Version	Word Count	Changes From Previous Version	Percent Change
Introduced in House	11,961	n/a	n/a
Reported in House	29,143	0	0%
Engrossed in House	30,195	371	73%
Referred in Senate	29,988	5 Show Changes Hide Changes	1%

Display Version Introduced in House Reported in House Engrossed in House Referred in Senate

HR 2868 EHRFSCommentsClose CommentsPermalink

111th CONGRESSCommentsClose CommentsPermalink

1st SessionCommentsClose CommentsPermalink

H. R. 2868CommentsClose CommentsPermalink

AN ACTCommentsClose CommentsPermalink

To amend the Homeland Security Act of 2002 to enhance security and protect against acts of terrorism against chemical facilities, to amend the Safe Drinking Water Act to enhance the security of public water systems, and to amend the Federal Water Pollution Control Act to enhance the security of wastewater treatment works, and for other purposes.CommentsClose CommentsPermalink

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, CommentsClose CommentsPermalink

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) Short Title- This Act may be cited as the ‘Chemical and Water Security Act of 2009’.CommentsClose CommentsPermalink





(b) Table of Contents- The table of contents for this Act is as follows:CommentsClose CommentsPermalink





Sec. 1. Short title; table of contents.CommentsClose CommentsPermalink

TITLE I--CHEMICAL FACILITY SECURITY

Sec. 101. Short title.CommentsClose CommentsPermalink





Sec. 102. Findings and purpose.CommentsClose CommentsPermalink





Sec. 103. Extension, modification, and recodification of authority of Secretary of Homeland Security to regulate security practices at chemical facilities.CommentsClose CommentsPermalink

TITLE II--DRINKING WATER SECURITY

Sec. 201. Short title.CommentsClose CommentsPermalink





Sec. 202. Intentional acts affecting the security of covered water systems.CommentsClose CommentsPermalink





Sec. 203. Study to assess the threat of contamination of drinking water distribution systems.CommentsClose CommentsPermalink

TITLE III--WASTEWATER TREATMENT WORKS SECURITY

Sec. 301. Short title.CommentsClose CommentsPermalink





Sec. 302. Wastewater treatment works security.CommentsClose CommentsPermalink

TITLE I--CHEMICAL FACILITY SECURITYCommentsClose CommentsPermalink

SEC. 101. SHORT TITLE.

This title may be cited as the ‘Chemical Facility Anti-Terrorism Act of 2009’.CommentsClose CommentsPermalink

SEC. 102. FINDINGS AND PURPOSE.

(a) Findings- Congress makes the following findings:CommentsClose CommentsPermalink





(1) The Nation’s chemical sector represents a target that terrorists could exploit to cause consequences, including death, injury, or serious adverse effects to human health, the environment, critical infrastructure, public health, homeland security, national security, and the national economy.CommentsClose CommentsPermalink





(2) Chemical facilities that pose such potential consequences and that are vulnerable to terrorist attacks must be protected.CommentsClose CommentsPermalink





(3) The Secretary of Homeland Security has statutory authority pursuant to section 550 of the Department of Homeland Security Appropriations Act, 2007 (Public Law 109-295) to regulate the security practices at chemical facilities that are at significant risk of being terrorist targets.CommentsClose CommentsPermalink





(4) The Secretary of Homeland Security issued interim final regulations called the Chemical Facility Anti-Terrorism Standards, which became effective on June 8, 2007.CommentsClose CommentsPermalink





(b) Purpose- The purpose of this title is to modify and make permanent the authority of the Secretary of Homeland Security to regulate security practices at chemical facilities.CommentsClose CommentsPermalink

SEC. 103. EXTENSION, MODIFICATION, AND RECODIFICATION OF AUTHORITY OF SECRETARY OF HOMELAND SECURITY TO REGULATE SECURITY PRACTICES AT CHEMICAL FACILITIES.

(a) In General- The Homeland Security Act of 2002 (6 U.S.C. 101 et seq.) is amended by adding at the end the following new title:CommentsClose CommentsPermalink

‘TITLE XXI--REGULATION OF SECURITY PRACTICES AT CHEMICAL FACILITIESCommentsClose CommentsPermalink

‘SEC. 2101. DEFINITIONS.

‘In this title, the following definitions apply:CommentsClose CommentsPermalink





‘(1) The term ‘chemical facility’ means any facility--CommentsClose CommentsPermalink





‘(A) at which the owner or operator of the facility possesses or plans to possess at any relevant point in time a substance of concern; orCommentsClose CommentsPermalink





‘(B) that meets other risk-related criteria identified by the Secretary.CommentsClose CommentsPermalink





‘(2) The term ‘chemical facility security performance standards’ means risk-based standards established by the Secretary to ensure or enhance the security of a chemical facility against a chemical facility terrorist incident that are designed to address the following:CommentsClose CommentsPermalink





‘(A) Restricting the area perimeter.CommentsClose CommentsPermalink





‘(B) Securing site assets.CommentsClose CommentsPermalink





‘(C) Screening and controlling access to the facility and to restricted areas within the facility by screening or inspecting individuals and vehicles as they enter, including--CommentsClose CommentsPermalink





‘(i) measures to deter the unauthorized introduction of dangerous substances and devices that may facilitate a chemical facility terrorist incident or actions having serious negative consequences for the population surrounding the chemical facility; andCommentsClose CommentsPermalink





‘(ii) measures implementing a regularly updated identification system that checks the identification of chemical facility personnel and other persons seeking access to the chemical facility and that discourages abuse through established disciplinary measures.CommentsClose CommentsPermalink





‘(D) Methods to deter, detect, and delay a chemical facility terrorist incident, creating sufficient time between detection of a chemical facility terrorist incident and the point at which the chemical facility terrorist incident becomes successful, including measures to--CommentsClose CommentsPermalink





‘(i) deter vehicles from penetrating the chemical facility perimeter, gaining unauthorized access to restricted areas, or otherwise presenting a hazard to potentially critical targets;CommentsClose CommentsPermalink





‘(ii) deter chemical facility terrorist incidents through visible, professional, well-maintained security measures and systems, including security personnel, detection systems, barriers and barricades, and hardened or reduced value targets;CommentsClose CommentsPermalink





‘(iii) detect chemical facility terrorist incidents at early stages through counter-surveillance, frustration of opportunity to observe potential targets, surveillance and sensing systems, and barriers and barricades; andCommentsClose CommentsPermalink





‘(iv) delay a chemical facility terrorist incident for a sufficient period of time so as to allow appropriate response through on-site security response, barriers and barricades, hardened targets, and well-coordinated response planning.CommentsClose CommentsPermalink





‘(E) Securing and monitoring the shipping, receipt, and storage of a substance of concern for the chemical facility.CommentsClose CommentsPermalink





‘(F) Deterring theft or diversion of a substance of concern.CommentsClose CommentsPermalink





‘(G) Deterring insider sabotage.CommentsClose CommentsPermalink





‘(H) Deterring cyber sabotage, including by preventing unauthorized onsite or remote access to critical process controls, including supervisory control and data acquisition systems, distributed control systems, process control systems, industrial control systems, critical business systems, and other sensitive computerized systems.CommentsClose CommentsPermalink





‘(I) Developing and exercising an internal emergency plan for owners, operators, and covered individuals of a covered chemical facility for responding to chemical facility terrorist incidents at the facility, including the provision of appropriate information to any local emergency planning committee, local law enforcement officials, and emergency response providers to ensure an effective, collective response to terrorist incidents.CommentsClose CommentsPermalink





‘(J) Maintaining effective monitoring, communications, and warning systems, including--CommentsClose CommentsPermalink





‘(i) measures designed to ensure that security systems and equipment are in good working order and inspected, tested, calibrated, and otherwise maintained;CommentsClose CommentsPermalink





‘(ii) measures designed to regularly test security systems, note deficiencies, correct for detected deficiencies, and record results so that they are available for inspection by the Secretary; andCommentsClose CommentsPermalink





‘(iii) measures to allow the chemical facility to promptly identify and respond to security system and equipment failures or malfunctions.CommentsClose CommentsPermalink





‘(K) Ensuring mandatory annual security training, exercises, and drills of chemical facility personnel appropriate to their roles, responsibilities, and access to a substance of concern, including participation by local law enforcement, and local emergency response providers, and appropriate supervisory and non-supervisory facility employees and their employee representatives, if any.CommentsClose CommentsPermalink





‘(L) Performing personnel surety for individuals with access to restricted areas or critical assets by conducting appropriate background checks and ensuring appropriate credentials for unescorted visitors and chemical facility personnel, including permanent and part-time personnel, temporary personnel, and contract personnel, including--CommentsClose CommentsPermalink





‘(i) measures designed to verify and validate identity;CommentsClose CommentsPermalink





‘(ii) measures designed to check criminal history;CommentsClose CommentsPermalink





‘(iii) measures designed to verify and validate legal authorization to work; andCommentsClose CommentsPermalink





‘(iv) measures designed to identify people with terrorist ties.CommentsClose CommentsPermalink





‘(M) Escalating the level of protective measures for periods of elevated threat.CommentsClose CommentsPermalink





‘(N) Specific threats, vulnerabilities, or risks identified by the Secretary for that chemical facility.CommentsClose CommentsPermalink





‘(O) Reporting of significant security incidents to the Secretary and to appropriate local law enforcement officials.CommentsClose CommentsPermalink





‘(P) Identifying, investigating, reporting, and maintaining records of significant security incidents and suspicious activities at or near the covered chemical facility.CommentsClose CommentsPermalink





‘(Q) Establishing one or more officials and an organization responsible for--CommentsClose CommentsPermalink





‘(i) security;CommentsClose CommentsPermalink





‘(ii) compliance with the standards under this paragraph;CommentsClose CommentsPermalink





‘(iii) serving as the point of contact for incident management purposes with Federal, State, local, and tribal agencies, law enforcement, and emergency response providers; andCommentsClose CommentsPermalink





‘(iv) coordination with Federal, State, local, and tribal agencies, law enforcement, and emergency response providers regarding plans and security measures for the collective response to a chemical facility terrorist incident.CommentsClose CommentsPermalink





‘(R) Maintaining appropriate records relating to the security of the facility, including a copy of the most recent security vulnerability assessment and site security plan, at the chemical facility.CommentsClose CommentsPermalink





‘(S) Assessing and, as appropriate, utilizing methods to reduce the consequences of a terrorist attack.CommentsClose CommentsPermalink





‘(T) Methods to recover or mitigate the release of a substance of concern in the event of a chemical facility terrorist incident.CommentsClose CommentsPermalink





‘(U) Any additional security performance standards the Secretary may specify.CommentsClose CommentsPermalink





‘(3) The term ‘chemical facility terrorist incident’ means any act or attempted act of terrorism or terrorist activity committed at, near, or against a chemical facility, including--CommentsClose CommentsPermalink





‘(A) the release of a substance of concern from a chemical facility;CommentsClose CommentsPermalink





‘(B) the theft, misappropriation, or misuse of a substance of concern from a chemical facility; orCommentsClose CommentsPermalink





‘(C) the sabotage of a chemical facility or a substance of concern at a chemical facility.CommentsClose CommentsPermalink





‘(4) The term ‘employee representative’ means the representative of the certified or recognized bargaining agent engaged in a collective bargaining relationship with a private or public owner or operator of a chemical facility.CommentsClose CommentsPermalink





‘(5) The term ‘covered individual’ means a permanent, temporary, full-time, or part-time employee of a covered chemical facility or an employee of an entity with which the covered chemical facility has entered into a contract who is performing responsibilities at the facility pursuant to the contract.CommentsClose CommentsPermalink





‘(6) The term ‘covered chemical facility’ means a chemical facility that meets the criteria of section 2102(b)(1).CommentsClose CommentsPermalink





‘(7) The term ‘environment’ means--CommentsClose CommentsPermalink





‘(A) the navigable waters, the waters of the contiguous zone, and the ocean waters of which the natural resources are under the exclusive management authority of the United States under the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.); andCommentsClose CommentsPermalink





‘(B) any other surface water, ground water, drinking water supply, land surface or subsurface strata, or ambient air within the United States or under the jurisdiction of the United States.CommentsClose CommentsPermalink





‘(8) The term ‘owner or operator’ with respect to a facility means any of the following:CommentsClose CommentsPermalink





‘(A) The person who owns the facility.CommentsClose CommentsPermalink





‘(B) The person who has responsibility for daily operation of the facility.CommentsClose CommentsPermalink





‘(C) The person who leases the facility.CommentsClose CommentsPermalink





‘(9) The term ‘person’ means an individual, trust, firm, joint stock company, corporation (including a government corporation), partnership, association, State, municipality, commission, political subdivision of a State, or any interstate body and shall include each department, agency, and instrumentality of the United States.CommentsClose CommentsPermalink





‘(10) The term ‘release’ means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant).CommentsClose CommentsPermalink





‘(11) The term ‘substance of concern’ means a chemical substance in quantity and form that is so designated by the Secretary under section 2102(a).CommentsClose CommentsPermalink





‘(12) The term ‘method to reduce the consequences of a terrorist attack’ means a measure used at a chemical facility that reduces or eliminates the potential consequences of a chemical facility terrorist incident, including--CommentsClose CommentsPermalink





‘(A) the elimination or reduction in the amount of a substance of concern possessed or planned to be possessed by an owner or operator of a covered chemical facility through the use of alternate substances, formulations, or processes;CommentsClose CommentsPermalink





‘(B) the modification of pressures, temperatures, or concentrations of a substance of concern; andCommentsClose CommentsPermalink





‘(C) the reduction or elimination of onsite handling of a substance of concern through improvement of inventory control or chemical use efficiency.CommentsClose CommentsPermalink





‘(13) The term ‘academic laboratory’ means a facility or area owned by an institution of higher education (as defined under section 101 of the Higher Education Act of 1965 (20 U.S.C. 1001)) or a non-profit research institute or teaching hospital that has a formal affiliation with an institution of higher education, including photo laboratories, art studios, field laboratories, research farms, chemical stockrooms, and preparatory laboratories, where relatively small quantities of chemicals and other substances, as determined by the Secretary, are used on a non-production basis for teaching, research, or diagnostic purposes, and are stored and used in containers that are typically manipulated by one person.CommentsClose CommentsPermalink

‘SEC. 2102. RISK-BASED DESIGNATION AND RANKING OF CHEMICAL FACILITIES.

‘(a) Substances of Concern-CommentsClose CommentsPermalink





‘(1) DESIGNATION BY THE SECRETARY- The Secretary may designate any chemical substance as a substance of concern and establish the threshold quantity for each such substance of concern.CommentsClose CommentsPermalink





‘(2) MATTERS FOR CONSIDERATION- In designating a chemical substance or establishing or adjusting the threshold quantity for a chemical substance under paragraph (1), the Secretary shall consider the potential extent of death, injury, and serious adverse effects to human health, the environment, critical infrastructure, public health, homeland security, national security, and the national economy that could result from a chemical facility terrorist incident.CommentsClose CommentsPermalink





‘(b) List of Covered Chemical Facilities-CommentsClose CommentsPermalink





‘(1) CRITERIA FOR LIST OF FACILITIES- The Secretary shall maintain a list of covered chemical facilities that the Secretary determines are of sufficient security risk for inclusion on the list based on the following criteria:CommentsClose CommentsPermalink





‘(A) The potential threat or likelihood that the chemical facility will be the target of a chemical facility terrorist incident.CommentsClose CommentsPermalink





‘(B) The potential extent and likelihood of death, injury, or serious adverse effects to human health, the environment, critical infrastructure, public health, homeland security, national security, and the national economy that could result from a chemical facility terrorist incident.CommentsClose CommentsPermalink





‘(C) The proximity of the chemical facility to large population centers.CommentsClose CommentsPermalink





‘(2) SUBMISSION OF INFORMATION- The Secretary may require the submission of information with respect to the quantities of substances of concern that an owner or operator of a chemical facility possesses or plans to possess in order to determine whether to designate a chemical facility as a covered chemical facility for purposes of this title.CommentsClose CommentsPermalink





‘(c) Assignment of Chemical Facilities to Risk-Based Tiers-CommentsClose CommentsPermalink





‘(1) ASSIGNMENT- The Secretary shall assign each covered chemical facility to one of four risk-based tiers established by the Secretary, with tier one representing the highest degree of risk and tier four the lowest degree of risk.CommentsClose CommentsPermalink





‘(2) PROVISION OF INFORMATION- The Secretary may request, and the owner or operator of a covered chemical facility shall provide, any additional information beyond any information required to be submitted under subsection (b)(2) that may be necessary for the Secretary to assign the chemical facility to the appropriate tier under paragraph (1).CommentsClose CommentsPermalink





‘(3) NOTIFICATION- Not later than 60 days after the date on which the Secretary determines that a chemical facility is a covered chemical facility or is no longer a covered chemical facility or changes the tier assignment under paragraph (1) of a covered chemical facility, the Secretary shall notify the owner or operator of that chemical facility of that determination or change together with the reason for the determination or change and, upon the request of the owner or operator of a covered chemical facility, provide to the owner or operator of the covered chemical facility the following information:CommentsClose CommentsPermalink





‘(A) The number of individuals at risk of death, injury, or severe adverse effects to human health as a result of a worst case chemical facility terrorist incident at the covered chemical facility.CommentsClose CommentsPermalink





‘(B) Information related to the criticality of the covered chemical facility.CommentsClose CommentsPermalink





‘(C) The proximity or interrelationship of the covered chemical facility to other critical infrastructure.CommentsClose CommentsPermalink





‘(d) Requirement for Review- The Secretary--CommentsClose CommentsPermalink





‘(1) shall periodically review--CommentsClose CommentsPermalink





‘(A) the designation of a chemical substance as a substance of concern and the threshold quantity for the substance under subsection (a)(1); andCommentsClose CommentsPermalink





‘(B) the criteria under subsection (b)(1); andCommentsClose CommentsPermalink





‘(2) may, at any time, determine whether a chemical facility is a covered chemical facility or change the tier to which such a facility is assigned under subsection (c)(1).CommentsClose CommentsPermalink





‘(e) Provision of Threat-related Information- In order to effectively assess the vulnerabilities to a covered chemical facility, the Secretary shall provide to the owner, operator, or security officer of a covered chemical facility threat information regarding probable threats to the facility and methods that could be used in a chemical facility terrorist incident.CommentsClose CommentsPermalink

‘SEC. 2103. SECURITY VULNERABILITY ASSESSMENTS AND SITE SECURITY PLANS.

