSK1DXX6B1PROD with BILLS
102 

HR 2868 RFS 

1 ‘‘(3) water collection, pretreatment, treatment, 

2 storage, and distribution facilities, including fire hy3 drants; 

4 ‘‘(4) electronic, computer, and other automated 

5 systems that are used by the covered water system; 

6 ‘‘(5) the use, storage, or handling of various 

7 chemicals, including substances of concern; 

8 ‘‘(6) the operation and maintenance of the cov9 ered water system; and 

10 ‘‘(7) the covered water system’s resiliency and 

11 ability to ensure continuity of operations in the 

12 event of a disruption caused by an intentional act. 

13 ‘‘(d) RISK-BASED TIERS.—The regulations under 

14 subsection (a)(1) shall provide for 4 risk-based tiers appli15 cable to covered water systems, with tier one representing 

16 the highest degree of security risk. 

17 ‘‘(1) ASSIGNMENT OF RISK-BASED TIERS.— 

18 ‘‘(A) SUBMISSION OF INFORMATION.—The 

19 Administrator may require a covered water sys20 tem to submit information in order to deter21 mine the appropriate risk-based tier for the cov22 ered water system. 

23 ‘‘(B) FACTORS TO CONSIDER.—The Ad24 ministrator shall assign (and reassign when ap25 propriate) each covered water system to one of 


wwoods2 on DSK1DXX6B1PROD with BILLS
103 

HR 2868 RFS 

1 the risk-based tiers established pursuant to this 

2 subsection. In assigning a covered water system 

3 to a risk-based tier, the Administrator shall 

4 consider the potential consequences (such as 

5 death, injury, or serious adverse effects to 

6 human health, the environment, critical infra7 structure, national security, and the national 

8 economy) from— 

9 ‘‘(i) an intentional act to cause a re10 lease, including a worst-case release, of a 

11 substance of concern at the covered water 

12 system; 

13 ‘‘(ii) an intentional act to introduce a 

14 contaminant into the drinking water sup15 ply or disrupt the safe and reliable supply 

16 of drinking water; and 

17 ‘‘(iii) an intentional act to steal, mis18 appropriate, or misuse substances of con19 cern. 

20 ‘‘(2) EXPLANATION FOR RISK-BASED TIER AS21 SIGNMENT.—The Administrator shall provide each 

22 covered water system assigned to a risk-based tier 

23 with the reasons for the tier assignment and whether 

24 such system is required to submit an assessment 

25 under subsection (g)(2). 


wwoods2 on DSK1DXX6B1PROD with BILLS
104 

HR 2868 RFS 

1 ‘‘(e) DEVELOPMENT AND IMPLEMENTATION OF SITE

2 SECURITY PLANS.—The regulations under subsection 

3 (a)(1) shall permit each covered water system, in devel4 oping and implementing its site security plan required by 

5 this section, to select layered security and preparedness 

6 measures that, in combination, appropriately— 

7 ‘‘(1) address the security risks identified in its 

8 vulnerability assessment; and 

9 ‘‘(2) comply with the applicable risk-based per10 formance standards required under this section. 

11 ‘‘(f) ROLE OF EMPLOYEES.— 

12 ‘‘(1) DESCRIPTION OF ROLE.—Site security 

13 plans and emergency response plans required under 

14 this section shall describe the appropriate roles or 

15 responsibilities that employees and contractor em16 ployees are expected to perform to deter or respond 

17 to the intentional acts described in subsection 

18 (d)(1)(B). 

19 ‘‘(2) TRAINING FOR EMPLOYEES.—Each cov20 ered water system shall annually provide employees 

21 and contractor employees with roles or responsibil22 ities described in paragraph (1) with a minimum of 

23 8 hours of training on carrying out those roles or re24 sponsibilities. 


wwoods2 on DSK1DXX6B1PROD with BILLS
105 

HR 2868 RFS 

1 ‘‘(3) EMPLOYEE PARTICIPATION.—In devel2 oping, revising, or updating a vulnerability assess3 ment, site security plan, and emergency response 

4 plan required under this section, a covered water 

5 system shall include— 

6 ‘‘(A) at least one supervisory and at least 

7 one non-supervisory employee of the covered 

8 water system; and 

9 ‘‘(B) at least one representative of each 

10 certified or recognized bargaining agent rep11 resenting facility employees or contractor em12 ployees with roles or responsibilities described 

13 in paragraph (1), if any, in a collective bar14 gaining relationship with the private or public 

15 owner or operator of the system or with a con16 tractor to that system.

17 ‘‘(g) METHODS TO REDUCE THE CONSEQUENCES OF

18 A CHEMICAL RELEASE FROM AN INTENTIONAL ACT.— 

19 ‘‘(1) DEFINITION.—In this section, the term 

20 ‘method to reduce the consequences of a chemical re21 lease from an intentional act’ means a measure at 

22 a covered water system that reduces or eliminates 

23 the potential consequences of a release of a sub24 stance of concern from an intentional act such as— 


wwoods2 on DSK1DXX6B1PROD with BILLS
106 

HR 2868 RFS 

1 ‘‘(A) the elimination or reduction in the 

2 amount of a substance of concern possessed or 

3 planned to be possessed by a covered water sys4 tem through the use of alternate substances, 

5 formulations, or processes; 

6 ‘‘(B) the modification of pressures, tem7 peratures, or concentrations of a substance of 

8 concern; and 

9 ‘‘(C) the reduction or elimination of onsite 

10 handling of a substance of concern through im11 provement of inventory control or chemical use 

12 efficiency. 

13 ‘‘(2) ASSESSMENT.—For each covered water 

14 system that possesses or plans to possess a sub15 stance of concern in excess of the release threshold 

16 quantity set by the Administrator under subsection 

17 (a)(5), the regulations under subsection (a)(1) shall 

18 require the covered water system to include in its 

19 site security plan an assessment of methods to re20 duce the consequences of a chemical release from an 

21 intentional act at the covered water system. The cov22 ered water system shall provide such assessment to 

23 the Administrator and the State exercising primary 

24 enforcement responsibility for the covered water sys25 tem, if any. The regulations under subsection (a)(1) 


wwoods2 on DSK1DXX6B1PROD with BILLS
107 

HR 2868 RFS 

1 shall require the system, in preparing the assess2 ment, to consider factors appropriate to the system’s 

3 security, public health, or environmental mission, 

4 and include— 

5 ‘‘(A) a description of the methods to re6 duce the consequences of a chemical release 

7 from an intentional act; 

8 ‘‘(B) how each described method to reduce 

9 the consequences of a chemical release from an 

10 intentional act could, if applied, reduce the po11 tential extent of death, injury, or serious ad12 verse effects to human health resulting from a 

13 chemical release; 

14 ‘‘(C) how each described method to reduce 

15 the consequences of a chemical release from an 

16 intentional act could, if applied, affect the pres17 ence of contaminants in treated water, human 

18 health, or the environment; 

19 ‘‘(D) whether each described method to re20 duce the consequences of a chemical release 

21 from an intentional act at the covered water 

22 system is feasible, as defined in section 

23 1412(b)(4)(D), but not including cost calcula24 tions under subparagraph (E); 


wwoods2 on DSK1DXX6B1PROD with BILLS
108 

HR 2868 RFS 

1 ‘‘(E) the costs (including capital and oper2 ational costs) and avoided costs (including sav3 ings and liabilities) associated with applying 

4 each described method to reduce the con5 sequences of a chemical release from an inten6 tional act at the covered water system; 

7 ‘‘(F) any other relevant information that 

8 the covered water system relied on in con9 ducting the assessment; and 

10 ‘‘(G) a statement of whether the covered 

11 water system has implemented or plans to im12 plement one or more methods to reduce the 

13 consequences of a chemical release from an in14 tentional act, a description of any such meth15 ods, and, in the case of a covered water system 

16 described in paragraph (3)(A), an explanation 

17 of the reasons for any decision not to imple18 ment any such methods. 

19 ‘‘(3) REQUIRED METHODS.— 

20 ‘‘(A) APPLICATION.—This paragraph ap21 plies to a covered water system— 

22 ‘‘(i) that is assigned to one of the two 

23 highest risk-based tiers under subsection 

24 (d); and 


wwoods2 on DSK1DXX6B1PROD with BILLS
109 

HR 2868 RFS 

1 ‘‘(ii) that possesses or plans to possess 

2 a substance of concern in excess of the re3 lease threshold quantity set by the Admin4 istrator under subsection (a)(5). 

5 ‘‘(B) HIGHEST-RISK SYSTEMS.—If, on the 

6 basis of its assessment under paragraph (2), a 

7 covered water system described in subparagraph 

8 (A) decides not to implement methods to reduce 

9 the consequences of a chemical release from an 

10 intentional act, the State exercising primary en11 forcement responsibility for the covered water 

12 system, if the system is located in such a State, 

13 or the Administrator, if the covered water sys14 tem is not located in such a State, shall, in ac15 cordance with a timeline set by the Adminis16 trator— 

17 ‘‘(i) determine whether to require the 

18 covered water system to implement the 

19 methods; and 

20 ‘‘(ii) for States exercising primary en21 forcement responsibility, report such deter22 mination to the Administrator. 

23 ‘‘(C) STATE OR ADMINISTRATOR’S CONSID24 ERATIONS.—Before requiring, pursuant to sub25 paragraph (B), the implementation of a method 


wwoods2 on DSK1DXX6B1PROD with BILLS
110 

HR 2868 RFS 

1 to reduce the consequences of a chemical re2 lease from an intentional act, the State exer3 cising primary enforcement responsibility for 

4 the covered water system, if the system is lo5 cated in such a State, or the Administrator, if 

6 the covered water system is not located in such 

7 a State, shall consider factors appropriate to 

8 the security, public health, and environmental 

9 missions of covered water systems, including an 

10 examination of whether the method— 

11 ‘‘(i) would significantly reduce the 

12 risk of death, injury, or serious adverse ef13 fects to human health resulting directly 

14 from a chemical release from an inten15 tional act at the covered water system; 

16 ‘‘(ii) would not increase the interim 

17 storage of a substance of concern by the 

18 covered water system; 

19 ‘‘(iii) would not render the covered 

20 water system unable to comply with other 

21 requirements of this Act or drinking water 

22 standards established by the State or polit23 ical subdivision in which the system is lo24 cated; and 


wwoods2 on DSK1DXX6B1PROD with BILLS
111 

HR 2868 RFS 

1 ‘‘(iv) is feasible, as defined in section 

2 1412(b)(4)(D), to be incorporated into the 

3 operation of the covered water system. 

