Chemical Facility Security: Issues and Options for the 113th Congress

appropriations process provides funding for implementation of chemical facility security regulation. The th Congress.
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What Descriptive information to help identify this report. Issues and Options for the th Congress Series Title: Identifier Unique identifying numbers for this report in the Digital Library or other systems. Collections This report is part of the following collection of related materials. About Browse this Collection. Digital Files 1 file. When Dates and time periods associated with this report. Creation Date May 9, Description Last Updated Feb. Usage Statistics When was this report last used?

Where Geographical information about where this report originated or about its content. Place Name United States. Publication Place Washington D. One policy approach might be to mandate the implementation of inherently safer technologies for a set of processes. Another policy approach might be to mandate the consideration of implementation of inherently safer technologies with certain criteria controlling whether implementation is required. A third policy approach might be to mandate the development of a federal repository of inherently safer technology approaches and consideration of chemical processes against those options listed in the repository.

Stakeholders might assess and review the viability of applying these inherently safer approaches at lower cost if such information were centralized and freely available. Alternatively, policy makers might establish an incentive-based structure outside of the chemical facility security mandate to encourage the adoption of inherently safer technologies by regulated entities. The Obama Administration supports use of inherently safer technologies to enhance security at high-risk chemical facilities in some circumstances.

It has established a series of principles directing its policy:. A congressional mandate for regulated entities to adopt or consider adopting inherently safer technologies may have benefits and drawbacks. It may lead regulated entities to consider factors such as homeland security impact in their chemical process assessments. Some experts assert that existing chemical process safety activities consider and assess inherently safer technology approaches though not necessarily in a homeland security context.

The extent to which homeland security impact has factored into these industry decisions is unknown, but DHS has identified cases where chemical facilities have voluntarily modified chemical processes to lower their CFATS tier. An additional complication to assessing inherently safer technology is the varying amounts and quality of information available regarding industrial implementation of inherently safer technologies. While some facilities have converted to processes generally deemed as inherently safer, other facilities may not have sufficient information available to effectively assess the impacts from changing existing processes to ones considered inherently safer.

Finally, the National Academies have identified that the chemical industry lacks a common understanding and set of practice protocols for identifying safer processes. Even the mandatory consideration of inherently safer technologies may place a financial burden on some small regulated entities. Congress might limit mandatory measures to those facilities considered by DHS to pose the most risk or might provide such financial assistance to regulated facilities.

Policy makers might choose to try to further incentivize regulated entities to adopt inherently safer technologies. Under the CFATS regulations, facilities that adopt inherently safer technologies might change their assigned risk tier by reducing the amount of chemicals of interest they store. As of December , more than 3, facilities had removed or reduced the amount of chemicals of interest stored onsite and no longer qualify as a high-risk facility.

Alternatively, policy makers might direct DHS or another agency to perform inherently safer technology assessments for regulated entities, transferring the cost of such assessment from the facility to the federal government. Congressional policy makers might choose to increase transparency in the CFATS process by altering the information security provisions of the program.

Such an approach might include increasing the number and type of individuals granted access to CVI, improving information exchange with first responders, and adjusting the manner by which courts and administrative proceedings handle CVI. The Obama Administration has testified that CVI is a distinct information protection regime and expressed support for maintaining CVI in its current form.

Congress might choose to amend the existing statutory authority to address policy concerns.

Chemical Facility Security: Issues and Options for the th Congress - Digital Library

Policy makers might direct DHS to make specific types of information, such as the results of enforcement activities or the approval of successful implementation of a site security plan, more generally available. As more information about the vulnerability assessment and the security process becomes available, the potential that adversaries might combine this disparate information to obtain insight into a security weakness may increase.

Congressional policy makers might require that the executive branch or another entity identify the threats or vulnerabilities that might accrue from release of a greater amount of chemical facility security information prior to implementing such a policy change.

Congressional policy makers might choose to alter the information protection regime afforded to chemical facility security information by specifically expanding access to first responders. The existing regulation explicitly states that it does not protect from disclosure information developed in response to other laws or regulations, such as the Emergency Planning and Community Right-to-Know Act EPCRA.