‘(a) In General-CommentsClose CommentsPermalink





‘(1) REQUIREMENT- The Secretary shall--CommentsClose CommentsPermalink





‘(A) establish standards, protocols, and procedures for security vulnerability assessments and site security plans to be required for covered chemical facilities;CommentsClose CommentsPermalink





‘(B) require the owner or operator of each covered chemical facility to--CommentsClose CommentsPermalink





‘(i) conduct an assessment of the vulnerability of the covered chemical facility to a range of chemical facility terrorist incidents, including an incident that results in a worst-case release of a substance of concern, and submit such assessment to the Secretary;CommentsClose CommentsPermalink





‘(ii) prepare and implement a site security plan for that covered chemical facility that addresses the security vulnerability assessment and meets the risk-based chemical security performance standards under subsection (c) and submit such plan to the Secretary;CommentsClose CommentsPermalink





‘(iii) include at least one supervisory and at least one non-supervisory employee of the covered chemical facility, and at least one employee representative from each bargaining agent at the covered chemical facility, if any, in developing the security vulnerability assessment and site security plan required under this section; andCommentsClose CommentsPermalink





‘(iv) include, with the submission of a security vulnerability assessment and the site security plan of the covered chemical facility under this section, a signed statement by the owner or operator of the covered chemical facility that certifies that the submission is provided to the Secretary with knowledge of the penalty provisions under section 2107;CommentsClose CommentsPermalink





‘(C) set deadlines, by tier, for the completion of security vulnerability assessments and site security plans;CommentsClose CommentsPermalink





‘(D) upon request, as necessary, and to the extent that resources permit, provide technical assistance to a covered chemical facility conducting a vulnerability assessment or site security plan required under this section;CommentsClose CommentsPermalink





‘(E) establish specific deadlines and requirements for the submission by a covered chemical facility of information describing--CommentsClose CommentsPermalink





‘(i) any change in the use by the covered chemical facility of more than a threshold amount of any substance of concern that may affect the requirements of the chemical facility under this title; orCommentsClose CommentsPermalink





‘(ii) any material modification to a covered chemical facility’s operations or site that may affect the security vulnerability assessment or site security plan submitted by the covered chemical facility;CommentsClose CommentsPermalink





‘(F) require the owner or operator of a covered chemical facility to review and resubmit a security vulnerability assessment or site security plan not less frequently than once every 5 years;CommentsClose CommentsPermalink





‘(G) not later than 180 days after the date on which the Secretary receives a security vulnerability assessment or site security plan under this title, review and approve or disapprove such assessment or plan and notify the covered chemical facility of such approval or disapproval; andCommentsClose CommentsPermalink





‘(H) establish, as appropriate, modified or separate standards, protocols, and procedures for security vulnerability assessments and site security plans for covered chemical facilities that are also academic laboratories.CommentsClose CommentsPermalink





‘(2) INHERENTLY GOVERNMENTAL FUNCTION- The approval or disapproval of a security vulnerability assessment or site security plan under this section is an inherently governmental function.CommentsClose CommentsPermalink





‘(b) Participation in Preparation of Security Vulnerability Assessments or Site Security Plans- Any person selected by the owner or operator of a covered chemical facility or by a certified or recognized bargaining agent of a covered chemical facility to participate in the development of the security vulnerability assessment or site security plan required under this section for such covered chemical facility shall be permitted to participate if the person possesses knowledge, experience, training, or education relevant to the portion of the security vulnerability assessment or site security plan on which the person is participating.CommentsClose CommentsPermalink





‘(c) Risk-based Chemical Security Performance Standards- The Secretary shall establish risk-based chemical security performance standards for the site security plans required to be prepared by covered chemical facilities. In establishing such standards, the Secretary shall--CommentsClose CommentsPermalink





‘(1) require separate and, as appropriate, increasingly stringent risk-based chemical security performance standards for site security plans as the level of risk associated with the tier increases; andCommentsClose CommentsPermalink





‘(2) permit each covered chemical facility submitting a site security plan to select a combination of security measures that satisfy the risk-based chemical security performance standards established by the Secretary under this subsection.CommentsClose CommentsPermalink





‘(d) Co-Located Chemical Facilities- The Secretary may allow an owner or operator of a covered chemical facility that is located geographically close, as determined by the Secretary, to another covered chemical facility to develop and implement coordinated security vulnerability assessments and site security plans.CommentsClose CommentsPermalink





‘(e) Alternate Security Programs Satisfying Requirements for Security Vulnerability Assessment and Site Security Plan-CommentsClose CommentsPermalink





‘(1) ACCEPTANCE OF PROGRAM- In response to a request by an owner or operator of a covered chemical facility, the Secretary may accept an alternate security program submitted by the owner or operator of the facility as a component of the security vulnerability assessment or site security plan required under this section, if the Secretary determines that such alternate security program, in combination with other components of the security vulnerability assessment and site security plan submitted by the owner or operator of the facility--CommentsClose CommentsPermalink





‘(A) meets the requirements of this title and the regulations promulgated pursuant to this title;CommentsClose CommentsPermalink





‘(B) provides an equivalent level of security to the level of security established pursuant to the regulations promulgated pursuant to this title; andCommentsClose CommentsPermalink





‘(C) includes employee participation as required under subsection (a)(1)(B)(iii).CommentsClose CommentsPermalink





‘(2) SECRETARIAL REVIEW REQUIRED- Nothing in this subsection shall relieve the Secretary of the obligation--CommentsClose CommentsPermalink





‘(A) to review a security vulnerability assessment and site security plan submitted by a covered chemical facility under this section; andCommentsClose CommentsPermalink





‘(B) to approve or disapprove each such assessment or plan on an individual basis according to the deadlines established under subsection (a).CommentsClose CommentsPermalink





‘(3) COVERED FACILITY’S OBLIGATIONS UNAFFECTED- Nothing in this subsection shall relieve any covered chemical facility of the obligation and responsibility to comply with all of the requirements of this title.CommentsClose CommentsPermalink





‘(4) PERSONNEL SURETY ALTERNATE SECURITY PROGRAM- In response to an application from a non-profit, personnel surety accrediting organization acting on behalf of, and with written authorization from, the owner or operator of a covered chemical facility, the Secretary may accept a personnel surety alternate security program that meets the requirements of section 2115 and provides for a background check process that is--CommentsClose CommentsPermalink





‘(A) expedited, affordable, reliable, and accurate;CommentsClose CommentsPermalink





‘(B) fully protective of the rights of covered individuals through procedures that are consistent with the privacy protections available under the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.); andCommentsClose CommentsPermalink





‘(C) a single background check consistent with a risk-based tiered program.CommentsClose CommentsPermalink





‘(f) Other Authorities-CommentsClose CommentsPermalink





‘(1) REGULATION OF MARITIME FACILITIES-CommentsClose CommentsPermalink





‘(A) RISK-BASED TIERING- Notwithstanding any other provision of law, the owner or operator of a chemical facility required to submit a facility security plan under section 70103(c) of title 46, United States Code, shall be required to submit information to the Secretary necessary to determine whether to designate such a facility as a covered chemical facility and to assign the facility to a risk-based tier under section 2102 of this title.CommentsClose CommentsPermalink





‘(B) ADDITIONAL MEASURES- In the case of a facility designated as a covered chemical facility under this title for which a facility security plan is required to be submitted under section 70103(c) of title 46, United States Code, the Commandant of the Coast Guard, after consultation with the Secretary, shall require the owner or operator of such facility to update the vulnerability assessments and facility security plans required under that section, if necessary, to ensure an equivalent level of security for substances of concern, including the requirements under section 2111, in the same manner as other covered chemical facilities in this title.CommentsClose CommentsPermalink





‘(C) PERSONNEL SURETY-CommentsClose CommentsPermalink





‘(i) EXCEPTION- A facility designated as a covered chemical facility under this title that has had its facility security plan approved under section 70103(c) of title 46, United States Code, shall not be required to update or amend such plan in order to meet the requirements of section 2115 of this title.CommentsClose CommentsPermalink





‘(ii) EQUIVALENT ACCESS- An individual described in section 2115(a)(1)(B) who has been granted access to restricted areas or critical assets by the owner or operator of a facility for which a security plan is required to be submitted under section 70103(c) of title 46, United States Code, may be considered by that owner or operator to have satisfied the requirement for passing a security background check otherwise required under section 2115 for purposes of granting the individual access to restricted areas or critical assets of a covered chemical facility that is owned or operated by the same owner or operator.CommentsClose CommentsPermalink





‘(D) INFORMATION SHARING AND PROTECTION- Notwithstanding section 70103(d) of title 46, United States Code, the Commandant of the Coast Guard, after consultation with the Secretary, shall apply the information sharing and protection requirements in section 2110 of this title to a facility described in subparagraph (B).CommentsClose CommentsPermalink





‘(E) ENFORCEMENT- The Secretary shall establish, by rulemaking, procedures to ensure that an owner or operator of a covered chemical facility required to update the vulnerability assessment and facility security plan for the facility under subparagraph (B) is in compliance with the requirements of this title.CommentsClose CommentsPermalink





‘(F) FORMAL AGREEMENT- The Secretary shall--CommentsClose CommentsPermalink





‘(i) require the Office of Infrastructure Protection and the Coast Guard to enter into a formal agreement detailing their respective roles and responsibilities in carrying out the requirements of this title, which shall ensure that the enforcement and compliance requirements under this title and section 70103 of title 46, United States Code, are not conflicting or duplicative; andCommentsClose CommentsPermalink





‘(ii) designate the agency responsible for enforcing the requirements of this title with respect to covered chemical facilities for which facility security plans are required to be submitted under section 70103(c) of title 46, United States Code, consistent with the requirements of subparagraphs (B) and (D).CommentsClose CommentsPermalink





‘(2) COORDINATION OF STORAGE LICENSING OR PERMITTING REQUIREMENT- In the case of any storage required to be licensed or permitted under chapter 40 of title 18, United States Code, the Secretary shall prescribe the rules and regulations for the implementation of this section with the concurrence of the Attorney General and avoid unnecessary duplication of regulatory requirements.CommentsClose CommentsPermalink





‘(g) Role of Employees-CommentsClose CommentsPermalink





‘(1) DESCRIPTION OF ROLE REQUIRED- Site security plans required under this section shall describe the roles or responsibilities that covered individuals are expected to perform to deter or respond to a chemical facility terrorist incident.CommentsClose CommentsPermalink





‘(2) ANNUAL TRAINING FOR EMPLOYEES- The owner or operator of a covered chemical facility required to submit a site security plan under this section shall annually provide each covered individual with a role or responsibility referred to in paragraph (1) at the facility with a minimum of 8 hours of training. Such training shall, as relevant to the role or responsibility of such covered individual--CommentsClose CommentsPermalink





‘(A) include an identification and discussion of substances of concern;CommentsClose CommentsPermalink





‘(B) include a discussion of possible consequences of a chemical facility terrorist incident;CommentsClose CommentsPermalink





‘(C) review and exercise the covered chemical facility’s site security plan, including any requirements for differing threat levels;CommentsClose CommentsPermalink





‘(D) include a review of information protection requirements;CommentsClose CommentsPermalink





‘(E) include a discussion of physical and cyber security equipment, systems, and methods used to achieve chemical security performance standards;CommentsClose CommentsPermalink





‘(F) allow training with other relevant participants, including Federal, State, local, and tribal authorities, and first responders, where appropriate;CommentsClose CommentsPermalink





‘(G) use existing national voluntary consensus standards, chosen jointly with employee representatives, if any;CommentsClose CommentsPermalink





‘(H) allow instruction through government training programs, chemical facilities, academic institutions, nonprofit organizations, industry and private organizations, employee organizations, and other relevant entities that provide such training;CommentsClose CommentsPermalink





‘(I) use multiple training media and methods; andCommentsClose CommentsPermalink





‘(J) include a discussion of appropriate emergency response procedures, including procedures to mitigate the effects of a chemical facility terrorist incident.CommentsClose CommentsPermalink





‘(3) EQUIVALENT TRAINING- During any year, with respect to any covered individual with roles or responsibilities under paragraph (1), an owner or operator of a covered chemical facility may satisfy any of the training requirements for such covered individual under subparagraph (A), (B), (C), (D), (E), or (J) of paragraph (2) through training that such owner or operator certifies, in a manner prescribed by the Secretary, is equivalent.CommentsClose CommentsPermalink





‘(4) WORKER TRAINING GRANT PROGRAM-CommentsClose CommentsPermalink





‘(A) AUTHORITY- The Secretary shall establish a grant program to award grants to or enter into cooperative agreements with eligible entities to provide for the training and education of covered individuals with roles or responsibilities described in paragraph (1) and first responders and emergency response providers who would respond to a chemical facility terrorist incident.CommentsClose CommentsPermalink





‘(B) ADMINISTRATION- The Secretary shall seek to enter into an agreement with the Director of the National Institute for Environmental Health Sciences, or with the head of another Federal or State agency, to make and administer grants or cooperative agreements under this paragraph.CommentsClose CommentsPermalink





‘(C) USE OF FUNDS- The recipient of funds under this paragraph shall use such funds to provide for the training and education of covered individuals with roles or responsibilities described in paragraph (1), first responders, and emergency response providers, including--CommentsClose CommentsPermalink





‘(i) the annual mandatory training specified in paragraph (2); andCommentsClose CommentsPermalink





‘(ii) other appropriate training to protect nearby persons, property, critical infrastructure, or the environment from the effects of a chemical facility terrorist incident.CommentsClose CommentsPermalink





‘(D) ELIGIBLE ENTITIES- For purposes of this paragraph, an eligible entity is a nonprofit organization with demonstrated experience in implementing and operating successful worker or first responder health and safety or security training programs.CommentsClose CommentsPermalink





‘(E) PRESUMPTION OF CONGRESS RELATING TO COMPETITIVE PROCEDURES-CommentsClose CommentsPermalink





‘(i) PRESUMPTION- It is the presumption of Congress that grants awarded under this paragraph will be awarded using competitive procedures based on merit.CommentsClose CommentsPermalink





‘(ii) REPORT TO CONGRESS- If grants are awarded under this paragraph using procedures other than competitive procedures, the Secretary shall submit to Congress a report explaining why competitive procedures were not used.CommentsClose CommentsPermalink





‘(F) PROHIBITION ON EARMARKS- None of the funds appropriated to carry out this paragraph may be used for a congressional earmark as defined in clause 9d, of Rule XXI of the rules of the House of Representatives of the 111th Congress.CommentsClose CommentsPermalink





‘(h) State, Regional, or Local Governmental Entities- No covered chemical facility shall be required under State, local, or tribal law to provide a vulnerability assessment or site security plan described under this title to any State, regional, local, or tribal government entity solely by reason of the requirement under subsection (a) that the covered chemical facility submit such an assessment and plan to the Secretary.CommentsClose CommentsPermalink

‘SEC. 2104. SITE INSPECTIONS.

‘(a) Right of Entry- For purposes of carrying out this title, the Secretary shall have, at a reasonable time and on presentation of credentials, a right of entry to, on, or through any property of a covered chemical facility or any property on which any record required to be maintained under this section is located.CommentsClose CommentsPermalink





‘(b) Inspections and Verifications-CommentsClose CommentsPermalink





‘(1) IN GENERAL- The Secretary shall, at such time and place as the Secretary determines to be reasonable and appropriate, conduct chemical facility security inspections and verifications.CommentsClose CommentsPermalink





‘(2) REQUIREMENTS- To ensure and evaluate compliance with this title, including any regulations or requirements adopted by the Secretary in furtherance of the purposes of this title, in conducting an inspection or verification under paragraph (1), the Secretary shall have access to the owners, operators, employees, and employee representatives, if any, of a covered chemical facility.CommentsClose CommentsPermalink





‘(c) Unannounced Inspections- In addition to any inspection conducted pursuant to subsection (b), the Secretary shall require covered chemical facilities assigned to tier 1 and tier 2 under section 2102(c)(1) to undergo unannounced facility inspections. The inspections required under this subsection shall be--CommentsClose CommentsPermalink





‘(1) conducted without prior notice to the facility;CommentsClose CommentsPermalink





‘(2) designed to evaluate at the chemical facility undergoing inspection--CommentsClose CommentsPermalink





‘(A) the ability of the chemical facility to prevent a chemical facility terrorist incident that the site security plan of the facility is intended to prevent;CommentsClose CommentsPermalink





‘(B) the ability of the chemical facility to protect against security threats that are required to be addressed by the site security plan of the facility; andCommentsClose CommentsPermalink





‘(C) any weaknesses in the site security plan of the chemical facility;CommentsClose CommentsPermalink





‘(3) conducted so as not to affect the actual security, physical integrity, safety, or regular operations of the chemical facility or its employees while the inspection is conducted; andCommentsClose CommentsPermalink





‘(4) conducted--CommentsClose CommentsPermalink





‘(A) every two years in the case of a covered chemical facility assigned to tier 1; andCommentsClose CommentsPermalink





‘(B) every four years in the case of a covered chemical facility assigned to tier 2.CommentsClose CommentsPermalink





‘(d) Chemical Facility Inspectors Authorized- During fiscal years 2011 and 2012, subject to the availability of appropriations for such purpose, the Secretary shall increase by not fewer than 100 the total number of chemical facility inspectors within the Department to ensure compliance with this title.CommentsClose CommentsPermalink





‘(e) Confidential Communications- The Secretary shall offer non-supervisory employees the opportunity to confidentially communicate information relevant to the employer’s compliance or non-compliance with this title, including compliance or non-compliance with any regulation or requirement adopted by the Secretary in furtherance of the purposes of this title. An employee representative of each certified or recognized bargaining agent at the covered chemical facility, if any, or, if none, a non-supervisory employee, shall be given the opportunity to accompany the Secretary during a physical inspection of such covered chemical facility for the purpose of aiding in such inspection, if representatives of the owner or operator of the covered chemical facility will also be accompanying the Secretary on such inspection.CommentsClose CommentsPermalink

‘SEC. 2105. RECORDS.

‘(a) Request for Records- In carrying out this title, the Secretary may require submission of, or on presentation of credentials may at reasonable times obtain access to and copy, any records, including any records maintained in electronic format, necessary for--CommentsClose CommentsPermalink





‘(1) reviewing or analyzing a security vulnerability assessment or site security plan submitted under section 2103; orCommentsClose CommentsPermalink





‘(2) assessing the implementation of such a site security plan.CommentsClose CommentsPermalink





‘(b) Proper Handling of Records- In accessing or copying any records under subsection (a), the Secretary shall ensure that such records are handled and secured appropriately in accordance with section 2110.CommentsClose CommentsPermalink

‘SEC. 2106. TIMELY SHARING OF THREAT INFORMATION.

‘(a) Responsibilities of Secretary- Upon the receipt of information concerning a threat that is relevant to a certain covered chemical facility, the Secretary shall provide such information in a timely manner, to the maximum extent practicable under applicable authority and in the interests of national security, to the owner, operator, or security officer of that covered chemical facility, to a representative of each recognized or certified bargaining agent at the facility, if any, and to relevant State, local, and tribal authorities, including the State Homeland Security Advisor, if any.CommentsClose CommentsPermalink





‘(b) Responsibilities of Owner or Operator- The Secretary shall require the owner or operator of a covered chemical facility to provide to the Secretary in a timely manner, information concerning a threat about any significant security incident or threat to the covered chemical facility or any intentional or unauthorized penetration of the physical security or cyber security of the covered chemical facility whether successful or unsuccessful.CommentsClose CommentsPermalink

‘SEC. 2107. ENFORCEMENT.