4 ‘‘(D) APPEAL.—Before requiring, pursuant 

5 to subparagraph (B), the implementation of a 

6 method to reduce the consequences of a chem7 ical release from an intentional act, the State 

8 exercising primary enforcement responsibility 

9 for the covered water system, if the system is 

10 located in such a State, or the Administrator, 

11 if the covered water system is not located in 

12 such a State, shall provide such covered water 

13 system an opportunity to appeal the determina14 tion to require such implementation made pur15 suant to subparagraph (B) by such State or the 

16 Administrator. 

17 ‘‘(4) INCOMPLETE OR LATE ASSESSMENTS.— 

18 ‘‘(A) INCOMPLETE ASSESSMENTS.—If the 

19 Administrator finds that the covered water sys20 tem, in conducting its assessment under para21 graph (2), did not meet the requirements of 

22 paragraph (2) and the applicable regulations, 

23 the Administrator shall, after notifying the cov24 ered water system and the State exercising pri25 mary enforcement responsibility for that sysVerDate Nov 24 2008 23:44 Nov 09, 2009 Jkt 089200 PO 00000 Frm 00111 Fmt 6652 Sfmt 6201 E:\BILLS\H2868.RFS H2868

wwoods2 on DSK1DXX6B1PROD with BILLS
112 

HR 2868 RFS 

1 tem, if any, require the covered water system to 

2 submit a revised assessment not later than 60 

3 days after the Administrator notifies such sys4 tem. The Administrator may require such addi5 tional revisions as are necessary to ensure that 

6 the system meets the requirements of para7 graph (2) and the applicable regulations. 

8 ‘‘(B) LATE ASSESSMENTS.—If the Admin9 istrator finds that a covered water system, in 

10 conducting its assessment pursuant to para11 graph (2), did not complete such assessment in 

12 accordance with the deadline set by the Admin13 istrator, the Administrator may, after notifying 

14 the covered water system and the State exer15 cising primary enforcement responsibility for 

16 that system, if any, take appropriate enforce17 ment action under subsection (o). 

18 ‘‘(C) REVIEW.—The State exercising pri19 mary enforcement responsibility for the covered 

20 water system, if the system is located in such 

21 a State, or the Administrator, if the system is 

22 not located in such a State, shall review a re23 vised assessment that meets the requirements 

24 of paragraph (2) and applicable regulations to 

25 determine whether the covered water system 


wwoods2 on DSK1DXX6B1PROD with BILLS
113 

HR 2868 RFS 

1 will be required to implement methods to reduce 

2 the consequences of an intentional act pursuant 

3 to paragraph (3). 

4 ‘‘(5) ENFORCEMENT.— 

5 ‘‘(A) FAILURE BY STATE TO MAKE DETER6 MINATION.—Whenever the Administrator finds 

7 that a State exercising primary enforcement re8 sponsibility for a covered water system has 

9 failed to determine whether to require the cov10 ered water system to implement methods to re11 duce the consequences of a chemical release 

12 from an intentional act, as required by para13 graph (3)(B), the Administrator shall so notify 

14 the State and covered water system. If, beyond 

15 the thirtieth day after the Administrator’s noti16 fication under the preceding sentence, the State 

17 has failed to make the determination described 

18 in such sentence, the Administrator shall so no19 tify the State and covered water system and 

20 shall determine whether to require the covered 

21 water system to implement methods to reduce 

22 the consequences of a chemical release from an 

23 intentional act based on the factors described in 

24 paragraph (3)(C). 


wwoods2 on DSK1DXX6B1PROD with BILLS
114 

HR 2868 RFS 

1 ‘‘(B) FAILURE BY STATE TO BRING EN2 FORCEMENT ACTION.—If the Administrator 

3 finds, with respect to a period in which a State 

4 has primary enforcement responsibility for a 

5 covered water system, that the system has 

6 failed to implement methods to reduce the con7 sequences of a chemical release from an inten8 tional act (as required by the State or the Ad9 ministrator under paragraph (3)(B) or the Ad10 ministrator under subparagraph (A)), the Ad11 ministrator shall so notify the State and the 

12 covered water system. If, beyond the thirtieth 

13 day after the Administrator’s notification under 

14 the preceding sentence, the State has not com15 menced appropriate enforcement action, the Ad16 ministrator shall so notify the State and may 

17 take appropriate enforcement action under sub18 section (o), to require implementation of such 

19 methods. 

20 ‘‘(C) CONSIDERATION OF CONTINUED PRI21 MARY ENFORCEMENT RESPONSIBILITY.—For a 

22 State with primary enforcement responsibility 

23 for a covered water system, the Administrator 

24 may consider the failure of such State to make 

25 a determination as described under subparaVerDate Nov 24 2008 23:44 Nov 09, 2009 Jkt 089200 PO 00000 Frm 00114 Fmt 6652 Sfmt 6201 E:\BILLS\H2868.RFS H2868

wwoods2 on DSK1DXX6B1PROD with BILLS
115 

HR 2868 RFS 

1 graph (A) or to bring enforcement action as de2 scribed under subparagraph (B) when deter3 mining whether a State may retain primary en4 forcement responsibility under this Act. 

5 ‘‘(6) GUIDANCE FOR COVERED WATER SYSTEMS

6 ASSIGNED TO TIER 3 AND TIER 4.—For covered 

7 water systems required to conduct an assessment 

8 under paragraph (2) and assigned by the Adminis9 trator to tier 3 or tier 4 under subsection (d), the 

10 Administrator shall issue guidance and, as appro11 priate, provide or recommend tools, methodologies, 

12 or computer software, to assist such covered water 

13 systems in complying with the requirements of this 

14 section. 

15 ‘‘(h) REVIEW BY ADMINISTRATOR.— 

16 ‘‘(1) IN GENERAL.—The regulations under sub17 section (a)(1) shall require each covered water sys18 tem to submit its vulnerability assessment and site 

19 security plan to the Administrator for review accord20 ing to deadlines set by the Administrator. The Ad21 ministrator shall review each vulnerability assess22 ment and site security plan submitted under this 

23 section and— 

24 ‘‘(A) if the assessment or plan has any sig25 nificant deficiency described in paragraph (2), 


wwoods2 on DSK1DXX6B1PROD with BILLS
116 

HR 2868 RFS 

1 require the covered water system to correct the 

2 deficiency; or 

3 ‘‘(B) approve such assessment or plan. 

4 ‘‘(2) SIGNIFICANT DEFICIENCIES.—A vulner5 ability assessment or site security plan of a covered 

6 water system has a significant deficiency under this 

7 subsection if the Administrator, in consultation, as 

8 appropriate, with the State exercising primary en9 forcement responsibility for such system, if any, de10 termines that— 

11 ‘‘(A) such assessment does not comply with 

12 the regulations established under section (a)(1); 

13 or 

14 ‘‘(B) such plan— 

15 ‘‘(i) fails to address vulnerabilities 

16 identified in a vulnerability assessment; or 

17 ‘‘(ii) fails to meet applicable risk18 based performance standards.

19 ‘‘(3) STATE, REGIONAL, OR LOCAL GOVERN20 MENTAL ENTITIES.—No covered water system shall 

21 be required under State, local, or tribal law to pro22 vide a vulnerability assessment or site security plan 

23 described in this section to any State, regional, local, 

24 or tribal governmental entity solely by reason of the 

25 requirement set forth in paragraph (1) that the sysVerDate Nov 24 2008 23:44 Nov 09, 2009 Jkt 089200 PO 00000 Frm 00116 Fmt 6652 Sfmt 6201 E:\BILLS\H2868.RFS H2868

wwoods2 on DSK1DXX6B1PROD with BILLS
117 

HR 2868 RFS 

1 tem submit such an assessment and plan to the Ad2 ministrator. 

3 ‘‘(i) EMERGENCY RESPONSE PLAN.— 

4 ‘‘(1) IN GENERAL.—Each covered water system 

5 shall prepare or revise, as appropriate, an emergency 

6 response plan that incorporates the results of the 

7 system’s most current vulnerability assessment and 

8 site security plan. 

9 ‘‘(2) CERTIFICATION.—Each covered water sys10 tem shall certify to the Administrator that the sys11 tem has completed an emergency response plan. The 

12 system shall submit such certification to the Admin13 istrator not later than 6 months after the system’s 

14 first completion or revision of a vulnerability assess15 ment under this section and shall submit an addi16 tional certification following any update of the emer17 gency response plan. 

18 ‘‘(3) CONTENTS.—A covered water system’s 

19 emergency response plan shall include— 

20 ‘‘(A) plans, procedures, and identification 

21 of equipment that can be implemented or used 

22 in the event of an intentional act at the covered 

23 water system; and 

24 ‘‘(B) actions, procedures, and identification 

25 of equipment that can obviate or significantly 


wwoods2 on DSK1DXX6B1PROD with BILLS
118 

HR 2868 RFS 

1 lessen the impact of intentional acts on public 

2 health and the safety and supply of drinking 

3 water provided to communities and individuals. 

4 ‘‘(4) COORDINATION.—As part of its emergency 

5 response plan, each covered water system shall pro6 vide appropriate information to any local emergency 

7 planning committee, local law enforcement officials, 

8 and local emergency response providers to ensure an 

9 effective, collective response. 

10 ‘‘(j) MAINTENANCE OF RECORDS.—Each covered 

11 water system shall maintain an updated copy of its vulner12 ability assessment, site security plan, and emergency re13 sponse plan. 

14 ‘‘(k) AUDIT; INSPECTION.— 

15 ‘‘(1) IN GENERAL.—Notwithstanding section 

16 1445(b)(2), the Administrator, or duly designated 

17 representatives of the Administrator, shall audit and 

18 inspect covered water systems, as necessary, for pur19 poses of determining compliance with this section. 

20 ‘‘(2) ACCESS.—In conducting an audit or in21 spection of a covered water system, the Adminis22 trator or duly designated representatives of the Ad23 ministrator, as appropriate, shall have access to the 

24 owners, operators, employees and contractor employVerDate Nov 24 2008 23:44 Nov 09, 2009 Jkt 089200 PO 00000 Frm 00118 Fmt 6652 Sfmt 6201 E:\BILLS\H2868.RFS H2868

wwoods2 on DSK1DXX6B1PROD with BILLS
119 

HR 2868 RFS 

1 ees, and employee representatives, if any, of such 

2 covered water system. 

3 ‘‘(3) CONFIDENTIAL COMMUNICATION OF IN4 FORMATION; AIDING INSPECTIONS.—The Adminis5 trator, or a duly designated representative of the 

6 Administrator, shall offer non-supervisory employees 

7 of a covered water system the opportunity confiden8 tially to communicate information relevant to the 

9 employer’s compliance or noncompliance with this 

10 section, including compliance or noncompliance with 

11 any regulation or requirement adopted by the Ad12 ministrator in furtherance of the purposes of this 

13 section. A representative of each certified or recog14 nized bargaining agent described in subsection 

15 (f)(3)(B), if any, or, if none, a non-supervisory em16 ployee, shall be given an opportunity to accompany 

17 the Administrator, or the duly designated represent18 ative of the Administrator, during the physical in19 spection of any covered water system for the purpose 

20 of aiding such inspection, if representatives of the 

21 covered water system will also be accompanying the 

22 Administrator or the duly designated representative 

23 of the Administrator on such inspection. 

24 ‘‘(l) PROTECTION OF INFORMATION.— 


wwoods2 on DSK1DXX6B1PROD with BILLS
120 

HR 2868 RFS 

1 ‘‘(1) PROHIBITION OF PUBLIC DISCLOSURE OF

2 PROTECTED INFORMATION.—Protected information 

3 shall— 

4 ‘‘(A) be exempt from disclosure under sec5 tion 552 of title 5, United States Code; and 

6 ‘‘(B) not be made available pursuant to 

7 any State, local, or tribal law requiring disclo8 sure of information or records. 