Enhancing first responder access to such information might minimize perceived barriers to disclosing information during an accident. For example, Congress might mandate that each jurisdiction with a regulated chemical facility contain a first responder designated as a covered individual. Conversely, congressional policy makers might choose to further limit dissemination of CVI so as to increase barriers to its release. Congress might prohibit DHS from sharing such information outside of the federal government or further limit CVI access to state and local officials by establishing additional eligibility criteria.

Limiting the number of individuals with access to CVI may make it more difficult for those wishing to do harm to obtain technical or operational security information. Conversely, state and local officials may not support such an approach, as limitations on distribution may also adversely affect emergency response at a regulated facility or inhibit the ability of state and local law enforcement officials to provide targeted protection of particular chemical facility assets.

Policy makers might also choose to address the issue of identifying and marking protected information by mandating review of marked documents. Congressional policy makers might assign this responsibility to review and certify marked information to the chemical facility. Alternatively, the federal government might review and certify documents marked CVI on a regular basis. Industry representatives may not support such a requirement due to the additional regulatory burden caused by the review. While such review might potentially limit incorrect marking, it may inhibit information reporting by regulated entities to the federal government.

Additionally, absent a penalty for incorrect marking, it is unclear how to discourage incorrect marking of non-security materials in order to avoid public release. Congressional policy makers may also address concerns raised regarding the ability of concerned individuals to report misdeeds by creating a "whistleblower" reporting mechanism. Alternatively, Congress can create a more general exemption to the penalties arising from disclosure of protected information for those individuals who report such concerns to federal officials if that is needed to protect whistleblowers.

As part of a whistleblower mechanism, policy makers might choose to extend protections against retaliation or other job-related actions to those individuals availing themselves of current or newly established reporting mechanisms. The th Congress addressed the issue of federal preemption of state chemical facility security statutes and regulations by placing in statute the requirement that federal regulation preempt the state regulation only when an "actual conflict" occurs between them. Alternatively, policy makers may choose to increase the number of cases where federal regulations preempt those of a state by expanding the types of conflict, beyond "actual," that will lead to preemption.

The annual appropriations process provides funding for implementation of chemical facility security regulation. The th Congress, through H. Other chemical facility security legislation has also been introduced in the th Congress. Legislation in the th Congress has been introduced in the House that would modify the existing authority. Of this legislation, the th Congress has passed H. It would require the Secretary of Homeland Security to establish risk-based performance standards through the program and mandate that the Secretary identify chemical facilities of interest and covered chemical facilities.

Chemical facilities of interest would be those chemical facilities possessing certain chemicals in greater than threshold quantities. Covered chemical facilities would be chemical facilities of interest designated by the Secretary as meeting certain security risk criteria. Facilities regulated under MTSA; public water systems; wastewater treatment works; facilities owned or operated by the Department of Defense and Department of Energy; and facilities regulated by the Nuclear Regulatory Commission would be excluded from the definitions of chemical facility of interest and covered chemical facility.

Chemical facilities of interest would submit Top-Screen information to DHS, while covered chemical facilities would also submit a security vulnerability assessment, and develop, submit, and implement a site security plan. The act would require the Secretary to review and approve or disapprove such security vulnerability assessments and site security plans, though not on the basis of the presence or absence of a particular security measure. It would allow the Secretary to approve alternative security programs if the programs meet DHS requirements. The act would allow the Secretary to recommend additional security measures so that an alternative security program would meet DHS requirements.

The act would also provide a mechanism for Tier 3 and Tier 4 chemical facilities to self-certify the sufficiency of their site security plans to DHS. The act would prohibit DHS from disapproving the site security plans of such "expedited approval facilities.

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The act would allow the Secretary to recommend additional security measures so that a self-certified site security plan would meet DHS requirements and allow the Secretary to develop templates for use in developing self-certified site security plans. The Secretary would be required to evaluate this aspect of the chemical facility security program and report the results to the Senate Committee on Homeland Security and Governmental Affairs and the House Committee on Homeland Security. It would explicitly allow the Secretary to permit non-departmental and nongovernmental entities to perform such activities and would allow nongovernmental personnel to provide administrative and logistical services to DHS in support of audits and inspections.

It would limit approval of site security plans and determination of compliance with an approved site security plan to the Secretary and the Secretary's designees within DHS. It would also require the Secretary to set standards for departmental and nongovernmental inspectors. Also, the act would allow a covered facility to satisfy a personnel surety performance standard by using any federal screening program that periodically vets individuals against the terrorist screening database, including the DHS personnel surety program. The act would provide a mechanism for addressing covered facility noncompliance including the issuance of penalties.