‘(a) Review of Security Vulnerability Assessment and Site Security Plan-CommentsClose CommentsPermalink





‘(1) DISAPPROVAL- The Secretary shall disapprove a security vulnerability assessment or site security plan submitted under this title if the Secretary determines, in his or her discretion, that--CommentsClose CommentsPermalink





‘(A) the security vulnerability assessment or site security plan does not comply with the standards, protocols, or procedures under section 2103(a)(1)(A); orCommentsClose CommentsPermalink





‘(B) in the case of a site security plan--CommentsClose CommentsPermalink





‘(i) the plan or the implementation of the plan is insufficient to address vulnerabilities identified in a security vulnerability assessment, site inspection, or unannounced inspection of the covered chemical facility; orCommentsClose CommentsPermalink





‘(ii) the plan fails to meet all applicable chemical facility security performance standards.CommentsClose CommentsPermalink





‘(2) NOTIFICATION OF DISAPPROVAL- If the Secretary disapproves the security vulnerability assessment or site security plan submitted by a covered chemical facility under this title or the implementation of a site security plan by such a chemical facility, the Secretary shall provide the owner or operator of the covered chemical facility a written notification of the disapproval not later than 14 days after the date on which the Secretary disapproves such assessment or plan, that--CommentsClose CommentsPermalink





‘(A) includes a clear explanation of deficiencies in the assessment, plan, or implementation of the plan; andCommentsClose CommentsPermalink





‘(B) requires the owner or operator of the covered chemical facility to revise the assessment or plan to address any deficiencies and, by such date as the Secretary determines is appropriate, to submit to the Secretary the revised assessment or plan.CommentsClose CommentsPermalink





‘(b) Remedies-CommentsClose CommentsPermalink





‘(1) ORDER FOR COMPLIANCE- Whenever the Secretary determines that the owner or operator of a covered chemical facility has violated or is in violation of any requirement of this title or has failed or is failing to address any deficiencies in the assessment, plan, or implementation of the plan by such date as the Secretary determines to be appropriate, the Secretary may--CommentsClose CommentsPermalink





‘(A) after providing notice to the owner or operator of the covered chemical facility and an opportunity, pursuant to the regulations issued under this title, for such owner or operator to seek departmental review of the Secretary’s determination, issue an order assessing an administrative penalty of not more than $25,000 for each day on which a past or current violation occurs or a failure to comply continues, requiring compliance immediately or within a specified time period, or both; orCommentsClose CommentsPermalink





‘(B) in a civil action, obtain appropriate equitable relief, a civil penalty of not more than $25,000 for each day on which a past or current violation occurs or a failure to comply continues, or both.CommentsClose CommentsPermalink





‘(2) ORDER TO CEASE OPERATIONS- Whenever the Secretary determines that the owner or operator of a covered chemical facility continues to be in noncompliance after an order for compliance is issued under paragraph (1), the Secretary may issue an order to the owner or operator to cease operations at the facility until compliance is achieved to the satisfaction of the Secretary.CommentsClose CommentsPermalink





‘(c) Applicability of Penalties- A penalty under subsection (b)(1) may be awarded for any violation of this title, including a violation of the whistleblower protections under section 2108.CommentsClose CommentsPermalink

‘SEC. 2108. WHISTLEBLOWER PROTECTIONS.

‘(a) Establishment- The Secretary shall establish and provide information to the public regarding a process by which any person may submit a report to the Secretary regarding problems, deficiencies, or vulnerabilities at a covered chemical facility associated with the risk of a chemical facility terrorist incident.CommentsClose CommentsPermalink





‘(b) Confidentiality- The Secretary shall keep confidential the identity of a person who submits a report under subsection (a), and any such report shall be treated as protected information under section 2110 to the extent that it does not consist of publicly available information.CommentsClose CommentsPermalink





‘(c) Acknowledgment of Receipt- If a report submitted under subsection (a) identifies the person submitting the report, the Secretary shall respond promptly to such person to acknowledge receipt of the report.CommentsClose CommentsPermalink





‘(d) Steps to Address Problems- The Secretary shall review and consider the information provided in any report submitted under subsection (a) and shall, as necessary, take appropriate steps under this title to address any problem, deficiency, or vulnerability identified in the report.CommentsClose CommentsPermalink





‘(e) Retaliation Prohibited-CommentsClose CommentsPermalink





‘(1) PROHIBITION- No owner or operator of a covered chemical facility, for-profit or not-for-profit corporation, association, or any contractor, subcontractor or agent thereof, may discharge any employee or otherwise discriminate against any employee with respect to the employee’s compensation, terms, conditions, or other privileges of employment because the employee (or any person acting pursuant to a request of the employee)--CommentsClose CommentsPermalink





‘(A) notified the Secretary, the owner or operator of a covered chemical facility, or the employee’s employer of an alleged violation of this title, including notification of such an alleged violation through communications related to carrying out the employee’s job duties;CommentsClose CommentsPermalink





‘(B) refused to participate in any conduct that the employee reasonably believes is in noncompliance with a requirement of this title, if the employee has identified the alleged noncompliance to the employer;CommentsClose CommentsPermalink





‘(C) testified before or otherwise provided information relevant for Congress or for any Federal or State proceeding regarding any provision (or proposed provision) of this title;CommentsClose CommentsPermalink





‘(D) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this title;CommentsClose CommentsPermalink





‘(E) testified or is about to testify in any such proceeding; orCommentsClose CommentsPermalink





‘(F) assisted or participated or is about to assist or participate in any manner in such a proceeding or in any other manner in such a proceeding or in any other action to carry out the purposes of this title.CommentsClose CommentsPermalink





‘(2) ENFORCEMENT ACTION- Any employee covered by this section who alleges discrimination by an employer in violation of paragraph (1) may bring an action governed by the rules and procedures, legal burdens of proof, and remedies applicable under subsections (d) through (h) of section 20109 of title 49, United States Code. A party may seek district court review as set forth in subsection (d)(3) of such section not later than 90 days after receiving a written final determination by the Secretary of Labor.CommentsClose CommentsPermalink





‘(3) PROHIBITED PERSONNEL PRACTICES AFFECTING THE DEPARTMENT-CommentsClose CommentsPermalink





‘(A) IN GENERAL- Notwithstanding any other provision of law, any individual holding or applying for a position within the Department shall be covered by--CommentsClose CommentsPermalink





‘(i) paragraphs (1), (8), and (9) of section 2302(b) of title 5, United States Code;CommentsClose CommentsPermalink





‘(ii) any provision of law implementing any of such paragraphs by providing any right or remedy available to an employee or applicant for employment in the civil service; andCommentsClose CommentsPermalink





‘(iii) any rule or regulation prescribed under any such paragraph.CommentsClose CommentsPermalink





‘(B) RULE OF CONSTRUCTION- Nothing in this paragraph shall be construed to affect any rights, apart from those referred to in subparagraph (A), to which an individual described in that subparagraph might otherwise be entitled to under law.CommentsClose CommentsPermalink

‘SEC. 2109. FEDERAL PREEMPTION.

‘This title does not preclude or deny any right of any State or political subdivision thereof to adopt or enforce any regulation, requirement, or standard of performance with respect to a covered chemical facility that is more stringent than a regulation, requirement, or standard of performance issued under this title, or otherwise impair any right or jurisdiction of any State or political subdivision thereof with respect to covered chemical facilities within that State or political subdivision thereof.CommentsClose CommentsPermalink

‘SEC. 2110. PROTECTION OF INFORMATION.

‘(a) Prohibition of Public Disclosure of Protected Information- Protected information, as described in subsection (g)--CommentsClose CommentsPermalink





‘(1) shall be exempt from disclosure under section 552 of title 5, United States Code; andCommentsClose CommentsPermalink





‘(2) shall not be made available pursuant to any State, local, or tribal law requiring disclosure of information or records.CommentsClose CommentsPermalink





‘(b) Information Sharing-CommentsClose CommentsPermalink





‘(1) IN GENERAL- The Secretary shall prescribe such regulations, and may issue such orders, as necessary to prohibit the unauthorized disclosure of protected information, as described in subsection (g).CommentsClose CommentsPermalink





‘(2) SHARING OF PROTECTED INFORMATION- The regulations under paragraph (1) shall provide standards for and facilitate the appropriate sharing of protected information with and between Federal, State, local, and tribal authorities, emergency response providers, law enforcement officials, designated supervisory and nonsupervisory covered chemical facility personnel with security, operational, or fiduciary responsibility for the facility, and designated facility employee representatives, if any. Such standards shall include procedures for the sharing of all portions of a covered chemical facility’s vulnerability assessment and site security plan relating to the roles and responsibilities of covered individuals under section 2103(g)(1) with a representative of each certified or recognized bargaining agent representing such covered individuals, if any, or, if none, with at least one supervisory and at least one non-supervisory employee with roles or responsibilities under section 2103(g)(1).CommentsClose CommentsPermalink





‘(3) PENALTIES- Protected information, as described in subsection (g), shall not be shared except in accordance with the regulations under paragraph (1). Whoever discloses protected information in knowing violation of the regulations and orders issued under paragraph (1) shall be fined under title 18, United States Code, imprisoned for not more than one year, or both, and, in the case of a Federal officeholder or employee, shall be removed from Federal office or employment.CommentsClose CommentsPermalink





‘(c) Treatment of Information in Adjudicative Proceedings- In any judicial or administrative proceeding, protected information described in subsection (g) shall be treated in a manner consistent with the treatment of sensitive security information under section 525 of the Department of Homeland Security Appropriations Act, 2007 (Public Law 109-295; 120 Stat. 1381).CommentsClose CommentsPermalink





‘(d) Other Obligations Unaffected- Except as provided in section 2103(h), nothing in this section affects any obligation of the owner or operator of a chemical facility under any other law to submit or make available information required by such other law to facility employees, employee organizations, or a Federal, State, tribal, or local government.CommentsClose CommentsPermalink





‘(e) Submission of Information to Congress- Nothing in this title shall permit or authorize the withholding of information from Congress or any committee or subcommittee thereof.CommentsClose CommentsPermalink





‘(f) Disclosure of Independently Furnished Information- Nothing in this title shall affect any authority or obligation of a Federal, State, local, or tribal government agency to protect or disclose any record or information that the Federal, State, local, or tribal government agency obtains from a chemical facility under any other law.CommentsClose CommentsPermalink





‘(g) Protected Information-CommentsClose CommentsPermalink





‘(1) IN GENERAL- For purposes of this title, the term ‘protected information’ means any of the following:CommentsClose CommentsPermalink





‘(A) Security vulnerability assessments and site security plans, including any assessment required under section 2111.CommentsClose CommentsPermalink





‘(B) Portions of the following documents, records, orders, notices, or letters that the Secretary has determined by regulation would be detrimental to chemical facility security if disclosed and that are developed by the Secretary or the owner or operator of a covered chemical facility for the purposes of this title:CommentsClose CommentsPermalink





‘(i) Documents directly related to the Secretary’s review and approval or disapproval of vulnerability assessments and site security plans under this title.CommentsClose CommentsPermalink





‘(ii) Documents directly related to inspections and audits under this title.CommentsClose CommentsPermalink





‘(iii) Orders, notices, or letters regarding the compliance of a covered chemical facility with the requirements of this title.CommentsClose CommentsPermalink





‘(iv) Information, documents, or records required to be provided to or created by the Secretary under subsection (b) or (c) of section 2102.CommentsClose CommentsPermalink





‘(v) Documents directly related to security drills and training exercises, security threats and breaches of security, and maintenance, calibration, and testing of security equipment.CommentsClose CommentsPermalink





‘(C) Other information, documents, or records developed exclusively for the purposes of this title that the Secretary has determined by regulation would, if disclosed, be detrimental to chemical facility security.CommentsClose CommentsPermalink





‘(2) EXCLUSIONS- Notwithstanding paragraph (1), the term ‘protected information’ does not include--CommentsClose CommentsPermalink





‘(A) information, other than a security vulnerability assessment or site security plan, that the Secretary has determined by regulation to be--CommentsClose CommentsPermalink





‘(i) appropriate to describe facility compliance with the requirements of this title and the Secretary’s implementation of such requirements; andCommentsClose CommentsPermalink





‘(ii) not detrimental to chemical facility security if disclosed; orCommentsClose CommentsPermalink





‘(B) information, whether or not also contained in a security vulnerability assessment, site security plan, or in a document, record, order, notice, or letter, or portion thereof, described in subparagraph (B) or (C) of paragraph (1), that is obtained from another source with respect to which the Secretary has not made a determination under either such subparagraph, including--CommentsClose CommentsPermalink





‘(i) information that is required to be made publicly available under any other provision of law; andCommentsClose CommentsPermalink





‘(ii) information that a chemical facility has lawfully disclosed other than in a submission to the Secretary pursuant to a requirement of this title.CommentsClose CommentsPermalink

‘SEC. 2111. METHODS TO REDUCE THE CONSEQUENCES OF A TERRORIST ATTACK.

‘(a) Assessment Required-CommentsClose CommentsPermalink





‘(1) ASSESSMENT- The owner or operator of a covered chemical facility shall include in the site security plan conducted pursuant to section 2103, an assessment of methods to reduce the consequences of a terrorist attack on that chemical facility, including--CommentsClose CommentsPermalink





‘(A) a description of the methods to reduce the consequences of a terrorist attack implemented and considered for implementation by the covered chemical facility;CommentsClose CommentsPermalink





‘(B) the degree to which each method to reduce the consequences of a terrorist attack, if already implemented, has reduced, or, if implemented, could reduce, the potential extent of death, injury, or serious adverse effects to human health resulting from a release of a substance of concern;CommentsClose CommentsPermalink





‘(C) the technical feasibility, costs, avoided costs (including liabilities), personnel implications, savings, and applicability of implementing each method to reduce the consequences of a terrorist attack; andCommentsClose CommentsPermalink





‘(D) any other information that the owner or operator of the covered chemical facility considered in conducting the assessment.CommentsClose CommentsPermalink





‘(2) FEASIBLE- For the purposes of this section, the term ‘feasible’ means feasible with the use of best technology, techniques, and other means that the Secretary finds, after examination for efficacy under field conditions and not solely under laboratory conditions, are available for use at the covered chemical facility.CommentsClose CommentsPermalink





‘(b) Implementation-CommentsClose CommentsPermalink





‘(1) IMPLEMENTATION-CommentsClose CommentsPermalink





‘(A) IN GENERAL- The owner or operator of a covered chemical facility that is assigned to tier 1 or tier 2 because of the potential extent and likelihood of death, injury, and serious adverse effects to human health, the environment, critical infrastructure, public health, homeland security, national security, and the national economy from a release of a substance of concern at the covered chemical facility, shall implement methods to reduce the consequences of a terrorist attack on the chemical facility if the Director of the Office of Chemical Facility Security determines, in his or her discretion, using the assessment conducted pursuant to subsection (a), that the implementation of such methods at the facility--CommentsClose CommentsPermalink





‘(i) would significantly reduce the risk of death, injury, or serious adverse effects to human health resulting from a chemical facility terrorist incident but--CommentsClose CommentsPermalink





‘(I) would not increase the interim storage of a substance of concern outside the facility;CommentsClose CommentsPermalink





‘(II) would not directly result in the creation of a new covered chemical facility assigned to tier 1 or tier 2 because of the potential extent and likelihood of death, injury, and serious adverse effects to human health, the environment, critical infrastructure, public health, homeland security, national security, and the national economy from a release of a substance of concern at the covered chemical facility;CommentsClose CommentsPermalink





‘(III) would not result in the reassignment of an existing covered chemical facility from tier 3 or tier 4 to tier 1 or tier 2 because of the potential extent and likelihood of death, injury, and serious adverse effects to human health, the environment, critical infrastructure, public health, homeland security, national security, and the national economy from a release of a substance of concern at the covered chemical facility; andCommentsClose CommentsPermalink





‘(IV) would not significantly increase the potential extent and likelihood of death, injury, and serious adverse effects to human health, the environment, critical infrastructure, public health, homeland security, national security, and the national economy from a release of a substance of concern due to a terrorist attack on the transportation infrastructure of the United States;CommentsClose CommentsPermalink





‘(ii) can feasibly be incorporated into the operation of the covered chemical facility; andCommentsClose CommentsPermalink





‘(iii) would not significantly and demonstrably impair the ability of the owner or operator of the covered chemical facility to continue the business of the facility at its location.CommentsClose CommentsPermalink





‘(B) WRITTEN DETERMINATION- A determination by the Director of the Office of Chemical Facility Security pursuant to subparagraph (A) shall be made in writing and include the basis and reasons for such determination, including the Director’s analysis of the covered chemical facility’s assessment of the technical feasibility, costs, avoided costs (including liabilities), personnel implications, savings, and applicability of implementing each method to reduce the consequences of a terrorist attack.CommentsClose CommentsPermalink





‘(C) MARITIME FACILITIES- With respect to a covered chemical facility for which a security plan is required under section 70103(c) of title 46, United States Code, a written determination pursuant to subparagraph (A) shall be made only after consultation with the Captain of the Port for the area in which the covered chemical facility is located.CommentsClose CommentsPermalink





‘(2) REVIEW OF INABILITY TO COMPLY-CommentsClose CommentsPermalink





‘(A) IN GENERAL- An owner or operator of a covered chemical facility who is unable to comply with the Director’s determination under paragraph (1) shall, within 120 days of receipt of the Director’s determination, provide to the Secretary a written explanation that includes the reasons therefor. Such written explanation shall specify whether the owner or operator’s inability to comply arises under clause (ii) or (iii) of paragraph (1)(A), or both.CommentsClose CommentsPermalink





‘(B) REVIEW- Not later than 120 days after receipt of an explanation submitted under subparagraph (A), the Secretary, after consulting with the owner or operator of the covered chemical facility who submitted such explanation, as well as experts in the subjects of environmental health and safety, security, chemistry, design and engineering, process controls and implementation, maintenance, production and operations, chemical process safety, and occupational health, as appropriate, shall provide to the owner or operator a written determination, in his or her discretion, of whether implementation shall be required pursuant to paragraph (1). If the Secretary determines that implementation is required, the Secretary shall issue an order that establishes the basis for such determination, including the findings of the relevant experts, the specific methods selected for implementation, and a schedule for implementation of the methods at the facility.CommentsClose CommentsPermalink





‘(c) Agricultural Sector-CommentsClose CommentsPermalink





‘(1) GUIDANCE FOR FARM SUPPLIES MERCHANT WHOLESALERS- The Secretary shall provide guidance and, as appropriate, tools, methodologies or computer software, to assist farm supplies merchant wholesalers in complying with the requirements of this section. The Secretary may award grants to farm supplies merchant wholesalers to assist with compliance with subsection (a), and in awarding such grants, shall give priority to farm supplies merchant wholesalers that have the greatest need for such grants.CommentsClose CommentsPermalink





‘(2) ASSESSMENT OF AGRICULTURAL IMPACTS- Not later than 6 months after the date of the enactment of this title, the Secretary shall transmit an assessment of the potential impacts of compliance with provisions of this section regarding the assessment and, as appropriate, implementation, of methods to reduce the consequences of a terrorist attack on the agricultural sector to the Committee on Energy and Commerce of the House of Representatives, the Committee on Homeland Security of the House of Representatives, the Committee on Homeland Security and Governmental Affairs of the Senate, the Committee on Agriculture of the House of Representatives, and the Committee on Agriculture, Nutrition and Forestry of the Senate. Such assessment shall be conducted by the Secretary in consultation with other appropriate Federal agencies and shall include the following:CommentsClose CommentsPermalink





‘(A) Data on the scope of agricultural facilities covered by this title, including the number and type of manufacturers, retailers, aerial commercial applicators and distributors of pesticide and fertilizer required to assess methods to reduce the consequences of a terrorist attack under subsection (a) and the number and type of manufacturers, retailers, aerial commercial applicators and distributors of pesticide and fertilizer assigned to tier 1 or tier 2 by the Secretary because of the potential extent and likelihood of death, injury, and serious adverse effects to human health, the environment, critical infrastructure, public health, homeland security, national security, and the national economy from the release of a substance of concern at the facility.CommentsClose CommentsPermalink





‘(B) A survey of known methods, processes or practices, other than elimination of or cessation of manufacture of the pesticide or fertilizer, that manufacturers, retailers, aerial commercial applicators, and distributors of pesticide and fertilizer could use to reduce the consequences of a terrorist attack, including an assessment of the costs and technical feasibility of each such method, process, or practice.CommentsClose CommentsPermalink





‘(C) An analysis of how the assessment of methods to reduce the consequences of a terrorist attack under subsection (a) by manufacturers, retailers, aerial commercial applicators, and distributors of pesticide and fertilizer, and, as appropriate, the implementation of methods to reduce the consequences of a terrorist attack by such manufacturers, retailers, aerial commercial applicators, and distributors of pesticide and fertilizer subject to subsection (b), are likely to impact agricultural endusers.CommentsClose CommentsPermalink





‘(D) Recommendations for how to mitigate any adverse impacts identified pursuant to subparagraph (C).CommentsClose CommentsPermalink





‘(3) DEFINITIONS- In this subsection:CommentsClose CommentsPermalink





‘(A) FARM SUPPLIES MERCHANT WHOLESALER- The term ‘farm supplies merchant wholesaler’ means a covered chemical facility that is primarily engaged in the merchant wholesale distribution of farm supplies, such as animal feeds, fertilizers, agricultural chemicals, pesticides, plant seeds, and plant bulbs.CommentsClose CommentsPermalink