9 ‘‘(2) INFORMATION SHARING.— 

10 ‘‘(A) IN GENERAL.—The Administrator 

11 shall prescribe such regulations, and may issue 

12 such orders, as necessary to prohibit the unau13 thorized disclosure of protected information. 

14 ‘‘(B) SHARING OF PROTECTED INFORMA15 TION.—The regulations under subparagraph 

16 (A) shall provide standards for and facilitate 

17 the appropriate sharing of protected informa18 tion with and between Federal, State, local, and 

19 tribal authorities, first responders, law enforce20 ment officials, designated supervisory and non21 supervisory covered water system personnel 

22 with security, operational, or fiduciary responsi23 bility for the system, and designated facility 

24 employee representatives, if any. Such stand25 ards shall include procedures for the sharing of 


wwoods2 on DSK1DXX6B1PROD with BILLS
121 

HR 2868 RFS 

1 all portions of a covered water system’s vulner2 ability assessment and site security plan relat3 ing to the roles and responsibilities of system 

4 employees or contractor employees under sub5 section (f)(1) with a representative of each cer6 tified or recognized bargaining agent rep7 resenting such employees, if any, or, if none, 

8 with at least one supervisory and at least one 

9 non-supervisory employee with roles and re10 sponsibilities under subsection (f)(1). 

11 ‘‘(C) PENALTIES.—Protected information 

12 shall not be shared except in accordance with 

13 the standards provided by the regulations under 

14 subparagraph (A). Whoever discloses protected 

15 information in knowing violation of the regula16 tions and orders issued under subparagraph (A) 

17 shall be fined under title 18, United States 

18 Code, imprisoned for not more than one year, 

19 or both, and, in the case of a Federal office20 holder or employee, shall be removed from Fed21 eral office or employment. 

22 ‘‘(3) TREATMENT OF INFORMATION IN ADJU23 DICATIVE PROCEEDINGS.—In any judicial or admin24 istrative proceeding, protected information shall be 

25 treated in a manner consistent with the treatment of 


wwoods2 on DSK1DXX6B1PROD with BILLS
122 

HR 2868 RFS 

1 Sensitive Security Information under section 525 of 

2 the Department of Homeland Security Appropria3 tions Act, 2007 (Public Law 109–295; 120 Stat. 

4 1381). 

5 ‘‘(4) OTHER OBLIGATIONS UNAFFECTED.—Ex6 cept as provided in subsection (h)(3), nothing in this 

7 section amends or affects an obligation of a covered 

8 water system— 

9 ‘‘(A) to submit or make available informa10 tion to system employees, employee organiza11 tions, or a Federal, State, tribal, or local gov12 ernment agency under any other provision of 

13 law; or 

14 ‘‘(B) to comply with any other provision of 

15 law. 

16 ‘‘(5) CONGRESSIONAL OVERSIGHT.—Nothing in 

17 this section permits or authorizes the withholding of 

18 information from Congress or any committee or sub19 committee thereof. 

20 ‘‘(6) DISCLOSURE OF INDEPENDENTLY FUR21 NISHED INFORMATION.—Nothing in this section 

22 amends or affects any authority or obligation of a 

23 Federal, State, local, or tribal agency to protect or 

24 disclose any record or information that the Federal, 

25 State, local, or tribal agency obtains from a covered 


wwoods2 on DSK1DXX6B1PROD with BILLS
123 

HR 2868 RFS 

1 water system or the Administrator under any other 

2 provision of law. 

3 ‘‘(7) PROTECTED INFORMATION.— 

4 ‘‘(A) IN GENERAL.—For purposes of this 

5 section, the term ‘protected information’ means 

6 any of the following: 

7 ‘‘(i) Vulnerability assessments and 

8 site security plans under this section, in9 cluding any assessment developed pursuant 

10 to subsection (g)(2). 

11 ‘‘(ii) Documents directly related to the 

12 Administrator’s review of assessments and 

13 plans described in clause (i) and, as appli14 cable, the State’s review of an assessment 

15 prepared under subsection (g)(2). 

16 ‘‘(iii) Documents directly related to 

17 inspections and audits under this section. 

18 ‘‘(iv) Orders, notices, or letters re19 garding the compliance of a covered water 

20 system with the requirements of this sec21 tion. 

22 ‘‘(v) Information, documents, or 

23 records required to be provided to or cre24 ated by, the Administrator under sub25 section (d). 


wwoods2 on DSK1DXX6B1PROD with BILLS
124 

HR 2868 RFS 

1 ‘‘(vi) Documents directly related to se2 curity drills and training exercises, security 

3 threats and breaches of security, and 

4 maintenance, calibration, and testing of se5 curity equipment. 

6 ‘‘(vii) Other information, documents, 

7 and records developed exclusively for the 

8 purposes of this section that the Adminis9 trator has determined by regulation would 

10 be detrimental to the security of one or 

11 more covered water systems if disclosed. 

12 ‘‘(B) DETRIMENT REQUIREMENT.—For 

13 purposes of clauses (ii), (iii), (iv), (v), and (vi) 

14 of subparagraph (A), the only portions of docu15 ments, records, orders, notices, and letters that 

16 shall be considered protected information are 

17 those portions that— 

18 ‘‘(i) the Secretary has determined by 

19 regulation would be detrimental to the se20 curity of one or more covered water sys21 tems if disclosed; and 

22 ‘‘(ii) are developed by the Adminis23 trator, the State, or the covered water sys24 tem for the purposes of this section. 


wwoods2 on DSK1DXX6B1PROD with BILLS
125 

HR 2868 RFS 

1 ‘‘(C) EXCLUSIONS.—Notwithstanding sub2 paragraphs (A) and (B), the term ‘protected in3 formation’ does not include— 

4 ‘‘(i) information, other than a security 

5 vulnerability assessment or site security 

6 plan, that the Administrator has deter7 mined by regulation to be— 

8 ‘‘(I) appropriate to describe sys9 tem compliance with the requirements 

10 of this title and the Administrator’s 

11 implementation of such requirements; 

12 and 

13 ‘‘(II) not detrimental to the secu14 rity of one or more covered water sys15 tems if disclosed; or 

16 ‘‘(ii) information, whether or not also 

17 contained in a security vulnerability assess18 ment, site security plan, or in a document, 

19 record, order, notice, or letter, or portion 

20 thereof, described in any of clauses (ii) 

21 through (vii) of subparagraph (A) that is 

22 obtained from another source with respect 

23 to which the Administrator has not made 

24 a determination under either subparagraph 

25 (A)(vii) or (B), including— 


wwoods2 on DSK1DXX6B1PROD with BILLS
126 

HR 2868 RFS 

1 ‘‘(I) information that is required 

2 to be made publicly available under 

3 any other provision of law; and 

4 ‘‘(II) information that a covered 

5 water system has lawfully disclosed 

6 other than in a submission to the Ad7 ministrator pursuant to a requirement 

8 of this title. 

9 ‘‘(m) RELATION TO CHEMICAL FACILITY SECURITY

10 REQUIREMENTS.—Title XXI of the Homeland Security 

11 Act of 2002 and title I of the Chemical and Water Secu12 rity Act of 2009 shall not apply to any public water system 

13 subject to this Act. 

14 ‘‘(n) PREEMPTION.—This section does not preclude 

15 or deny the right of any State or political subdivision 

16 thereof to adopt or enforce any regulation, requirement, 

17 or standard of performance with respect to a covered 

18 water system that is more stringent than a regulation, re19 quirement, or standard of performance under this section. 

20 ‘‘(o) VIOLATIONS.— 

21 ‘‘(1) IN GENERAL.—A covered water system 

22 that violates any requirement of this section, includ23 ing by not implementing all or part of its site secu24 rity plan by such date as the Administrator requires, 

25 shall be liable for a civil penalty of not more than 


wwoods2 on DSK1DXX6B1PROD with BILLS
127 

HR 2868 RFS 

1 $25,000 for each day on which the violation oc2 curs. 

3 ‘‘(2) PROCEDURE.—When the Administrator 

4 determines that a covered water system is subject to 

5 a civil penalty under paragraph (1), the Adminis6 trator, after consultation with the State, for covered 

7 water systems located in a State exercising primary 

8 responsibility for the covered water system, and, 

9 after considering the severity of the violation or defi10 ciency and the record of the covered water system in 

11 carrying out the requirements of this section, may— 

12 ‘‘(A) after notice and an opportunity for 

13 the covered water system to be heard, issue an 

14 order assessing a penalty under such paragraph 

15 for any past or current violation, requiring com16 pliance immediately or within a specified time 

17 period; or 

18 ‘‘(B) commence a civil action in the United 

19 States district court in the district in which the 

20 violation occurred for appropriate relief, includ21 ing temporary or permanent injunction. 

22 ‘‘(3) METHODS TO REDUCE THE CON23 SEQUENCES OF A CHEMICAL RELEASE FROM AN IN24 TENTIONAL ACT.—Except as provided in subsections 

25 (g)(4) and (g)(5), if a covered water system is loVerDate Nov 24 2008 23:44 Nov 09, 2009 Jkt 089200 PO 00000 Frm 00127 Fmt 6652 Sfmt 6201 E:\BILLS\H2868.RFS H2868

wwoods2 on DSK1DXX6B1PROD with BILLS
128 

HR 2868 RFS 

1 cated in a State exercising primary enforcement re2 sponsibility for the system, the Administrator may 

3 not issue an order or commence a civil action under 

4 this section for any deficiency in the content or im5 plementation of the portion of the system’s site secu6 rity plan relating to methods to reduce the con7 sequences of a chemical release from an intentional 

8 act (as defined in subsection (g)(1)). 

9 ‘‘(p) REPORT TO CONGRESS.— 

10 ‘‘(1) PERIODIC REPORT.—Not later than 3 

11 years after the effective date of the regulations 

12 under subsection (a)(1), and every 3 years there13 after, the Administrator shall transmit to the Com14 mittee on Energy and Commerce of the House of 

15 Representatives and the Committee on Environment 

16 and Public Works of the Senate a report on progress 

17 in achieving compliance with this section. Each such 

18 report shall include, at a minimum, the following: 

19 ‘‘(A) A generalized summary of measures 

20 implemented by covered water systems in order 

21 to meet each risk-based performance standard 

22 established by this section. 

23 ‘‘(B) A summary of how the covered water 

24 systems, differentiated by risk-based tier as25 signment, are complying with the requirements 


wwoods2 on DSK1DXX6B1PROD with BILLS
129 

HR 2868 RFS 

1 of this section during the period covered by the 

2 report and how the Administrator is imple3 menting and enforcing such requirements dur4 ing such period including— 

5 ‘‘(i) the number of public water sys6 tems that provided the Administrator with 

7 information pursuant to subsection (d)(1); 

8 ‘‘(ii) the number of covered water sys9 tems assigned to each risk-based tier; 

10 ‘‘(iii) the number of vulnerability as11 sessments and site security plans sub12 mitted by covered water systems; 

13 ‘‘(iv) the number of vulnerability as14 sessments and site security plans approved 

15 and disapproved by the Administrator; 

16 ‘‘(v) the number of covered water sys17 tems without approved vulnerability assess18 ments or site security plans; 

19 ‘‘(vi) the number of covered water sys20 tems that have been assigned to a different 

21 risk-based tier due to implementation of a 

22 method to reduce the consequences of a 

23 chemical release from an intentional act 

24 and a description of the types of such im25 plemented methods; 


wwoods2 on DSK1DXX6B1PROD with BILLS
130 

HR 2868 RFS 

1 ‘‘(vii) the number of audits and in2 spections conducted by the Administrator 

3 or duly designated representatives of the 

4 Administrator; 

5 ‘‘(viii) the number of orders for com6 pliance issued by the Administrator; 

7 ‘‘(ix) the administrative penalties as8 sessed by the Administrator for non-com9 pliance with the requirements of this sec10 tion; 

11 ‘‘(x) the civil penalties assessed by 

12 courts for non-compliance with the require13 ments of this section; and 

14 ‘‘(xi) any other regulatory data the 

15 Administrator determines appropriate to 

16 describe covered water system compliance 

17 with the requirements of this section and 

18 the Administrator’s implementation of 

19 such requirements. 

