[Congressional Record Volume 151, Number 165 (Monday, December 19, 2005)]
[Senate]
[Pages S14065-S14068]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Ms. COLLINS (for herself, Mr. Lieberman, Mr. Coleman, Mr. 
        Carper, and Mr. Levin):

  S. 2145. A bill to enhance security and protect against terrorist 
attacks at chemical facilities; to the Committee on Homeland Security 
and Governmental Affairs.
  Ms. COLLINS. Mr. President, I rise today, along with my good friend 
and colleague, Senator Joe Lieberman, to introduce the Chemical 
Facility Antiterrorism Act of 2005.
  This legislation addresses one of the Nation's greatest 
vulnerabilities, the threat of a terrorist attack against a chemical 
facility.
  My legislation would provide broad new authority to the Department of 
Homeland Security to ensure that the Nation's chemical facilities are 
better protected from terrorism.
  This legislation would direct the Department of Homeland Security to 
establish criteria for evaluating the vulnerability of our Nation's 
chemical facilities to terrorist attack and to establish risk-based 
tiers for those facilities deemed in need of protection.

[[Page S14066]]

  These regulations will require designated facilities to conduct 
vulnerability assessments and to create appropriate site security and 
emergency response plans. In addition, the Department would establish 
an office within the Infrastructure Protection Directorate responsible 
for implementing and enforcing the statute.
  The bill also contains robust measures to ensure both compliance by 
chemical plants and effective implementation by the Department.
  This legislation is strong medicine, and I do not prescribe it 
lightly. But the potential devastation that an attack on a chemical 
facility could cause, the sheer number of these facilities and the 
current widespread lack of security, as well as the clearly stated 
intent of terrorists to cause maximum harm to the American people and 
to our economy make these measures necessary.
  The Homeland Security Committee has invested substantial effort in 
examining this threat and in deciding how best to respond to it. Our 
investigation included four hearings on this topic earlier this year.
  From the horrifying chemical attacks of the First World War, and the 
tragic accident at Bhopal, India, in 1984, to the numerous and more 
recent accidental releases of hazardous chemicals in this country, we 
were reminded by expert after expert of the potential for useful 
productive chemicals to kill, if released accidentally or 
intentionally.
  We also know that al-Qaida has a keen interest in the American 
chemical industry. Indeed, at our first hearing, Steven Flynn of the 
Council on Foreign Relations testified that the chemical industry is 
``at the top of the list'' of al-Qaida and other terrorist groups. The 
chemical industry, said Commander Flynn, absolutely screams at you as 
essentially a weapon of mass destruction.
  We should not wait until there is an attack on a chemical facility 
and then act after the fact. So often our security measures and our 
emergency legislation is passed after something horrible has already 
occurred and after lives have already been lost. Let us get ahead of 
this curve. Let us act now to address what witness after witness 
identified as being one of the greatest threats to our homeland.
  The stakes are high and the vulnerability is widespread. The 
Environmental Protection Agency has cataloged some 15,000 facilities in 
the United States that manufacture, use, or store large quantities of 
hazardous chemicals for productive, legitimate purposes, but in amounts 
that could cause extensive harm if turned against us as weapons. And we 
have seen al-Qaida do this before. We have seen al-Qaida use commercial 
aircraft as weapons of mass destruction.
  The Department of Homeland Security has identified 3,400 facilities 
that could affect more than 1,000 people if attacked.
  According to the Government Accountability Office, tens of millions 
of Americans live close enough to chemical facilities to be at risk in 
the event of a terrorist attack. Yet despite this profound threat, only 
a fraction of our Nation's chemical facilities are regulated for 
security by the Federal Government under the Maritime Transportation 
Security Act of 2002, or subscribe to volunteer security standards.
  While I applaud those companies that have taken voluntary measures, 
an unacceptable number have not. Moreover, given the severity of the 
threat, I believe it is a mistake in this case to rely on voluntary 
measures alone. The overwhelming majority of experts at our hearing 
testified that additional statutory authority is needed to effectively 
address the threat of terrorism against a chemical facility.
  Leading security experts, chemical safety professionals, industry 