‘(B) AGRICULTURAL END-USERS- The term ‘agricultural end-users’ means facilities such as--CommentsClose CommentsPermalink





‘(i) farms, including crop, fruit, nut, and vegetable farms;CommentsClose CommentsPermalink





‘(ii) ranches and rangeland;CommentsClose CommentsPermalink





‘(iii) poultry, dairy, and equine facilities;CommentsClose CommentsPermalink





‘(iv) turfgrass growers;CommentsClose CommentsPermalink





‘(v) golf courses;CommentsClose CommentsPermalink





‘(vi) nurseries;CommentsClose CommentsPermalink





‘(vii) floricultural operations; andCommentsClose CommentsPermalink





‘(viii) public and private parks.CommentsClose CommentsPermalink





‘(d) Small Covered Chemical Facilities-CommentsClose CommentsPermalink





‘(1) GUIDANCE FOR SMALL COVERED CHEMICAL FACILITIES- The Secretary may provide guidance and, as appropriate, tools, methodologies, or computer software, to assist small covered chemical facilities in complying with the requirements of this section.CommentsClose CommentsPermalink





‘(2) Assessment of Impacts on Small Covered Chemical Facilities- Not later than 6 months after the date of the enactment of this title, the Secretary shall transmit to the Committee on Energy and Commerce of the House of Representatives, the Committee on Homeland Security of the House of Representatives, and the Committee on Homeland Security and Governmental Affairs of the Senate an assessment of the potential effects on small covered chemical facilities of compliance with provisions of this section regarding the assessment and, as appropriate, implementation, of methods to reduce the consequences of a terrorist attack. Such assessment shall include--CommentsClose CommentsPermalink





‘(A) data on the scope of facilities covered by this title, including the number and type of small covered chemical facilities that are required to assess methods to reduce the consequences of a terrorist attack under subsection (a) and the number and type of small covered chemical facilities assigned to tier 1 or tier 2 under section 2102(c)(1) by the Secretary because of the potential extent and likelihood of death, injury, and serious adverse effects to human health, the environment, critical infrastructure, public health, homeland security, national security, and the national economy from the release of a substance of concern at the facility; andCommentsClose CommentsPermalink





‘(B) a discussion of how the Secretary plans to apply the requirement that before requiring a small covered chemical facility that is required to implement methods to reduce the consequences of a terrorist attack under subsection (b) the Secretary shall first determine that the implementation of such methods at the small covered chemical facility not significantly and demonstrably impair the ability of the owner or operator of the covered chemical facility to continue the business of the facility at its location.CommentsClose CommentsPermalink





‘(3) DEFINITION- For purposes of this subsection, the term ‘small covered chemical facility’ means a covered chemical facility that has fewer than 350 employees employed at the covered chemical facility, and is not a branch or subsidiary of another entity.CommentsClose CommentsPermalink





‘(e) Provision of Information on Alternative Approaches-CommentsClose CommentsPermalink





‘(1) IN GENERAL- The Secretary shall make available information on the use and availability of methods to reduce the consequences of a chemical facility terrorist incident.CommentsClose CommentsPermalink





‘(2) INFORMATION TO BE INCLUDED- The information under paragraph (1) may include information about--CommentsClose CommentsPermalink





‘(A) general and specific types of such methods;CommentsClose CommentsPermalink





‘(B) combinations of chemical sources, substances of concern, and hazardous processes or conditions for which such methods could be appropriate;CommentsClose CommentsPermalink





‘(C) the availability of specific methods to reduce the consequences of a terrorist attack;CommentsClose CommentsPermalink





‘(D) the costs and cost savings resulting from the use of such methods;CommentsClose CommentsPermalink





‘(E) emerging technologies that could be transferred from research models or prototypes to practical applications;CommentsClose CommentsPermalink





‘(F) the availability of technical assistance and best practices; andCommentsClose CommentsPermalink





‘(G) such other matters that the Secretary determines are appropriate.CommentsClose CommentsPermalink





‘(3) PUBLIC AVAILABILITY- Information made available under this subsection shall not identify any specific chemical facility, violate the protection of information provisions under section 2110, or disclose any proprietary information.CommentsClose CommentsPermalink





‘(f) Funding for Methods To Reduce the Consequences of a Terrorist Attack- The Secretary may make funds available to help defray the cost of implementing methods to reduce the consequences of a terrorist attack to covered chemical facilities that are required by the Secretary to implement such methods.CommentsClose CommentsPermalink

‘SEC. 2112. APPLICABILITY.

‘This title shall not apply to--CommentsClose CommentsPermalink





‘(1) any chemical facility that is owned and operated by the Secretary of Defense;CommentsClose CommentsPermalink





‘(2) the transportation in commerce, including incidental storage, of any substance of concern regulated as a hazardous material under chapter 51 of title 49, United States Code;CommentsClose CommentsPermalink





‘(3) all or a specified portion of any chemical facility that--CommentsClose CommentsPermalink





‘(A) is subject to regulation by the Nuclear Regulatory Commission (hereinafter in this paragraph referred to as the ‘Commission’) or a State that has entered into an agreement with the Commission under section 274 b. of the Atomic Energy Act of 1954 (42 U.S.C. 2021 b.);CommentsClose CommentsPermalink





‘(B) has had security controls imposed by the Commission or State, whichever has the regulatory authority, on the entire facility or the specified portion of the facility; andCommentsClose CommentsPermalink





‘(C) has been designated by the Commission, after consultation with the State, if any, that regulates the facility, and the Secretary, as excluded from the application of this title;CommentsClose CommentsPermalink





‘(4) any public water system subject to the Safe Drinking Water Act (42 U.S.C. 300f et seq.); orCommentsClose CommentsPermalink





‘(5) any treatment works, as defined in section 212 of the Federal Water Pollution Control Act (33 U.S.C. 1292).CommentsClose CommentsPermalink

‘SEC. 2113. SAVINGS CLAUSE.

‘(a) In General- Nothing in this title shall affect or modify in any way any obligation or liability of any person under any other Federal law, including section 112 of the Clean Air Act (42 U.S.C. 7412), the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), the Resource Conservation and Recovery Act of 1976 (42 U.S.C. 6901 et seq.), the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), the Occupational Safety and Health Act (29 U.S.C. 651 et seq.), the National Labor Relations Act (29 U.S.C. 151 et seq.), the Emergency Planning and Community Right to Know Act of 1986 (42 U.S.C. 11001 et seq.), the Safe Drinking Water Act (42 U.S.C. 300f et seq.), the Maritime Transportation Security Act of 2002 (Public Law 107-295), the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.), the Toxic Substances Control Act (15 U.S.C. 2601 et seq.), and the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.).CommentsClose CommentsPermalink





‘(b) Other Requirements- Nothing in this title shall preclude or deny the right of any State or political subdivision thereof to adopt or enforce any regulation, requirement, or standard of performance relating to environmental protection, health, or safety.CommentsClose CommentsPermalink





‘(c) Access- Nothing in this title shall abridge or deny access to a chemical facility site to any person where required or permitted under any other law or regulation.CommentsClose CommentsPermalink

‘SEC. 2114. OFFICE OF CHEMICAL FACILITY SECURITY.

‘(a) In General- There is established in the Department an Office of Chemical Facility Security, headed by a Director, who shall be a member of the Senior Executive Service in accordance with subchapter VI of chapter 53 of title 5, United States Code, under section 5382 of that title, and who shall be responsible for carrying out the responsibilities of the Secretary under this title.CommentsClose CommentsPermalink





‘(b) Professional Qualifications- The individual selected by the Secretary as the Director of the Office of Chemical Facility Security shall have professional qualifications and experience necessary for effectively directing the Office of Chemical Facility Security and carrying out the requirements of this title, including a demonstrated knowledge of physical infrastructure protection, cybersecurity, chemical facility security, hazard analysis, chemical process engineering, chemical process safety reviews, or other such qualifications that the Secretary determines to be necessary.CommentsClose CommentsPermalink





‘(c) Selection Process- The Secretary shall make a reasonable effort to select an individual to serve as the Director from among a group of candidates that is diverse with respect to race, ethnicity, age, gender, and disability characteristics and submit to the Committee on Homeland Security and the Committee on Energy and Commerce of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate information on the selection process, including details on efforts to assure diversity among the candidates considered for this position.CommentsClose CommentsPermalink





‘(d) Outreach Support-CommentsClose CommentsPermalink





‘(1) POINT OF CONTACT- The Secretary shall designate a point of contact for the Administrator of the Environmental Protection Agency, and the head of any other agency designated by the Secretary, with respect to the requirements of this title.CommentsClose CommentsPermalink





‘(2) OUTREACH- The Secretary shall, as appropriate, and in accordance with this title, inform State emergency response commissions appointed pursuant to section 301(a) of the Emergency Planning and Community Right-To-Know Act of 1986 (42 U.S.C. 11001) and local emergency planning committees appointed pursuant to section 301(c) of such Act, and any other entity designated by the Secretary, of the findings of the Office of Chemical Facility Security so that such commissions and committees may update emergency planning and training procedures.CommentsClose CommentsPermalink

‘SEC. 2115. SECURITY BACKGROUND CHECKS OF COVERED INDIVIDUALS AT CERTAIN CHEMICAL FACILITIES.

‘(a) Regulations Issued by the Secretary-CommentsClose CommentsPermalink





‘(1) IN GENERAL-CommentsClose CommentsPermalink





‘(A) REQUIREMENT- The Secretary shall issue regulations to require covered chemical facilities to establish personnel surety for individuals described in subparagraph (B) by conducting appropriate security background checks and ensuring appropriate credentials for unescorted visitors and chemical facility personnel, including permanent and part-time personnel, temporary personnel, and contract personnel, including--CommentsClose CommentsPermalink





‘(i) measures designed to verify and validate identity;CommentsClose CommentsPermalink





‘(ii) measures designed to check criminal history;CommentsClose CommentsPermalink





‘(iii) measures designed to verify and validate legal authorization to work; andCommentsClose CommentsPermalink





‘(iv) measures designed to identify people with terrorist ties.CommentsClose CommentsPermalink





‘(B) INDIVIDUALS DESCRIBED- For purposes of subparagraph (A), an individual described in this subparagraph is--CommentsClose CommentsPermalink





‘(i) a covered individual who has unescorted access to restricted areas or critical assets or who is provided with a copy of a security vulnerability assessment or site security plan;CommentsClose CommentsPermalink





‘(ii) a person associated with a covered chemical facility, including any designated employee representative, who is provided with a copy of a security vulnerability assessment or site security plan; orCommentsClose CommentsPermalink





‘(iii) a person who is determined by the Secretary to require a security background check based on chemical facility security performance standards.CommentsClose CommentsPermalink





‘(2) REGULATIONS- The regulations required by paragraph (1) shall set forth--CommentsClose CommentsPermalink





‘(A) the scope of the security background checks, including the types of disqualifying offenses and the time period covered for each person subject to a security background check under paragraph (1);CommentsClose CommentsPermalink





‘(B) the processes to conduct the security background checks;CommentsClose CommentsPermalink





‘(C) the necessary biographical information and other data required in order to conduct the security background checks;CommentsClose CommentsPermalink





‘(D) a redress process for an adversely-affected person consistent with subsections (b) and (c); andCommentsClose CommentsPermalink





‘(E) a prohibition on an owner or operator of a covered chemical facility misrepresenting to an employee or other relevant person, including an arbiter involved in a labor arbitration, the scope, application, or meaning of any rules, regulations, directives, or guidance issued by the Secretary related to security background check requirements for covered individuals when conducting a security background check.CommentsClose CommentsPermalink





‘(b) Misrepresentation of Adverse Employment Decisions- The regulations required by subsection (a)(1) shall set forth that it shall be a misrepresentation under subsection (a)(2)(E) to attribute an adverse employment decision, including removal or suspension of the employee, to such regulations unless the owner or operator finds, after opportunity for appropriate redress under the processes provided under subsection (c)(1) and (c)(2), that the person subject to such adverse employment decision--CommentsClose CommentsPermalink





‘(1) has been convicted of, has been found not guilty of by reason of insanity, or is under want, warrant, or indictment for, a permanent disqualifying criminal offense listed in part 1572 of title 49, Code of Federal Regulations;CommentsClose CommentsPermalink





‘(2) was convicted of, or found not guilty of by reason of insanity, an interim disqualifying criminal offense listed in part 1572 of title 49, Code of Federal Regulations, within 7 years of the date on which the covered chemical facility performs the security background check;CommentsClose CommentsPermalink





‘(3) was incarcerated for an interim disqualifying criminal offense listed in part 1572 of title 49, Code of Federal Regulations, and released from incarceration within 5 years of the date that the chemical facility performs the security background check;CommentsClose CommentsPermalink





‘(4) is determined by the Secretary to be on the consolidated terrorist watchlist; orCommentsClose CommentsPermalink





‘(5) is determined, as a result of the security background check, not to be legally authorized to work in the United States.CommentsClose CommentsPermalink





‘(c) Redress Processes- Upon the issuance of regulations under subsection (a), the Secretary shall--CommentsClose CommentsPermalink





‘(1) require the owner or operator to provide an adequate and prompt redress process for a person subject to a security background check under subsection (a)(1) who is subjected to an adverse employment decision, including removal or suspension of the employee, due to such regulations that is consistent with the appeals process established for employees subject to consumer reports under the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.), as in force on the date of the enactment of this title;CommentsClose CommentsPermalink





‘(2) provide an adequate and prompt redress process for a person subject to a security background check under subsection (a)(1) who is subjected to an adverse employment decision, including removal or suspension of the employee, due to a determination by the Secretary under subsection (b)(4), that is consistent with the appeals process established under section 70105(c) of title 46, United States Code, including all rights to hearings before an administrative law judge, scope of review, and a review of an unclassified summary of classified evidence equivalent to the summary provided in part 1515 of title 49, Code of Federal Regulations;CommentsClose CommentsPermalink





‘(3) provide an adequate and prompt redress process for a person subject to a security background check under subsection (a)(1) who is subjected to an adverse employment decision, including removal or suspension of the employee, due to a violation of subsection (a)(2)(E), which shall not preclude the exercise of any other rights available under collective bargaining agreements or applicable laws;CommentsClose CommentsPermalink





‘(4) establish a reconsideration process described in subsection (d) for a person subject to an adverse employment decision that was attributed by an owner or operator to the regulations required by subsection (a)(1);CommentsClose CommentsPermalink





‘(5) have the authority to order an appropriate remedy, including reinstatement of the person subject to a security background check under subsection (a)(1), if the Secretary determines that the adverse employment decision was made in violation of the regulations required under subsection (a)(1) or as a result of an erroneous determination by the Secretary under subsection (b)(4);CommentsClose CommentsPermalink





‘(6) ensure that the redress processes required under paragraphs (1), (2), or (3) afford to the person a full disclosure of any public-record event covered by subsection (b) that provides the basis for an adverse employment decision; andCommentsClose CommentsPermalink





‘(7) ensure that the person subject to a security background check under subsection (a)(1) receives the person’s full wages and benefits until all redress processes under this subsection are exhausted.CommentsClose CommentsPermalink





‘(d) Reconsideration Process-CommentsClose CommentsPermalink





‘(1) IN GENERAL- The reconsideration process required under subsection (c)(4) shall--CommentsClose CommentsPermalink





‘(A) require the Secretary to determine, within 30 days after receiving a petition submitted by a person subject to an adverse employment decision that was attributed by an owner or operator to the regulations required by subsection (a)(1), whether such person poses a security risk to the covered chemical facility; andCommentsClose CommentsPermalink





‘(B) include procedures consistent with section 70105(c) of title 46, United States Code, including all rights to hearings before an administrative law judge, scope of review, and a review of an unclassified summary of classified evidence equivalent to the summary provided in part 1515 of title 49, Code of Federal Regulations.CommentsClose CommentsPermalink





‘(2) DETERMINATION BY THE SECRETARY- In making a determination described under paragraph (1)(A), the Secretary shall--CommentsClose CommentsPermalink





‘(A) give consideration to the circumstance of any disqualifying act or offense, restitution made by the person, Federal and State mitigation remedies, and other factors from which it may be concluded that the person does not pose a security risk to the covered chemical facility; andCommentsClose CommentsPermalink





‘(B) provide his or her determination as to whether such person poses a security risk to the covered chemical facility to the petitioner and to the owner or operator of the covered chemical facility.CommentsClose CommentsPermalink





‘(3) OWNER OR OPERATOR RECONSIDERATION- If the Secretary determines pursuant to paragraph (1)(A) that the person does not pose a security risk to the covered chemical facility, it shall thereafter constitute a prohibited misrepresentation for the owner or operator of the covered chemical facility to continue to attribute the adverse employment decision to the regulations under subsection (a)(1).CommentsClose CommentsPermalink





‘(e) Restrictions on Use and Maintenance of Information- Information obtained under this section by the Secretary or the owner or operator of a covered chemical facility shall be handled as follows:CommentsClose CommentsPermalink





‘(1) Such information may not be made available to the public.CommentsClose CommentsPermalink





‘(2) Such information may not be accessed by employees of the facility except for such employees who are directly involved with collecting the information or conducting or evaluating security background checks.CommentsClose CommentsPermalink





‘(3) Such information shall be maintained confidentially by the facility and the Secretary and may be used only for making determinations under this section.CommentsClose CommentsPermalink





‘(4) The Secretary may share such information with other Federal, State, local, and tribal law enforcement agencies.CommentsClose CommentsPermalink





‘(f) Savings Clause-CommentsClose CommentsPermalink





‘(1) RIGHTS AND RESPONSIBILITIES- Nothing in this section shall be construed to abridge any right or responsibility of a person subject to a security background check under subsection (a)(1) or an owner or operator of a covered chemical facility under any other Federal, State, local, or tribal law or collective bargaining agreement.CommentsClose CommentsPermalink





‘(2) EXISTING RIGHTS- Nothing in this section shall be construed as creating any new right or modifying any existing right of an individual to appeal a determination by the Secretary as a result of a check against a terrorist watch list.CommentsClose CommentsPermalink





‘(g) Preemption- Nothing in this section shall be construed to preempt, alter, or affect a Federal, State, local, or tribal law that requires criminal history background checks, checks on the authorization of an individual to work in the United States, or other background checks of persons subject to security background checks under subsection (a)(1).CommentsClose CommentsPermalink





‘(h) Definition of Security Background Check- The term ‘security background check’ means a review at no cost to any person subject to a security background check under subsection (a)(1) of the following for the purpose of identifying individuals who may pose a threat to chemical facility security, to national security, or of terrorism:CommentsClose CommentsPermalink





‘(1) Relevant databases to verify and validate identity.CommentsClose CommentsPermalink





‘(2) Relevant criminal history databases.CommentsClose CommentsPermalink





‘(3) In the case of an alien (as defined in section 101 of the Immigration and Nationality Act (8 U.S.C. 1101(a)(3))), the relevant databases to determine the status of the alien under the immigration laws of the United States.CommentsClose CommentsPermalink





‘(4) The consolidated terrorist watchlist.CommentsClose CommentsPermalink





‘(5) Other relevant information or databases, as determined by the Secretary.CommentsClose CommentsPermalink





‘(i) Department-Conducted Security Background Check- The regulations under subsection (a)(1) shall set forth a process by which the Secretary, on an ongoing basis, shall determine whether alternate security background checks conducted by the Secretary are sufficient to meet the requirements of this section such that no additional security background check under this section is required for an individual for whom such a qualifying alternate security background check was conducted. The Secretary may require the owner or operator of a covered chemical facility to which the individual will have unescorted access to sensitive or restricted areas to submit identifying information about the individual and the alternate security background check conducted for that individual to the Secretary in order to enable the Secretary to verify the validity of the alternate security background check. Such regulations shall provide that no security background check under this section is required for an individual holding a transportation security card issued under section 70105 of title 46, United States Code.CommentsClose CommentsPermalink





‘(j) Termination of Employment- If, as the result of a security background check, an owner or operator of a covered chemical facility finds that a covered individual is not legally authorized to work in the United States, the owner or operator shall cease to employ the covered individual, subject to the appropriate redress processes available to such individual under this section.CommentsClose CommentsPermalink

‘SEC. 2116. CITIZEN ENFORCEMENT.

