II 109th CONGRESS 2d Session S. 2486 IN THE SENATE OF THE UNITED STATES March 30, 2006 Mr. Lautenberg (for himself, Mr. Obama, Mr. Kerry, Mr. Menendez, Mr. Durbin, and Mr. Biden) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs A BILL To ensure that adequate actions are taken to detect, prevent, and minimize the consequences of chemical releases that result from terrorist attacks and other criminal activity that may cause substantial harm to public health and safety and the environment.

1.

Short title

This Act may be cited as the Chemical Security and Safety Act of 2006.

2.

Findings

Congress finds that— (1)the Federal Bureau of Investigation, the Department of Justice, the Department of Homeland Security, the Government Accountability Office, the Environmental Protection Agency, the Congressional Research Service, and the Agency for Toxic Substances and Disease Registry believe that the possibility of terrorist and criminal attacks on chemical plants poses a serious threat to public health and safety and the environment; (2)there are significant opportunities to prevent harmful consequences of criminal attacks on chemical plants by employing inherently safer technologies in the manufacture and use of chemicals; (3)inherently safer technologies may offer industry substantial savings by reducing the need for site security, secondary containment, buffer zones, mitigation, evacuation plans, regulatory compliance, and liability insurance; and (4)owners and operators of chemical plants have a general duty to design, operate, and maintain safe facilities to prevent criminal activity that may result in harm to public health or safety or the environment.

3.

Definitions

In this Act: (1)

Administrator

The term Administrator means the Administrator of the Environmental Protection Agency. (2)

Classified information

The term classified information has the meaning given the term in section 1 of the Classified Information Procedures Act (18 U.S.C. App.). (3)

Committee

The term Committee means a committee established under section 7(a). (4)

Committee-eligible employee

The term committee-eligible employee means an employee who— (A)is not an independent contractor, subcontractor, or consultant; (B)is not employed by an off-site company affiliated with the owner or operator of the relevant stationary source; and (C)does not have supervisory or managerial responsibilities at the relevant stationary source. (5)

Committee-eligible stationary source

The term committee-eligible stationary source means a stationary source that has 15 or more full-time equivalent employees. (6)

Criminal release

The term criminal release means— (A)a release of a substance of concern from a stationary source into the environment that is caused, in whole or in part, by a criminal act, including an act of terrorism; and (B)a release into the environment of a substance of concern that has been removed from a stationary source, in whole or in part, by a criminal act, including an act of terrorism. (7)

Design, operation, and maintenance of safe facilities

The term design, operation, and maintenance of safe facilities means, with respect to the facilities at a stationary source, the practices of preventing or reducing the possibility of releasing a substance of concern— (A)through use of inherently safer technology, to the maximum extent practicable; (B)through secondary containment, control, or mitigation equipment, to the maximum extent practicable; (C)by— (i)making the facilities impregnable to intruders, to the maximum extent practicable; and (ii)improving site security and employee training, to the maximum extent practicable; (D)through the use of buffer zones between the stationary source and surrounding populations (including buffer zones between the stationary source and residences, schools, hospitals, senior centers, shopping centers and malls, sports and entertainment arenas, public roads and transportation routes, and other population centers); (E)through increased coordination with State and local emergency officials, law enforcement agencies, and first responders, to the maximum extent practicable; and (F)through outreach to the surrounding community, to the maximum extent practicable. (8)

Employee

(A)

In general

Except as provided in subparagraph (B), the term employee means any individual employed by the owner or operator of a stationary source that produces, processes, handles, or stores a substance of concern. (B)

Training

For purposes of section 8, the term employee includes any employee of a construction or maintenance contractor working at a stationary source that produces, processes, handles, or stores a substance of concern. (9)

Employee representative

The term employee representative means a duly recognized collective bargaining representative at a stationary source. (10)

Employer

The term employer includes— (A)an employee of any employer, agent, contractor, or subcontractor subject to the provisions of this Act or engaged in the production, storage, security or transportation of a harmful chemical; and (B)an employee, agent, contractor, or subcontractor of the Department of Homeland Security or any other Federal, State, or local government agency with responsibility for enforcing any provision of this Act. (11)

First responder

The term first responder includes Federal, State, and local emergency public safety, law enforcement, emergency response, and emergency medical (including hospital emergency facilities) agencies and authorities. (12)

Outreach to the surrounding community

The term outreach to the surrounding community includes education of residents near a stationary source regarding— (A)emergency procedures in the case of a terrorist attack; (B)evacuation procedures, routes, and travel times; and (C)what actions to take to minimize exposure to and physical harm caused by substances of concern. (13)

Owner or operator

The term owner or operator of a stationary source means any person who owns, leases, controls, or supervises a stationary source. (14)

