As I mentioned in an
earlier
blog post Sen. Lautenberg introduced
S 68,
the Secure Chemical Facilities Act. This bill would be the type of
comprehensive chemical facility security legislation envisioned when Congress
authorized the interim CFATS program in 2006. The language is nearly identical
to
S
709 in the 112
th Congress and
S
3599 in the 111
th Congress; both authored by Lautenberg.
Overview
In many ways this bill mirrors the bill (
HR
2868) that passed in the House in the 111
th Congress. It does
not specifically mention the current CFATS program, but much of the bill
affirms what has been currently done and makes modifications to that program.
It specifically amends the Homeland Security Act of 2002 adding Title XXI.
It adds a provision that addresses employee participation in
the security vulnerability assessment process and the development of the site
security plan. It requires that such activities must include at least:
• One supervisory employee
{§2103(a)(1)(B)(iii)(I)}
• One non-supervisory employee
{§2103(a)(1)(B)(iii)(II)}
• One employee representative from
each bargaining agent {§2103(a)(1)(B)(iii)(III)}
It obliquely addresses the current delays in the SSP
approval process by requiring that the Secretary must “review and approve or
disapprove the security vulnerability assessment or site security plan” within
180 days of their submission {§2103(a)(1)(G)(i)}. It also specifically
addresses the sharing of information on the assessment and security plans with
the local emergency planning and response personnel requiring the provision of
“appropriate information to any local emergency planning committee, State
emergency response commission, local law enforcement officials, and emergency
response providers to ensure an effective, collective response to terrorist
incidents” §2103(c)(9).
It affirms the current risk based performance standards
(RBPS) set forth in 6 CFR §27.230, including nearly identical language found in
that section. It does add three new ‘security performance standards’:
• Assessing and, as appropriate,
using methods to reduce the consequences of a terrorist attack; {§2103(c)(19)}
• Methods to recover or mitigate
the release of a substance of concern in the event of a chemical facility
terrorist incident; {§2103(c)(20)}
• Methods to mitigate the risks of
exposure to chemical agents by maintaining an adequate supply of equipment and
products to provide for decontamination procedures designed to neutralize the
chemical agents; and {§2103(c)(21)}
The bill would expand the coverage of the CFATS program to
include facilities regulated under the Maritime Transportation Security Act
(MTSA){§2103(g)(1)} and those regulated by the Department of Justice under the
Alcohol Tobacco and Firearms people {§2103(g)(2)}. Those resulting regulations
would have to be coordinated with Commandant of the Coast Guard and the
Attorney General to ensure that there is no unnecessary duplication or
conflicts.
One of the more controversial parts of this legislation is
the inclusion of inherently safer technology (IST) provisions under the heading
of ‘methods to reduce the consequences of a terrorist attack’ {§2111}. This
section deserves more detailed coverage, but it would establish a ‘best
technology’ standard for determining what is feasible {§2111(a)}. It would also
essentially exempt agricultural retailers and end users {§2111(d)} and small
chemical facilities {§2111(e)} from the IST requirements by adding additional
requirements before implementation of IST could be mandated.
The personnel surety mandate {§2115} would be expanded by
requiring the Secretary to clearly identify the offenses {§2115(b)(2)(A)(i)}
and the elapsed time from those offenses {§2115(b)(2)(A)(ii)} that would disqualify
a person from working in critical areas of covered chemical facilities; the
process would be similar to the TWIC procedures. It would also require the
establishment of a redress procedure {§2115(d)} and an appeals process
{§2115(e)} for a determination of security risk.
Two other controversial topics address the involvement of
non-facility personnel in the chemical facility security processes. Section
2116 would allow private citizens to sue the Secretary to ensure compliance
with the provisions of this act and §2117 would allow citizen petitions to
raise issues of compliance at individual facilities.
The current Infrastructure Security Compliance Division would
get revamped under this bill. It would be upgraded to the Office of Chemical
Facility Security, presumably still in the National Protection and Programs
Directorate in DHS. It sets some pretty stiff requirements for the Director; a
demonstrated knowledge of {§2114(b)(1)}:
• Physical infrastructure
protection;
• Cybersecurity;
• Chemical facility security;
• Hazard analysis;
• Chemical process engineering;
• Chemical process safety reviews;
or
That ‘or’ at the end is the erasure of those requirements as
it sets the alternative as “other such qualifications that the Secretary
determines to be necessary” {§2114(b)(1)}.
There are two provisions for the obligatory reports to
Congress. Section 2120 provides for an annual report on the status of the
chemical facility security program under this legislation with specific details
about what that report would entail. It would also include a one-time report on
a study of emergency response capabilities for responding to a catastrophic
release from terrorist attacks on covered facilities.
As is to be expected from a bill authorizing a comprehensive
program like this it does include appropriations authorization. It provides for
$300M for 2013 & 2014 and $275M through 2017. Of that $150M is for grants
to support the IST program with $3M earmarked for grants supporting that
program in the agricultural community.
Moving Forward
In the past I have dismissed the earlier incarnations of
this bill as dead upon introduction. Since the bills were of necessity referred
to the Senate Homeland Security and Governmental Affairs Committee for action,
these bills never stood a chance of being considered because the bills
sponsored by then Sen. Collins (R,ME) would take priority in consideration.
Without the Collins and Lieberman team present, it is not clear that there will
necessarily be an in-committee bill that would pre-empt the consideration of
this bill. If Sen. Levin (D,MI) had, for instance, been a co-sponsor of this
bill I would have been nearly certain that it would have been considered by the
Committee. As it is, we’ll just have to wait and see.
In any case, I doubt that this bill would make it to the
floor of the Senate because of the opposition to the IST and citizen action
provisions. It will certainly not get considered in the House.
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