‘(a) In General- Except as provided in subsection (c), any person may commence a civil action on such person’s own behalf--CommentsClose CommentsPermalink





‘(1) against any governmental entity (including the United States and any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution, and any federally owned-contractor operated facility) alleged to be in violation of any order that has become effective pursuant to this title; orCommentsClose CommentsPermalink





‘(2) against the Secretary, for an alleged failure to perform any act or duty under this title that is not discretionary for the Secretary.CommentsClose CommentsPermalink





‘(b) Court of Jurisdiction-CommentsClose CommentsPermalink





‘(1) IN GENERAL- Any action under subsection (a)(1) shall be brought in the district court for the district in which the alleged violation occurred. Any action brought under subsection (a)(2) may be brought in the district court for the district in which the alleged violation occurred or in the United States District Court for the District of Columbia.CommentsClose CommentsPermalink





‘(2) RELIEF- The district court shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties to enforce the order referred to in subsection (a)(1), to order such governmental entity to take such action as may be necessary, or both, or, in an action commenced under subsection (a)(2), to order the Secretary to perform the non-discretionary act or duty, and to order any civil penalties, as appropriate, under section 2107.CommentsClose CommentsPermalink





‘(c) Actions Prohibited- No action may be commenced under subsection (a) prior to 60 days after the date on which the person commencing the action has given notice of the alleged violation to--CommentsClose CommentsPermalink





‘(1) the Secretary; andCommentsClose CommentsPermalink





‘(2) in the case of an action under subsection (a)(1), any governmental entity alleged to be in violation of an order.CommentsClose CommentsPermalink





‘(d) Notice- Notice under this section shall be given in such manner as the Secretary shall prescribe by regulation.CommentsClose CommentsPermalink





‘(e) Intervention- In any action under this section, the Secretary, if not a party, may intervene as a matter of right.CommentsClose CommentsPermalink





‘(f) Costs; Bond- The court, in issuing any final order in any action brought pursuant to this section, may award costs of litigation (including reasonable attorney and expert witness fees) to the prevailing or substantially prevailing party, whenever the court determines such an award is appropriate. The court may, if a temporary restraining order or preliminary injunction is sought, require the filing of a bond or equivalent security in accordance with the Federal Rules of Civil Procedure.CommentsClose CommentsPermalink





‘(g) Other Rights Preserved- Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law.CommentsClose CommentsPermalink

‘SEC. 2117. CITIZEN PETITIONS.

‘(a) Regulations- The Secretary shall issue regulations to establish a citizen petition process for petitions described in subsection (b). Such regulations shall include--CommentsClose CommentsPermalink





‘(1) the format for such petitions;CommentsClose CommentsPermalink





‘(2) the procedure for investigation of petitions;CommentsClose CommentsPermalink





‘(3) the procedure for response to such petitions, including timelines;CommentsClose CommentsPermalink





‘(4) the procedure for referral to and review by the Office of the Inspector General of the Department without deference to the Secretary’s determination with respect to the petition; andCommentsClose CommentsPermalink





‘(5) the procedure for rejection or acceptance by the Secretary of the recommendation of the Office of the Inspector General.CommentsClose CommentsPermalink





‘(b) Petitions- The regulations issued pursuant to subsection (a) shall allow any person to file a petition with the Secretary--CommentsClose CommentsPermalink





‘(1) identifying any person (including the United States and any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution) alleged to be in violation of any standard, regulation, condition, requirement, prohibition, plan, or order that has become effective under this title; andCommentsClose CommentsPermalink





‘(2) describing the alleged violation of any standard, regulation, condition, requirement, prohibition, plan, or order that has become effective under this title by that person.CommentsClose CommentsPermalink





‘(c) Requirements- Upon issuance of regulations under subsection (a), the Secretary shall--CommentsClose CommentsPermalink





‘(1) accept all petitions described under subsection (b) that meet the requirements of the regulations promulgated under subsection (a);CommentsClose CommentsPermalink





‘(2) investigate all allegations contained in accepted petitions;CommentsClose CommentsPermalink





‘(3) determine whether enforcement action will be taken concerning the alleged violation or violations;CommentsClose CommentsPermalink





‘(4) respond to all accepted petitions promptly and in writing;CommentsClose CommentsPermalink





‘(5) include in all responses to petitions a brief and concise statement, to the extent permitted under section 2110, of the allegations, the steps taken to investigate, the determination made, and the reasons for such determination;CommentsClose CommentsPermalink





‘(6) maintain an internal record including all protected information related to the determination;CommentsClose CommentsPermalink





‘(7) with respect to any petition for which the Secretary has not made a timely response or the Secretary’s response is unsatisfactory to the petitioner, provide the petitioner with the opportunity to request--CommentsClose CommentsPermalink





‘(A) a review of the full record by the Inspector General of the Department, including a review of protected information; andCommentsClose CommentsPermalink





‘(B) the formulation of recommendations by the Inspector General and submittal of such recommendations to the Secretary and, to the extent permitted under section 2110, to the petitioner; andCommentsClose CommentsPermalink





‘(8) respond to a recommendation submitted by the Inspector General under paragraph (7) by adopting or rejecting the recommendation.CommentsClose CommentsPermalink

‘SEC. 2118. NOTIFICATION SYSTEM TO ADDRESS PUBLIC CONCERNS.

‘(a) Establishment- The Secretary shall establish a notification system, which shall provide any individual the ability to report a suspected security deficiency or suspected non-compliance with this title. Such notification system shall provide for the ability to report the suspected security deficiency or non-compliance via telephonic and Internet-based means.CommentsClose CommentsPermalink





‘(b) Acknowledgment- When the Secretary receives a report through the notification system established under subsection (a), the Secretary shall respond to such report in a timely manner, but in no case shall the Secretary respond to such a report later than 30 days after receipt of the report.CommentsClose CommentsPermalink





‘(c) Steps to Address Problems- The Secretary shall review each report received through the notification system established under subsection (a) and shall, as necessary, take appropriate enforcement action under section 2107.CommentsClose CommentsPermalink





‘(d) Feedback Required- Upon request, the Secretary shall provide the individual who reported the suspected security deficiency or non-compliance through the notification system established under subsection (a) a written response that includes the Secretary’s findings with respect to the report submitted by the individual and what, if any, compliance action was taken in response to such report.CommentsClose CommentsPermalink





‘(e) Inspector General Report Required- The Inspector General of the Department shall submit to the Committee on Homeland Security and the Committee on Energy and Commerce of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate an annual report on the reports received under the notification system established under subsection (a) and the Secretary’s disposition of such reports.CommentsClose CommentsPermalink

‘SEC. 2119. ANNUAL REPORT TO CONGRESS.

‘(a) Annual Report- Not later than one year after the date of the enactment of this title, annually thereafter for the next four years, and biennially thereafter, the Secretary shall submit to the Committee on Homeland Security and the Committee on Energy and Commerce of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate a report on progress in achieving compliance with this title. Each such report shall include the following:CommentsClose CommentsPermalink





‘(1) A qualitative discussion of how covered chemical facilities, differentiated by tier, have reduced the risks of chemical facility terrorist incidents at such facilities, including--CommentsClose CommentsPermalink





‘(A) a generalized summary of measures implemented by covered chemical facilities in order to meet each risk-based chemical facility performance standard established by this title, and those that the facilities already had in place--CommentsClose CommentsPermalink





‘(i) in the case of the first report under this section, before the issuance of the final rule implementing the regulations known as the ‘Chemical Facility Anti-Terrorism Standards’, issued on April 9, 2007; andCommentsClose CommentsPermalink





‘(ii) in the case of each subsequent report, since the submittal of the most recent report submitted under this section; andCommentsClose CommentsPermalink





‘(B) any other generalized summary the Secretary deems appropriate to describe the measures covered chemical facilities are implementing to comply with the requirements of this title.CommentsClose CommentsPermalink





‘(2) A quantitative summary of how the covered chemical facilities, differentiated by tier, are complying with the requirements of this title during the period covered by the report and how the Secretary is implementing and enforcing such requirements during such period, including--CommentsClose CommentsPermalink





‘(A) the number of chemical facilities that provided the Secretary with information about possessing substances of concern, as described in section 2102(b)(2);CommentsClose CommentsPermalink





‘(B) the number of covered chemical facilities assigned to each tier;CommentsClose CommentsPermalink





‘(C) the number of security vulnerability assessments and site security plans submitted by covered chemical facilities;CommentsClose CommentsPermalink





‘(D) the number of security vulnerability assessments and site security plans approved and disapproved by the Secretary;CommentsClose CommentsPermalink





‘(E) the number of covered chemical facilities without approved security vulnerability assessments or site security plans;CommentsClose CommentsPermalink





‘(F) the number of chemical facilities that have been assigned to a different tier or are no longer regulated by the Secretary due to implementation of a method to reduce the consequences of a terrorist attack and a description of such implemented methods;CommentsClose CommentsPermalink





‘(G) the number of orders for compliance issued by the Secretary;CommentsClose CommentsPermalink





‘(H) the administrative penalties assessed by the Secretary for non-compliance with the requirements of this title;CommentsClose CommentsPermalink





‘(I) the civil penalties assessed by the court for non-compliance with the requirements of this title;CommentsClose CommentsPermalink





‘(J) the number of terrorist watchlist checks conducted by the Secretary in order to comply with the requirements of this title, the number of appeals conducted by the Secretary pursuant to the processes described under paragraphs (2), (3) and (4) of section 2115(c), aggregate information regarding the time taken for such appeals, aggregate information regarding the manner in which such appeals were resolved, and, based on information provided to the Secretary annually by each owner or operator of a covered chemical facility, the number of persons subjected to adverse employment decisions that were attributed by the owner or operator to the regulations required by section 2115; andCommentsClose CommentsPermalink





‘(K) any other regulatory data the Secretary deems appropriate to describe facility compliance with the requirements of this title and the Secretary’s implementation of such requirements.CommentsClose CommentsPermalink





‘(b) Public Availability- A report submitted under this section shall be made publicly available.CommentsClose CommentsPermalink

‘SEC. 2120. AUTHORIZATION OF APPROPRIATIONS.

‘There is authorized to be appropriated to the Secretary of Homeland Security to carry out this title--CommentsClose CommentsPermalink





‘(1) $325,000,000 for fiscal year 2011, of which $100,000,000 shall be made available to provide funding for methods to reduce the consequences of a terrorist attack, of which up to $3,000,000 shall be made available for grants authorized under section 2111(c)(1);CommentsClose CommentsPermalink





‘(2) $300,000,000 for fiscal year 2012, of which $75,000,000 shall be made available to provide funding for methods to reduce the consequences of a terrorist attack, of which up to $3,000,000 shall be made available for grants authorized under section 2111(c)(1); andCommentsClose CommentsPermalink





‘(3) $275,000,000 for fiscal year 2013, of which $50,000,000 shall be made available to provide funding for methods to reduce the consequences of a terrorist attack, of which up to $3,000,000 shall be made available for grants authorized under section 2111(c)(1).’.CommentsClose CommentsPermalink





(b) Clerical Amendment- The table of contents in section 1(b) of such Act is amended by adding at the end the following:CommentsClose CommentsPermalink

‘TITLE XXI--REGULATION OF SECURITY PRACTICES AT CHEMICAL FACILITIES

‘Sec. 2101. Definitions.CommentsClose CommentsPermalink





‘Sec. 2102. Risk-based designation and ranking of chemical facilities.CommentsClose CommentsPermalink





‘Sec. 2103. Security vulnerability assessments and site security plans.CommentsClose CommentsPermalink





‘Sec. 2104. Site inspections.CommentsClose CommentsPermalink





‘Sec. 2105. Records.CommentsClose CommentsPermalink





‘Sec. 2106. Timely sharing of threat information.CommentsClose CommentsPermalink





‘Sec. 2107. Enforcement.CommentsClose CommentsPermalink





‘Sec. 2108. Whistleblower protections.CommentsClose CommentsPermalink





‘Sec. 2109. Federal preemption.CommentsClose CommentsPermalink





‘Sec. 2110. Protection of information.CommentsClose CommentsPermalink





‘Sec. 2111. Methods to reduce the consequences of a terrorist attack.CommentsClose CommentsPermalink





‘Sec. 2112. Applicability.CommentsClose CommentsPermalink





‘Sec. 2113. Savings clause.CommentsClose CommentsPermalink





‘Sec. 2114. Office of Chemical Facility Security.CommentsClose CommentsPermalink





‘Sec. 2115. Security background checks of covered individuals at certain chemical facilities.CommentsClose CommentsPermalink





‘Sec. 2116. Citizen enforcement.CommentsClose CommentsPermalink





‘Sec. 2117. Citizen petitions.CommentsClose CommentsPermalink





‘Sec. 2118. Notification system to address public concerns.CommentsClose CommentsPermalink





‘Sec. 2119. Annual report to Congress.CommentsClose CommentsPermalink





‘Sec. 2120. Authorization of appropriations.’.CommentsClose CommentsPermalink





(c) Conforming Repeal-CommentsClose CommentsPermalink





(1) REPEAL- The Department of Homeland Security Appropriations Act, 2007 (Public Law 109-295) is amended by striking section 550.CommentsClose CommentsPermalink





(2) EFFECTIVE DATE- The amendment made by paragraph (1) shall take effect on the date of the enactment of this title.CommentsClose CommentsPermalink





(d) Regulations-CommentsClose CommentsPermalink





(1) DEADLINE- The Secretary shall issue proposed rules to carry out title XXI of the Homeland Security Act of 2002, as added by subsection (a), by not later than 6 months after the date of the enactment of this Act, and shall issue final rules to carry out such title by not later than 18 months after the date of the enactment of this Act.CommentsClose CommentsPermalink





(2) CONSULTATION- In developing and implementing the rules required under paragraph (1), the Secretary shall consult with the Administrator of the Environmental Protection Agency, and other persons, as appropriate, regarding--CommentsClose CommentsPermalink





(A) the designation of substances of concern;CommentsClose CommentsPermalink





(B) methods to reduce the consequences of a terrorist attack;CommentsClose CommentsPermalink





(C) security at drinking water facilities and wastewater treatment works;CommentsClose CommentsPermalink





(D) the treatment of protected information; andCommentsClose CommentsPermalink





(E) such other matters as the Secretary determines necessary.CommentsClose CommentsPermalink





(3) SENSE OF CONGRESS REGARDING CFATS- It is the sense of Congress that the Secretary of Homeland Security was granted statutory authority under section 550 of the Department of Homeland Security Appropriations Act (Public Law 109-295) to regulate security practices at chemical facilities until October 1, 2009. Pursuant to that section the Secretary prescribed regulations known as the Chemical Facility Anti-Terrorism Standards, or ‘CFATS’ (referred to in this section as ‘CFATS regulations’).CommentsClose CommentsPermalink





(4) INTERIM USE AND AMENDMENT OF CFATS- Until the final rules prescribed pursuant to paragraph (1) take effect, in carrying out title XXI of the Homeland Security Act of 2002, as added by subsection (a), the Secretary may, to the extent the Secretary determines appropriate--CommentsClose CommentsPermalink





(A) continue to carry out the CFATS regulations, as in effect immediately before the date of the enactment of this title;CommentsClose CommentsPermalink





(B) amend any of such regulations as may be necessary to ensure that such regulations are consistent with the requirements of this title and the amendments made by this title; andCommentsClose CommentsPermalink





(C) continue using any tools developed for purposes of such regulations, including the list of substances of concern, usually referred to as ‘Appendix A’, and the chemical security assessment tool (which includes facility registration, a top-screen questionnaire, a security vulnerability assessment tool, a site security plan template, and a chemical vulnerability information repository).CommentsClose CommentsPermalink





(5) UPDATE OF FACILITY PLANS ASSESSMENTS AND PLANS PREPARED UNDER CFATS- The owner or operator of a covered chemical facility, who, before the effective date of the final regulations issued under title XXI of the Homeland Security Act of 2002, as added by subsection (a), submits a security vulnerability assessment or site security plan under the CFATS regulations, shall be required to update or amend the facility’s security vulnerability assessment and site security plan to reflect any additional requirements of this title or the amendments made by this title, according to a timeline established by the Secretary.CommentsClose CommentsPermalink





(e) Review of Designation of Sodium Fluoroacetate as a Substance of Concern- The Secretary of Homeland Security shall review the designation of sodium fluoroacetate as a substance of concern pursuant to subsection (d) of section 2102 of the Homeland Security Act of 2002, as added by subsection (a), by the earlier of the following dates:CommentsClose CommentsPermalink





(1) The date of the first periodic review conducted pursuant to such subsection after the date of the enactment of this title.CommentsClose CommentsPermalink





(2) The date that is one year after the date of the enactment of this title.CommentsClose CommentsPermalink

TITLE II--DRINKING WATER SECURITYCommentsClose CommentsPermalink

SEC. 201. SHORT TITLE.

This title may be cited as the ‘Drinking Water System Security Act of 2009’.CommentsClose CommentsPermalink

SEC. 202. INTENTIONAL ACTS AFFECTING THE SECURITY OF COVERED WATER SYSTEMS.

(a) Amendment of Safe Drinking Water Act- Section 1433 of the Safe Drinking Water Act (42 U.S.C. 300i-2) is amended to read as follows:CommentsClose CommentsPermalink

‘SEC. 1433. INTENTIONAL ACTS.

