H.R. 2868: The Chemical Facility Anti-Terrorism Act of 2009

H.R. 2868

The Chemical Facility Anti-Terrorism Act of 2009

Sponsor
Rep. Bennie G. Thompson

Date
November 5, 2009 (111th Congress, 1st Session)

Staff Contact
Communications

Floor Situation

H.R. 2868 is expected to be considered under a structured rule making ten amendments in order. The bill was introduced by Rep. Bennie Thompson (D-MS) on June 15, 2009. H.R. 2868 was considered by both the Committee on Energy and Commerce and the Committee on Homeland Security. Republicans on both panels opposed the bill. The legislation was reported by Energy and Commerce by a vote of 29-18 and out of Homeland Security by a vote of 18-11.

The rule for H.R. 2868 additionally allows for bills to be considered under suspension of the rules through November 7, 2009.

 

Bill Summary

H.R. 2868 amends the authority of the Department of Homeland Security (DHS) and the Environmental Protection Agency (EPA) to protect against acts of terrorism against chemical facilities, wastewater treatment works, and drinking water systems.  The bill also makes DHS' Chemical Facility Anti-Terrorism Standards permanent (see Background section below).

The bill authorizes a total of $900 million over three years for chemical security, including $325 million in Fiscal Year 2011, of which $100 million would be available for methods to reduce the consequences of a terrorist attack, $300 million in Fiscal Year 2012, of which $75 million would be available for methods to reduce the consequences of a terrorist attack, and $275 million in Fiscal Year 2013, of which $50 million would be available for methods to reduce the consequences of a terrorist attack.  

Risk-Based Designation and Ranking of Chemical Facilities:  H.R. 2868 authorizes DHS to designate any chemical substance as a "substance of concern" and establish threshold quantities for each such chemical that is used, stored, manufactured, processed, or distributed by a chemical facility.  Considerations would include the potential for death, serious adverse effects to human health, the environment, critical infrastructure, national security, or the national economy from a terrorist incident.

The bill requires DHS to maintain a list of facilities that have more than a threshold quantity of a "substance of concern" and pose a security risk based on criteria such as the potential threat or likelihood of a terrorist attack at the facility, the potential harm from a terrorist incident, and the proximity of the facility to large population centers.  DHS could require a facility to submit information regarding the facility's substances of concern to determine whether it would be covered under the list. 

H.R. 2868 also requires DHS to assign each covered facility to one of at least four risk-based tiers, with Tier 1 being the highest-risk.  DHS would periodically review the list of substances of concern and the threshold quantities, and could at any time add, remove, or change the tier assignment for each facility.  DHS would be responsible for providing covered facilities with relevant information about probable threats.

Security Vulnerability Assessments & Site Security Plans:  H.R. 2868 requires DHS to establish risk-based, performance-based standards, and procedures for mandatory security vulnerability assessments and site security plans, and to set deadlines by tier for completion.  DHS would approve or disapprove the assessments and security plans within 180 days of receipt.  The bill directs facilities to review and resubmit their security vulnerability assessments and site security plans every five years.  Facilities would have to notify DHS if they change their use or storage of a substance of concern or modify operations.

Site Inspections:   The bill allows DHS a right of entry at reasonable times to chemical facilities to conduct security verifications and inspections.  For Tier 1 and Tier 2 facilities, DHS would also conduct unannounced inspections to evaluate compliance with requirements of the bill.  H.R. 2868 requires DHS to increase its number of chemical facility inspectors by at least 100 in Fiscal Years 2011 and 2012.  During inspections, DHS would be required to offer employees the opportunity to share information about the facility's compliance or non-compliance. 

Records:  The bill allows DHS to require the submission of, or access to, a chemical facility's records in order to review its security vulnerability assessment or site security plan.

Information Sharing:  H.R. 2868 requires DHS to provide information concerning a threat that is relevant to a specific chemical facility in a timely manner.  Likewise, facilities would be required to report any threat, significant security incident, or penetration of the facility's cyber or physical security to DHS.

Enforcement:  For owners or operators of facilities deemed to be in violation of the bill, H.R. 2868 allows the Secretary to issue a fine of $25,000 per day.  The Secretary may also issue an order to cease operations at the facility until compliance is achieved to the satisfaction of DHS.

