Chemical Security Act of 2003

108th CONGRESS 1st Session

S. 157

To help protect the public against the threat of chemical attacks.

IN THE SENATE OF THE UNITED STATES

January 14, 2003

Mr. CORZINE (for himself, Mr. JEFFORDS, Mrs. Boxer, Mrs. Clinton, and Mr. Lautenberg introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works

A BILL

To help protect the public against the threat of chemical attacks.

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

SECTION 1. SHORT TITLE.

This Act may be cited as the `Chemical Security Act of 2003'.

SEC. 2. FINDINGS.

Congress finds that--

(1) the chemical industry is a crucial part of the critical infrastructure of the United States--

(A) in its own right; and

(B) because that industry supplies resources essential to the functioning of other critical infrastructures;

(2) the possibility of terrorist and criminal attacks on chemical sources (such as industrial facilities) poses a serious threat to public health, safety, and welfare, critical infrastructure, national security, and the environment;

(3) the possibility of theft of dangerous chemicals from chemical sources for use in terrorist attacks poses a further threat to public health, safety, and welfare, critical infrastructure, national security, and the environment; and

(4) there are significant opportunities to prevent theft from, and criminal attack on, chemical sources and reduce the harm that such acts would produce by--

(A)(i) reducing usage and storage of chemicals by changing production methods and processes; and

(ii) employing inherently safer technologies in the manufacture, transport, and use of chemicals;

(B) enhancing secondary containment and other existing mitigation measures; and

SEC. 3. DEFINITIONS.

In this Act:

(1) ADMINISTRATOR- The term `Administrator' means the Administrator of the Environmental Protection Agency.

(2) CHEMICAL SOURCE- The term `chemical source' means a stationary source (as defined in section 112(r)(2) of the Clean Air Act (42 U.S.C. 7412(r)(2))) that contains a substance of concern.

(3) COVERED SUBSTANCE OF CONCERN- The term `covered substance of concern' means a substance of concern that, in combination with a chemical source and other factors, is designated as a high priority category by the Administrator under section 4(a)(1).

(4) EMPLOYEE- The term `employee' means--

(A) a duly recognized collective bargaining representative at a chemical source; or

(B) in the absence of such a representative, other appropriate personnel.

(5) FIRST RESPONDER- The term `first responder' includes a firefighter.

(6) HEAD OF THE OFFICE- The term `head of the Office' means the Secretary of Homeland Security.

(7) SAFER DESIGN AND MAINTENANCE- The term `safer design and maintenance' includes, with respect to a chemical source that is within a high priority category designated under section 4(a)(1), implementation, to the extent practicable, of the practices of--

(A) preventing or reducing the vulnerability of the chemical source to a release of a covered substance of concern through use of inherently safer technology;

(B) reducing any vulnerability of the chemical source to a release of a covered substance of concern through use of well-maintained secondary containment, control, or mitigation equipment;

(C) reducing any vulnerability of the chemical source to a release of a covered substance of concern by implementing security measures; and

(D) reducing the potential consequences of any vulnerability of the chemical source to a release of a covered substance of concern through the use of buffer zones between the chemical source and surrounding populations (including buffer zones between the chemical source and residences, schools, hospitals, senior centers, shopping centers and malls, sports and entertainment arenas, public roads and transportation routes, and other population centers).

(8) SECURITY MEASURE-

(A) IN GENERAL- The term `security measure' means an action carried out to increase the security of a chemical source.

(B) INCLUSIONS- The term `security measure', with respect to a chemical source, includes--

(i) employee training and background checks;

(ii) the limitation and prevention of access to controls of the chemical source;

(iii) protection of the perimeter of the chemical source;

(iv) the installation and operation of an intrusion detection sensor; and

(v) a measure to increase computer or computer network security.

(9) SUBSTANCE OF CONCERN-

(A) IN GENERAL- The term `substance of concern' means--

(i) any regulated substance (as defined in section 112(r) of the Clean Air Act (42 U.S.C. 7412(r))); and

(ii) any substance designated by the Administrator under section 4(a).

(B) EXCLUSION- The term `substance of concern' does not include liquefied petroleum gas that is used as fuel or held for sale as fuel at a retail facility as described in section 112(r)(4)(B) of the Clean Air Act (42 U.S.C. 7412(r)(4)(B)).

(10) UNAUTHORIZED RELEASE- The term `unauthorized release' means--

(A) a release from a chemical source into the environment of a covered substance of concern that is caused, in whole or in part, by a criminal act;

(B) a release into the environment of a covered substance of concern that has been removed from a chemical source, in whole or in part, by a criminal act; and

(C) a release or removal from a chemical source of a covered substance of concern that is unauthorized by the owner or operator of the chemical source.