The Secretary would also have the authority to issue certain emergency orders that would take effect immediately. Owners or operators of chemical facilities of interest that fail to comply with or knowingly submit false information under the CFATS regulations would be liable for a civil penalty.

The act, as passed the Senate, would require the Secretary to consult with other federal agencies, relevant business associations, and public and private labor organizations to identify potentially noncompliant facilities. The act would provide protections to information developed pursuant to the act and would explicitly exempt such information from the Freedom of Information Act.

It would allow the Secretary to share information with covered facilities, state and local government officials, as well as first responders through state and local fusion centers. The act would also require the Secretary to establish a reporting procedure for employees of a chemical facility to confidentially submit information to DHS. In addition, the Secretary would be required to acknowledge receipt of such information, review it, and take appropriate actions to address any substantiated problems or deficiencies.

The act would expressly prohibit retaliation against employees using this process. The Secretary would be granted the discretion to use existing and new regulations to implement these authorities. Finally, the bill would require the Secretary to commission a third-party study on vulnerabilities associated with the existing CFATS program. It contains a sunset date, and the statute would expire four years after the effective date of the act. It does not contain an authorization of appropriations. On June 23, , the House Committee on Homeland Security amended the bill as forwarded by the Subcommittee on Cybersecurity, Infrastructure Protection, and Security Technologies and reported it, as amended, to the House of Representatives.

It would require the Secretary of Homeland Security to establish risk-based performance standards through the program and mandate that chemical facilities of interest and covered facilities submit security vulnerability assessments and develop and implement site security plans. Covered chemical facilities would be chemical facilities of interest designated by the Secretary as meeting certain security risk criteria, excluding facilities regulated under MTSA; public water systems; wastewater treatment works; facilities owned or operated by the Department of Defense and Department of Energy; facilities regulated by the Nuclear Regulatory Commission; and certain rail facilities regulated by the Transportation Security Administration.

It also would prohibit the Secretary from requiring a covered facility to submit information about individuals with access to the facility unless the individual was vetted under the DHS personnel surety program or had been identified as presenting a terrorism security risk.

Also, it would require the Secretary to consult with other federal agencies and relevant business associations to identify potentially noncompliant facilities. The act would provide protections to information developed pursuant to the act. Finally, the bill would require the Secretary to establish an outreach implementation plan, submit a plan to Congress on CFATS metrics, and commission a third-party study on vulnerabilities associated with the existing CFATS program.

I have reviewed H.

I think it is a good bill. I'm very supportive of it. Indeed, my folks tell me, "We wish we could extend the period longer. I agree with you, that over the last year, it's gotten better. That all stems from an appropriations measure, not an authorizations measure. I've read this bill. I think it's a good bill. Our critical infrastructure folks think it's a good bill. And I support it. In addition, several industry organizations have expressed support for H.

The act would prohibit the Secretary of Homeland Security from approving a chemical facility site security plan if the plan did not meet or exceed existing state or local security requirements.

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It would allow the Secretary of Homeland Security to mandate the use of specific security measures in site security plans. The bill would also cause CVI to be treated as sensitive security information in both general and legal proceedings. Finally, the act would no longer prohibit third-party individuals from bringing suit in court to require the Secretary of Homeland Security to enforce chemical facility security regulations against a chemical facility.

The act would authorize the EPA Administrator to regulate community water systems and wastewater treatment facilities for security purposes. Among other provisions, the Administrator would be directed to promulgate regulations as necessary to prohibit the unauthorized disclosure of controlled information. It would require facilities to evaluate whether the facility could reduce the consequences of an attack by using a safer chemical or process.

The act would authorize DHS to require implementation of those safer measures if a facility has been classified as one of the highest-risk facilities, implementation of safer measures is feasible, and implementation would not increase risk overall by shifting risk to another location. Among other provisions, S. The act would levy a civil penalty on owners or operators of a facility that does not file Top-Screen information when possessing a chemical of interest at above the screening threshold quantity.