‘(a) Risk-based Performance Standards; Vulnerability Assessments; Site Security Plans; Emergency Response Plans-CommentsClose CommentsPermalink





‘(1) IN GENERAL- The Administrator shall issue regulations--CommentsClose CommentsPermalink





‘(A) establishing risk-based performance standards for the security of covered water systems; andCommentsClose CommentsPermalink





‘(B) establishing requirements and deadlines for each covered water system--CommentsClose CommentsPermalink





‘(i) to conduct a vulnerability assessment or, if the system already has a vulnerability assessment, to revise the assessment to be in accordance with this section, and submit such assessment to the Administrator;CommentsClose CommentsPermalink





‘(ii) to update and resubmit the vulnerability assessment not less than every 5 years and promptly after any change at the system that could cause the reassignment of the system to a different risk-based tier under subsection (d);CommentsClose CommentsPermalink





‘(iii) to develop, implement, and, as appropriate, revise a site security plan not less than every 5 years and promptly after a revision to the vulnerability assessment and submit such plan to the Administrator;CommentsClose CommentsPermalink





‘(iv) to develop an emergency response plan or, if the system has already developed an emergency response plan, to revise the plan to be in accordance with this section, and revise the plan not less than every 5 years thereafter; andCommentsClose CommentsPermalink





‘(v) to provide annual training to employees and contractor employees of covered water systems on implementing site security plans and emergency response plans.CommentsClose CommentsPermalink





‘(2) COVERED WATER SYSTEMS- For purposes of this section, the term ‘covered water system’ means a public water system that--CommentsClose CommentsPermalink





‘(A) is a community water system serving a population greater than 3,300; orCommentsClose CommentsPermalink





‘(B) in the discretion of the Administrator, presents a security risk making regulation under this section appropriate.CommentsClose CommentsPermalink





‘(3) CONSULTATION WITH STATE AUTHORITIES- In developing and carrying out the regulations under paragraph (1), the Administrator shall consult with States exercising primary enforcement responsibility for public water systems.CommentsClose CommentsPermalink





‘(4) CONSULTATION WITH OTHER PERSONS- In developing and carrying out the regulations under paragraph (1), the Administrator shall consult with the Secretary of Homeland Security, and, as appropriate, other persons regarding--CommentsClose CommentsPermalink





‘(A) provision of threat-related and other baseline information to covered water systems;CommentsClose CommentsPermalink





‘(B) designation of substances of concern;CommentsClose CommentsPermalink





‘(C) development of risk-based performance standards;CommentsClose CommentsPermalink





‘(D) establishment of risk-based tiers and process for the assignment of covered water systems to risk-based tiers;CommentsClose CommentsPermalink





‘(E) process for the development and evaluation of vulnerability assessments, site security plans, and emergency response plans;CommentsClose CommentsPermalink





‘(F) treatment of protected information; andCommentsClose CommentsPermalink





‘(G) such other matters as the Administrator determines necessary.CommentsClose CommentsPermalink





‘(5) SUBSTANCES OF CONCERN- For purposes of this section, the Administrator, in consultation with the Secretary of Homeland Security--CommentsClose CommentsPermalink





‘(A) may designate any chemical substance as a substance of concern;CommentsClose CommentsPermalink





‘(B) at the time any substance is designated pursuant to subparagraph (A), shall establish by rule a threshold quantity for the release or theft of the substance, taking into account the toxicity, reactivity, volatility, dispersability, combustibility, and flammability of the substance and the amount of the substance that, as a result of a release, is known to cause or may be reasonably anticipated to cause death, injury, or serious adverse effects to human health or the environment; andCommentsClose CommentsPermalink





‘(C) in making such a designation, shall take into account appendix A to part 27 of title 6, Code of Federal Regulations (or any successor regulations).CommentsClose CommentsPermalink





‘(6) BASELINE INFORMATION- The Administrator, after consultation with appropriate departments and agencies of the Federal Government and with State, local, and tribal governments, shall, for purposes of facilitating compliance with the requirements of this section, promptly after the effective date of the regulations under subsection (a)(1) and as appropriate thereafter, provide baseline information to covered water systems regarding which kinds of intentional acts are the probable threats to--CommentsClose CommentsPermalink





‘(A) substantially disrupt the ability of the system to provide a safe and reliable supply of drinking water;CommentsClose CommentsPermalink





‘(B) cause the release of a substance of concern at the covered water system; orCommentsClose CommentsPermalink





‘(C) cause the theft, misuse, or misappropriation of a substance of concern.CommentsClose CommentsPermalink





‘(b) Risk-Based Performance Standards- The regulations under subsection (a)(1) shall set forth risk-based performance standards for site security plans required by this section. The standards shall be separate and, as appropriate, increasingly stringent based on the level of risk associated with the covered water system’s risk-based tier assignment under subsection (d). In developing such standards, the Administrator shall take into account section 27.230 of title 6, Code of Federal Regulations (or any successor regulations).CommentsClose CommentsPermalink





‘(c) Vulnerability Assessment- The regulations under subsection (a)(1) shall require each covered water system to assess the system’s vulnerability to a range of intentional acts, including an intentional act that results in a release of a substance of concern that is known to cause or may be reasonably anticipated to cause death, injury, or serious adverse effects to human health or the environment. At a minimum, the vulnerability assessment shall include a review of--CommentsClose CommentsPermalink





‘(1) pipes and constructed conveyances;CommentsClose CommentsPermalink





‘(2) physical barriers;CommentsClose CommentsPermalink





‘(3) water collection, pretreatment, treatment, storage, and distribution facilities, including fire hydrants;CommentsClose CommentsPermalink





‘(4) electronic, computer, and other automated systems that are used by the covered water system;CommentsClose CommentsPermalink





‘(5) the use, storage, or handling of various chemicals, including substances of concern;CommentsClose CommentsPermalink





‘(6) the operation and maintenance of the covered water system; andCommentsClose CommentsPermalink





‘(7) the covered water system’s resiliency and ability to ensure continuity of operations in the event of a disruption caused by an intentional act.CommentsClose CommentsPermalink





‘(d) Risk-Based Tiers- The regulations under subsection (a)(1) shall provide for 4 risk-based tiers applicable to covered water systems, with tier one representing the highest degree of security risk.CommentsClose CommentsPermalink





‘(1) ASSIGNMENT OF RISK-BASED TIERS-CommentsClose CommentsPermalink





‘(A) SUBMISSION OF INFORMATION- The Administrator may require a covered water system to submit information in order to determine the appropriate risk-based tier for the covered water system.CommentsClose CommentsPermalink





‘(B) FACTORS TO CONSIDER- The Administrator shall assign (and reassign when appropriate) each covered water system to one of the risk-based tiers established pursuant to this subsection. In assigning a covered water system to a risk-based tier, the Administrator shall consider the potential consequences (such as death, injury, or serious adverse effects to human health, the environment, critical infrastructure, national security, and the national economy) from--CommentsClose CommentsPermalink





‘(i) an intentional act to cause a release, including a worst-case release, of a substance of concern at the covered water system;CommentsClose CommentsPermalink





‘(ii) an intentional act to introduce a contaminant into the drinking water supply or disrupt the safe and reliable supply of drinking water; andCommentsClose CommentsPermalink





‘(iii) an intentional act to steal, misappropriate, or misuse substances of concern.CommentsClose CommentsPermalink





‘(2) EXPLANATION FOR RISK-BASED TIER ASSIGNMENT- The Administrator shall provide each covered water system assigned to a risk-based tier with the reasons for the tier assignment and whether such system is required to submit an assessment under subsection (g)(2).CommentsClose CommentsPermalink





‘(e) Development and Implementation of Site Security Plans- The regulations under subsection (a)(1) shall permit each covered water system, in developing and implementing its site security plan required by this section, to select layered security and preparedness measures that, in combination, appropriately--CommentsClose CommentsPermalink





‘(1) address the security risks identified in its vulnerability assessment; andCommentsClose CommentsPermalink





‘(2) comply with the applicable risk-based performance standards required under this section.CommentsClose CommentsPermalink





‘(f) Role of Employees-CommentsClose CommentsPermalink





‘(1) DESCRIPTION OF ROLE- Site security plans and emergency response plans required under this section shall describe the appropriate roles or responsibilities that employees and contractor employees are expected to perform to deter or respond to the intentional acts described in subsection (d)(1)(B).CommentsClose CommentsPermalink





‘(2) TRAINING FOR EMPLOYEES- Each covered water system shall annually provide employees and contractor employees with roles or responsibilities described in paragraph (1) with a minimum of 8 hours of training on carrying out those roles or responsibilities.CommentsClose CommentsPermalink





‘(3) EMPLOYEE PARTICIPATION- In developing, revising, or updating a vulnerability assessment, site security plan, and emergency response plan required under this section, a covered water system shall include--CommentsClose CommentsPermalink





‘(A) at least one supervisory and at least one non-supervisory employee of the covered water system; andCommentsClose CommentsPermalink





‘(B) at least one representative of each certified or recognized bargaining agent representing facility employees or contractor employees with roles or responsibilities described in paragraph (1), if any, in a collective bargaining relationship with the private or public owner or operator of the system or with a contractor to that system.CommentsClose CommentsPermalink





‘(g) Methods To Reduce the Consequences of a Chemical Release From an Intentional Act-CommentsClose CommentsPermalink





‘(1) DEFINITION- In this section, the term ‘method to reduce the consequences of a chemical release from an intentional act’ means a measure at a covered water system that reduces or eliminates the potential consequences of a release of a substance of concern from an intentional act such as--CommentsClose CommentsPermalink





‘(A) the elimination or reduction in the amount of a substance of concern possessed or planned to be possessed by a covered water system through the use of alternate substances, formulations, or processes;CommentsClose CommentsPermalink





‘(B) the modification of pressures, temperatures, or concentrations of a substance of concern; andCommentsClose CommentsPermalink





‘(C) the reduction or elimination of onsite handling of a substance of concern through improvement of inventory control or chemical use efficiency.CommentsClose CommentsPermalink





‘(2) ASSESSMENT- For each covered water system that possesses or plans to possess a substance of concern in excess of the release threshold quantity set by the Administrator under subsection (a)(5), the regulations under subsection (a)(1) shall require the covered water system to include in its site security plan an assessment of methods to reduce the consequences of a chemical release from an intentional act at the covered water system. The covered water system shall provide such assessment to the Administrator and the State exercising primary enforcement responsibility for the covered water system, if any. The regulations under subsection (a)(1) shall require the system, in preparing the assessment, to consider factors appropriate to the system’s security, public health, or environmental mission, and include--CommentsClose CommentsPermalink





‘(A) a description of the methods to reduce the consequences of a chemical release from an intentional act;CommentsClose CommentsPermalink





‘(B) how each described method to reduce the consequences of a chemical release from an intentional act could, if applied, reduce the potential extent of death, injury, or serious adverse effects to human health resulting from a chemical release;CommentsClose CommentsPermalink





‘(C) how each described method to reduce the consequences of a chemical release from an intentional act could, if applied, affect the presence of contaminants in treated water, human health, or the environment;CommentsClose CommentsPermalink





‘(D) whether each described method to reduce the consequences of a chemical release from an intentional act at the covered water system is feasible, as defined in section 1412(b)(4)(D), but not including cost calculations under subparagraph (E);CommentsClose CommentsPermalink





‘(E) the costs (including capital and operational costs) and avoided costs (including savings and liabilities) associated with applying each described method to reduce the consequences of a chemical release from an intentional act at the covered water system;CommentsClose CommentsPermalink





‘(F) any other relevant information that the covered water system relied on in conducting the assessment; andCommentsClose CommentsPermalink





‘(G) a statement of whether the covered water system has implemented or plans to implement one or more methods to reduce the consequences of a chemical release from an intentional act, a description of any such methods, and, in the case of a covered water system described in paragraph (3)(A), an explanation of the reasons for any decision not to implement any such methods.CommentsClose CommentsPermalink





‘(3) REQUIRED METHODS-CommentsClose CommentsPermalink





‘(A) APPLICATION- This paragraph applies to a covered water system--CommentsClose CommentsPermalink





‘(i) that is assigned to one of the two highest risk-based tiers under subsection (d); andCommentsClose CommentsPermalink





‘(ii) that possesses or plans to possess a substance of concern in excess of the release threshold quantity set by the Administrator under subsection (a)(5).CommentsClose CommentsPermalink





‘(B) HIGHEST-RISK SYSTEMS- If, on the basis of its assessment under paragraph (2), a covered water system described in subparagraph (A) decides not to implement methods to reduce the consequences of a chemical release from an intentional act, the State exercising primary enforcement responsibility for the covered water system, if the system is located in such a State, or the Administrator, if the covered water system is not located in such a State, shall, in accordance with a timeline set by the Administrator--CommentsClose CommentsPermalink





‘(i) determine whether to require the covered water system to implement the methods; andCommentsClose CommentsPermalink





‘(ii) for States exercising primary enforcement responsibility, report such determination to the Administrator.CommentsClose CommentsPermalink





‘(C) STATE OR ADMINISTRATOR’S CONSIDERATIONS- Before requiring, pursuant to subparagraph (B), the implementation of a method to reduce the consequences of a chemical release from an intentional act, the State exercising primary enforcement responsibility for the covered water system, if the system is located in such a State, or the Administrator, if the covered water system is not located in such a State, shall consider factors appropriate to the security, public health, and environmental missions of covered water systems, including an examination of whether the method--CommentsClose CommentsPermalink





‘(i) would significantly reduce the risk of death, injury, or serious adverse effects to human health resulting directly from a chemical release from an intentional act at the covered water system;CommentsClose CommentsPermalink





‘(ii) would not increase the interim storage of a substance of concern by the covered water system;CommentsClose CommentsPermalink





‘(iii) would not render the covered water system unable to comply with other requirements of this Act or drinking water standards established by the State or political subdivision in which the system is located; andCommentsClose CommentsPermalink





‘(iv) is feasible, as defined in section 1412(b)(4)(D), to be incorporated into the operation of the covered water system.CommentsClose CommentsPermalink





‘(D) APPEAL- Before requiring, pursuant to subparagraph (B), the implementation of a method to reduce the consequences of a chemical release from an intentional act, the State exercising primary enforcement responsibility for the covered water system, if the system is located in such a State, or the Administrator, if the covered water system is not located in such a State, shall provide such covered water system an opportunity to appeal the determination to require such implementation made pursuant to subparagraph (B) by such State or the Administrator.CommentsClose CommentsPermalink





‘(4) INCOMPLETE OR LATE ASSESSMENTS-CommentsClose CommentsPermalink





‘(A) INCOMPLETE ASSESSMENTS- If the Administrator finds that the covered water system, in conducting its assessment under paragraph (2), did not meet the requirements of paragraph (2) and the applicable regulations, the Administrator shall, after notifying the covered water system and the State exercising primary enforcement responsibility for that system, if any, require the covered water system to submit a revised assessment not later than 60 days after the Administrator notifies such system. The Administrator may require such additional revisions as are necessary to ensure that the system meets the requirements of paragraph (2) and the applicable regulations.CommentsClose CommentsPermalink





‘(B) LATE ASSESSMENTS- If the Administrator finds that a covered water system, in conducting its assessment pursuant to paragraph (2), did not complete such assessment in accordance with the deadline set by the Administrator, the Administrator may, after notifying the covered water system and the State exercising primary enforcement responsibility for that system, if any, take appropriate enforcement action under subsection (o).CommentsClose CommentsPermalink





‘(C) REVIEW- The State exercising primary enforcement responsibility for the covered water system, if the system is located in such a State, or the Administrator, if the system is not located in such a State, shall review a revised assessment that meets the requirements of paragraph (2) and applicable regulations to determine whether the covered water system will be required to implement methods to reduce the consequences of an intentional act pursuant to paragraph (3).CommentsClose CommentsPermalink





‘(5) ENFORCEMENT-CommentsClose CommentsPermalink





‘(A) FAILURE BY STATE TO MAKE DETERMINATION- Whenever the Administrator finds that a State exercising primary enforcement responsibility for a covered water system has failed to determine whether to require the covered water system to implement methods to reduce the consequences of a chemical release from an intentional act, as required by paragraph (3)(B), the Administrator shall so notify the State and covered water system. If, beyond the thirtieth day after the Administrator’s notification under the preceding sentence, the State has failed to make the determination described in such sentence, the Administrator shall so notify the State and covered water system and shall determine whether to require the covered water system to implement methods to reduce the consequences of a chemical release from an intentional act based on the factors described in paragraph (3)(C).CommentsClose CommentsPermalink





‘(B) FAILURE BY STATE TO BRING ENFORCEMENT ACTION- If the Administrator finds, with respect to a period in which a State has primary enforcement responsibility for a covered water system, that the system has failed to implement methods to reduce the consequences of a chemical release from an intentional act (as required by the State or the Administrator under paragraph (3)(B) or the Administrator under subparagraph (A)), the Administrator shall so notify the State and the covered water system. If, beyond the thirtieth day after the Administrator’s notification under the preceding sentence, the State has not commenced appropriate enforcement action, the Administrator shall so notify the State and may take appropriate enforcement action under subsection (o), to require implementation of such methods.CommentsClose CommentsPermalink





‘(C) CONSIDERATION OF CONTINUED PRIMARY ENFORCEMENT RESPONSIBILITY- For a State with primary enforcement responsibility for a covered water system, the Administrator may consider the failure of such State to make a determination as described under subparagraph (A) or to bring enforcement action as described under subparagraph (B) when determining whether a State may retain primary enforcement responsibility under this Act.CommentsClose CommentsPermalink





‘(6) GUIDANCE FOR COVERED WATER SYSTEMS ASSIGNED TO TIER 3 AND TIER 4- For covered water systems required to conduct an assessment under paragraph (2) and assigned by the Administrator to tier 3 or tier 4 under subsection (d), the Administrator shall issue guidance and, as appropriate, provide or recommend tools, methodologies, or computer software, to assist such covered water systems in complying with the requirements of this section.CommentsClose CommentsPermalink





‘(h) Review by Administrator-CommentsClose CommentsPermalink





‘(1) IN GENERAL- The regulations under subsection (a)(1) shall require each covered water system to submit its vulnerability assessment and site security plan to the Administrator for review according to deadlines set by the Administrator. The Administrator shall review each vulnerability assessment and site security plan submitted under this section and--CommentsClose CommentsPermalink





‘(A) if the assessment or plan has any significant deficiency described in paragraph (2), require the covered water system to correct the deficiency; orCommentsClose CommentsPermalink





‘(B) approve such assessment or plan.CommentsClose CommentsPermalink





‘(2) SIGNIFICANT DEFICIENCIES- A vulnerability assessment or site security plan of a covered water system has a significant deficiency under this subsection if the Administrator, in consultation, as appropriate, with the State exercising primary enforcement responsibility for such system, if any, determines that--CommentsClose CommentsPermalink





‘(A) such assessment does not comply with the regulations established under section (a)(1); orCommentsClose CommentsPermalink





‘(B) such plan--CommentsClose CommentsPermalink





‘(i) fails to address vulnerabilities identified in a vulnerability assessment; orCommentsClose CommentsPermalink





‘(ii) fails to meet applicable risk-based performance standards.CommentsClose CommentsPermalink





‘(3) STATE, REGIONAL, OR LOCAL GOVERNMENTAL ENTITIES- No covered water system shall be required under State, local, or tribal law to provide a vulnerability assessment or site security plan described in this section to any State, regional, local, or tribal governmental entity solely by reason of the requirement set forth in paragraph (1) that the system submit such an assessment and plan to the Administrator.CommentsClose CommentsPermalink





‘(i) Emergency Response Plan-CommentsClose CommentsPermalink





‘(1) IN GENERAL- Each covered water system shall prepare or revise, as appropriate, an emergency response plan that incorporates the results of the system’s most current vulnerability assessment and site security plan.CommentsClose CommentsPermalink





‘(2) CERTIFICATION- Each covered water system shall certify to the Administrator that the system has completed an emergency response plan. The system shall submit such certification to the Administrator not later than 6 months after the system’s first completion or revision of a vulnerability assessment under this section and shall submit an additional certification following any update of the emergency response plan.CommentsClose CommentsPermalink





‘(3) CONTENTS- A covered water system’s emergency response plan shall include--CommentsClose CommentsPermalink





‘(A) plans, procedures, and identification of equipment that can be implemented or used in the event of an intentional act at the covered water system; andCommentsClose CommentsPermalink





‘(B) actions, procedures, and identification of equipment that can obviate or significantly lessen the impact of intentional acts on public health and the safety and supply of drinking water provided to communities and individuals.CommentsClose CommentsPermalink





‘(4) COORDINATION- As part of its emergency response plan, each covered water system shall provide appropriate information to any local emergency planning committee, local law enforcement officials, and local emergency response providers to ensure an effective, collective response.CommentsClose CommentsPermalink





‘(j) Maintenance of Records- Each covered water system shall maintain an updated copy of its vulnerability assessment, site security plan, and emergency response plan.CommentsClose CommentsPermalink





‘(k) Audit; Inspection-CommentsClose CommentsPermalink





‘(1) IN GENERAL- Notwithstanding section 1445(b)(2), the Administrator, or duly designated representatives of the Administrator, shall audit and inspect covered water systems, as necessary, for purposes of determining compliance with this section.CommentsClose CommentsPermalink





‘(2) ACCESS- In conducting an audit or inspection of a covered water system, the Administrator or duly designated representatives of the Administrator, as appropriate, shall have access to the owners, operators, employees and contractor employees, and employee representatives, if any, of such covered water system.CommentsClose CommentsPermalink