representatives, labor representatives, environmental groups, and the 
administration, all have testified that Federal legislation in this 
area is necessary, although obviously they differ considerably on the 
details.
  The legislation I am introducing today provides that critical 
authority. While establishing the need for Federal legislation, our 
hearings stressed the importance of getting this right, of striking the 
right balance.
  Chemical shipments in the United States approach $.5 trillion 
annually. The chemical industry represents our largest export sector, 
totaling $91.4 billion in 2003.
  More than 900,000 people work directly in the American chemical 
industry with millions more in supplier and indirect jobs.
  Chemicals are critical to our food and our water supply, our 
pharmaceuticals, our electronics, our clothes; in fact, just about 
everything.
  A consistent theme that sounded throughout our hearing was that we 
cannot afford to drive the chemical sector out of this country in the 
name of security. And that is why we spent so much time in carefully 
crafting a bill that strikes the right balance.
  Our hearings established a considerable consensus around two 
important concepts: First, that the legislation should be risk based. 
Our chemical industry is extremely diverse and any legislation must 
take into account that diversity. A small plant using chemicals in 
rural Maine faces very different risks than a major chemical 
manufacturing plant in the New York City area, and its security 
response should be structured appropriately. Security measures should 
be tailored to each particular facility, taking into account its 
vulnerabilities, its location, impact on the population, and other risk 
factors. High-risk facilities should undertake the strongest security 
precautions while obviously fewer precautions are necessary at very 
low-risk facilities.
  Second, the legislation should be performance based. What do I mean 
by that? By that I mean our focus should be on having the Department 
establish the standards, the results, rather than prescribing exactly 
how a corporation should act to meet those standards, those results. 
Facilities should defend against particular threats. For example, the 
Secretary might specify that facilities should be able to protect 
against a hazardous release resulting from a truck bomb. Or the 
Secretary may mandate that every plant have a secure perimeter. Now, 
facilities could choose to meet those standards by building fences, 
erecting barriers, moving the most hazardous chemicals to a more secure 
area, or even switching to a less hazardous chemical altogether. By 
specifying the regulations should be performance based, facilities will 
have the incentives to identify the most effective and cost-efficient 
means of increasing protection.
  The legislation I am introducing today meets those fundamental 
criteria. It is risk based and it is performance based. This 
legislation is modeled, in part, on the Maritime Transportation 
Security Act, consequently referred to as MTSA.
  During the course of our four hearings, we heard substantial 
testimony from security industry experts, the administration and 
others, that the results-based cooperative approach of MTSA is a major 
success story. In fact, we heard so many positive things about the law 
that we brought in the Coast Guard's director of port security, Admiral 
Bone, to testify about their experience with the current law.
  The first step in improving the security of our Nation's chemical 
facilities is to determine which facilities should be covered by 
Federal regulations and to what degree. This legislation requires the 
Department of Homeland Security to issue within 1 year of enactment 
regulations establishing criteria for evaluating the types of 
facilities that should be covered, as well as regulations establishing 
risk-based tiers for the designated facilities.
  Following the issuance of these regulations, the Department would 
designate covered facilities and place them into tiers. The 
designations would be based on risk factors including potential 
likelihood of death or illness, proximity to population centers, and 
the potential impact on national security, the economy, and critical 
infrastructure. The tier would have increasingly strict security 
requirements as the risk and consequences of a terrorist attack at a 
covered facility increase.
  The Department would then set security performance standards for each 
tier. Every facility would be required to conduct a vulnerability 
assessment, establish and implement a site security plan, and create an 
emergency response plan or update an existing plan to include 
provisions for an intentional attack. Vulnerability assessments would 
address the threats and consequences of a terrorist attack, including