It would also establish a criminal penalty if a facility owner, a facility operator, or an officer of an entity that owns or operates a facility intentionally fails to file Top-Screen information when the facility possesses a chemical of interest at above the screening threshold quantity. The current statutory authority to regulate security at chemical facilities expires on December 13, Historically, Congress has extended this authority through appropriations acts. The Administration's budget requests that the statutory authority be extended to October 4, The DHS would not be able to require a chemical facility to employ or not employ a particular security measure for personnel surety if the facility has adopted certain personnel measures.

These personnel measures must be designed to verify and validate an individual's identification; check an individual's criminal history; verify and validate an individual's legal authorization to work; and identify individuals with terrorist ties. The act would expressly allow a facility to use any federal screening program "that periodically vets individuals against the terrorist screening database, or any successor to such database, including the Personnel Surety Program of the Department of Homeland Security" to satisfy the requirement to identify individuals with terrorist ties.

According to the House Committee on Appropriations, this recommended funding would "enhance critical efforts related to compliance with CFATS, including developing an automated process for identification of CFATS outliers, addressing concerns raised by GAO regarding the risk-tiering methodology, and fulfilling other requirements.

The report also expresses the committee's determination that "DHS should not mandate how a covered chemical facility meets the personnel surety standard if the facility has already adopted a rigorous process to verify and validate identity, check criminal history, verify and validate legal authorization to work, and identify individuals with terrorist ties by using a federal vetting program, such as one that periodically vets individuals.

Finally, the report would encourage DHS to work with the Chemical Sector Coordinating Council to disseminate information to the chemical sector, about proven next-generation sealing technologies. The report would be delineated by risk tier and include the number of facilities covered, inspectors, completed inspections, inspections completed by region, pending inspections, days inspections are overdue, enforcements resulting from inspections, and enforcements overdue for resolution.

The report also would direct NPPD to brief the Senate Committee on Appropriations within 90 days on the progress made on improving chemical facility security coordination among federal agencies and fulfilling the recommendations made in the report of the Chemical Facility Safety and Security Working Group established by Executive Order In addition, the report urges NPPD to "find the best possible path to ensure safety while not overburdening the industry with excessive regulatory requirements.

In particular it is imperative that NPPD work with industry on a viable solution to personnel surety. Finally, the report would direct NPPD to consider the eligibility of chemical security inspectors for administratively uncontrollable overtime and keep the Senate Committee on Appropriations apprised of developments in this area. It extended the statutory authority through October 4, , and provided appropriations for the federal government for FY A joint explanatory statement for P.

The joint explanatory statement for P. The language and allocations contained in the House and Senate reports should be complied with and carry the same weight as the language included in this explanatory statement, unless specifically addressed to the contrary in the final bill or this explanatory statement. The joint explanatory statement directed NPPD to report to the appropriations and authorizing committees not later than April 15, , on the steps NPPD is taking to avoid costly duplication of programs, as detailed in the House report.

The report is also to describe how NPPD is helping to ensure the safety of facilities and whether DHS intends to mandate how a covered chemical facility meets the personnel surety standard, particularly in cases where the facility has already adopted strong and identifiable personnel measures designed to verify identity, check criminal history, validate legal authorization to work, and identify individuals with terrorist ties.

This report shall be in lieu of language in the House report directing NPPD to provide a detailed expenditure plan. In lieu of the requirement in the Senate report for the Chemical Sector Coordination Council to develop recommendations to improve coordination on chemical security and safety, the joint explanatory statement directed NPPD to continue implementing the requirements designated in Executive Order The House committee report would direct DHS to perform certain activities and to provide several reports to congressional policy makers.

The review also would address improvement of facility identification methodology used by ISCD, information sharing with state entities by ISCD, and efforts to address stakeholder concerns. The Senate committee report would direct DHS to perform certain activities and to provide several reports to congressional policy makers. It would require DHS to report semiannually on the coordination of chemical security efforts within DHS and across departments and agencies and direct DHS to work in conjunction with the Office of Management and Budget to review and synchronize federal entities involved in chemical security activities.

It extended the statutory authority through January 18, It extended the statutory authority through January 15, It extended the statutory authority through October 4, The original statutory authority expired on October 4, , three years after enactment.