‘(3) CONFIDENTIAL COMMUNICATION OF INFORMATION; AIDING INSPECTIONS- The Administrator, or a duly designated representative of the Administrator, shall offer non-supervisory employees of a covered water system the opportunity confidentially to communicate information relevant to the employer’s compliance or noncompliance with this section, including compliance or noncompliance with any regulation or requirement adopted by the Administrator in furtherance of the purposes of this section. A representative of each certified or recognized bargaining agent described in subsection (f)(3)(B), if any, or, if none, a non-supervisory employee, shall be given an opportunity to accompany the Administrator, or the duly designated representative of the Administrator, during the physical inspection of any covered water system for the purpose of aiding such inspection, if representatives of the covered water system will also be accompanying the Administrator or the duly designated representative of the Administrator on such inspection.CommentsClose CommentsPermalink





‘(l) Protection of Information-CommentsClose CommentsPermalink





‘(1) PROHIBITION OF PUBLIC DISCLOSURE OF PROTECTED INFORMATION- Protected information shall--CommentsClose CommentsPermalink





‘(A) be exempt from disclosure under section 552 of title 5, United States Code; andCommentsClose CommentsPermalink





‘(B) not be made available pursuant to any State, local, or tribal law requiring disclosure of information or records.CommentsClose CommentsPermalink





‘(2) INFORMATION SHARING-CommentsClose CommentsPermalink





‘(A) IN GENERAL- The Administrator shall prescribe such regulations, and may issue such orders, as necessary to prohibit the unauthorized disclosure of protected information.CommentsClose CommentsPermalink





‘(B) SHARING OF PROTECTED INFORMATION- The regulations under subparagraph (A) shall provide standards for and facilitate the appropriate sharing of protected information with and between Federal, State, local, and tribal authorities, first responders, law enforcement officials, designated supervisory and non-supervisory covered water system personnel with security, operational, or fiduciary responsibility for the system, and designated facility employee representatives, if any. Such standards shall include procedures for the sharing of all portions of a covered water system’s vulnerability assessment and site security plan relating to the roles and responsibilities of system employees or contractor employees under subsection (f)(1) with a representative of each certified or recognized bargaining agent representing such employees, if any, or, if none, with at least one supervisory and at least one non-supervisory employee with roles and responsibilities under subsection (f)(1).CommentsClose CommentsPermalink





‘(C) PENALTIES- Protected information shall not be shared except in accordance with the standards provided by the regulations under subparagraph (A). Whoever discloses protected information in knowing violation of the regulations and orders issued under subparagraph (A) shall be fined under title 18, United States Code, imprisoned for not more than one year, or both, and, in the case of a Federal officeholder or employee, shall be removed from Federal office or employment.CommentsClose CommentsPermalink





‘(3) TREATMENT OF INFORMATION IN ADJUDICATIVE PROCEEDINGS- In any judicial or administrative proceeding, protected information shall be treated in a manner consistent with the treatment of Sensitive Security Information under section 525 of the Department of Homeland Security Appropriations Act, 2007 (Public Law 109-295; 120 Stat. 1381).CommentsClose CommentsPermalink





‘(4) OTHER OBLIGATIONS UNAFFECTED- Except as provided in subsection (h)(3), nothing in this section amends or affects an obligation of a covered water system--CommentsClose CommentsPermalink





‘(A) to submit or make available information to system employees, employee organizations, or a Federal, State, tribal, or local government agency under any other provision of law; orCommentsClose CommentsPermalink





‘(B) to comply with any other provision of law.CommentsClose CommentsPermalink





‘(5) CONGRESSIONAL OVERSIGHT- Nothing in this section permits or authorizes the withholding of information from Congress or any committee or subcommittee thereof.CommentsClose CommentsPermalink





‘(6) DISCLOSURE OF INDEPENDENTLY FURNISHED INFORMATION- Nothing in this section amends or affects any authority or obligation of a Federal, State, local, or tribal agency to protect or disclose any record or information that the Federal, State, local, or tribal agency obtains from a covered water system or the Administrator under any other provision of law.CommentsClose CommentsPermalink





‘(7) PROTECTED INFORMATION-CommentsClose CommentsPermalink





‘(A) IN GENERAL- For purposes of this section, the term ‘protected information’ means any of the following:CommentsClose CommentsPermalink





‘(i) Vulnerability assessments and site security plans under this section, including any assessment developed pursuant to subsection (g)(2).CommentsClose CommentsPermalink





‘(ii) Documents directly related to the Administrator’s review of assessments and plans described in clause (i) and, as applicable, the State’s review of an assessment prepared under subsection (g)(2).CommentsClose CommentsPermalink





‘(iii) Documents directly related to inspections and audits under this section.CommentsClose CommentsPermalink





‘(iv) Orders, notices, or letters regarding the compliance of a covered water system with the requirements of this section.CommentsClose CommentsPermalink





‘(v) Information, documents, or records required to be provided to or created by, the Administrator under subsection (d).CommentsClose CommentsPermalink





‘(vi) Documents directly related to security drills and training exercises, security threats and breaches of security, and maintenance, calibration, and testing of security equipment.CommentsClose CommentsPermalink





‘(vii) Other information, documents, and records developed exclusively for the purposes of this section that the Administrator has determined by regulation would be detrimental to the security of one or more covered water systems if disclosed.CommentsClose CommentsPermalink





‘(B) DETRIMENT REQUIREMENT- For purposes of clauses (ii), (iii), (iv), (v), and (vi) of subparagraph (A), the only portions of documents, records, orders, notices, and letters that shall be considered protected information are those portions that--CommentsClose CommentsPermalink





‘(i) the Secretary has determined by regulation would be detrimental to the security of one or more covered water systems if disclosed; andCommentsClose CommentsPermalink





‘(ii) are developed by the Administrator, the State, or the covered water system for the purposes of this section.CommentsClose CommentsPermalink





‘(C) EXCLUSIONS- Notwithstanding subparagraphs (A) and (B), the term ‘protected information’ does not include--CommentsClose CommentsPermalink





‘(i) information, other than a security vulnerability assessment or site security plan, that the Administrator has determined by regulation to be--CommentsClose CommentsPermalink





‘(I) appropriate to describe system compliance with the requirements of this title and the Administrator’s implementation of such requirements; andCommentsClose CommentsPermalink





‘(II) not detrimental to the security of one or more covered water systems if disclosed; orCommentsClose CommentsPermalink





‘(ii) information, whether or not also contained in a security vulnerability assessment, site security plan, or in a document, record, order, notice, or letter, or portion thereof, described in any of clauses (ii) through (vii) of subparagraph (A) that is obtained from another source with respect to which the Administrator has not made a determination under either subparagraph (A)(vii) or (B), including--CommentsClose CommentsPermalink





‘(I) information that is required to be made publicly available under any other provision of law; andCommentsClose CommentsPermalink





‘(II) information that a covered water system has lawfully disclosed other than in a submission to the Administrator pursuant to a requirement of this title.CommentsClose CommentsPermalink





‘(m) Relation to Chemical Facility Security Requirements- Title XXI of the Homeland Security Act of 2002 and title I of the Chemical and Water Security Act of 2009 shall not apply to any public water system subject to this Act.CommentsClose CommentsPermalink





‘(n) Preemption- This section does not preclude or deny the right of any State or political subdivision thereof to adopt or enforce any regulation, requirement, or standard of performance with respect to a covered water system that is more stringent than a regulation, requirement, or standard of performance under this section.CommentsClose CommentsPermalink





‘(o) Violations-CommentsClose CommentsPermalink





‘(1) IN GENERAL- A covered water system that violates any requirement of this section, including by not implementing all or part of its site security plan by such date as the Administrator requires, shall be liable for a civil penalty of not more than $25,000 for each day on which the violation occurs.CommentsClose CommentsPermalink





‘(2) PROCEDURE- When the Administrator determines that a covered water system is subject to a civil penalty under paragraph (1), the Administrator, after consultation with the State, for covered water systems located in a State exercising primary responsibility for the covered water system, and, after considering the severity of the violation or deficiency and the record of the covered water system in carrying out the requirements of this section, may--CommentsClose CommentsPermalink





‘(A) after notice and an opportunity for the covered water system to be heard, issue an order assessing a penalty under such paragraph for any past or current violation, requiring compliance immediately or within a specified time period; orCommentsClose CommentsPermalink





‘(B) commence a civil action in the United States district court in the district in which the violation occurred for appropriate relief, including temporary or permanent injunction.CommentsClose CommentsPermalink





‘(3) METHODS TO REDUCE THE CONSEQUENCES OF A CHEMICAL RELEASE FROM AN INTENTIONAL ACT- Except as provided in subsections (g)(4) and (g)(5), if a covered water system is located in a State exercising primary enforcement responsibility for the system, the Administrator may not issue an order or commence a civil action under this section for any deficiency in the content or implementation of the portion of the system’s site security plan relating to methods to reduce the consequences of a chemical release from an intentional act (as defined in subsection (g)(1)).CommentsClose CommentsPermalink





‘(p) Report to Congress-CommentsClose CommentsPermalink





‘(1) PERIODIC REPORT- Not later than 3 years after the effective date of the regulations under subsection (a)(1), and every 3 years thereafter, the Administrator shall transmit to the Committee on Energy and Commerce of the House of Representatives and the Committee on Environment and Public Works of the Senate a report on progress in achieving compliance with this section. Each such report shall include, at a minimum, the following:CommentsClose CommentsPermalink





‘(A) A generalized summary of measures implemented by covered water systems in order to meet each risk-based performance standard established by this section.CommentsClose CommentsPermalink





‘(B) A summary of how the covered water systems, differentiated by risk-based tier assignment, are complying with the requirements of this section during the period covered by the report and how the Administrator is implementing and enforcing such requirements during such period including--CommentsClose CommentsPermalink





‘(i) the number of public water systems that provided the Administrator with information pursuant to subsection (d)(1);CommentsClose CommentsPermalink





‘(ii) the number of covered water systems assigned to each risk-based tier;CommentsClose CommentsPermalink





‘(iii) the number of vulnerability assessments and site security plans submitted by covered water systems;CommentsClose CommentsPermalink





‘(iv) the number of vulnerability assessments and site security plans approved and disapproved by the Administrator;CommentsClose CommentsPermalink





‘(v) the number of covered water systems without approved vulnerability assessments or site security plans;CommentsClose CommentsPermalink





‘(vi) the number of covered water systems that have been assigned to a different risk-based tier due to implementation of a method to reduce the consequences of a chemical release from an intentional act and a description of the types of such implemented methods;CommentsClose CommentsPermalink





‘(vii) the number of audits and inspections conducted by the Administrator or duly designated representatives of the Administrator;CommentsClose CommentsPermalink





‘(viii) the number of orders for compliance issued by the Administrator;CommentsClose CommentsPermalink





‘(ix) the administrative penalties assessed by the Administrator for non-compliance with the requirements of this section;CommentsClose CommentsPermalink





‘(x) the civil penalties assessed by courts for non-compliance with the requirements of this section; andCommentsClose CommentsPermalink





‘(xi) any other regulatory data the Administrator determines appropriate to describe covered water system compliance with the requirements of this section and the Administrator’s implementation of such requirements.CommentsClose CommentsPermalink





‘(2) PUBLIC AVAILABILITY- A report submitted under this section shall be made publicly available.CommentsClose CommentsPermalink





‘(q) Grant Programs-CommentsClose CommentsPermalink





‘(1) IMPLEMENTATION GRANTS TO STATES- The Administrator may award grants to, or enter into cooperative agreements with, States, based on an allocation formula established by the Administrator, to assist the States in implementing this section.CommentsClose CommentsPermalink





‘(2) RESEARCH, TRAINING, AND TECHNICAL ASSISTANCE GRANTS- The Administrator may award grants to, or enter into cooperative agreements with, non-profit organizations to provide research, training, and technical assistance to covered water systems to assist them in carrying out their responsibilities under this section.CommentsClose CommentsPermalink





‘(3) PREPARATION GRANTS-CommentsClose CommentsPermalink





‘(A) GRANTS- The Administrator may award grants to, or enter into cooperative agreements with, covered water systems to assist such systems in--CommentsClose CommentsPermalink





‘(i) preparing and updating vulnerability assessments, site security plans, and emergency response plans;CommentsClose CommentsPermalink





‘(ii) assessing and implementing methods to reduce the consequences of a release of a substance of concern from an intentional act; andCommentsClose CommentsPermalink





‘(iii) implementing any other security reviews and enhancements necessary to comply with this section.CommentsClose CommentsPermalink





‘(B) PRIORITY-CommentsClose CommentsPermalink





‘(i) NEED- The Administrator, in awarding grants or entering into cooperative agreements for purposes described in subparagraph (A)(i), shall give priority to covered water systems that have the greatest need.CommentsClose CommentsPermalink





‘(ii) SECURITY RISK- The Administrator, in awarding grants or entering into cooperative agreements for purposes described in subparagraph (A)(ii), shall give priority to covered water systems that pose the greatest security risk.CommentsClose CommentsPermalink





‘(4) WORKER TRAINING GRANTS PROGRAM AUTHORITY-CommentsClose CommentsPermalink





‘(A) IN GENERAL- The Administrator shall establish a grant program to award grants to eligible entities to provide for training and education of employees and contractor employees with roles or responsibilities described in subsection (f)(1) and first responders and emergency response providers who would respond to an intentional act at a covered water system.CommentsClose CommentsPermalink





‘(B) ADMINISTRATION- The Administrator shall enter into an agreement with the National Institute of Environmental Health Sciences to make and administer grants under this paragraph.CommentsClose CommentsPermalink





‘(C) USE OF FUNDS- The recipient of a grant under this paragraph shall use the grant to provide for--CommentsClose CommentsPermalink





‘(i) training and education of employees and contractor employees with roles or responsibilities described in subsection (f)(1), including the annual mandatory training specified in subsection (f)(2) or training for first responders in protecting nearby persons, property, or the environment from the effects of a release of a substance of concern at the covered water system, with priority given to covered water systems assigned to tier one or tier two under subsection (d); andCommentsClose CommentsPermalink





‘(ii) appropriate training for first responders and emergency response providers who would respond to an intentional act at a covered water system.CommentsClose CommentsPermalink





‘(D) ELIGIBLE ENTITIES- For purposes of this paragraph, an eligible entity is a nonprofit organization with demonstrated experience in implementing and operating successful worker or first responder health and safety or security training programs.CommentsClose CommentsPermalink





‘(r) Authorization of Appropriations-CommentsClose CommentsPermalink





‘(1) IN GENERAL- To carry out this section, there are authorized to be appropriated--CommentsClose CommentsPermalink





‘(A) $315,000,000 for fiscal year 2011, of which up to--CommentsClose CommentsPermalink





‘(i) $30,000,000 may be used for administrative costs incurred by the Administrator or the States, as appropriate; andCommentsClose CommentsPermalink





‘(ii) $125,000,000 may be used to implement methods to reduce the consequences of a chemical release from an intentional act at covered water systems with priority given to covered water systems assigned to tier one or tier two under subsection (d); andCommentsClose CommentsPermalink





‘(B) such sums as may be necessary for fiscal years 2012 through 2015.CommentsClose CommentsPermalink





‘(2) SECURITY ENHANCEMENTS- Funding under this subsection for basic security enhancements shall not include expenditures for personnel costs or monitoring, operation, or maintenance of facilities, equipment, or systems.’.CommentsClose CommentsPermalink





(b) Regulations; Transition-CommentsClose CommentsPermalink





(1) REGULATIONS- Not later than 2 years after the date of the enactment of this title, the Administrator of the Environmental Protection Agency shall promulgate final regulations to carry out section 1433 of the Safe Drinking Water Act, as amended by subsection (a).CommentsClose CommentsPermalink





(2) EFFECTIVE DATE- Until the effective date of the regulations promulgated under paragraph (1), section 1433 of the Safe Drinking Water Act, as in effect on the day before the date of the enactment of this title, shall continue to apply.CommentsClose CommentsPermalink





(3) SAVINGS PROVISION- Nothing in this section or the amendment made by this section shall affect the application of section 1433 of the Safe Drinking Water Act, as in effect before the effective date of the regulations promulgated under paragraph (1), to any violation of such section 1433 occurring before such effective date, and the requirements of such section 1433 shall remain in force and effect with respect to such violation until the violation has been corrected or enforcement proceedings completed, whichever is later.CommentsClose CommentsPermalink

SEC. 203. STUDY TO ASSESS THE THREAT OF CONTAMINATION OF DRINKING WATER DISTRIBUTION SYSTEMS.

Not later than 180 days after the date of the enactment of this title, the Administrator of the Environmental Protection Agency, in consultation with the Secretary of Homeland Security, shall--CommentsClose CommentsPermalink





(1) conduct a study to assess the threat to drinking water posed by an intentional act of contamination, and the vulnerability of public water systems, including fire hydrants, to such a threat; andCommentsClose CommentsPermalink





(2) submit a report to the Congress on the results of such study.CommentsClose CommentsPermalink

TITLE III--WASTEWATER TREATMENT WORKS SECURITYCommentsClose CommentsPermalink

SEC. 301. SHORT TITLE.

This title may be cited as the ‘Wastewater Treatment Works Security Act of 2009’.CommentsClose CommentsPermalink

SEC. 302. WASTEWATER TREATMENT WORKS SECURITY.

(a) In General- Title II of the Federal Water Pollution Control Act (33 U.S.C. 1281 et seq.) is amended by adding at the end the following:CommentsClose CommentsPermalink

‘SEC. 222. WASTEWATER TREATMENT WORKS SECURITY.