Secretary

The term Secretary means the Secretary of Homeland Security. (15)

Stationary source

The term stationary source has the meaning given the term in section 112(r)(2) of the Clean Air Act (42 U.S.C. 7412(r)(2)) and includes any chemical facility designated by the Secretary under section 5(d) of this Act. (16)

Substance of concern

The term substance of concern means any substance listed under section 112(r)(3) of the Clean Air Act (42 U.S.C. 7412(r)(3)) in a threshold quantity or any other substance designated by the Secretary under section 5(d) of this Act in a threshold quantity. (17)

Threshold quantity

The term threshold quantity means, with respect to a substance, the quantity established for the substance— (A)under section 112(r)(5) of the Clean Air Act (42 U.S.C. 7412(r)(5)); or (B)by the Secretary under section 5(d) of this Act. (18)

Use of inherently safer technology

(A)

In general

The term use of inherently safer technology means use of a technology, product, raw material, or practice that, as compared to the technology, products, raw materials, or practices currently in use— (i)significantly reduces or eliminates the possibility of the release of a substance of concern; and (ii)significantly reduces or eliminates the hazards to public health and safety and the environment associated with the release or potential release of a substance described in clause (i). (B)

Inclusions

The term use of inherently safer technology includes chemical substitution, process redesign, product reformulation, and procedural and technological modification so as to— (i)use less hazardous or benign substances; (ii)use a smaller quantity of a substance of concern; (iii)moderate pressures or temperatures; (iv)reduce the likelihood and potential consequences of 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.

4.

Prevention of criminal releases

(a)

General duty

Each owner and each operator of a stationary source that produces, processes, handles, or stores any substance of concern has a general duty, in the same manner and to the same extent as the duty imposed under section 112(r) of the Clean Air Act (42 U.S.C. 7412(r)), to— (1)identify hazards that may result from a criminal release using appropriate hazard assessment techniques; (2)ensure the design, operation, and maintenance of safe facilities by taking such actions as are necessary to prevent criminal releases; and (3)eliminate or significantly reduce the consequences of any criminal release that does occur. (b)

Worker participation

In carrying out its general duty to identify hazards under subsection (a), the owner or operator of a stationary source shall involve the employees of the stationary source in each aspect of ensuring the design, operation, and maintenance of safe facilities.

5.

Designation and regulation of high priority categories by the Secretary

(a)

In general

Not later than 6 months after the date of enactment of this Act, the Secretary, in consultation with the Administrator and State and local government agencies responsible for planning for and responding to criminal releases and providing emergency health care, shall promulgate regulations to designate certain stationary sources and substances of concern as high priority categories, based on the severity of the threat posed by a criminal release from the stationary sources. (b)

Factors To be considered

(1)

In general

In designating high priority categories under subsection (a), the Secretary, in consultation with the Administrator, shall consider— (A)the severity of the harm that could be caused by a criminal 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 Secretary, in consultation with the Administrator, determines to be appropriate. (2)

Individual consideration

In designating high priority categories under subsection (a), the Secretary shall consider each stationary source individually and shall not summarily exclude any type of stationary source that would otherwise be considered a high priority under paragraph (1). (3)

Initial designation

In designating high priority categories for the first time under subsection (a), the Secretary shall ensure that not fewer than 3,000 stationary sources are within a high priority category. (c)

Requirements for high priority categories

(1)

In general

Not later than 1 year after the date of enactment of this Act, the Secretary, in consultation with the Administrator, the United States Chemical Safety and Hazard Investigation Board, and the State and local government agencies described in subsection (a), shall promulgate regulations to require each owner or operator of a stationary source that is within a high priority category designated under subsection (a), in consultation with local law enforcement, first responders, employees, and employee representatives, to take adequate actions (including the design, operation, and maintenance of safe facilities) to detect, prevent, and eliminate or significantly reduce the consequences of terrorist attacks and other criminal releases that may cause harm to public health or safety. (2)

Source reports

Not later than 6 months after the date on which regulations are promulgated under paragraph (1), each owner or operator of a stationary source that is within a high priority category designated under subsection (a) shall submit a report to the Secretary that includes— (A)an assessment of the vulnerability of the stationary source to a terrorist attack or other criminal release; (B)an assessment of the hazards that may result from a criminal release of a substance of concern using appropriate hazard assessment techniques; (C)a prevention, preparedness, and response plan that incorporates the results of the vulnerability and hazard assessments under subparagraphs (A) and (B), respectively; (D)a statement as to how the prevention, preparedness, and response plan meets the requirements of the regulations established under paragraph (1); (E)a statement as to how the prevention, preparedness, and response plan meets the general duty requirements under section 4(a); (F)a discussion of the consideration of the elements of design, operation, and maintenance of safe facilities, including the practicability of implementing each element; (G)a statement describing how and when employees and employee representatives (if any) were consulted in considering the design, operation, and maintenance of safe facilities and in preparing the report under this paragraph. (d)

