[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 157 Introduced in Senate (IS)]







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
                    (C) improving security.

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;
                    (C) the threats to national security;
                    (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).
                    (C) Early compliance.--
                            (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).
    (c) Compliance Orders.--
            (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.
    (c) Administrative Penalties.--
            (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.
                                 <all>