20 ‘‘(2) PUBLIC AVAILABILITY.—A report sub21 mitted under this section shall be made publicly 

22 available. 

23 ‘‘(q) GRANT PROGRAMS.— 

24 ‘‘(1) IMPLEMENTATION GRANTS TO STATES.— 

25 The Administrator may award grants to, or enter 


wwoods2 on DSK1DXX6B1PROD with BILLS
131 

HR 2868 RFS 

1 into cooperative agreements with, States, based on 

2 an allocation formula established by the Adminis3 trator, to assist the States in implementing this sec4 tion. 

5 ‘‘(2) RESEARCH, TRAINING, AND TECHNICAL

6 ASSISTANCE GRANTS.—The Administrator may 

7 award grants to, or enter into cooperative agree8 ments with, non-profit organizations to provide re9 search, training, and technical assistance to covered 

10 water systems to assist them in carrying out their 

11 responsibilities under this section. 

12 ‘‘(3) PREPARATION GRANTS.— 

13 ‘‘(A) GRANTS.—The Administrator may 

14 award grants to, or enter into cooperative 

15 agreements with, covered water systems to as16 sist such systems in— 

17 ‘‘(i) preparing and updating vulner18 ability assessments, site security plans, and 

19 emergency response plans; 

20 ‘‘(ii) assessing and implementing 

21 methods to reduce the consequences of a 

22 release of a substance of concern from an 

23 intentional act; and 


wwoods2 on DSK1DXX6B1PROD with BILLS
132 

HR 2868 RFS 

1 ‘‘(iii) implementing any other security 

2 reviews and enhancements necessary to 

3 comply with this section. 

4 ‘‘(B) PRIORITY.— 

5 ‘‘(i) NEED.—The Administrator, in 

6 awarding grants or entering into coopera7 tive agreements for purposes described in 

8 subparagraph (A)(i), shall give priority to 

9 covered water systems that have the great10 est need. 

11 ‘‘(ii) SECURITY RISK.—The Adminis12 trator, in awarding grants or entering into 

13 cooperative agreements for purposes de14 scribed in subparagraph (A)(ii), shall give 

15 priority to covered water systems that pose 

16 the greatest security risk. 

17 ‘‘(4) WORKER TRAINING GRANTS PROGRAM AU18 THORITY.— 

19 ‘‘(A) IN GENERAL.—The Administrator 

20 shall establish a grant program to award grants 

21 to eligible entities to provide for training and 

22 education of employees and contractor employ23 ees with roles or responsibilities described in 

24 subsection (f)(1) and first responders and emerVerDate Nov 24 2008 23:44 Nov 09, 2009 Jkt 089200 PO 00000 Frm 00132 Fmt 6652 Sfmt 6201 E:\BILLS\H2868.RFS H2868

wwoods2 on DSK1DXX6B1PROD with BILLS
133 

HR 2868 RFS 

1 gency response providers who would respond to 

2 an intentional act at a covered water system. 

3 ‘‘(B) ADMINISTRATION.—The Adminis4 trator shall enter into an agreement with the 

5 National Institute of Environmental Health 

6 Sciences to make and administer grants under 

7 this paragraph. 

8 ‘‘(C) USE OF FUNDS.—The recipient of a 

9 grant under this paragraph shall use the grant 

10 to provide for— 

11 ‘‘(i) training and education of employ12 ees and contractor employees with roles or 

13 responsibilities described in subsection 

14 (f)(1), including the annual mandatory 

15 training specified in subsection (f)(2) or 

16 training for first responders in protecting 

17 nearby persons, property, or the environ18 ment from the effects of a release of a sub19 stance of concern at the covered water sys20 tem, with priority given to covered water 

21 systems assigned to tier one or tier two 

22 under subsection (d); and 

23 ‘‘(ii) appropriate training for first re24 sponders and emergency response proVerDate Nov 24 2008 23:44 Nov 09, 2009 Jkt 089200 PO 00000 Frm 00133 Fmt 6652 Sfmt 6201 E:\BILLS\H2868.RFS H2868

wwoods2 on DSK1DXX6B1PROD with BILLS
134 

HR 2868 RFS 

1 viders who would respond to an intentional 

2 act at a covered water system. 

3 ‘‘(D) ELIGIBLE ENTITIES.—For purposes 

4 of this paragraph, an eligible entity is a non5 profit organization with demonstrated experi6 ence in implementing and operating successful 

7 worker or first responder health and safety or 

8 security training programs. 

9 ‘‘(r) AUTHORIZATION OF APPROPRIATIONS.— 

10 ‘‘(1) IN GENERAL.—To carry out this section, 

11 there are authorized to be appropriated— 

12 ‘‘(A) $315,000,000 for fiscal year 2011, of 

13 which up to— 

14 ‘‘(i) $30,000,000 may be used for ad15 ministrative costs incurred by the Adminis16 trator or the States, as appropriate; and 

17 ‘‘(ii) $125,000,000 may be used to 

18 implement methods to reduce the con19 sequences of a chemical release from an in20 tentional act at covered water systems with 

21 priority given to covered water systems as22 signed to tier one or tier two under sub23 section (d); and 

24 ‘‘(B) such sums as may be necessary for 

25 fiscal years 2012 through 2015. 


wwoods2 on DSK1DXX6B1PROD with BILLS
135 

HR 2868 RFS 

1 ‘‘(2) SECURITY ENHANCEMENTS.—Funding 

2 under this subsection for basic security enhance3 ments shall not include expenditures for personnel 

4 costs or monitoring, operation, or maintenance of fa5 cilities, equipment, or systems.’’. 

6 (b) REGULATIONS; TRANSITION.— 

7 (1) REGULATIONS.—Not later than 2 years 

8 after the date of the enactment of this title, the Ad9 ministrator of the Environmental Protection Agency 

10 shall promulgate final regulations to carry out sec11 tion 1433 of the Safe Drinking Water Act, as 

12 amended by subsection (a). 

13 (2) EFFECTIVE DATE.—Until the effective date 

14 of the regulations promulgated under paragraph (1), 

15 section 1433 of the Safe Drinking Water Act, as in 

16 effect on the day before the date of the enactment 

17 of this title, shall continue to apply. 

18 (3) SAVINGS PROVISION.—Nothing in this sec19 tion or the amendment made by this section shall af20 fect the application of section 1433 of the Safe 

21 Drinking Water Act, as in effect before the effective 

22 date of the regulations promulgated under para23 graph (1), to any violation of such section 1433 oc24 curring before such effective date, and the require25 ments of such section 1433 shall remain in force and 


wwoods2 on DSK1DXX6B1PROD with BILLS
136 

HR 2868 RFS 

1 effect with respect to such violation until the viola2 tion has been corrected or enforcement proceedings 

3 completed, whichever is later. 

4 SEC. 203. STUDY TO ASSESS THE THREAT OF CONTAMINA5 TION OF DRINKING WATER DISTRIBUTION 

6 SYSTEMS. 

7 Not later than 180 days after the date of the enact8 ment of this title, the Administrator of the Environmental 

9 Protection Agency, in consultation with the Secretary of 

10 Homeland Security, shall— 

11 (1) conduct a study to assess the threat to 

12 drinking water posed by an intentional act of con13 tamination, and the vulnerability of public water sys14 tems, including fire hydrants, to such a threat; and 

15 (2) submit a report to the Congress on the re16 sults of such study. 

17 TITLE III—WASTEWATER 

18 TREATMENT WORKS SECURITY 

19 SEC. 301. SHORT TITLE. 

20 This title may be cited as the ‘‘Wastewater Treat21 ment Works Security Act of 2009’’. 

22 SEC. 302. WASTEWATER TREATMENT WORKS SECURITY. 

23 (a) IN GENERAL.—Title II of the Federal Water Pol24 lution Control Act (33 U.S.C. 1281 et seq.) is amended 

25 by adding at the end the following: 


wwoods2 on DSK1DXX6B1PROD with BILLS
137 

HR 2868 RFS 

1 ‘‘SEC. 222. WASTEWATER TREATMENT WORKS SECURITY. 

2 ‘‘(a) ASSESSMENT OF TREATMENT WORKS VULNER3 ABILITY AND IMPLEMENTATION OF SITE SECURITY AND

4 EMERGENCY RESPONSE PLANS.— 

5 ‘‘(1) IN GENERAL.—Each owner or operator of 

6 a treatment works with either a treatment capacity 

7 of at least 2,500,000 gallons per day or, in the dis8 cretion of the Administrator, that presents a secu9 rity risk making coverage under this section appro10 priate shall, consistent with regulations developed 

11 under subsection (b)— 

12 ‘‘(A) conduct and, as required, update a 

13 vulnerability assessment of its treatment works; 

14 ‘‘(B) develop, periodically update, and im15 plement a site security plan for the treatment 

16 works; and 

17 ‘‘(C) develop and, as required, revise an 

18 emergency response plan for the treatment 

19 works. 

20 ‘‘(2) VULNERABILITY ASSESSMENT.— 

21 ‘‘(A) DEFINITION.—In this section, the 

22 term ‘vulnerability assessment’ means an as23 sessment of the vulnerability of a treatment 

24 works to intentional acts that may— 


wwoods2 on DSK1DXX6B1PROD with BILLS
138 

HR 2868 RFS 

1 ‘‘(i) substantially disrupt the ability of 

2 the treatment works to safely and reliably 

3 operate; or 

4 ‘‘(ii) have a substantial adverse effect 

5 on critical infrastructure, public health or 

6 safety, or the environment. 

7 ‘‘(B) REVIEW.—A vulnerability assessment 

8 shall include an identification of the vulner9 ability of the treatment works’— 

10 ‘‘(i) facilities, systems, and devices 

11 used in the storage, treatment, recycling, 

12 or reclamation of municipal sewage or in13 dustrial wastes; 

14 ‘‘(ii) intercepting sewers, outfall sew15 ers, sewage collection systems, and other 

16 constructed conveyances under the control 

17 of the owner or operator of the treatment 

18 works; 

19 ‘‘(iii) electronic, computer, and other 

20 automated systems; 

21 ‘‘(iv) pumping, power, and other 

22 equipment; 

23 ‘‘(v) use, storage, and handling of var24 ious chemicals, including substances of 


wwoods2 on DSK1DXX6B1PROD with BILLS
139 

HR 2868 RFS 

1 concern, as identified by the Adminis2 trator; 

3 ‘‘(vi) operation and maintenance pro4 cedures; and 

5 ‘‘(vii) ability to ensure continuity of 

6 operations. 