Addition of substances of concern or stationary sources

For the purpose of designating high priority categories under subsection (a) or any subsequent revision of the regulations promulgated under subsection (c)(1), the Secretary, in consultation with the Administrator, may designate— (1)any additional substance that, in a specified threshold quantity, poses a serious threat as a substance of concern; or (2)any chemical facility as a stationary source. (e)

Review and revision of regulations

Not later than 5 years after the dates of promulgation of regulations under each of subsections (a) and (c)(1), and not less often than every 5 years thereafter, the Secretary, in consultation with the Administrator, shall review the regulations and make any necessary revisions.

6.

Review and certification of reports

(a)

In general

The Secretary, in consultation with the Administrator, shall review each report submitted under section 5(c)(2) to determine whether the stationary source covered by the report is in compliance with regulations promulgated under section 5(c)(1). (b)

Certification of compliance

(1)

In general

The Secretary shall certify each determination under subsection (a) in writing. (2)

Inclusions

A certification under paragraph (1) indicating the stationary source is in compliance with the regulations under section 5(c)(1) shall include a checklist indicating the consideration by such stationary source of the use of each element of design, operation, and maintenance of safe facilities. (c)

Deadline for completion

(1)

Highest priority stationary sources

Not later than 6 months after the date on which reports are required to be submitted under section 5(c)(2), the Secretary shall complete the review and certification of the 600 highest priority stationary sources designated under section 5(a). (2)

Other high priority stationary sources

Not later than 2 years after the date on which reports are required to be submitted under section 5(c)(2), the Secretary shall complete the review and certification of all reports submitted under that section. (d)

Compliance assistance

(1)

Definition

In this subsection, the term determination means a determination by the Secretary that, with respect to a report submitted under section 5(c)(2)— (A)the report does not comply with regulations promulgated under section 5(c)(1); (B)a threat exists that is beyond the scope of the plan submitted with the report; or (C)the implementation of the plan submitted with the report is insufficient. (2)

Determination by Secretary

If the Secretary, after consultation with the Administrator, makes a determination, the Secretary shall— (A)notify the stationary source of the determination; and (B)in coordination with the Administrator and the United States Chemical Safety and Hazard Investigation Board, provide advice and technical assistance to bring the stationary source into compliance. (e)

Recertification

Not later than 3 years after the date of submission of a report under section 5(c)(2), and not less often than every 2 years thereafter, the owner or operator of the stationary source covered by the report, shall— (1)review the adequacy of the report; (2)certify to the Secretary that the stationary source has completed the review; and (3)as appropriate, submit to the Secretary any changes to the assessments or plan in the report.

7.

Safety and security committees

(a)

In general

Not later than 6 months after the date of promulgation of regulations under section 5(a), the owner or operator of a committee-eligible stationary source shall establish a safety and security committee for that stationary source. (b)

Committee composition

(1)

In general

A Committee shall be composed of committee-eligible employees and managerial employees. (2)

Membership

(A)

Number of members

(i)

In general

The Secretary, in consultation with the Administrator, shall promulgate regulations establishing the number of members of a Committee that are required. (ii)

Contents

The regulations promulgated under clause (i) shall— (I)establish a number of members of a Committee that is directly proportional to the number of employees at a committee-eligible stationary source; and (II)permit the number of members of a Committee to be increased above that established by regulation by mutual agreement between committee-eligible employees and managerial employees. (B)

Ratio

The number of committee-eligible employees serving as members of a Committee shall be equal to or greater than the number of managerial employees serving as members. (C)

Alternates

An alternate member of a Committee may be designated if a member of a Committee is temporarily unavailable. (D)

Place of employment

All members of a Committee shall be employed at the committee-eligible stationary source for which the Committee was established. (3)

Selection of Committee-eligible employee members

(A)

In general

At a committee-eligible stationary source that has an employee representative, the employee representative shall select the committee-eligible employee members of the Committee. (B)

No employee representatives

(i)

In general

At a committee-eligible stationary source that does not have an employee representative, the owner or operator of the committee-eligible stationary source shall actively solicit volunteers from among committee-eligible employees who may potentially be exposed to a substance of concern. (ii)

Insufficient volunteers

If there is not a sufficient number of volunteers under clause (i), the owner or operator of the committee-eligible stationary source shall select additional committee-eligible employees to serve as members of the Committee. (4)