Congress has incrementally extended this authority through many appropriation acts and continuing resolutions. An interim final rule is a rule that meets the requirements for a final rule and that has the same force and effect as a final rule, but contains an invitation for further public comment on its provisions. After reviewing comments to the interim final rule, an agency may modify the interim final rule and issue a "final" final rule.


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The DHS first issued the proposed rule in December and solicited public comments. A performance standard may be viewed in juxtaposition to a prescriptive standard which may specify design requirements, such as materials to be used, how a requirement is to be achieved, or how an item is to be fabricated or constructed. For example, a performance standard might require that a facility perimeter be secured. In contrast, a prescriptive standard might dictate the height and type of fence to be used to secure the perimeter.

High-risk facilities may develop security vulnerability assessments and site security plans using alternative security programs so long as they meet the tiered, performance-based requirements of the interim final rule. This amount is an increase compared to FY funding both before and after reductions due to sequestration. This determination might change, for example, if the facility changed its chemical holdings.

The DHS considered approximately 3, facilities as high-risk before the facilities voluntarily removed, reduced, or modified their holdings of chemicals of interest. CRS analysis of facilities with either final or preliminary tier assignment. The DHS has recognized this potential challenge since at least , when it identified these types of facilities as "outliers. In July , DHS provided testimony that formal site inspections of a selected group of facilities would begin by the end of Testimony of Robert B.

The DHS identified such iteration on the contents of site security plans as one factor delaying the start of the inspection process from December to February See 78 Federal Register August 7, Congressional policy makers have debated chemical facility security issues since at least the th Congress. Other DHS documents have provided different inspection timeframes. Measure Descriptions and Data Collection Methodologies , p.

Chemical Facility Security: Issues and Options for the 113th Congress

This estimate uses three inspectors per inspection. Issues for Congress , by [author name scrubbed]. A lower or higher risk tier is relative to other high-risk chemical facilities. Some states, including New Jersey, Maryland, and New York, have implemented laws addressing security at chemical facilities. Ammonium Nitrate and Anhydrous Ammonia , by [author name scrubbed], [author name scrubbed], and [author name scrubbed].

Note that a facility might be primarily regulated for one category but also qualify under the other. In contrast, initial expectations of the number of facilities per tier were more in line with actual enrollment.


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    • Congress required certain drinking water facilities to perform vulnerability assessments and develop emergency response plans through Section of P. EPA and Congressional Actions , by [author name scrubbed]. Environmental Protection Agency, Factoids: Report to Congress , January For example, the number of individuals served by the drinking water facility might be used as a regulatory criterion. Approximately 8, community water systems met this requirement in Hristovski, and Jon W. The telephone number is Tips may be made anonymously or not.

    Office of Inspector General, U. For example, the replacement of hydrogen fluoride with sulfuric acid for refinery processing would replace a more toxic chemical with a less toxic one. In this case, experts estimate that equivalent processing capacity would require 25 times more sulfuric acid. Thus, more chemical storage facilities and transportation would be required, potentially posing different dangers than atmospheric release to the surrounding community.

    Determining which chemical process had less overall risk might require considering factors both internal and external to the chemical facility and the surrounding community. See testimony of M. Protecting People and Reducing Vulnerabilities , See, for example, testimony of Timothy J. See, for example, testimony of M. For example, EPA experts have pointed to the change by drinking water treatment facilities between two approved disinfectants—chlorine and chloramine—as correlated with an unexpected increase in levels of lead in drinking water due to increased corrosion.

    Government Accountability Office, Lead in D. For more information, see http: The DHS approves facility site security plans on a conditional basis, reflecting the future need to comply with the personnel surety performance standard. For example, see letters from various entities entered into the Congressional Record at Congressional Record , July 8, , pp. Department of Homeland Security , July 22, The DHS and the Nuclear Regulatory Commission have developed a memorandum of understanding regarding security at chemical facilities regulated by the Nuclear Regulatory Commission Memorandum of Understanding between the U.

    Department of Homeland Security and the U. Nuclear Regulatory Commission , March 31, Testimony of Benjamin H. Grumbles, Assistant Administrator for Water, U. Testimony of Peter S. Some agencies oversee both safety and security issues. For example, the U. Write a product review. Feedback If you need help or have a question for Customer Service, contact us. Would you like to report poor quality or formatting in this book? Click here Would you like to report this content as inappropriate? Click here Do you believe that this item violates a copyright?

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