7 ‘‘(3) SITE SECURITY PLAN.— 

8 ‘‘(A) DEFINITION.—In this section, the 

9 term ‘site security plan’ means a process devel10 oped by the owner or operator of a treatment 

11 works to address security risks identified in a 

12 vulnerability assessment developed for the treat13 ment works. 

14 ‘‘(B) IDENTIFICATION OF SECURITY EN15 HANCEMENTS.—A site security plan carried out 

16 under paragraph (1)(B) shall identify specific 

17 security enhancements, including procedures, 

18 countermeasures, or equipment, that, when im19 plemented or utilized, will reduce the 

20 vulnerabilities identified in a vulnerability as21 sessment (including the identification of the ex22 tent to which implementation or utilization of 

23 such security enhancements may impact the op24 erations of the treatment works in meeting the 

25 goals and requirements of this Act). 


wwoods2 on DSK1DXX6B1PROD with BILLS
140 

HR 2868 RFS 

1 ‘‘(b) RULEMAKING AND GUIDANCE DOCUMENTS.— 

2 ‘‘(1) IN GENERAL.—Not later than December 

3 31, 2010, the Administrator, after providing notice 

4 and an opportunity for public comment, shall issue 

5 regulations— 

6 ‘‘(A) establishing risk-based performance 

7 standards for the security of a treatment works 

8 identified under subsection (a)(1); and 

9 ‘‘(B) establishing requirements and dead10 lines for each owner or operator of a treatment 

11 works identified under subsection (a)(1)— 

12 ‘‘(i) to conduct and submit to the Ad13 ministrator a vulnerability assessment or, 

14 if the owner or operator of a treatment 

15 works already has conducted a vulner16 ability assessment, to revise and submit to 

17 the Administrator such assessment in ac18 cordance with this section; 

19 ‘‘(ii) to update and submit to the Ad20 ministrator the vulnerability assessment 

21 not less than every 5 years and promptly 

22 after any change at the treatment works 

23 that could cause the reassignment of the 

24 treatment works to a different risk-based 

25 tier under paragraph (2)(B); 


wwoods2 on DSK1DXX6B1PROD with BILLS
141 

HR 2868 RFS 

1 ‘‘(iii) to develop and implement a site 

2 security plan and to update such plan not 

3 less than every 5 years and promptly after 

4 an update to the vulnerability assessment; 

5 ‘‘(iv) to develop an emergency re6 sponse plan (or, if the owner or operator of 

7 a treatment works has already developed 

8 an emergency response plan, to revise the 

9 plan to be in accordance with this section) 

10 and to revise the plan not less than every 

11 5 years and promptly after an update to 

12 the vulnerability assessment; and 

13 ‘‘(v) to provide annual training to em14 ployees of the treatment works on imple15 menting site security plans and emergency 

16 response plans. 

17 ‘‘(2) RISK-BASED TIERS AND PERFORMANCE

18 STANDARDS.— 

19 ‘‘(A) IN GENERAL.—In developing regula20 tions under this subsection, the Administrator 

21 shall— 

22 ‘‘(i) provide for 4 risk-based tiers ap23 plicable to treatment works identified 

24 under subsection (a)(1), with tier one repVerDate Nov 24 2008 23:44 Nov 09, 2009 Jkt 089200 PO 00000 Frm 00141 Fmt 6652 Sfmt 6201 E:\BILLS\H2868.RFS H2868

wwoods2 on DSK1DXX6B1PROD with BILLS
142 

HR 2868 RFS 

1 resenting the highest degree of security 

2 risk; and 

3 ‘‘(ii) establish risk-based performance 

4 standards for site security plans and emer5 gency response plans required under this 

6 section. 

7 ‘‘(B) RISK-BASED TIERS.— 

8 ‘‘(i) ASSIGNMENT OF RISK-BASED

9 TIERS.—The Administrator shall assign 

10 (and reassign when appropriate) each 

11 treatment works identified under sub12 section (a)(1) to one of the risk-based tiers 

13 established pursuant to this paragraph. 

14 ‘‘(ii) FACTORS TO CONSIDER.—In as15 signing a treatment works to a risk-based 

16 tier, the Administrator shall consider— 

17 ‘‘(I) the size of the treatment 

18 works; 

19 ‘‘(II) the proximity of the treat20 ment works to large population cen21 ters; 

22 ‘‘(III) the adverse impacts of an 

23 intentional act, including a worst-case 

24 release of a substance of concern des25 ignated under subsection (c), on the 


wwoods2 on DSK1DXX6B1PROD with BILLS
143 

HR 2868 RFS 

1 operation of the treatment works or 

2 on critical infrastructure, public 

3 health or safety, or the environment; 

4 and 

5 ‘‘(IV) any other factor that the 

6 Administrator determines to be appro7 priate. 

8 ‘‘(iii) INFORMATION REQUEST FOR

9 TREATMENT WORKS.—The Administrator 

10 may require the owner or operator of a 

11 treatment works identified under sub12 section (a)(1) to submit information in 

13 order to determine the appropriate risk14 based tier for the treatment works. 

15 ‘‘(iv) EXPLANATION FOR RISK-BASED

16 TIER ASSIGNMENT.—The Administrator 

17 shall provide the owner or operator of each 

18 treatment works assigned to a risk-based 

19 tier with the reasons for the tier assign20 ment and whether such owner or operator 

21 of a treatment works is required to submit 

22 an assessment under paragraph (3)(B). 

23 ‘‘(C) RISK-BASED PERFORMANCE STAND24 ARDS.— 


wwoods2 on DSK1DXX6B1PROD with BILLS
144 

HR 2868 RFS 

1 ‘‘(i) CLASSIFICATION.—In establishing 

2 risk-based performance standards under 

3 subparagraph (A)(ii), the Administrator 

4 shall ensure that the standards are sepa5 rate and, as appropriate, increasingly more 

6 stringent based on the level of risk associ7 ated with the risk-based tier assignment 

8 under subparagraph (B) for the treatment 

9 works. 

10 ‘‘(ii) CONSIDERATION.—In carrying 

11 out this subparagraph, the Administrator 

12 shall take into account section 27.230 of 

13 title 6, Code of Federal Regulations (or 

14 any successor regulation). 

15 ‘‘(D) SITE SECURITY PLANS.— 

16 ‘‘(i) IN GENERAL.—In developing reg17 ulations under this subsection, the Admin18 istrator shall permit the owner or operator 

19 of a treatment works identified under sub20 section (a)(1), in developing and imple21 menting a site security plan, to select lay22 ered security and preparedness measures 

23 that, in combination— 


wwoods2 on DSK1DXX6B1PROD with BILLS
145 

HR 2868 RFS 

1 ‘‘(I) address the security risks 

2 identified in its vulnerability assess3 ment; and 

4 ‘‘(II) comply with the applicable 

5 risk-based performance standards re6 quired by this subsection. 

7 ‘‘(3) METHODS TO REDUCE THE CON8 SEQUENCES OF A CHEMICAL RELEASE FROM AN IN9 TENTIONAL ACT.— 

10 ‘‘(A) DEFINITION.—In this section, the 

11 term ‘method to reduce the consequences of a 

12 chemical release from an intentional act’ means 

13 a measure at a treatment works identified 

14 under subsection (a)(1) that reduces or elimi15 nates the potential consequences of a release of 

16 a substance of concern designated under sub17 section (c) from an intentional act, such as— 

18 ‘‘(i) the elimination of or a reduction 

19 in the amount of a substance of concern 

20 possessed or planned to be possessed by a 

21 treatment works through the use of alter22 nate substances, formulations, or proc23 esses; 


wwoods2 on DSK1DXX6B1PROD with BILLS
146 

HR 2868 RFS 

1 ‘‘(ii) the modification of pressures, 

2 temperatures, or concentrations of a sub3 stance of concern; and 

4 ‘‘(iii) the reduction or elimination of 

5 onsite handling of a substance of concern 

6 through the improvement of inventory con7 trol or chemical use efficiency. 

8 ‘‘(B) ASSESSMENT.— 

9 ‘‘(i) IN GENERAL.—In developing the 

10 regulations under this subsection, for each 

11 treatment works identified under sub12 section (a)(1) that possesses or plans to 

13 possess a substance of concern in excess of 

14 the release threshold quantity set by the 

15 Administrator under subsection (c)(2), the 

16 Administrator shall require the treatment 

17 works to include in its site security plan an 

18 assessment of methods to reduce the con19 sequences of a chemical release from an in20 tentional act at the treatment works. 

21 ‘‘(ii) CONSIDERATIONS FOR ASSESS22 MENT.—In developing the regulations 

23 under this subsection, the Administrator 

24 shall require the owner or operator of each 

25 treatment works, in preparing the assessVerDate Nov 24 2008 23:44 Nov 09, 2009 Jkt 089200 PO 00000 Frm 00146 Fmt 6652 Sfmt 6201 E:\BILLS\H2868.RFS H2868

wwoods2 on DSK1DXX6B1PROD with BILLS
147 

HR 2868 RFS 

1 ment, to consider factors appropriate to 

2 address the responsibilities of the treat3 ment works to meet the goals and require4 ments of this Act and to include— 

5 ‘‘(I) a description of the methods 

6 to reduce the consequences of a chem7 ical release from an intentional act; 

8 ‘‘(II) a description of how each 

9 described method to reduce the con10 sequences of a chemical release from 

11 an intentional act could, if applied— 

12 ‘‘(aa) reduce the extent of 

13 death, injury, or serious adverse 

14 effects to human health or the 

15 environment as a result of a re16 lease, theft, or misappropriation 

17 of a substance of concern des18 ignated under subsection (c); and 

19 ‘‘(bb) impact the operations 

20 of the treatment works in meet21 ing the goals and requirements of 

22 this Act; 

23 ‘‘(III) whether each described 

24 method to reduce the consequences of 

25 a chemical release from an intentional 


wwoods2 on DSK1DXX6B1PROD with BILLS
148 

HR 2868 RFS 

1 act at the treatment works is feasible, 

2 as determined by the Administrator; 

3 ‘‘(IV) the costs (including capital 

4 and operational costs) and avoided 

5 costs (including potential savings) as6 sociated with applying each described 

7 method to reduce the consequences of 

8 a chemical release from an intentional 

9 act at the treatment works; 

10 ‘‘(V) any other relevant informa11 tion that the owner or operator of a 

12 treatment works relied on in con13 ducting the assessment; and 

14 ‘‘(VI) a statement of whether the 

15 owner or operator of a treatment 

16 works has implemented or plans to 

17 implement a method to reduce the 

18 consequences of a chemical release 

19 from an intentional act, a description 

20 of any such method, and, in the case 

21 of a treatment works described in sub22 paragraph (C)(i), an explanation of 

23 the reasons for any decision not to 

24 implement any such method. 

