HR 3310 – Chemical Emergency Response

Last month Rep. Jackson-Lee (D,TX) introduced HR 3310, a bill that would require a DHS study on emergency response capabilities in areas with high concentrations of chemical facilities (note: there is no fancy title for this bill).

The Study

The bill would require the DHS Science and Technology Directorate “conduct a study on how to improve training and support for local emergency response providers in areas with high concentrations of covered chemical facilities in how to respond to a terrorist attack on a chemical facility” {§1(a)}. In conducting the study, DHS would consider {§1(b)}:

• The degree to which jurisdictions with high concentrations of covered chemical facilities have fire, police, medical, and other response personnel trained and equipped to respond to a terrorist attack on a chemical facility;

• What, if any, distinctions are there in preparedness for a terrorist attack on a chemical facility in jurisdictions that rely on volunteers to carry out fire, police, medical and other response and jurisdictions that do not rely, in whole or in part, on volunteers; and

• All training, equipment, and support provided by the Department of Homeland Security to local emergency response providers in areas with a high concentration of covered chemical facilities and chemical facilities of interest.

A subsequent report to Congress on the study would include {§1(d)}:

• Improve the Department’s counterterrorism preparedness and response planning, training, and equipment efforts to ensure that they are better tailored and resourced to address the unique needs of local emergency response providers in areas with a high concentration of covered chemical facilities and chemical facilities of interest; and

• Improve coordination among Federal, State, local, tribal, and territorial government officials in emergency planning and response in areas with high concentrations of covered chemical facilities, chemical facilities of interest, or other facilities with large quantities of hazardous chemicals.

Moving Forward

Jackson-Lee is an influential member of the House Homeland Security Committee, the primary committee (of two) to which this bill was assigned for consideration. It is very likely that her influence on the Committee will be sufficient to have the bill considered in Committee. There is nothing in the bill that would engender any significant opposition since it is just a study and report requirement. The bill would likely be considered by the full House under the suspension of the rules process which requires a super-majority for passage, limits debates, and prohibits floor amendments from being considered.

Commentary

This bill is almost exactly the same language as found in §16 of HR 3256, the Chemical Facility Anti-Terrorism Standards (CFATS) reauthorization bill which is currently working its way through the House. I suspect that Jackson-Lee offered this bill as a stand alone measure to ensure that this study does get done even if the current language in the reauthorization bill does not make its way to the President’s desk (a very high probability).

When this language is in the CFATS reauthorization bill, the language covering what types of facilities would be covered in the study was carefully tailored to ensure that it was focused on facilities in the CFATS program. This is why we see the undefined use of ‘covered facilities’ and ‘chemical facilities of interest’; those terms are defined in the underlying program language which the bill amends.

In this bill, lacking the references to the previously defined terms, definitions really should have been included. On the other hand, there really is no need in this bill to limit the coverage to just CFATS covered facilities. There are chemical facilities not covered under the CFATS program that would have potentially severe consequences from a terrorist attack due to chemical releases or theft and diversion. These would include facilities covered under the Maritime Transportation Security Act (MTSA) program administered by the Coast Guard. Additionally, any number of water treatment facilities covered by EPA programs and possessing large quantities of chlorine gas, while not necessarily part of a ‘high-concentration’ of chemical facilities, could be expected to have wide-spread community impacts if successfully targeted in a terrorist attack.

With that in mind I would like to suggest this definition of ‘covered facilities’ be included in a new §2, Definitions, of the bill:

(1) Covered Chemical Facilities – the term ‘covered chemical facilities’ means any facility covered under one or more of the following federal programs:

(A) Chemical Facility Anti-Terrorism Standards under 6 CFR Part 27;

(B) Maritime Transportation Security Act under 33 CFR Part 105, limited to facilities that store, produce or ship large quantities of hazardous chemicals;

(C) Public water systems as defined under 42 USC 300f, limited to facilities where large amounts of chlorine gas are stored; and

(D) Treatment works as defined under 33 USC 1292, limited to facilities where large amounts of chlorine gas are stored.

(2) High Concentration – the term ‘high-concentration’ means:

(A) any grouping of three or more covered facilities where any portion of those facilities’ boundaries could be included within a circle with a diameter of 5-miles; or

(B) any single facility where a release due to the effects of a successful terrorist attack could be expected have a significant effect on more than 20% of the population protected by a single off-site fire department.

With this expanded definition of ‘covered facilities’ it would also be appropriate to bring into the study a look at the effectiveness of Local Emergency Planning Committees {established under 42 USC 11001(c)} in developing emergency response plans for incidents at covered chemical facilities and whether those plans considered responses to a terrorist attack on the covered facilities. With this in mind I would add a new study requirement to §1(b):

(4) Determine if a Local Emergency Planning Committee (LEPC), established under 42 USC 11001, is in existence that would have responsibilities for conducting emergency response planning for the covered facility and whether an existing LEPC has prepared a response plan that specifically covers a terrorist attack on the covered facility.