[[Page S14067]]

vulnerabilities from the use of hazardous chemicals.
  The site security plan would address the identified vulnerabilities 
and meet the performance standards set by the Department. The site 
security plan would also identify how the facility is coordinating with 
Federal, State, and local officials for response to a terrorist attack. 
The facilities would be required to drill their security plans and 
emergency response plans. Covered facilities would have 6 months 
following promulgation of regulations to certify compliance and submit 
their assessments and plans to the Department for approval.
  If a facility fails to comply, the legislation I am introducing 
provides the strongest remedy to the Department. The bill gives the 
Secretary of Homeland Security the authority to shut down chemical 
facilities that are at high risk and which the Secretary believes have 
not adequately addressed the risk of a terrorist attack. For the 
highest risk facilities, the Secretary could order an immediate 
closure. For the other lower risk facilities, the Department could 
order closure but only after a process of written notification, 
consultation, and further time for compliance.
  Now, I recognize this shutdown authority concentrates considerable 
power into the Secretary's hands, but the dire consequences of a 
terrorist attack justify giving the Secretary the authority to shut 
down a chemical facility that has failed to comply with the law. With 
hundreds of thousands of lives at stake, the Secretary must have the 
authority to ensure our chemical facilities have adopted security 
measures sufficient to reduce the risk of a terrorist attack. If a 
facility cannot, will not, or has not done so, it simply cannot be 
allowed to keep operating.

  It was only after very careful consideration that I decided to 
include this power in my bill. I note that the Maritime Transportation 
Security Act provides similar authority to the Coast Guard. Admiral 
Bone testified since 2004 the Coast Guard has used this authority to 
shut down 32 facilities--three of which were chemical facilities. He 
testified it was imperative the Department of Homeland Security be 
given that closure authority.
  Before closing, I will comment on a couple of very important and 
controversial issues. One is the issue of inherently safer technology 
which is often referred to as IST. My bill allows chemical facilities 
to choose whatever security measures best meet the performance 
standards required by the Department. IST is one of the recognized 
means of meeting a performance standard. In addition, my legislation 
requires the vulnerability assessment include an analysis of security 
measures, including vulnerabilities arising from the use, storage, and 
handling of dangerous chemicals. However, I make clear our legislation 
does not mandate IST. Not only would doing so be at odds with the 
performance-based approach we have endorsed in this bill, I also do not 
believe it is appropriate for a bill on security to dictate specific 
industrial processes. Such uses are outside the scope of the 
legislation, beyond the jurisdiction of this committee, and are not the 
only way to address security issues.
  I fully expect some facilities will adopt inherently safer 
technologies. I certainly encourage them to do so if that is the best 
means for them. However, that should be their decision.
  This legislation does not tell facilities how high to build their 
fences or what chemicals to use or how they may use them. It is the 
result that matters. I believe this bill will result in significantly 
enhanced security for the chemical sector. This is a Homeland Security 
bill. It is not an environmental regulation.
  In summary, this legislation requires chemical facilities to conduct 
vulnerability assessments, create and implement security plans, 
establish emergency response plans, and to submit these plans to the 
Department of Homeland Security for approval or disapproval. It gives 
the Department broad authority to ensure that chemical facilities are 
addressing the risks of terrorist attacks and giving the Department the 
authority it needs. The legislation is risk based and performance 
based, and I am confident it will provide long overdue standards that 
will ensure stronger and more consistent security at our chemical 
facilities.