25 ‘‘(C) REQUIRED METHODS.— 


wwoods2 on DSK1DXX6B1PROD with BILLS
149 

HR 2868 RFS 

1 ‘‘(i) APPLICATION.—This subpara2 graph applies to a treatment works identi3 fied under subsection (a)(1) that— 

4 ‘‘(I) is assigned to one of the two 

5 highest risk-based tiers established 

6 under paragraph (2)(A); and 

7 ‘‘(II) possesses or plans to pos8 sess a substance of concern in excess 

9 of the threshold quantity set by the 

10 Administrator under subsection (c)(2). 

11 ‘‘(ii) HIGHEST-RISK SYSTEMS.—If, on 

12 the basis of its assessment developed pur13 suant to subparagraph (B), the owner or 

14 operator of a treatment works described in 

15 clause (i) decides not to implement a meth16 od to reduce the consequences of a chem17 ical release from an intentional act, in ac18 cordance with a timeline set by the Admin19 istrator— 

20 ‘‘(I) the Administrator or, where 

21 applicable, a State with an approved 

22 program under section 402, shall de23 termine whether to require the owner 

24 or operator of a treatment works to 

25 implement such method; and 


wwoods2 on DSK1DXX6B1PROD with BILLS
150 

HR 2868 RFS 

1 ‘‘(II) in the case of a State with 

2 such approved program, the State 

3 shall report such determination to the 

4 Administrator. 

5 ‘‘(iii) CONSIDERATIONS.—Before re6 quiring the implementation of a method to 

7 reduce the consequences of a chemical re8 lease from an intentional act under clause 

9 (ii), the Administrator or a State, as the 

10 case may be, shall consider factors appro11 priate to address the responsibilities of the 

12 treatment works to meet the goals and re13 quirements of this Act, including an exam14 ination of whether the method— 

15 ‘‘(I) would significantly reduce 

16 the risk of death, injury, or serious 

17 adverse effects to human health re18 sulting from a chemical release from 

19 an intentional act at the treatment 

20 works; 

21 ‘‘(II) would not increase the in22 terim storage by the treatment works 

23 of a substance of concern designated 

24 under subsection (c); 


wwoods2 on DSK1DXX6B1PROD with BILLS
151 

HR 2868 RFS 

1 ‘‘(III) could impact the oper2 ations of the treatment works in meet3 ing the goals and requirements of this 

4 Act or any more stringent standards 

5 established by the State or munici6 pality in which the treatment works is 

7 located; and 

8 ‘‘(IV) is feasible, as determined 

9 by the Administrator, to be incor10 porated into the operations of the 

11 treatment works. 

12 ‘‘(D) APPEAL.—Before requiring the im13 plementation of a method to reduce the con14 sequences of a chemical release from an inten15 tional act under clause (ii), the Administrator 

16 or a State, as the case may be, shall provide the 

17 owner or operator of the treatment works an 

18 opportunity to appeal the determination to re19 quire such implementation. 

20 ‘‘(E) INCOMPLETE OR LATE ASSESS21 MENTS.— 

22 ‘‘(i) INCOMPLETE ASSESSMENTS.—If 

23 the Administrator determines that a treat24 ment works fails to meet the requirements 

25 of subparagraph (B) and the applicable 


wwoods2 on DSK1DXX6B1PROD with BILLS
152 

HR 2868 RFS 

1 regulations, the Administrator shall, after 

2 notifying the owner or operator of a treat3 ment works and the State in which the 

4 treatment works is located, require the 

5 owner or operator of the treatment works 

6 to submit a revised assessment not later 

7 than 60 days after the Administrator noti8 fies the owner or operator. The Adminis9 trator may require such additional revi10 sions as are necessary to ensure that the 

11 treatment works meets the requirements of 

12 subparagraph (B) and the applicable regu13 lations. 

14 ‘‘(ii) LATE ASSESSMENTS.—If the Ad15 ministrator finds that the owner or oper16 ator of a treatment works, in conducting 

17 an assessment pursuant to subparagraph 

18 (B), did not complete such assessment in 

19 accordance with the deadline set by the 

20 Administrator, the Administrator may, 

21 after notifying the owner or operator of the 

22 treatment works and the State in which 

23 the treatment works is located, take appro24 priate enforcement action under subsection 

25 (j). 


wwoods2 on DSK1DXX6B1PROD with BILLS
153 

HR 2868 RFS 

1 ‘‘(iii) REVIEW.—A State with an ap2 proved program under section 402 or the 

3 Administrator, as the case may be, shall 

4 review a revised assessment that meets the 

5 requirements of subparagraph (B) and ap6 plicable regulations to determine whether 

7 the treatment works will be required to im8 plement methods to reduce the con9 sequences of a chemical release from an in10 tentional act pursuant to subparagraph 

11 (C). 

12 ‘‘(F) ENFORCEMENT.— 

13 ‘‘(i) FAILURE BY STATE TO MAKE DE14 TERMINATION.— 

15 ‘‘(I) IN GENERAL.—If the Ad16 ministrator determines that a State 

17 with an approved program under sec18 tion 402 failed to determine whether 

19 to require a treatment works to imple20 ment a method to reduce the con21 sequences of a chemical release from 

22 an intentional act, as required by sub23 paragraph (C)(ii), the Administrator 

24 shall notify the State and the owner 

25 or operator of the treatment works. 


wwoods2 on DSK1DXX6B1PROD with BILLS
154 

HR 2868 RFS 

1 ‘‘(II) ADMINISTRATIVE AC2 TION.—If, after 30 days after the no3 tification described in subclause (I), a 

4 State fails to make the determination 

5 described in that subclause, the Ad6 ministrator shall notify the State and 

7 the owner or operator of the treat8 ment works and shall determine 

9 whether to require the owner or oper10 ator to implement a method to reduce 

11 the consequences of a chemical release 

12 from an intentional act based on the 

13 factors described in subparagraph 

14 (C)(iii). 

15 ‘‘(ii) FAILURE BY STATE TO BRING

16 ENFORCEMENT ACTION.— 

17 ‘‘(I) IN GENERAL.—If, in a State 

18 with an approved program under sec19 tion 402, the Administrator deter20 mines that the owner or operator of a 

21 treatment works fails to implement a 

22 method to reduce the consequences of 

23 a chemical release from an intentional 

24 act (as required by the State or the 

25 Administrator under subparagraph 


wwoods2 on DSK1DXX6B1PROD with BILLS
155 

HR 2868 RFS 

1 (C)(ii) or the Administrator under 

2 clause (i)(II)), the Administrator shall 

3 notify the State and the owner or op4 erator of the treatment works. 

5 ‘‘(II) ADMINISTRATIVE ENFORCE6 MENT ACTION.—If, after 30 days 

7 after the notification described in sub8 clause (I), the State has not com9 menced appropriate enforcement ac10 tion, the Administrator shall notify 

11 the State and may commence an en12 forcement action against the owner or 

13 operator of the treatment works, in14 cluding by seeking or imposing civil 

15 penalties under subsection (j), to re16 quire implementation of such method. 

17 ‘‘(4) CONSULTATION WITH STATE AUTHORI18 TIES.—In developing the regulations under this sub19 section, the Administrator shall consult with States 

20 with approved programs under section 402. 

21 ‘‘(5) CONSULTATION WITH OTHER PERSONS.— 

22 In developing the regulations under this subsection, 

23 the Administrator shall consult with the Secretary of 

24 Homeland Security, and, as appropriate, other per25 sons regarding— 


wwoods2 on DSK1DXX6B1PROD with BILLS
156 

HR 2868 RFS 

1 ‘‘(A) the provision of threat-related and 

2 other baseline information to treatment works 

3 identified under subsection (a)(1); 

4 ‘‘(B) the designation of substances of con5 cern under subsection (c); 

6 ‘‘(C) the development of risk-based per7 formance standards; 

8 ‘‘(D) the establishment of risk-based tiers 

9 and the process for the assignment of treatment 

10 works identified under subsection (a)(1) to such 

11 tiers; 

12 ‘‘(E) the process for the development and 

13 evaluation of vulnerability assessments, site se14 curity plans, and emergency response plans; 

15 ‘‘(F) the treatment of protected informa16 tion; and 

17 ‘‘(G) any other factor that the Adminis18 trator determines to be appropriate. 

19 ‘‘(6) CONSIDERATION.—In developing the regu20 lations under this subsection, the Administrator 

21 shall ensure that such regulations are consistent 

22 with the goals and requirements of this Act. 

23 ‘‘(c) SUBSTANCES OF CONCERN.—For purposes of 

24 this section, the Administrator, in consultation with the 

25 Secretary of Homeland Security— 


wwoods2 on DSK1DXX6B1PROD with BILLS
157 

HR 2868 RFS 

1 ‘‘(1) may designate any chemical substance as 

2 a substance of concern; 

3 ‘‘(2) at the time any chemical substance is des4 ignated pursuant to paragraph (1), shall establish by 

5 rulemaking a threshold quantity for the release or 

6 theft of a substance, taking into account the toxicity, 

7 reactivity, volatility, dispersability, combustability, 

8 and flammability of the substance and the amount 

9 of the substance, that, as a result of the release or 

10 theft, is known to cause, or may be reasonably an11 ticipated to cause, death, injury, or serious adverse 

12 impacts to human health or the environment; and 

13 ‘‘(3) in making such a designation, shall take 

14 into account appendix A to part 27 of title 6, Code 

15 of Federal Regulations (or any successor regulation). 

16 ‘‘(d) REVIEW OF VULNERABILITY ASSESSMENT AND

17 SITE SECURITY PLAN.— 

18 ‘‘(1) IN GENERAL.—Each owner or operator of 

19 a treatment works identified under subsection (a)(1) 

20 shall submit its vulnerability assessment and site se21 curity plan to the Administrator for review in ac22 cordance with deadlines established by the Adminis23 trator. 

24 ‘‘(2) STANDARD OF REVIEW.—The Adminis25 trator shall review each vulnerability assessment and 


wwoods2 on DSK1DXX6B1PROD with BILLS
158 

HR 2868 RFS 

1 site security plan submitted under this subsection 

2 and— 

3 ‘‘(A) if the assessment or plan has a sig4 nificant deficiency described in paragraph (3), 

5 require the owner or operator of the treatment 

6 works to correct the deficiency; or 

7 ‘‘(B) approve such assessment or plan. 

8 ‘‘(3) SIGNIFICANT DEFICIENCY.—A vulner9 ability assessment or site security plan of a treat10 ment works has a significant deficiency under this 

11 subsection if the Administrator, in consultation, as 

12 appropriate, with a State with an approved program 

13 under section 402, determines that— 

14 ‘‘(A) such assessment does not comply with 

15 the regulations promulgated under subsection 

16 (b); or 

17 ‘‘(B) such plan— 

18 ‘‘(i) fails to address vulnerabilities 

19 identified in a vulnerability assessment; or 

20 ‘‘(ii) fails to meet applicable risk21 based performance standards. 

22 ‘‘(4) IDENTIFICATION OF DEFICIENCIES.—If 

23 the Administrator identifies a significant deficiency 

24 in the vulnerability assessment or site security plan 

25 of an owner or operator of a treatment works under 


wwoods2 on DSK1DXX6B1PROD with BILLS
159 

HR 2868 RFS 

1 paragraph (3), the Administrator shall provide the 

2 owner or operator with a written notification of the 

3 deficiency that— 

4 ‘‘(A) includes a clear explanation of the de5 ficiency in the vulnerability assessment or site 

6 security plan; 

7 ‘‘(B) provides guidance to assist the owner 

8 or operator in addressing the deficiency; and 

9 ‘‘(C) requires the owner or operator to cor10 rect the deficiency and, by such date as the Ad11 ministrator determines appropriate, to submit 

12 to the Administrator a revised vulnerability as13 sessment or site security plan. 