Co-chairpersons

A member of a Committee who is a committee-eligible employee and a member of a Committee who is a managerial employee shall serve as co-chairpersons of the Committee. (c)

Lists of members

The owner or operator of a committee-eligible stationary source shall prominently post at the stationary source a current list of all members of the Committee of the stationary source that includes the name and work location of each member and whether each member is a committee-eligible employee or a managerial employee. (d)

Meetings; quorums; action

(1)

Meetings

A Committee shall meet not less frequently than once per month at a time, date, and location agreed to by the Committee. (2)

Quorum

A majority of members of a Committee shall constitute a quorum for the transaction of Committee business. (3)

Action

Any action by a Committee shall require an affirmative vote of a majority of the members present. (e)

Authority

A Committee shall— (1)identify, discuss, and make recommendations to the owner or operator of the committee-eligible stationary source concerning potential hazards and risks relevant to security, safety, and health and potential responses to those hazards and risks; (2)survey the facility of the committee-eligible stationary source for potential security, safety, and health vulnerabilities; (3)establish a schedule to conduct, not less frequently than once per month, a survey described in paragraph (2) of all or part of the committee-eligible stationary source; (4)as soon as is practicable, assist in the investigation of an accident, criminal release, fire, explosion, or an incident in which there was a significant risk of an accident, criminal release, fire, or explosion; and (5)participate in the development, review, or revision of any vulnerability assessment, hazard assessment, or prevention, preparedness, and response plan. (f)

Recommendations

(1)

In writing

Any recommendations made by a Committee shall be made in writing. (2)

Review

At each meeting, a Committee shall review the status of any recommendation made by the Committee that the Committee has not determined to be resolved. (3)

Nonunanimous recommendations

If a recommendation of a Committee is not unanimous, the owner or operator of the committee-eligible stationary source shall document the differing views of the members of the Committee and maintain records regarding any such recommendation. (g)

Existing committees

(1)

In general

A safety and health, environmental, or similar committee established at a committee-eligible stationary source before the date specified in subsection (a) that meets the requirements of this section may be designated as the Committee for the committee-eligible stationary source under a written agreement between the owner or operator of the committee-eligible stationary source and the employee representative of the committee-eligible stationary source. (2)

No employee representative

If there is no employee representative at a committee-eligible stationary source, the owner or operator of a stationary source may designate a safety and health, environmental or similar committee described in paragraph (1) as the Committee for the committee-eligible stationary source.

8.

Employee training

(a)

In general

The owner or operator of a stationary source shall annually provide each employee with 4 hours of training— (1)regarding the requirements of this Act, as applicable to the stationary source; (2)identifying and discussing substances of concern that pose a risk to the community and first responders; (3)discussing the prevention, preparedness, and response plan for the stationary source, including off-site consequence impacts; (4)identifying opportunities to reduce or eliminate the vulnerability of a stationary source to a criminal release of a substance of concern through the use of the elements of design, operation, and maintenance of safe facilities; and (5)discussing appropriate emergency response procedures. (b)

Nonduplication

Training provided under this section shall be in addition to any training required to be provided by the owner or operator of a stationary source under any other Federal or State law. (c)

Documentation

The owner or operator of a stationary source that is within a high priority category designated under section 5(a) shall— (1)submit an annual written certification to the Secretary stating that the owner or operator has met the requirements for employee training under this section; and (2)maintain a list of all employees who have received training under this section.

9.

Inspections, monitoring, entry, and recordkeeping

(a)

In general

For purposes of determining whether any owner or operator of a stationary source is in compliance with this Act or is properly carrying out any provision of this Act, the Secretary and the Administrator (or a designee of the Secretary or the Administrator) may take any action that the Administrator is authorized to take under paragraphs (7) and (9) of section 112(r) and section 114 of the Clean Air Act (42 U.S.C. 7412(r) and 7414). (b)

Program

(1)

In general

The Secretary and the Administrator shall establish a program to conduct regular inspections of stationary sources, and shall prioritize inspection of stationary sources that are within a high priority category designated under section 5(a). (2)

Types of inspection

The program established under paragraph (1) shall— (A)include inspections without notice and inspections with notice; and (B)require that not fewer than 25 percent of inspections under the program shall be without notice. (c)

Receipt of notice

(1)

In general

When providing notice to the owner or operator of a stationary source of an inspection or investigation under this Act, the Secretary or the Administrator (or a designee of the Secretary or the Administrator) shall instruct the owner or operator of the stationary source to, immediately upon receipt of the notification— (A)post a notice, or a copy of any notice provided by the Secretary or the Administrator (or a designee of the Secretary or the Administrator), indicating that there will be an inspection or investigation, which shall be conspicuously displayed in the area of the stationary source subject to the inspection or investigation; and (B)provide a copy of the notice posted under subparagraph (A) to an employee representative at the stationary source, if any. (2)