Whistleblower Protections:  The bill directs DHS to establish a process for any person to report deficiencies or vulnerabilities at a chemical facility.  The identity of the person would be kept confidential and retaliation against whistleblowers would be prohibited.  Any employee who alleges retaliation occurred could seek review in district court.

Lack of Federal Preemption:  The bill allows any State or local government to issue a regulation, requirement, or standard or performance for chemical facility security that is more stringent than the federal statute.

Information Protection:  H.R. 2868 gives DHS authority to promulgate regulations and issue orders to prohibit the unauthorized disclosure of protected information.  DHS would provide standards for the appropriate sharing of protected information with federal, State, local, and tribal governments, law enforcement and first responders, and designated chemical facility personnel.  Any person who discloses protected information in knowing violation would be subject to criminal penalties and removal from federal office or employment.  The legislation defines protected information to include vulnerability assessments and site security plans and portions of other security-related documents, and records that would be detrimental to the security of covered chemical facilities if disclosed.  The bill does not prohibit the sharing of information with Members of Congress.

Methods to Reduce Consequences of an Attack:  The bill requires the owner or operator of a covered chemical facility to include in its site security plan an assessment of methods to reduce the consequences of a terrorist attack (more commonly referred to as "Inherently Safer Technologies."  The Director of a new Office of Chemical Facility Security could require a facility to implement methods to reduce consequences of a terrorist attack, if the director determines that certain conditions are met.  An owner or operator of a facility could provide a written appeal to DHS, within 120 days, explaining why it cannot comply with the determination.

Background Checks:  The bill requires DHS to issue regulations requiring chemical facilities to establish personnel background checks for individuals with access to restricted areas of the facility's critical assets.  The regulations would describe the appropriate scope and applications for security background checks.  If, as the result of a background check, a chemical facility finds that an individual is not legally authorized to work in the U.S., or meets certain criminal history disqualifiers, the owner or operator shall cease to employ the individual, subject to redress processes available to the individual.

Citizen "Enforcement" and Petitions:  The bill allows any person to bring a civil action in district court against any governmental entity allegedly in violation of the Act or against the Secretary for an alleged failure to perform any act or duty under the bill.

The bill also requires DHS to establish a petition process to receive, investigate, and respond to allegations of violations at covered facilities.  DHS would establish the parameters of the petition process and the procedures for the Inspector General's review of DHS' response to a petition.  DHS would be required to accept all petitions, investigate all allegations, determine whether an enforcement action is required, and respond to all accepted petitions in writing.

Drinking Water Security:  H.R. 2868 authorizes the EPA to regulate the security of community water systems serving more than 3,300 people, as well as other public water systems that EPA determines present a security risk.  The bill authorizes $315 million in Fiscal Year 2011 for grants to States and nonprofits to help develop security plans for covered public water systems.  $30 million of this total could be used for administrative costs incurred by the EPA or States, and $125 million could be used to implement methods to reduce the consequences of a chemical release from an intentional act at water systems.  The measure authorizes such sums that may be necessary in Fiscal Years 2012 through 2015.

The bill requires water systems to conduct a vulnerability assessment, develop and implement a site security plan, and develop an emergency response plan.  EPA would establish deadlines for these plans and for providing training to employees of water systems, and requires the EPA to consult with States exercising primary enforcement responsibility for public water systems and with DHS.  H.R. 2868 requires EPA to assign each water system to one of four risk-based tiers, with Tier 1 being highest-risk.  It requires the EPA to develop regulations to establish risk-based, performance-based standards and procedures for mandatory security vulnerability assessments and site security plans.  The bill allows each water system to select layered security measures that address the security risks identified in the vulnerability assessment and meet the risk-based performance standards.  

Under this bill, EPA would provide guidance, computer software, and other tools to water systems in Tier 3 and Tier 4 to streamline the process for other systems.  For a water system that is assigned to Tiers 1 and 2 that possesses a substance of concern, the State exercising primary enforcement for the system would be required to make determinations on methods to reduce consequences of a chemical release.  In States without primacy, the EPA would make such a determination.