  Before closing, I once again thank my lead cosponsor and the ranking 
member of the Homeland Security Committee, Senator Lieberman. We have 
worked very hard with the members of our committee, including the 
Presiding Officer, all year long to explore this through a number of 
hearings, and we have engaged in many months of negotiations.
  I also thank our cosponsors, Senator Coleman, Senator Carper, and 
Senator Levin, for their hard work on this bill.
  I look forward to adding additional cosponsors and working with the 
committee to move this vital legislation forward.
  Thank you, Mr. President.
  Mr. LIEBERMAN. Mr. President, I am pleased to join my colleague, 
Senator Collins, in introducing the ``Chemical Facility Anti-Terrorism 
Act of 2005. I am also delighted that Senators Coleman, Levin, and 
Carper will be joining us on this bill.
  This bill is the product of extensive work in the Homeland Security 
and Governmental Affairs Committee to explore the risks of a possible 
terrorist attack on our chemical facilities, as well as the best means 
to guard against those risks.
  Since 9/11 opened our eyes to the threats we face on U.S. soil from 
Islamist terrorist groups, we have moved to improve security for many 
of the critical elements of our society and economy. But somehow we 
have not yet protected one of our greatest vulnerabilities the chemical 
sector.
  Chemicals are vital to many of the processes that feed us, heal us, 
and power our economy. Yet the very pervasiveness of the chemical 
sector makes it vulnerable to terrorism. Thousands of facilities 
throughout the country use or store lethal materials, often near large 
population centers.
  We know that terrorists are interested in targeting these facilities. 
The Congressional Research Service reports that during the 1990s, both 
international and domestic terrorists attempted to use explosives to 
release chemicals from manufacturing and storage facilities close to 
population centers. The Justice Department in 2002 described the threat 
posed by terrorists to chemical facilities as ``both real and 
credible,'' for the foreseeable future.
  Former White House Homeland Security Advisor Richard Falkenrath this 
spring told the Homeland Security and Governmental Affairs Committee 
that although chemical facilities are a most serious homeland security 
vulnerability, the Federal Government has done almost nothing to secure 
them. Homeland Security expert Steve Flynn likened the Nation's 15,000 
chemical facilities to ``15,000 weapons of mass destruction littered 
around the United States.''
  Fortunately, the responsible players in the chemical industry have 
not waited for Federal legislation, and some of the leading trade 
groups have begun their own security programs or participated in some 
voluntary efforts led by DHS. Some chemical facilities are also subject 
to security regulation under the Maritime Transportation Security Act 
or the Bioterrorism Act of 2002. Yet these programs do not reach the 
full range of security matters addressed at the committee's hearings 
and in this legislation. More significant, far too many facilities that 
use extremely hazardous chemicals remain entirely outside the patchwork 
of laws, regulations, and self-protection now in place.
  For several years, legislation to require security enhancements at 
these chemical sites has foundered in Congress, bereft of true 
administration support or Congressional consensus. But I am hopeful 
that today marks a turning point that will culminate in successful 
passage of a robust chemical security bill.
  First, the Homeland Security and Governmental Affairs Committee has 
worked on a bipartisan basis to build a foundation for this effort: 
through four hearings that explored the issues and possible solutions 
regarding chemical site security and through collaboration on this 
legislation that has already won strong bipartisan support on our 
Committee.
  Second, DHS has now clearly stated--in testimony to our committee--
that the current voluntary efforts are

[[Page S14068]]