Explanations

(A)

In general

If the Secretary or the Administrator (or a designee of the Secretary or the Administrator) provides a written explanation of the purpose, scope, procedures, progress, or outcome of an inspection or investigation under this Act to the owner or operator of a stationary source, any employee of that stationary source shall be entitled to view a copy of the written explanation. (B)

Instructions

The Secretary or the Administrator (or a designee of the Secretary or the Administrator) shall instruct the owner or operator of a stationary source receiving a written explanation described in subparagraph (A) to, not later than 24 hours after receiving the written explanation— (i)conspicuously display the written explanation in the area subject to the inspection or investigation; and (ii)provide a copy of the written explanation to an employee representative at the stationary source, if any. (d)

Procedures

(1)

Participation by employees

(A)

In general

An official conducting an inspection or investigation of a stationary source under this Act shall instruct the owner or operator of the stationary source to afford the opportunity to participate in the inspection or investigation, and to accompany the official during the inspection or investigation to— (i)an employee who works in, or is familiar with, the portion of the facility being inspected or investigated; and (ii)an employee representative of the employees of the stationary source, if applicable. (B)

Additional employees

(i)

In general

Except as provided in clause (ii), an official described in subparagraph (A) may, if the official determines that doing so will aid in the inspection or investigation by the official, permit any additional employee representative of the employees of the stationary source or any additional employee to accompany the official, including permitting a different employee, employee representative, or representative of the owner or operator of the stationary source to accompany the official during different phases of the inspection or investigation. (ii)

Exception

Clause (i) shall not apply to portions of an inspection or investigation in which an official described in subparagraph (A) is exclusively examining written records. (C)

Meetings

If the official described in subparagraph (A) conducts a meeting with the management of a stationary source to explain the purpose, scope, procedures, progress, or outcome of an inspection or investigation under this Act, the official shall instruct the owner or operator of the stationary source to invite to the meeting any employee and employee representative that participated in the inspection or investigation. If the official determines it is necessary, the official shall arrange and conduct a separate meeting with any employee and employee representative that participated in the inspection or investigation. (2)

Exclusion of individuals

An official conducting an inspection or investigation of a stationary source under this Act may prohibit any individual whose conduct interferes with a fair and orderly inspection or investigation from accompanying the official on the inspection or investigation. (3)

Interviews

An official conducting an inspection or investigation of a stationary source under this Act may— (A)interview any person at the stationary source that the official determines is necessary to effectuate the purposes of this Act; and (B)conduct any interview under subparagraph (A) outside the presence of the owner or operator, manager, or other personnel of the stationary source, if determined to be appropriate by the official. (4)

Classified information

In the case of a stationary source that contains classified information, only persons who are authorized to have access to such information may accompany an official conducting an inspection or investigation of a stationary source under this Act in areas of the stationary source in which such information is located. (e)

Recordkeeping

The owner or operator of a stationary source that is required to submit a report under section 5(c)(2) shall maintain on the premises of the stationary source a current copy of the report for the stationary source and any such report previously submitted.

10.

Enforcement

(a)

Compliance orders

(1)

Issuance

(A)

In general

If, after the date that is 30 days after the date described in subparagraph (B), a stationary source is not in compliance with this Act, the Secretary, in consultation with the Administrator, may issue an order directing compliance by the owner or operator of the stationary source. (B)

Date

The date described in this subparagraph is— (i)the date on which the Secretary provides notice to a stationary source that the stationary source is not in compliance with this Act; or (ii)if the failure to comply with this Act relates to a report submitted under section 5(c)(2), the later of the date on which the Secretary first provides assistance, or a stationary source receives notice, under section 6(d)(2). (2)

Notice and opportunity for hearing

An order under paragraph (1) may be issued only after notice and opportunity for a hearing. (b)

Penalties

(1)

Civil penalties

Any owner or operator of a stationary source that is within a high priority category designated under section 5(a) that violates, or fails to comply with, any order under subsection (a) may, in an action brought in a United States district court, be subject to a civil penalty of not more than $50,000 for each day in which the violation occurs or the failure to comply continues. (2)

Criminal penalties

Any owner or operator of a stationary source that is within a high priority category designated under section 5(a) that knowingly violates, or fails to comply with, any order under subsection (a) shall— (A)in the case of a first violation or failure to comply, be fined not less than $5,000 nor more than $50,000 per day of violation or failure to comply, imprisoned for not more than 2 years, or both; and (B)in the case of a subsequent violation or failure to comply, be fined not less than $10,000 nor more than $50,000 per day of violation or failure to comply, imprisoned for not more than 4 years, or both. (3)