The State with primacy could require a water system to implement methods to reduce consequences of a chemical release if it determines that certain conditions are met.  Such conditions include whether consequence-reduction methods would significantly reduce the consequences of a release of a substance, not increase the interim storage of a substance of concern by the water system, not put the water system out of compliance with the Safe Drinking Water Act, and remain feasible for the water system.

A water system that violates any requirement of this section would be liable for a civil penalty of up to $25,000 for each day after the violation occurs.

H.R. 2868 allows EPA to make grants to States, non-profit organizations, and water systems to assist them in implementing this section.  The bill also creates a new worker training grants program for training and education of employees with roles or responsibilities under the bill. 

Wastewater Treatment Works Security:  The bill establishes EPA as the lead agency for wastewater security.  It authorizes $1 billion over five years for EPA to make grants to States, municipalities, and other entities to conduct vulnerability assessments, providing security-related training to treatment works employees and emergency response providers, and install security improvements at publicly-owned wastewater treatment facilities.

The bill also requires treatment works with a capacity of at least 2.5 million gallons per day, or any facility deemed by the EPA to present a security risk, to conduct a vulnerability assessment, develop and implement a site security plan, and develop an emergency response plan for the treatment works.  H.R. 2868 requires EPA to assign each covered treatment works to one of at least four risk-based tiers, with Tier 1 being highest-risk.  It requires the EPA to develop regulations to establish risk-based, performance-based standards and procedures for mandatory security vulnerability assessments and site security plans.

The bill directs EPA to require the owner or operator of a covered treatment works that possesses a substance of concern to include in its site security plan an assessment of methods to reduce the consequences of a terrorist attack, including the elimination or reduction of such substances.  The assessment would include the potential impact of the method on the responsibilities of the treatment works under the Clean Water Act.  It would also provide for the mandatory implementation of a method to reduce the consequences of a terrorist attack for a treatment works that is assigned to the highest two risk-based tiers and possesses a substance of concern.

The bill requires the owner or operator of a treatment works to develop an emergency response plan that incorporates the results of the current vulnerability assessment and site security plan, and certify to the EPA when the plan has been completed.  

 

Background

Chemical facilities affected by this legislation generate about $550 billion in revenues per year in the U.S.  Over half of these facilities employ less than 50 employees, and as very small businesses are vulnerable to burdensome regulations in the current economic climate.  National unemployment stands at 9.8 percent, while the rate for the manufacturing sector is 11.9 percent.  According to the U.S. Bureau of Labor Statistics, chemical manufacturing employment is projected to decline further, with employment in the sector dropping by 16 percent.  According to experts, "Inherently Safer" Technologies (IST) mandated by this bill could cost anywhere from thousands to hundreds of thousands of dollars, depending on the complexity of the facility.

Chemical facilities are often located in populated areas and hold chemicals that can cause harm to people and the environment if used maliciously, so these sites may be considered terrorist targets.  To address this issue, in 2006, Congress authorized DHS to establish risk-based security performance standards for chemical facilities that use or store chemicals that make attractive terrorist targets.  The Department issued final regulations in 2007 that resulted in the Chemical Facility Anti-Terrorism Standards, for which legislative authority sunsets on October 4, 2009.  However, the authority to regulate chemical security was extended for one year through the Fiscal Year 2010 Homeland Security Appropriations bill, which was signed into law on October 28, 2009. 

The finalized Chemical Facility Anti-Terrorism Standards exempted drinking water and wastewater facilities from the program.  DHS and the Environmental Protection Agency (EPA) claim this is a critical security gap.  Though not included in the legislation as reported by the committees, language dealing with water facilities is incorporated in the bill by the rule. 

Members may have several concerns with this bill, including those described below.  H.R. 2868 is opposed by several groups including the U.S. Chamber of Commerce, American Farm Bureau Federation, American Trucking Associations, Chemical Producers and Distributors Association, and the National Association of Manufacturers.

"Inherently Safer" Technologies (IST):  The bill attempts to impose an unproven, "one size fits all" engineering philosophy known as IST on chemical facilities, drinking water systems and wastewater treatment facilities, all of which represent disparate and complicated sectors.  IST is a chemical engineering philosophy that suggests through changes in manufacturing or storage processes, modifying chemical ingredients, or through purchasing or other business practices, facilities with chemicals can reduce the number, amount, or form of dangerous chemicals used.  One example of IST is replacing chlorine gas with sodium hypochlorite to disinfect drinking water.