14 ‘‘(5) STATE, LOCAL, OR TRIBAL GOVERN15 MENTAL ENTITIES.—No owner or operator of a 

16 treatment works identified under subsection (a)(1) 

17 shall be required under State, local, or tribal law to 

18 provide a vulnerability assessment or site security 

19 plan described in this section to any State, local, or 

20 tribal governmental entity solely by reason of the re21 quirement set forth in paragraph (1) that the owner 

22 or operator of a treatment works submit such an as23 sessment and plan to the Administrator. 

24 ‘‘(e) EMERGENCY RESPONSE PLAN.— 


wwoods2 on DSK1DXX6B1PROD with BILLS
160 

HR 2868 RFS 

1 ‘‘(1) IN GENERAL.—The owner or operator of a 

2 treatment works identified under subsection (a)(1) 

3 shall develop or revise, as appropriate, an emergency 

4 response plan that incorporates the results of the 

5 current vulnerability assessment and site security 

6 plan for the treatment works. 

7 ‘‘(2) CERTIFICATION.—The owner or operator 

8 of a treatment works identified under subsection 

9 (a)(1) shall certify to the Administrator that the 

10 owner or operator has completed an emergency re11 sponse plan, shall submit such certification to the 

12 Administrator not later than 6 months after the first 

13 completion or revision of a vulnerability assessment 

14 under this section, and shall submit an additional 

15 certification following any update of the emergency 

16 response plan. 

17 ‘‘(3) CONTENTS.—An emergency response plan 

18 shall include a description of— 

19 ‘‘(A) plans, procedures, and identification 

20 of equipment that can be implemented or used 

21 in the event of an intentional act at the treat22 ment works; and 

23 ‘‘(B) actions, procedures, and identification 

24 of equipment that can obviate or significantly 

25 reduce the impact of intentional acts to— 


wwoods2 on DSK1DXX6B1PROD with BILLS
161 

HR 2868 RFS 

1 ‘‘(i) substantially disrupt the ability of 

2 the treatment works to safely and reliably 

3 operate; or 

4 ‘‘(ii) have a substantial adverse effect 

5 on critical infrastructure, public health or 

6 safety, or the environment. 

7 ‘‘(4) COORDINATION.—As part of its emergency 

8 response plan, the owner or operator of a treatment 

9 works shall provide appropriate information to any 

10 local emergency planning committee, local law en11 forcement officials, and local emergency response 

12 providers to ensure an effective, collective response. 

13 ‘‘(f) ROLE OF EMPLOYEES.— 

14 ‘‘(1) DESCRIPTION OF ROLE.—Site security 

15 plans and emergency response plans required under 

16 this section shall describe the appropriate roles or 

17 responsibilities that employees and contractor em18 ployees of treatment works are expected to perform 

19 to deter or respond to the intentional acts identified 

20 in a current vulnerability assessment. 

21 ‘‘(2) TRAINING FOR EMPLOYEES.—The owner 

22 or operator of a treatment works identified under 

23 subsection (a)(1) shall annually provide employees 

24 and contractor employees with the roles or respon25 sibilities described in paragraph (1) with sufficient 


wwoods2 on DSK1DXX6B1PROD with BILLS
162 

HR 2868 RFS 

1 training, as determined by the Administrator, on 

2 carrying out those roles or responsibilities. 

3 ‘‘(3) EMPLOYEE PARTICIPATION.—In devel4 oping, revising, or updating a vulnerability assess5 ment, site security plan, and emergency response 

6 plan required under this section, the owner or oper7 ator of a treatment works shall include— 

8 ‘‘(A) at least one supervisory and at least 

9 one nonsupervisory employee of the treatment 

10 works; and 

11 ‘‘(B) at least one representative of each 

12 certified or recognized bargaining agent rep13 resenting facility employees or contractor em14 ployees with roles or responsibilities described 

15 in paragraph (1), if any, in a collective bar16 gaining relationship with the owner or operator 

17 of the treatment works or with a contractor to 

18 the treatment works. 

19 ‘‘(g) MAINTENANCE OF RECORDS.—The owner or op20 erator of a treatment works identified under subsection 

21 (a)(1) shall maintain an updated copy of its vulnerability 

22 assessment, site security plan, and emergency response 

23 plan on the premises of the treatment works. 

24 ‘‘(h) AUDIT; INSPECTION.— 


wwoods2 on DSK1DXX6B1PROD with BILLS
163 

HR 2868 RFS 

1 ‘‘(1) IN GENERAL.—The Administrator shall 

2 audit and inspect a treatment works identified under 

3 subsection (a)(1), as necessary, for purposes of de4 termining compliance with this section. 

5 ‘‘(2) ACCESS.—In conducting an audit or in6 spection of a treatment works under paragraph (1), 

7 the Administrator shall have access to the owners, 

8 operators, employees and contractor employees, and 

9 employee representatives, if any, of such treatment 

10 works. 

11 ‘‘(3) CONFIDENTIAL COMMUNICATION OF IN12 FORMATION; AIDING INSPECTIONS.—The Adminis13 trator shall offer nonsupervisory employees of a 

14 treatment works the opportunity confidentially to 

15 communicate information relevant to the compliance 

16 or noncompliance of the owner or operator of the 

17 treatment works with this section, including compli18 ance or noncompliance with any regulation or re19 quirement adopted by the Administrator in further20 ance of the purposes of this section. A representative 

21 of each certified or recognized bargaining agent de22 scribed in subsection (f)(3)(B), if any, or, if none, a 

23 nonsupervisory employee, shall be given an oppor24 tunity to accompany the Administrator during the 

25 physical inspection of any treatment works for the 


wwoods2 on DSK1DXX6B1PROD with BILLS
164 

HR 2868 RFS 

1 purpose of aiding such inspection, if representatives 

2 of the treatment works will also be accompanying 

3 the Administrator on such inspection. 

4 ‘‘(i) PROTECTION OF INFORMATION.— 

5 ‘‘(1) PROHIBITION OF PUBLIC DISCLOSURE OF

6 PROTECTED INFORMATION.—Protected information 

7 shall— 

8 ‘‘(A) be exempt from disclosure under sec9 tion 552 of title 5, United States Code; and 

10 ‘‘(B) not be made available pursuant to 

11 any State, local, or tribal law requiring disclo12 sure of information or records. 

13 ‘‘(2) INFORMATION SHARING.— 

14 ‘‘(A) IN GENERAL.—The Administrator 

15 shall prescribe such regulations, and may issue 

16 such orders, as necessary to prohibit the unau17 thorized disclosure of protected information, as 

18 described in paragraph (7). 

19 ‘‘(B) SHARING OF PROTECTED INFORMA20 TION.—The regulations under subparagraph 

21 (A) shall provide standards for and facilitate 

22 the appropriate sharing of protected informa23 tion with and among Federal, State, local, and 

24 tribal authorities, first responders, law enforce25 ment officials, supervisory and nonsupervisory 


wwoods2 on DSK1DXX6B1PROD with BILLS
165 

HR 2868 RFS 

1 treatment works personnel with security, oper2 ational, or fiduciary responsibility for the sys3 tem designated by the owner or operator of the 

4 treatment works, and facility employee rep5 resentatives designated by the owner or oper6 ator of the treatment works, if any. 

7 ‘‘(C) INFORMATION SHARING PROCE8 DURES.—Such standards shall include proce9 dures for the sharing of all portions of the vul10 nerability assessment and site security plan of 

11 a treatment works relating to the roles and re12 sponsibilities of the employees or contractor em13 ployees of a treatment works under subsection 

14 (f)(1) with a representative of each certified or 

15 recognized bargaining agent representing such 

16 employees, if any, or, if none, with at least one 

17 supervisory and at least one non-supervisory 

18 employee with roles and responsibilities under 

19 subsection (f)(1). 

20 ‘‘(D) PENALTIES.—Protected information, 

21 as described in paragraph (7), shall not be 

22 shared except in accordance with the standards 

23 provided by the regulations under subparagraph 

24 (A). Whoever discloses protected information in 

25 knowing violation of the regulations and orders 


wwoods2 on DSK1DXX6B1PROD with BILLS
166 

HR 2868 RFS 

1 issued under subparagraph (A) shall be fined 

2 under title 18, United States Code, imprisoned 

3 for not more than one year, or both, and, in the 

4 case of a Federal officeholder or employee, shall 

5 be removed from Federal office or employment. 

6 ‘‘(3) TREATMENT OF INFORMATION IN ADJU7 DICATIVE PROCEEDINGS.—In any judicial or admin8 istrative proceeding, protected information, as de9 scribed in paragraph (7), shall be treated in a man10 ner consistent with the treatment of sensitive secu11 rity information under section 525 of the Depart12 ment of Homeland Security Appropriations Act, 

13 2007 (120 Stat. 1381). 

14 ‘‘(4) OTHER OBLIGATIONS UNAFFECTED.— 

15 Nothing in this section amends or affects an obliga16 tion of the owner or operator of a treatment works 

17 to— 

18 ‘‘(A) submit or make available information 

19 to employees of the treatment works, employee 

20 organizations, or a Federal, State, local, or trib21 al government agency under any other provision 

22 of law; or 

23 ‘‘(B) comply with any other provision of 

24 law. 


wwoods2 on DSK1DXX6B1PROD with BILLS
167 

HR 2868 RFS 

1 ‘‘(5) CONGRESSIONAL OVERSIGHT.—Nothing in 

2 this section permits or authorizes the withholding of 

3 information from Congress or any committee or sub4 committee thereof. 

5 ‘‘(6) DISCLOSURE OF INDEPENDENTLY FUR6 NISHED INFORMATION.—Nothing in this section 

7 amends or affects any authority or obligation of a 

8 Federal, State, local, or tribal agency to protect or 

9 disclose any record or information that the Federal, 

10 State, local, or tribal agency obtains from a treat11 ment works or the Administrator under any other 

12 provision of law except as provided in subsection 

13 (d)(5). 

14 ‘‘(7) PROTECTED INFORMATION.— 

15 ‘‘(A) IN GENERAL.—For purposes of this 

16 section, the term ‘protected information’ means 

17 any of the following: 

18 ‘‘(i) Vulnerability assessments and 

19 site security plans under this section, in20 cluding any assessment developed under 

21 subsection (b)(3)(B). 

22 ‘‘(ii) Documents directly related to the 

23 Administrator’s review of assessments and 

24 plans described in clause (i) and, as appliVerDate Nov 24 2008 23:44 Nov 09, 2009 Jkt 089200 PO 00000 Frm 00167 Fmt 6652 Sfmt 6201 E:\BILLS\H2868.RFS H2868

wwoods2 on DSK1DXX6B1PROD with BILLS
168 

HR 2868 RFS 

1 cable, the State’s review of an assessment 

2 developed under subsection (b)(3)(B). 

3 ‘‘(iii) Documents directly related to 

4 inspections and audits under this section. 