not sufficient and that the Department needs new legislative authority 
to regulate chemical site security.
  Third, responsible segments of the chemical industry--such as the 
American Chemistry Council--have recognized the need for a 
comprehensive national program to ensure adequate security across the 
entire chemical sector and called for Federal legislation. I welcome 
this engagement by industry and believe we can work together with them, 
as well as the administration, and all who are concerned about 
security, to forge an effective national program.
  This legislation is a forceful but pragmatic response to the 
challenge of chemical site security. It directs its greatest force and 
focus to those facilities that pose the highest risk in terms of 
potential loss of human life or other catastrophic results.
  It authorizes the Department of Homeland Security to initiate a 
thoroughgoing security program for thousands of critical chemical sites 
around the country.
  The Secretary would identify which facilities pose a meaningful risk 
due to terrorism concerns, and then require these facilities to conduct 
a vulnerability assessment and prepare a security plan and emergency 
response plan to address the results of this vulnerability analysis.
  Facilities within the program would submit these assessments and 
plans to DHS for review and approval. DHS would then work with the 
facilities to ensure the plans, and implementation, are adequate. Under 
a tiered system of requirements, those facilities that pose the 
greatest risk would face the most stringent security requirements as 
well as a speedier and more rigorous DHS review. The bill includes 
civil and criminal penalties for noncompliance and, ultimately, 
facilities may be ordered to shut down if they do not comply with DHS 
orders.
  This legislation recognizes that facilities will need flexibility to 
achieve security in the most efficient and effective manner. The bill 
also recognizes the work of the responsible chemical companies within 
the chemical sector and does not force those facilities to reinvent the 
wheel. Instead, the bill ensures that so long as an alternative 
security program's assessments and plans meet the bill's core 
requirements for vulnerability assessments and site security plans, 
facilities operating under those alternative security programs can 
submit these assessments and plans under the DHS program. However, 
where the assessments and plans do not meet the bill's core 
requirements, the Secretary will require appropriate modifications. 
Finally, the Secretary will judge all assessments and plans against the 
regulations promulgated under this bill.
  This legislation also recognizes that sometimes the best security 
will come not from adding guards and gates but from reexamining the way 
chemical operations are carried out in order to reduce the amount of 
hazardous substances on site, improve the way they are stored or 
processed or find safer substitutes for the chemicals themselves. These 
changes serve to make a facility less inviting as a target for 
terrorists, as well as limiting the loss of life or other damage if an 
attack does take place. They also have the added benefit of limiting 
the harm from an accidental release. This bill clearly requires 
facilities to look at the risks and consequences related to the 
dangerous chemicals on site and address those specific vulnerabilities 
in their security plan. And it includes these process changes among the 
menu of security measures that chemical facilities should examine when 
designing their security plans.
  We know that many facilities, and many security experts, already look 
to these less dangerous technologies as a potent and cost-effective way 
to improve security against a possible terror attack. But we also know 
that, for some facilities, there can be reluctance or structural 
impediments to looking at these technological solutions. That is why I 
feel this bill should go further and include more explicit requirements 
for chemical facilities to consider less dangerous technologies when 
they make the security enhancements required under this bill. In 
particular, the riskier facilities--some of which could endanger tens 
or hundreds of thousands of lives if attacked--should have to 
demonstrate that they have looked closely at options that would reduce 
the catastrophic consequences of a possible terrorist attack. We had a 
powerful example of such an adjustment close by: after 9/11 focused our 
attention on potential targets in our midst, Washington DC's water 
treatment facility ended the use of its potentially deadly liquid 
chlorine. This is not a question of forcing industry to conduct its 
operations off a Government-issued playbook. Companies would analyze 
for themselves whether there are less dangerous ways to conduct their 
business and would not be forced to implement any changes that were not 
feasible. But given the extraordinary risks involved, it makes little 
sense not to require companies to at least take a long hard look at 
some of the commonsense solutions that have been advocated or already 
adopted by others within the industry. Therefore, as this bill 
advances, I will seek to strengthen the requirements for facilities to 
carefully consider these safer technologies as a means to greater 
security.
  The bill creates structure within DHS to oversee this regulatory 
program and a regional network to help implement its provisions, 
particularly to help ensure adequate emergency response capabilities in 
the event of an attack on a chemical facility. There are also 
provisions to safeguard sensitive information that DHS receives from 
the chemical facilities, while at the same time requiring DHS to share 
and disclose information necessary for public safety and public 
accountability. The bill does not affect chemical facilities' 
obligations to make information available to the public under right-to-
know laws or other regulatory programs, and it establishes a secure 
channel by which members of the public can submit information about 
potential problems regarding the security of chemical facilities.
  This bill also recognizes that Congress is not the only body that can 
and should help ensure the safety and security of the Nation's chemical 
facilities. States and localities have long regulated such facilities 
for various safety and environmental concerns. Since 9/11, some States 
have also moved to require security improvements at these facilities. 
These State and local protections are critical adjuncts to our effort 
at the Federal level, and I am pleased that this bill states clearly 
that it does not preempt State and local laws or regulations regarding 
the safety and security of chemical facilities. States and localities 
are free to enact more stringent chemical security legislation. Only if 
there is an absolute conflict, such that it is impossible for a 
facility to comply with both the Federal law and a State or local law 
or regulation on chemical security, would the Federal provision take 
precedence. The bill would not disrupt State and local safety and 
environmental law regarding chemical facilities, nor does it dislodge 
or alter the operation of State common law with respect to such 
facilities.

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