(11) USE OF INHERENTLY SAFER TECHNOLOGY-

(A) IN GENERAL- The term `use of inherently safer technology', with respect to a chemical source, means use of a technology, product, raw material, or practice that, as compared with the technologies, products, raw materials, or practices currently in use--

(i) reduces or eliminates the possibility of a release of a substance of concern from the chemical source prior to secondary containment, control, or mitigation; and

(ii) reduces or eliminates the threats to public health and the environment associated with a release or potential release of a substance of concern from the chemical source.

(B) INCLUSIONS- The term `use of inherently safer technology' includes input substitution, catalyst or carrier substitution, process redesign (including reuse or recycling of a substance of concern), product reformulation, procedure simplification, and technology modification so as to--

(i) use less hazardous substances or benign substances;

(ii) use a smaller quantity of covered substances of concern;

(iii) reduce hazardous pressures or temperatures;

(iv) reduce the possibility and potential consequences of equipment failure and human error;

(v) improve inventory control and chemical use efficiency; and

(vi) reduce or eliminate storage, transportation, handling, disposal, and discharge of substances of concern.

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

(a) DESIGNATION AND REGULATION OF HIGH PRIORITY CATEGORIES BY THE ADMINISTRATOR-

(1) IN GENERAL- Not later than 1 year after the date of enactment of this Act, the Administrator, in consultation with the head of the Office and State and local agencies responsible for planning for and responding to unauthorized releases and providing emergency health care, shall promulgate regulations to designate certain combinations of chemical sources and substances of concern as high priority categories based on the severity of the threat posed by an unauthorized release from the chemical sources.

(2) FACTORS TO BE CONSIDERED- In designating high priority categories under paragraph (1), the Administrator, in consultation with the head of the Office, shall consider--

(A) the severity of the harm that could be caused by an unauthorized release;

(B) the proximity to population centers;

(D) the threats to critical infrastructure;

(E) threshold quantities of substances of concern that pose a serious threat; and

(F) such other safety or security factors as the Administrator, in consultation with the head of the Office, determines to be appropriate.

(3) REQUIREMENTS FOR HIGH PRIORITY CATEGORIES-

(A) IN GENERAL- Not later than 1 year after the date of enactment of this Act, the Administrator, in consultation with the head of the Office, the United States Chemical Safety and Hazard Investigation Board, and State and local agencies described in paragraph (1), shall promulgate regulations to require each owner and each operator of a chemical source that is within a high priority category designated under paragraph (1), in consultation with local law enforcement, first responders, and employees, to--

(i) conduct an assessment of the vulnerability of the chemical source to a terrorist attack or other unauthorized release;

(ii) using appropriate hazard assessment techniques, identify hazards that may result from an unauthorized release of a covered substance of concern; and

(iii) prepare a prevention, preparedness, and response plan that incorporates the results of those vulnerability and hazard assessments.

(B) ACTIONS AND PROCEDURES- A prevention, preparedness, and response plan required under subparagraph (A)(iii) shall include actions and procedures, including safer design

and maintenance of the chemical source, to eliminate or significantly lessen the potential consequences of an unauthorized release of a covered substance of concern.

(C) THREAT INFORMATION- To the maximum extent permitted by applicable authorities and the interests of national security, the head of the Office, in consultation with the Administrator, shall provide owners and operators of chemical sources with threat information relevant to the assessments and plans required under subsection (b).

(4) REVIEW AND REVISIONS- Not later than 5 years after the date of promulgation of regulations under each of paragraphs (1) and (3), the Administrator, in consultation with the head of the Office, shall review the regulations and make any necessary revisions.

(5) ADDITION OF SUBSTANCES OF CONCERN- For the purpose of designating high priority categories under paragraph (1) or any subsequent revision of the regulations promulgated under paragraph (1), the Administrator, in consultation with the head of the Office, may designate additional substances that pose a serious threat as substances of concern.

(b) CERTIFICATION-

(1) VULNERABILITY AND HAZARD ASSESSMENTS- Not later than 1 year after the date of promulgation of regulations under subsection (a)(3), each owner and each operator of a chemical source that is within a high priority category designated under subsection (a)(1) shall--

(A) certify to the Administrator that the chemical source has conducted assessments in accordance with the regulations; and

(B) submit to the Administrator written copies of the assessments.

(2) PREVENTION, PREPAREDNESS, AND RESPONSE PLANS- Not later than 18 months after the date of promulgation of regulations under subsection (a)(3), the owner or operator shall--

(A) certify to the Administrator that the chemical source has completed a prevention, preparedness, and response plan that incorporates the results of the assessments and complies with the regulations; and

(B) submit to the Administrator a written copy of the plan.