Administrative penalties

(A)

Penalty orders

The Secretary, in consultation with the Administrator, may impose an administrative penalty order of not more than $50,000 per day, and not more than a maximum of $2,000,000 per year, for failure to comply with an order or directive issued by the Secretary under subsection (a). (B)

Notice and hearing

Before issuing an order described in subparagraph (A), the Secretary shall provide to the person against which the penalty is to be assessed— (i)written notice of the proposed order; and (ii)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. (c)

Abatement actions

(1)

In general

If the Secretary, in consultation with local law enforcement officials, determines that the threat of a terrorist attack exists that warrants additional measures to prevent or reduce the possibility of releasing a substance of concern at 1 or more stationary sources, the Secretary shall notify each such stationary source of the elevated threat. (2)

Insufficient response

If the Secretary determines that a stationary source has not taken appropriate action in response to a notification under paragraph (1), the Secretary shall notify the stationary source, the Administrator, and the Attorney General that actions taken by the stationary source in response to the notification are insufficient. (3)

Relief

(A)

In general

If the Secretary makes a notification under paragraph (2), the Secretary or the Attorney General may secure such relief as is necessary to abate a threat described in paragraph (1), including an order directing the stationary source to cease operation and such other orders as are necessary to protect public health or welfare. (B)

Jurisdiction

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

11.

Protection of information

(a)

Disclosure exemption

Except with respect to certifications under section 6(b), orders issued under section 10(a), and best practices established under section 13(4), all documents provided to the Secretary under this Act, and all information that describes a specific vulnerability at a specific stationary source derived from those documents, shall be exempt from disclosure under section 552 of title 5, United States Code. (b)

State and local government agencies

Notwithstanding any other provision of Federal, State, or local law, no State or local government agency shall be required to disclose any documents provided by a stationary source under this Act, or any information that describes a specific vulnerability at a specific stationary source derived from those documents, except with respect to certifications under section 6(b), orders issued under section 10(a), and best practices established under section 13(4). (c)

Development of protocols

(1)

In general

The Secretary, in consultation with the Administrator, shall develop such protocols as are necessary to protect the documents described in subsection (a), including the reports submitted under section 5(c)(2) and the information contained in those reports, from unauthorized disclosure. (2)

Deadline

As soon as is practicable, but not later than 1 year after the date of enactment of this Act, the Secretary shall complete the development of protocols under paragraph (1) and shall ensure that the protocols are in effect before the date on which the Administrator receives any report under this Act. (d)

Other obligations unaffected

Nothing in this section affects— (1)the handling, treatment, or disclosure of information obtained from a stationary source under any other law; (2)any obligation of the owner or operator of a stationary source to submit or make available information to a Federal, State, or local government agency under, or otherwise to comply with, any other law; or (3)the public disclosure of information derived from documents or information described in subsection (a), so long as the information disclosed— (A)would not divulge methods or processes entitled to protection as trade secrets in accordance with the purposes of section 1905 of title 18, United States Code; (B)does not identify any particular stationary source; and (C)is not reasonably likely to increase the probability or consequences of a criminal release.

12.

Emergency preparedness

(a)

In general

Not later than 1 year after the date of enactment of this Act, the Secretary and the Administrator, in consultation with other Federal agencies and State and local government officials (including local law enforcement and first responders), shall promulgate regulations requiring stationary sources within high priority categories to participate in emergency preparedness exercises, including table top exercises, training, drills (including evacuation drills), and other activities determined to be appropriate by the Secretary and Administrator. (b)

Considerations

The Secretary and Administrator shall structure the emergency preparedness exercises under subsection (a), including the contents and frequency of the exercises, based on the threat posed to the public by a criminal release at a stationary source.

13.

Assistance to stationary sources

The Secretary, in consultation with the Administrator, shall establish an information clearinghouse to assist stationary sources in complying with this Act that includes scalable best practices for— (1)using methodologies for the assessment of vulnerabilities, threats, and inherently safer technology; (2)developing prevention preparedness and response plans; (3)coordinating with local law enforcement, first responders, and duly recognized collective bargaining representatives at stationary sources, or, in the absence of such a representative, other appropriate personnel; (4)implementing inherently safer technologies, including descriptions of— (A)combinations of covered sources and substances of concern for which the inherently safer technologies could be appropriate; (B)the scope of current use and availability of the technologies; (C)the costs and cost savings resulting from inherently safer technologies; (D)technological transfer and business practices that enable or encourage inherently safer technologies; and (E)such other information as the Secretary determines to be appropriate.

14.