Under this bill, the federal government would impose mandates to adopt unproven technologies and chemical substitutions, but according to their own testimony, they lack the technical and personnel expertise to evaluate whether these alternatives are effective, productive, and safe across these sectors.  Members may be especially concerned about the costs of such technologies to farms, small businesses, drinking water systems, and wastewater treatment facilities.

Expansion of Civil Litigation:  The bill would allow citizen suits to be filed against federal facilities, drinking water systems, and wastewater treatment facilities for violations, and against DHS or EPA for failure to enforce the Act.  Some Members may believe that citizen suits are not appropriate in a national security context.  This bill would represent the first time Congress would be authorizing citizen suits in the national or homeland security arena.  The Department of Homeland Security has testified that these suits could result in the release of very sensitive security information through the legal discovery process that would be helpful to terrorists.  Non-U.S. citizens and environmental organizations would be able to file such suits.

Inadequate Sensitive Information Protection:  The bill rolls back information protection language standards that Congress has employed since the terrorist attacks on September 11, 2001.  H.R. 2868 also eliminates penalties for people who recklessly, carelessly, or negligently disclose sensitive security information to the public.

Lack of Federal Preemption: Some Members may be concerned that the bill would allow States and localities to enact laws that hinder, pose obstacles to, or frustrate the purpose of the federal effort, undermining the purpose of having federal security programs for chemical, drinking water and wastewater treatment facilities.  Other forms of national security laws, including nuclear, hazmat transportation, aviation, and port security make the federal government the dominant regulator without State and local interference.

Cost

The Congressional Budget Office (CBO) estimates that H.R. 2868 would cost at least $1.1 billion over five years, assuming appropriation of the necessary amounts, according to its most recent estimate.  The bill would also extend private-sector mandates and impose new mandates on employers and on owners and operators of certain public and private facilities.

 

Amendments

1)    Rep. Bennie Thompson (D-MS):  Makes technical corrections and fixes typos and verbiage issues in the underlying legislation.

2)    Rep. Joe Barton (R-TX):  Places provisions in the bill allowing the new federal chemical facility regulations enacted by the bill to preempt State and local laws that hinder, pose obstacles to, or frustrate the purpose of the federal program.

3)    Rep. Alcee Hastings (D-FL):  Establishes a point of contact within the Office of Chemical Facility Security responsible for interagency coordination.  Requires the Secretary to liaise with State Emergency Response Commissions and Local Emergency Planning Committees to update emergency planning and training procedures.

4)    Reps. Dent (R-PA) and Olson (R-TX):  Strikes Title I, affecting chemical facilities, and replaces it with an extension through October 1, 2012, of DHS' current regulatory authority under section 550(b) of the Department of Homeland Security Appropriations Act, 2007.

5)    Rep. Dent (R-PA):  Strikes a section from the bill (Sec. 2111) which requires assessments and implementation of methods to reduce the consequences of a terrorist attack.

6)    Rep. Flake (R-AZ):  Prevents earmarking in the worker training grant program established in the bill, and would clarifies that Congress presumes that grants awarded through that program will be awarded on a competitive basis, and if they are not, requires the Secretary to submit a report to Congress as to why not.

7)    Reps. Schrader (D-OR) and Kissell (D-NC):  Requires DHS to conduct a study on the scope and potential impacts of the provisions that require the use of safer processes or chemicals on manufacturers or retailers of pesticide or fertilizer.

8)    Rep. McCaul (R-TX):  Strikes the citizen enforcement section of the bill (Sec. 2116).

9)    Rep. Halvorsen (D-IL):  Permits the Secretary to provide guidance, tools, methodologies, or software to assist small covered chemical facilities in complying with the security requirements.

10)  Reps. Foster (D-IL) and Lujan (D-NM):  Directs the Secretary to establish appropriate protocols and security procedures for covered chemical facilities that are also universities and academic labs, separate from commercial chemical facilities.