(3) 5-YEAR REVIEW- Not later than 5 years after each of the date of submission of a copy of an assessment under paragraph (1) and a plan under paragraph (2), and not less often than every 3 years thereafter, the owner or operator of the chemical source covered by the assessment or plan, in coordination with local law enforcement and first responders, shall--

(A) review the adequacy of the assessment or plan, as the case may be; and

(B)(i) certify to the Administrator that the chemical source has completed the review; and

(ii) as appropriate, submit to the Administrator any changes to the assessment or plan.

(4) PROTECTION OF INFORMATION-

(A) DISCLOSURE EXEMPTION- Except with respect to certifications specified in paragraphs (1) through (3) of this subsection and section 5(a), all information provided to the Administrator under this subsection, and all information derived from that information, shall be exempt from disclosure under section 552 of title 5, United States Code.

(B) DEVELOPMENT OF PROTOCOLS-

(i) IN GENERAL- The Administrator, in consultation with the head of the Office, shall develop such protocols as are necessary to protect the copies of the assessments and plans required to be submitted under this subsection (including the information contained in those assessments and plans) from unauthorized disclosure.

(ii) REQUIREMENTS- The protocols developed under clause (i) shall ensure that--

(I) each copy of an assessment or plan, and all information contained in or derived from the assessment or plan, is maintained in a secure location;

(II) except as provided in subparagraph (C), only individuals designated by the Administrator may have access to the copies of the assessments and plans; and

(III) no copy of an assessment or plan or any portion of an assessment or plan, and no information contained in or derived from an assessment or plan, shall be available to any person other than an individual designated by the Administrator.

(iii) DEADLINE- As soon as practicable, but not later than 1 year after the date of enactment of this Act, the Administrator shall complete the development of protocols under clause (i) so as to ensure that the protocols are in place before the date on which the Administrator receives any assessment or plan under this subsection.

(C) FEDERAL OFFICERS AND EMPLOYEES- An individual referred to in subparagraph (B)(ii) who is an officer or employee of the United States may discuss with a State or local official the contents of an assessment or plan described in that subparagraph.

SEC. 5. ENFORCEMENT.

(a) REVIEW OF PLANS-

(1) IN GENERAL- The Administrator, in consultation with the head of the Office, shall review each assessment and plan submitted under section 4(b) to determine the compliance of the chemical source covered by the assessment or plan with regulations promulgated under paragraphs (1) and (3) of section 4(a).

(2) CERTIFICATION OF COMPLIANCE-

(A) IN GENERAL- The Administrator shall certify in writing each determination of the Administrator under paragraph (1).

(B) INCLUSIONS- A certification of the Administrator shall include a checklist indicating consideration by a chemical source of the use of 4 elements of safer design and maintenance described in subparagraphs (A) through (D) of section 3(6).

(i) IN GENERAL- The Administrator, in consultation with the head of the Office, shall--

(I) before the date of publication of proposed regulations under section 4(a)(3), review each assessment or plan submitted to the Administrator under section 4(b); and

(II) before the date of promulgation of final regulations under section 4(a)(3), determine whether each such assessment or plan meets the consultation, planning, and assessment requirements applicable to high priority categories under section 4(a)(3).

(ii) AFFIRMATIVE DETERMINATION- If the Administrator, in consultation with the head of the Office, makes an affirmative determination under clause (i)(II), the Administrator shall certify compliance of an assessment or plan described in that clause without requiring any revision of the assessment or plan.

(D) SCHEDULE FOR REVIEW AND CERTIFICATION-

(i) IN GENERAL- The Administrator, after taking into consideration the factors described in section 4(a)(2), shall establish a schedule for the review and certification of assessments and plans submitted under section 4(b).

(ii) DEADLINE FOR COMPLETION- Not later than 3 years after the deadlines for the submission of assessments and plans under paragraph (1) or (2), respectively, of section 4(b), the Administrator shall complete the review and certification of all assessments and plans submitted under those sections.

(b) COMPLIANCE ASSISTANCE-

(1) DEFINITION OF DETERMINATION- In this subsection, the term `determination' means a determination by the Administrator that, with respect to an assessment or plan described in section 4(b)--

(A) the assessment or plan does not comply with regulations promulgated under paragraphs (1) and (3) of section 4(a); or

(B)(i) a threat exists beyond the scope of the submitted plan; or

(ii) current implementation of the plan is insufficient to address--

(I) the results of an assessment of a source; or

(II) a threat described in clause (i).