Protection of whistleblowers

(a)

Discrimination against employee

No employer may discharge any employee or otherwise discriminate against any employee with respect to compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a request of the employee)— (1)notified the employer, the Department of Homeland Security, or any other appropriate agency of Federal, State, or local government of an alleged violation of this Act or of a threat to the health or safety of the public relating to chemical security or the improper release of any harmful chemical; (2)refused to engage in any practice made unlawful by this Act, if the employee has identified the alleged illegality to the employer; (3)testified before Congress or at any Federal or State proceeding regarding any provision of this Act or of a threat to the health or safety of the public relating to chemical security or the improper release of any harmful chemical; (4)commenced, caused to be commenced, or intends to commence or cause to be commenced a proceeding under this Act, or a proceeding for the administration or enforcement of any requirement imposed under this Act; (5)testified or intends to testify in any proceeding described in paragraph (4); or (6)assisted or participated or intends to assist or participate in any manner in a proceeding described in paragraph (4) or in any other action to carry out the purposes of this Act. (b)

Complaint, filing, and notification

(1)

In general

Except as provided in subsection (g), any employee who believes that such employee has been discharged or otherwise discriminated against by any person in violation of subsection (a) may, not later than 180 days after the date on which the violation occurred, file (or have any person file on behalf of such employee) a complaint with the Secretary of Labor alleging such discharge or discrimination. Upon receipt of such a complaint, the Secretary of Labor shall notify the Secretary and the person named in the complaint of the filing of the complaint. (2)

Investigation

(A)

In general

Upon receipt of a complaint under paragraph (1), the Secretary of Labor shall conduct an investigation of the violation alleged in the complaint. (B)

Completion

Not later than 30 days after the date on which the Secretary of Labor receives a complaint under paragraph (1), the Secretary of Labor shall— (i)complete the investigation under subparagraph (A); and (ii)notify the complainant (and any person acting on behalf of the complainant) and the person alleged to have committed the violation, in writing, of the results of the investigation. (C)

Order

(i)

In general

Except as provided in clause (ii), not later than 90 days after the date on which the Secretary of Labor receives a complaint under paragraph (1), the Secretary of Labor shall issue an order that provides the relief prescribed by paragraph (3) or denies the complaint. (ii)

Exception

Clause (i) shall not apply to a proceeding on a complaint described in clause (i) that is terminated by the Secretary of Labor on the basis of a settlement entered into by the Secretary of Labor and the person alleged to have committed the violation of this section. The Secretary of Labor may not enter into a settlement terminating a proceeding on a complaint without the participation and consent of the complainant. (iii)

Procedure

An order of the Secretary of Labor under this subparagraph shall be made on the record after notice and opportunity for public hearing. Upon the conclusion of the hearing and the issuance of a recommended decision that the complaint has merit, the Secretary of Labor shall issue a preliminary order providing the relief prescribed in paragraph (3), but may not order compensatory damages, pending a final order. (3)

Relief

(A)

In general

If the Secretary of Labor determines that a violation of subsection (a) alleged in a complaint under paragraph (1) of this subsection has occurred, the Secretary of Labor shall order the person who committed the violation to— (i)take affirmative action to abate the violation; and (ii)reinstate the complainant to the former position of such complainant, together with the compensation (including back pay), terms, conditions, and privileges of the employment of such complainant. (B)

Compensatory damages

If the Secretary of Labor determines that a violation of subsection (a) alleged in a complaint under paragraph (1) of this subsection has occurred, the Secretary of Labor may order the person who committed the violation to provide compensatory damages to the complainant. (C)

Costs and expenses

If an order is issued under this paragraph, the Secretary of Labor, at the request of the complainant, shall assess against the person against whom the order is issued a sum equal to the aggregate amount of all costs and expenses (including attorneys’ and expert witness fees) reasonably incurred by the complainant for, or in connection with, the bringing of the complaint upon which the order was issued, as determined by the Secretary of Labor. (D)

Required finding

The Secretary of Labor may determine that a violation of subsection (a) has occurred only if the complainant has demonstrated that any conduct described in paragraphs (1) through (6) of subsection (a) was a contributing factor in the unfavorable personnel action alleged in the complaint. (c)

Dismissal

(1)

In general

The Secretary of Labor shall dismiss a complaint filed under subsection (b)(1), and shall not conduct the investigation required under subsection (b)(2), if the complainant has failed to make a prima facie showing that any conduct described in paragraphs (1) through (6) of subsection (a) was a contributing factor in the unfavorable personnel action alleged in the complaint. (2)

Other basis for action

Notwithstanding a finding by the Secretary of Labor that the complainant has made the showing required by paragraph (1), the Secretary of Labor shall dismiss a complaint filed under subsection (b)(1), and shall not conduct the investigation required under subsection (b)(2), if the employer demonstrates, by clear and convincing evidence, that the employer would have taken the same unfavorable personnel action in the absence of the conduct described in paragraph (1) of this subsection. (d)