5 ‘‘(iv) Orders, notices, or letters re6 garding the compliance of a treatment 

7 works described in subsection (a)(1) with 

8 the requirements of this section. 

9 ‘‘(v) Information required to be pro10 vided to, or documents and records created 

11 by, the Administrator under subsection 

12 (b)(2). 

13 ‘‘(vi) Documents directly related to se14 curity drills and training exercises, security 

15 threats and breaches of security, and 

16 maintenance, calibration, and testing of se17 curity equipment. 

18 ‘‘(vii) Other information, documents, 

19 and records developed for the purposes of 

20 this section that the Administrator has de21 termined by regulation would be detri22 mental to the security of a treatment 

23 works if disclosed. 

24 ‘‘(B) DETRIMENT REQUIREMENT.—For 

25 purposes of clauses (ii), (iii), (iv), (v), and (vi) 


wwoods2 on DSK1DXX6B1PROD with BILLS
169 

HR 2868 RFS 

1 of subparagraph (A), the only portions of docu2 ments, records, orders, notices, and letters that 

3 shall be considered protected information are 

4 those portions that— 

5 ‘‘(i) the Secretary has determined by 

6 regulation would be detrimental to the se7 curity of a treatment works if disclosed; 

8 and 

9 ‘‘(ii) are developed by the Adminis10 trator, the State, or the treatment works 

11 for the purposes of this section. 

12 ‘‘(C) EXCLUSIONS.—Notwithstanding sub13 paragraphs (A) and (B), the term ‘protected in14 formation’ does not include— 

15 ‘‘(i) information, other than a security 

16 vulnerability assessment or site security 

17 plan, that the Administrator has deter18 mined by regulation to be— 

19 ‘‘(I) appropriate to describe 

20 treatment works compliance with the 

21 requirements of this title and the Ad22 ministrator’s implementation of such 

23 requirements; and 


wwoods2 on DSK1DXX6B1PROD with BILLS
170 

HR 2868 RFS 

1 ‘‘(II) not detrimental to the secu2 rity of one or more treatment works if 

3 disclosed; or 

4 ‘‘(ii) information, whether or not also 

5 contained in a security vulnerability assess6 ment, site security plan, or in a document, 

7 record, order, notice, or letter, or portion 

8 thereof, described in any of clauses (ii) 

9 through (vii) of subparagraph (A) that is 

10 obtained from another source with respect 

11 to which the Administrator has not made 

12 a determination under either subparagraph 

13 (A)(vii) or (B), including— 

14 ‘‘(I) information that is required 

15 to be made publicly available under 

16 any other provision of law; and 

17 ‘‘(II) information that a treat18 ment works has lawfully disclosed 

19 other than in a submission to the Ad20 ministrator pursuant to a requirement 

21 of this title. 

22 ‘‘(j) VIOLATIONS.—For the purposes of section 309 

23 of this Act, any violation of any requirement of this sec24 tion, including any regulations promulgated pursuant to 

25 this section, by an owner or operator of a treatment works 


wwoods2 on DSK1DXX6B1PROD with BILLS
171 

HR 2868 RFS 

1 described in subsection (a)(1) shall be treated in the same 

2 manner as a violation of a permit condition under section 

3 402 of this Act. 

4 ‘‘(k) REPORT TO CONGRESS.— 

5 ‘‘(1) PERIODIC REPORT.—Not later than 3 

6 years after the effective date of the regulations 

7 issued under subsection (b) and every 3 years there8 after, the Administrator shall transmit to the Com9 mittee on Transportation and Infrastructure of the 

10 House of Representatives and the Committee on En11 vironment and Public Works of the Senate a report 

12 on progress in achieving compliance with this sec13 tion. 

14 ‘‘(2) CONTENTS OF THE REPORT.—Each such 

15 report shall include, at a minimum, the following: 

16 ‘‘(A) A generalized summary of measures 

17 implemented by the owner or operator of a 

18 treatment works identified under subsection 

19 (a)(1) in order to meet each risk-based per20 formance standard established by this section. 

21 ‘‘(B) A summary of how the treatment 

22 works, differentiated by risk-based tier assign23 ment, are complying with the requirements of 

24 this section during the period covered by the re25 port and how the Administrator is impleVerDate Nov 24 2008 23:44 Nov 09, 2009 Jkt 089200 PO 00000 Frm 00171 Fmt 6652 Sfmt 6201 E:\BILLS\H2868.RFS H2868

wwoods2 on DSK1DXX6B1PROD with BILLS
172 

HR 2868 RFS 

1 menting and enforcing such requirements dur2 ing such period, including— 

3 ‘‘(i) the number of treatment works 

4 that provided the Administrator with infor5 mation pursuant to subsection 

6 (b)(2)(B)(iii); 

7 ‘‘(ii) the number of treatment works 

8 assigned to each risk-based tier; 

9 ‘‘(iii) the number of vulnerability as10 sessments and site security plans sub11 mitted by treatment works; 

12 ‘‘(iv) the number of vulnerability as13 sessments and site security plans approved 

14 or found to have a significant deficiency 

15 under subsection (d)(2) by the Adminis16 trator; 

17 ‘‘(v) the number of treatment works 

18 without approved vulnerability assessments 

19 or site security plans; 

20 ‘‘(vi) the number of treatment works 

21 that have been assigned to a different risk22 based tier due to implementation of a 

23 method to reduce the consequences of a 

24 chemical release from an intentional act 


wwoods2 on DSK1DXX6B1PROD with BILLS
173 

HR 2868 RFS 

1 and a description of the types of such im2 plemented methods; 

3 ‘‘(vii) the number of audits and in4 spections conducted by the Administrator; 

5 and 

6 ‘‘(viii) any other regulatory data the 

7 Administrator determines appropriate to 

8 describe the compliance of owners or oper9 ators of treatment works with the require10 ments of this section and the Administra11 tor’s implementation of such requirements. 

12 ‘‘(3) PUBLIC AVAILABILITY.—A report sub13 mitted under this section shall be made publicly 

14 available. 

15 ‘‘(l) GRANTS FOR VULNERABILITY ASSESSMENTS, 

16 SECURITY ENHANCEMENTS, AND WORKER TRAINING

17 PROGRAMS.— 

18 ‘‘(1) IN GENERAL.—The Administrator may 

19 make a grant to a State, municipality, or inter20 municipal or interstate agency— 

21 ‘‘(A) to conduct or update a vulnerability 

22 assessment, site security plan, or emergency re23 sponse plan for a publicly owned treatment 

24 works identified under subsection (a)(1); 


wwoods2 on DSK1DXX6B1PROD with BILLS
174 

HR 2868 RFS 

1 ‘‘(B) to implement a security enhancement 

2 at a publicly owned treatment works identified 

3 under subsection (a)(1), including a method to 

4 reduce the consequences of a chemical release 

5 from an intentional act, identified in an ap6 proved site security plan and listed in para7 graph (2); 

8 ‘‘(C) to implement an additional security 

9 enhancement at a publicly owned treatment 

10 works identified under subsection (a)(1), includ11 ing a method to reduce the consequences of a 

12 chemical release from an intentional act, identi13 fied in an approved site security plan; and 

14 ‘‘(D) to provide for security-related train15 ing of employees or contractor employees of the 

16 treatment works and training for first respond17 ers and emergency response providers. 

18 ‘‘(2) GRANTS FOR SECURITY ENHANCE19 MENTS.— 

20 ‘‘(A) PREAPPROVED SECURITY ENHANCE21 MENTS.—The Administrator may make a grant 

22 under paragraph (1)(B) to implement a secu23 rity enhancement of a treatment works for one 

24 or more of the following: 


wwoods2 on DSK1DXX6B1PROD with BILLS
175 

HR 2868 RFS 

1 ‘‘(i) Purchase and installation of 

2 equipment for access control, intrusion 

3 prevention and delay, and detection of in4 truders and hazardous or dangerous sub5 stances, including— 

6 ‘‘(I) barriers, fencing, and gates; 

7 ‘‘(II) security lighting and cam8 eras; 

9 ‘‘(III) metal grates, wire mesh, 

10 and outfall entry barriers; 

11 ‘‘(IV) securing of manhole covers 

12 and fill and vent pipes; 

13 ‘‘(V) installation and re-keying of 

14 doors and locks; and 

15 ‘‘(VI) smoke, chemical, and ex16 plosive mixture detection systems. 

17 ‘‘(ii) Security improvements to elec18 tronic, computer, or other automated sys19 tems and remote security systems, includ20 ing controlling access to such systems, in21 trusion detection and prevention, and sys22 tem backup. 

23 ‘‘(iii) Participation in training pro24 grams and the purchase of training manuVerDate Nov 24 2008 23:44 Nov 09, 2009 Jkt 089200 PO 00000 Frm 00175 Fmt 6652 Sfmt 6201 E:\BILLS\H2868.RFS H2868

wwoods2 on DSK1DXX6B1PROD with BILLS
176 

HR 2868 RFS 

1 als and guidance materials relating to se2 curity. 

3 ‘‘(iv) Security screening of employees 

4 or contractor support services. 

5 ‘‘(B) ADDITIONAL SECURITY ENHANCE6 MENTS.—The Administrator may make a grant 

7 under paragraph (1)(C) for additional security 

8 enhancements not listed in subparagraph (A) 

9 that are identified in an approved site security 

10 plan. The additional security enhancements 

11 may include the implementation of a method to 

12 reduce the consequences of a chemical release 

13 from an intentional act. 

14 ‘‘(C) LIMITATION ON USE OF FUNDS.— 

15 Grants under this subsection may not be used 

16 for personnel costs or operation or maintenance 

17 of facilities, equipment, or systems. 

18 ‘‘(D) FEDERAL SHARE.—The Federal 

19 share of the cost of activities funded by a grant 

20 under paragraph (1) may not exceed 75 per21 cent. 

22 ‘‘(3) ELIGIBILITY.—To be eligible for a grant 

23 under this subsection, a State, municipality, or 

24 intermunicipal or interstate agency shall submit in25 formation to the Administrator at such time, in such 


wwoods2 on DSK1DXX6B1PROD with BILLS
177 

HR 2868 RFS 

1 form, and with such assurances as the Administrator 

2 may require. 

3 ‘‘(m) PREEMPTION.—This section does not preclude 

4 or deny the right of any State or political subdivision 

5 thereof to adopt or enforce any regulation, requirement, 

6 or standard of performance with respect to a treatment 

7 works that is more stringent than a regulation, require8 ment, or standard of performance under this section. 

9 ‘‘(n) AUTHORIZATION OF APPROPRIATIONS.—There 

10 is authorized to be appropriated to the Administrator 

11 $200,000,000 for each of fiscal years 2010 through 2014 

12 for making grants under subsection (l). Such sums shall 

13 remain available until expended. 

14 ‘‘(o) RELATION TO CHEMICAL FACILITY SECURITY

15 REQUIREMENTS.—Title XXI of the Homeland Security 

16 Act of 2002 and title I of the Chemical and Water Secu17 rity Act of 2009 shall not apply to any treatment works.’’. 

Passed the House of Representatives November 6, 

2009. 

Attest: LORRAINE C. MILLER, 

Clerk. 


wwoods2 on DSK1DXX6B1PROD with BILLS