(2) DETERMINATION BY ADMINISTRATOR- If the Administrator, after consultation with the head of the Office, makes a determination, the Administrator shall--

(A) notify the chemical source of the determination; and

(B) provide such advice and technical assistance, in coordination with the head of the Office and the United States Chemical Safety and Hazard Investigation Board, as is appropriate--

(i) to bring the assessment or plan of a chemical source described in section 4(b) into compliance; or

(ii) to address any threat described in clause (i) or (ii) of paragraph (1)(B).

(1) IN GENERAL- If, after the date that is 30 days after the later of the date on which the Administrator first provides assistance, or a chemical source receives notice, under subsection (b)(2)(B), a chemical source has not brought an assessment or plan for which the assistance is provided into compliance with regulations promulgated under paragraphs (1) and (3) of section 4(a), or the chemical source has not complied with an entry or information request under section 6, the Administrator may issue an order directing compliance by the chemical source.

(2) NOTICE AND OPPORTUNITY FOR HEARING- An order under paragraph (1) may be issued only after notice and opportunity for a hearing.

(d) ABATEMENT ACTION-

(1) IN GENERAL- Notwithstanding a certification under section 5(a)(2), if the head of the Office, in consultation with local law enforcement officials and first responders, determines that a threat of a terrorist attack exists that is beyond the scope of a submitted prevention, preparedness, and response plan of 1 or more chemical sources, or current implementation of the plan is insufficient to address the results of an assessment of a source or a threat described in subsection (b)(1)(B)(i), the head of the Office shall notify each chemical source of the elevated threat.

(2) INSUFFICIENT RESPONSE- If the head of the Office determines that a chemical source has not taken appropriate action in response to a notification under paragraph (1), the head of the Office shall notify the chemical source, the Administrator, and the Attorney General that actions taken by the chemical source in response to the notification are insufficient.

(3) RELIEF-

(A) IN GENERAL- On receipt of a notification under paragraph (2), the Administrator or the Attorney General may secure such relief as is necessary to abate a threat described in paragraph (1), including such orders as are necessary to protect public health or welfare.

(B) JURISDICTION- The district court of the United States for the district in which a threat described in paragraph (1) occurs shall have jurisdiction to grant such relief as the Administrator or Attorney General requests under subparagraph (A).

SEC. 6. RECORDKEEPING AND ENTRY.

(a) RECORDS MAINTENANCE- A chemical source that is required to certify to the Administrator assessments and plans under section 4 shall maintain on the premises of the chemical source a current copy of those assessments and plans.

(b) RIGHT OF ENTRY- In carrying out this Act, the Administrator (or an authorized representative of the Administrator), on presentation of credentials--

(1) shall have a right of entry to, on, or through any premises of an owner or operator of a chemical source described in subsection (a) or any premises in which any records required to be maintained under subsection (a) are located; and

(2) may at reasonable times have access to, and may copy, any records, reports, or other information described in subsection (a).

(c) INFORMATION REQUESTS- In carrying out this Act, the Administrator may require any chemical source to provide such information as is necessary to--

(1) enforce this Act; and

(2) promulgate or enforce regulations under this Act.

SEC. 7. PENALTIES.

(a) CIVIL PENALTIES- Any owner or operator of a chemical source that violates, or fails to comply with, any order issued may, in an action brought in United States district court, be subject to a civil penalty of not more than $25,000 for each day in which such violation occurs or such failure to comply continues.

(b) CRIMINAL PENALTIES- Any owner or operator of a chemical source that knowingly violates, or fails to comply with, any order issued shall--

(1) in the case of a first violation or failure to comply, be fined not less than $2,500 nor more than $25,000 per day of violation, imprisoned not more than 1 year, or both; and

(2) in the case of a subsequent violation or failure to comply, be fined not more than $50,000 per day of violation, imprisoned not more than 2 years, or both.

(1) PENALTY ORDERS- If the amount of a civil penalty determined under subsection (a) does not exceed $125,000, the penalty may be assessed in an order issued by the Administrator.

(2) NOTICE AND HEARING- Before issuing an order described in paragraph (1), the Administrator shall provide to the person against which the penalty is to be assessed--

(A) written notice of the proposed order; and

(B) the opportunity to request, not later than 30 days after the date on which the notice is received by the person, a hearing on the proposed order.

SEC. 8. NO EFFECT ON REQUIREMENTS UNDER OTHER LAW.

Nothing in this Act affects any duty or other requirement imposed under any other Federal or State law.

SEC. 9. AUTHORIZATION OF APPROPRIATIONS.

There are authorized to be appropriated such sums as are necessary to carry out this Act.

END