District court review

If, by the date that is 1 year after the date on which a complaint was filed under subsection (b)(1), the Secretary of Labor has not issued a final decision regarding the complaint and there is no showing that the delay is due to the bad faith of the complainant, the complainant may bring an action at law or equity for de novo review in an appropriate United States district court, which shall have jurisdiction over such an action without regard to the amount in controversy. (e)

Review by court of appeals

(1)

In general

Any person adversely affected or aggrieved by an order issued under subsection (b) or (c) may obtain review of the order in the United States court of appeals for the circuit in which the violation alleged in the complaint occurred. (2)

Timing

A petition for review under paragraph (1) shall be filed not later than 60 days after the date on which the order described in paragraph (1) is issued. (3)

Procedures

The procedures under chapter 7 of title 5, United States Code shall apply to any review under this subsection. (4)

Stays

Unless ordered by the court, the commencement of proceedings under this subsection shall not operate as a stay of the order of the Secretary of Labor. (5)

Exclusivity

An order of the Secretary of Labor with respect to which review could have been obtained under paragraph (1) shall not be the subject of judicial review in any criminal or other civil proceeding. (f)

Enforcement

(1)

By the Secretary of Labor

(A)

In general

If a person has failed to comply with an order issued under subsection (b)(2)(C), the Secretary of Labor may file a civil action in the United States district court for the district in which the violation occurred to enforce the order. (B)

Scope of relief

In an action brought under this paragraph, the United States district court may grant all appropriate relief, including injunctive relief, compensatory and exemplary damages. (2)

Other enforcement

(A)

In general

Not earlier than the date that is 90 days after an order was issued under subsection (b)(2)(C), any person on whose behalf the order was issued may commence a civil action against the person to whom the order was issued in any appropriate United States district court to require compliance with the order. (B)

Jurisdiction

The United States district court shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce an order described in subparagraph (A). (C)

Scope of relief

In an action brought under this paragraph, the United States district court may award costs of litigation (including reasonable attorney and expert witness fees). (3)

Mandamus

Any nondiscretionary duty imposed under this section shall be enforceable in a mandamus proceeding under section 1361 of title 28, United States Code. (g)

Deliberate violations

Subsection (b)(1) shall not apply with respect to any employee who, acting without direction from the employer of such employee, deliberately causes a violation of any requirement of this Act. (h)

Nonpreemption

Nothing in this section expands, preempts, diminishes, or otherwise affects any right otherwise available to an employee under Federal, State, or local law or any collective bargaining agreement to redress the discharge of such employee or other discriminatory action taken by the employer against such employee. (i)

Whistleblower information

(1)

DHS

The Secretary, in consultation with the Secretary of Labor, shall establish and publicize information regarding mechanisms (including a hotline and a website) through which any person (including an employee, individual residing near a stationary source, first responder, and local official) may report an alleged violation of this Act, a threat to the health or safety of the public relating to chemical security or the improper release of any harmful chemical, or other such information. (2)

Posting requirement

The provisions of this section shall be prominently posted in any place of employment to which this Act applies. (j)

Investigation of allegations

(1)

In general

The Secretary shall not delay taking appropriate action with respect to an allegation of a substantial safety hazard on the basis of— (A)the filing of a complaint under subsection (b)(1) arising from the allegation; or (B)any investigation by the Secretary of Labor, or other action, under this subsection in response to a complaint under subsection (b)(1). (2)

Effect of determination

A determination by the Secretary of Labor under this section that a violation of subsection (a) has not occurred shall not be considered by the Secretary in determining whether a substantial safety hazard exists.

15.

Regulations

(a)

Coordination with existing law

In promulgating regulations and establishing enforcement procedures under this Act, the Secretary, in consultation with the Administrator, shall, to the extent practicable and to the extent such requirements meet or exceed the requirements of this Act, minimize duplication of the requirements for risk assessments and response plans under chapter 701 of title 46, United States Code (commonly known as the Maritime Transportation Security Act), the Clean Air Act (42 U.S.C. 7401 et seq.), and other Federal law. (b)

Promulgation of additional regulations

In addition to any regulations required under this Act, the Secretary and the Administrator may promulgate such regulations as are necessary to carry out this Act.

16.

No effect on requirements under other law or agreements

Nothing in this Act affects any duty or other requirement imposed under any other Federal, State, or local law or any collective bargaining agreement.

17.

Authorization of appropriations

There are authorized to be appropriated to the Secretary and the Administrator such sums as are necessary to carry out this Act, to remain available until expended.