‘(a) Assessment of Treatment Works Vulnerability and Implementation of Site Security and Emergency Response Plans-CommentsClose CommentsPermalink





‘(1) IN GENERAL- Each owner or operator of a treatment works with either a treatment capacity of at least 2,500,000 gallons per day or, in the discretion of the Administrator, that presents a security risk making coverage under this section appropriate shall, consistent with regulations developed under subsection (b)--CommentsClose CommentsPermalink





‘(A) conduct and, as required, update a vulnerability assessment of its treatment works;CommentsClose CommentsPermalink





‘(B) develop, periodically update, and implement a site security plan for the treatment works; andCommentsClose CommentsPermalink





‘(C) develop and, as required, revise an emergency response plan for the treatment works.CommentsClose CommentsPermalink





‘(2) VULNERABILITY ASSESSMENT-CommentsClose CommentsPermalink





‘(A) DEFINITION- In this section, the term ‘vulnerability assessment’ means an assessment of the vulnerability of a treatment works to intentional acts that may--CommentsClose CommentsPermalink





‘(i) substantially disrupt the ability of the treatment works to safely and reliably operate; orCommentsClose CommentsPermalink





‘(ii) have a substantial adverse effect on critical infrastructure, public health or safety, or the environment.CommentsClose CommentsPermalink





‘(B) REVIEW- A vulnerability assessment shall include an identification of the vulnerability of the treatment works’--CommentsClose CommentsPermalink





‘(i) facilities, systems, and devices used in the storage, treatment, recycling, or reclamation of municipal sewage or industrial wastes;CommentsClose CommentsPermalink





‘(ii) intercepting sewers, outfall sewers, sewage collection systems, and other constructed conveyances under the control of the owner or operator of the treatment works;CommentsClose CommentsPermalink





‘(iii) electronic, computer, and other automated systems;CommentsClose CommentsPermalink





‘(iv) pumping, power, and other equipment;CommentsClose CommentsPermalink





‘(v) use, storage, and handling of various chemicals, including substances of concern, as identified by the Administrator;CommentsClose CommentsPermalink





‘(vi) operation and maintenance procedures; andCommentsClose CommentsPermalink





‘(vii) ability to ensure continuity of operations.CommentsClose CommentsPermalink





‘(3) SITE SECURITY PLAN-CommentsClose CommentsPermalink





‘(A) DEFINITION- In this section, the term ‘site security plan’ means a process developed by the owner or operator of a treatment works to address security risks identified in a vulnerability assessment developed for the treatment works.CommentsClose CommentsPermalink





‘(B) IDENTIFICATION OF SECURITY ENHANCEMENTS- A site security plan carried out under paragraph (1)(B) shall identify specific security enhancements, including procedures, countermeasures, or equipment, that, when implemented or utilized, will reduce the vulnerabilities identified in a vulnerability assessment (including the identification of the extent to which implementation or utilization of such security enhancements may impact the operations of the treatment works in meeting the goals and requirements of this Act).CommentsClose CommentsPermalink





‘(b) Rulemaking and Guidance Documents-CommentsClose CommentsPermalink





‘(1) IN GENERAL- Not later than December 31, 2010, the Administrator, after providing notice and an opportunity for public comment, shall issue regulations--CommentsClose CommentsPermalink





‘(A) establishing risk-based performance standards for the security of a treatment works identified under subsection (a)(1); andCommentsClose CommentsPermalink





‘(B) establishing requirements and deadlines for each owner or operator of a treatment works identified under subsection (a)(1)--CommentsClose CommentsPermalink





‘(i) to conduct and submit to the Administrator a vulnerability assessment or, if the owner or operator of a treatment works already has conducted a vulnerability assessment, to revise and submit to the Administrator such assessment in accordance with this section;CommentsClose CommentsPermalink





‘(ii) to update and submit to the Administrator the vulnerability assessment not less than every 5 years and promptly after any change at the treatment works that could cause the reassignment of the treatment works to a different risk-based tier under paragraph (2)(B);CommentsClose CommentsPermalink





‘(iii) to develop and implement a site security plan and to update such plan not less than every 5 years and promptly after an update to the vulnerability assessment;CommentsClose CommentsPermalink





‘(iv) to develop an emergency response plan (or, if the owner or operator of a treatment works has already developed an emergency response plan, to revise the plan to be in accordance with this section) and to revise the plan not less than every 5 years and promptly after an update to the vulnerability assessment; andCommentsClose CommentsPermalink





‘(v) to provide annual training to employees of the treatment works on implementing site security plans and emergency response plans.CommentsClose CommentsPermalink





‘(2) RISK-BASED TIERS AND PERFORMANCE STANDARDS-CommentsClose CommentsPermalink





‘(A) IN GENERAL- In developing regulations under this subsection, the Administrator shall--CommentsClose CommentsPermalink





‘(i) provide for 4 risk-based tiers applicable to treatment works identified under subsection (a)(1), with tier one representing the highest degree of security risk; andCommentsClose CommentsPermalink





‘(ii) establish risk-based performance standards for site security plans and emergency response plans required under this section.CommentsClose CommentsPermalink





‘(B) RISK-BASED TIERS-CommentsClose CommentsPermalink





‘(i) ASSIGNMENT OF RISK-BASED TIERS- The Administrator shall assign (and reassign when appropriate) each treatment works identified under subsection (a)(1) to one of the risk-based tiers established pursuant to this paragraph.CommentsClose CommentsPermalink





‘(ii) FACTORS TO CONSIDER- In assigning a treatment works to a risk-based tier, the Administrator shall consider--CommentsClose CommentsPermalink





‘(I) the size of the treatment works;CommentsClose CommentsPermalink





‘(II) the proximity of the treatment works to large population centers;CommentsClose CommentsPermalink





‘(III) the adverse impacts of an intentional act, including a worst-case release of a substance of concern designated under subsection (c), on the operation of the treatment works or on critical infrastructure, public health or safety, or the environment; andCommentsClose CommentsPermalink





‘(IV) any other factor that the Administrator determines to be appropriate.CommentsClose CommentsPermalink





‘(iii) INFORMATION REQUEST FOR TREATMENT WORKS- The Administrator may require the owner or operator of a treatment works identified under subsection (a)(1) to submit information in order to determine the appropriate risk-based tier for the treatment works.CommentsClose CommentsPermalink





‘(iv) EXPLANATION FOR RISK-BASED TIER ASSIGNMENT- The Administrator shall provide the owner or operator of each treatment works assigned to a risk-based tier with the reasons for the tier assignment and whether such owner or operator of a treatment works is required to submit an assessment under paragraph (3)(B).CommentsClose CommentsPermalink





‘(C) RISK-BASED PERFORMANCE STANDARDS-CommentsClose CommentsPermalink





‘(i) CLASSIFICATION- In establishing risk-based performance standards under subparagraph (A)(ii), the Administrator shall ensure that the standards are separate and, as appropriate, increasingly more stringent based on the level of risk associated with the risk-based tier assignment under subparagraph (B) for the treatment works.CommentsClose CommentsPermalink





‘(ii) CONSIDERATION- In carrying out this subparagraph, the Administrator shall take into account section 27.230 of title 6, Code of Federal Regulations (or any successor regulation).CommentsClose CommentsPermalink





‘(D) SITE SECURITY PLANS-CommentsClose CommentsPermalink





‘(i) IN GENERAL- In developing regulations under this subsection, the Administrator shall permit the owner or operator of a treatment works identified under subsection (a)(1), in developing and implementing a site security plan, to select layered security and preparedness measures that, in combination--CommentsClose CommentsPermalink





‘(I) address the security risks identified in its vulnerability assessment; andCommentsClose CommentsPermalink





‘(II) comply with the applicable risk-based performance standards required by this subsection.CommentsClose CommentsPermalink





‘(3) METHODS TO REDUCE THE CONSEQUENCES OF A CHEMICAL RELEASE FROM AN INTENTIONAL ACT-CommentsClose CommentsPermalink





‘(A) DEFINITION- In this section, the term ‘method to reduce the consequences of a chemical release from an intentional act’ means a measure at a treatment works identified under subsection (a)(1) that reduces or eliminates the potential consequences of a release of a substance of concern designated under subsection (c) from an intentional act, such as--CommentsClose CommentsPermalink





‘(i) the elimination of or a reduction in the amount of a substance of concern possessed or planned to be possessed by a treatment works through the use of alternate substances, formulations, or processes;CommentsClose CommentsPermalink





‘(ii) the modification of pressures, temperatures, or concentrations of a substance of concern; andCommentsClose CommentsPermalink





‘(iii) the reduction or elimination of onsite handling of a substance of concern through the improvement of inventory control or chemical use efficiency.CommentsClose CommentsPermalink





‘(B) ASSESSMENT-CommentsClose CommentsPermalink





‘(i) IN GENERAL- In developing the regulations under this subsection, for each treatment works identified under subsection (a)(1) that possesses or plans to possess a substance of concern in excess of the release threshold quantity set by the Administrator under subsection (c)(2), the Administrator shall require the treatment works to include in its site security plan an assessment of methods to reduce the consequences of a chemical release from an intentional act at the treatment works.CommentsClose CommentsPermalink





‘(ii) CONSIDERATIONS FOR ASSESSMENT- In developing the regulations under this subsection, the Administrator shall require the owner or operator of each treatment works, in preparing the assessment, to consider factors appropriate to address the responsibilities of the treatment works to meet the goals and requirements of this Act and to include--CommentsClose CommentsPermalink





‘(I) a description of the methods to reduce the consequences of a chemical release from an intentional act;CommentsClose CommentsPermalink





‘(II) a description of how each described method to reduce the consequences of a chemical release from an intentional act could, if applied--CommentsClose CommentsPermalink

‘(aa) reduce the extent of death, injury, or serious adverse effects to human health or the environment as a result of a release, theft, or misappropriation of a substance of concern designated under subsection (c); andCommentsClose CommentsPermalink

‘(bb) impact the operations of the treatment works in meeting the goals and requirements of this Act;CommentsClose CommentsPermalink

‘(III) whether each described method to reduce the consequences of a chemical release from an intentional act at the treatment works is feasible, as determined by the Administrator;CommentsClose CommentsPermalink





‘(IV) the costs (including capital and operational costs) and avoided costs (including potential savings) associated with applying each described method to reduce the consequences of a chemical release from an intentional act at the treatment works;CommentsClose CommentsPermalink





‘(V) any other relevant information that the owner or operator of a treatment works relied on in conducting the assessment; andCommentsClose CommentsPermalink





‘(VI) a statement of whether the owner or operator of a treatment works has implemented or plans to implement a method to reduce the consequences of a chemical release from an intentional act, a description of any such method, and, in the case of a treatment works described in subparagraph (C)(i), an explanation of the reasons for any decision not to implement any such method.CommentsClose CommentsPermalink





‘(C) REQUIRED METHODS-CommentsClose CommentsPermalink





‘(i) APPLICATION- This subparagraph applies to a treatment works identified under subsection (a)(1) that--CommentsClose CommentsPermalink





‘(I) is assigned to one of the two highest risk-based tiers established under paragraph (2)(A); andCommentsClose CommentsPermalink





‘(II) possesses or plans to possess a substance of concern in excess of the threshold quantity set by the Administrator under subsection (c)(2).CommentsClose CommentsPermalink





‘(ii) HIGHEST-RISK SYSTEMS- If, on the basis of its assessment developed pursuant to subparagraph (B), the owner or operator of a treatment works described in clause (i) decides not to implement a method to reduce the consequences of a chemical release from an intentional act, in accordance with a timeline set by the Administrator--CommentsClose CommentsPermalink





‘(I) the Administrator or, where applicable, a State with an approved program under section 402, shall determine whether to require the owner or operator of a treatment works to implement such method; andCommentsClose CommentsPermalink





‘(II) in the case of a State with such approved program, the State shall report such determination to the Administrator.CommentsClose CommentsPermalink





‘(iii) CONSIDERATIONS- Before requiring the implementation of a method to reduce the consequences of a chemical release from an intentional act under clause (ii), the Administrator or a State, as the case may be, shall consider factors appropriate to address the responsibilities of the treatment works to meet the goals and requirements of this Act, including an examination of whether the method--CommentsClose CommentsPermalink





‘(I) would significantly reduce the risk of death, injury, or serious adverse effects to human health resulting from a chemical release from an intentional act at the treatment works;CommentsClose CommentsPermalink





‘(II) would not increase the interim storage by the treatment works of a substance of concern designated under subsection (c);CommentsClose CommentsPermalink





‘(III) could impact the operations of the treatment works in meeting the goals and requirements of this Act or any more stringent standards established by the State or municipality in which the treatment works is located; andCommentsClose CommentsPermalink





‘(IV) is feasible, as determined by the Administrator, to be incorporated into the operations of the treatment works.CommentsClose CommentsPermalink





‘(D) APPEAL- Before requiring the implementation of a method to reduce the consequences of a chemical release from an intentional act under clause (ii), the Administrator or a State, as the case may be, shall provide the owner or operator of the treatment works an opportunity to appeal the determination to require such implementation.CommentsClose CommentsPermalink





‘(E) INCOMPLETE OR LATE ASSESSMENTS-CommentsClose CommentsPermalink





‘(i) INCOMPLETE ASSESSMENTS- If the Administrator determines that a treatment works fails to meet the requirements of subparagraph (B) and the applicable regulations, the Administrator shall, after notifying the owner or operator of a treatment works and the State in which the treatment works is located, require the owner or operator of the treatment works to submit a revised assessment not later than 60 days after the Administrator notifies the owner or operator. The Administrator may require such additional revisions as are necessary to ensure that the treatment works meets the requirements of subparagraph (B) and the applicable regulations.CommentsClose CommentsPermalink





‘(ii) LATE ASSESSMENTS- If the Administrator finds that the owner or operator of a treatment works, in conducting an assessment pursuant to subparagraph (B), did not complete such assessment in accordance with the deadline set by the Administrator, the Administrator may, after notifying the owner or operator of the treatment works and the State in which the treatment works is located, take appropriate enforcement action under subsection (j).CommentsClose CommentsPermalink





‘(iii) REVIEW- A State with an approved program under section 402 or the Administrator, as the case may be, shall review a revised assessment that meets the requirements of subparagraph (B) and applicable regulations to determine whether the treatment works will be required to implement methods to reduce the consequences of a chemical release from an intentional act pursuant to subparagraph (C).CommentsClose CommentsPermalink





‘(F) ENFORCEMENT-CommentsClose CommentsPermalink





‘(i) FAILURE BY STATE TO MAKE DETERMINATION-CommentsClose CommentsPermalink





‘(I) IN GENERAL- If the Administrator determines that a State with an approved program under section 402 failed to determine whether to require a treatment works to implement a method to reduce the consequences of a chemical release from an intentional act, as required by subparagraph (C)(ii), the Administrator shall notify the State and the owner or operator of the treatment works.CommentsClose CommentsPermalink





‘(II) ADMINISTRATIVE ACTION- If, after 30 days after the notification described in subclause (I), a State fails to make the determination described in that subclause, the Administrator shall notify the State and the owner or operator of the treatment works and shall determine whether to require the owner or operator to implement a method to reduce the consequences of a chemical release from an intentional act based on the factors described in subparagraph (C)(iii).CommentsClose CommentsPermalink





‘(ii) FAILURE BY STATE TO BRING ENFORCEMENT ACTION-CommentsClose CommentsPermalink





‘(I) IN GENERAL- If, in a State with an approved program under section 402, the Administrator determines that the owner or operator of a treatment works fails to implement a method to reduce the consequences of a chemical release from an intentional act (as required by the State or the Administrator under subparagraph (C)(ii) or the Administrator under clause (i)(II)), the Administrator shall notify the State and the owner or operator of the treatment works.CommentsClose CommentsPermalink





‘(II) ADMINISTRATIVE ENFORCEMENT ACTION- If, after 30 days after the notification described in subclause (I), the State has not commenced appropriate enforcement action, the Administrator shall notify the State and may commence an enforcement action against the owner or operator of the treatment works, including by seeking or imposing civil penalties under subsection (j), to require implementation of such method.CommentsClose CommentsPermalink





‘(4) CONSULTATION WITH STATE AUTHORITIES- In developing the regulations under this subsection, the Administrator shall consult with States with approved programs under section 402.CommentsClose CommentsPermalink





‘(5) CONSULTATION WITH OTHER PERSONS- In developing the regulations under this subsection, the Administrator shall consult with the Secretary of Homeland Security, and, as appropriate, other persons regarding--CommentsClose CommentsPermalink





‘(A) the provision of threat-related and other baseline information to treatment works identified under subsection (a)(1);CommentsClose CommentsPermalink





‘(B) the designation of substances of concern under subsection (c);CommentsClose CommentsPermalink





‘(C) the development of risk-based performance standards;CommentsClose CommentsPermalink





‘(D) the establishment of risk-based tiers and the process for the assignment of treatment works identified under subsection (a)(1) to such tiers;CommentsClose CommentsPermalink





‘(E) the process for the development and evaluation of vulnerability assessments, site security plans, and emergency response plans;CommentsClose CommentsPermalink





‘(F) the treatment of protected information; andCommentsClose CommentsPermalink





‘(G) any other factor that the Administrator determines to be appropriate.CommentsClose CommentsPermalink





‘(6) CONSIDERATION- In developing the regulations under this subsection, the Administrator shall ensure that such regulations are consistent with the goals and requirements of this Act.CommentsClose CommentsPermalink





‘(c) Substances of Concern- For purposes of this section, the Administrator, in consultation with the Secretary of Homeland Security--CommentsClose CommentsPermalink





‘(1) may designate any chemical substance as a substance of concern;CommentsClose CommentsPermalink





‘(2) at the time any chemical substance is designated pursuant to paragraph (1), shall establish by rulemaking a threshold quantity for the release or theft of a substance, taking into account the toxicity, reactivity, volatility, dispersability, combustability, and flammability of the substance and the amount of the substance, that, as a result of the release or theft, is known to cause, or may be reasonably anticipated to cause, death, injury, or serious adverse impacts to human health or the environment; andCommentsClose CommentsPermalink





‘(3) in making such a designation, shall take into account appendix A to part 27 of title 6, Code of Federal Regulations (or any successor regulation).CommentsClose CommentsPermalink





‘(d) Review of Vulnerability Assessment and Site Security Plan-CommentsClose CommentsPermalink





‘(1) IN GENERAL- Each owner or operator of a treatment works identified under subsection (a)(1) shall submit its vulnerability assessment and site security plan to the Administrator for review in accordance with deadlines established by the Administrator.CommentsClose CommentsPermalink





‘(2) STANDARD OF REVIEW- The Administrator shall review each vulnerability assessment and site security plan submitted under this subsection and--CommentsClose CommentsPermalink





‘(A) if the assessment or plan has a significant deficiency described in paragraph (3), require the owner or operator of the treatment works to correct the deficiency; orCommentsClose CommentsPermalink





‘(B) approve such assessment or plan.CommentsClose CommentsPermalink





‘(3) SIGNIFICANT DEFICIENCY- A vulnerability assessment or site security plan of a treatment works has a significant deficiency under this subsection if the Administrator, in consultation, as appropriate, with a State with an approved program under section 402, determines that--CommentsClose CommentsPermalink





‘(A) such assessment does not comply with the regulations promulgated under subsection (b); orCommentsClose CommentsPermalink





‘(B) such plan--CommentsClose CommentsPermalink





‘(i) fails to address vulnerabilities identified in a vulnerability assessment; orCommentsClose CommentsPermalink





‘(ii) fails to meet applicable risk-based performance standards.CommentsClose CommentsPermalink





‘(4) IDENTIFICATION OF DEFICIENCIES- If the Administrator identifies a significant deficiency in the vulnerability assessment or site security plan of an owner or operator of a treatment works under paragraph (3), the Administrator shall provide the owner or operator with a written notification of the deficiency that--CommentsClose CommentsPermalink





‘(A) includes a clear explanation of the deficiency in the vulnerability assessment or site security plan;CommentsClose CommentsPermalink





‘(B) provides guidance to assist the owner or operator in addressing the deficiency; andCommentsClose CommentsPermalink





‘(C) requires the owner or operator to correct the deficiency and, by such date as the Administrator determines appropriate, to submit to the Administrator a revised vulnerability assessment or site security plan.CommentsClose CommentsPermalink





‘(5) STATE, LOCAL, OR TRIBAL GOVERNMENTAL ENTITIES- No owner or operator of a treatment works identified under subsection (a)(1) shall be required under State, local, or tribal law to provide a vulnerability assessment or site security plan described in this section to any State, local, or tribal governmental entity solely by reason of the requirement set forth in paragraph (1) that the owner or operator of a treatment works submit such an assessment and plan to the Administrator.CommentsClose CommentsPermalink





‘(e) Emergency Response Plan-CommentsClose CommentsPermalink





‘(1) IN GENERAL- The owner or operator of a treatment works identified under subsection (a)(1) shall develop or revise, as appropriate, an emergency response plan that incorporates the results of the current vulnerability assessment and site security plan for the treatment works.CommentsClose CommentsPermalink





‘(2) CERTIFICATION- The owner or operator of a treatment works identified under subsection (a)(1) shall certify to the Administrator that the owner or operator has completed an emergency response plan, shall submit such certification to the Administrator not later than 6 months after the first completion or revision of a vulnerability assessment under this section, and shall submit an additional certification following any update of the emergency response plan.CommentsClose CommentsPermalink





‘(3) CONTENTS- An emergency response plan shall include a description of--CommentsClose CommentsPermalink





‘(A) plans, procedures, and identification of equipment that can be implemented or used in the event of an intentional act at the treatment works; andCommentsClose CommentsPermalink





‘(B) actions, procedures, and identification of equipment that can obviate or significantly reduce the impact of intentional acts to--CommentsClose CommentsPermalink





‘(i) substantially disrupt the ability of the treatment works to safely and reliably operate; orCommentsClose CommentsPermalink





‘(ii) have a substantial adverse effect on critical infrastructure, public health or safety, or the environment.CommentsClose CommentsPermalink





‘(4) COORDINATION- As part of its emergency response plan, the owner or operator of a treatment works shall provide appropriate information to any local emergency planning committee, local law enforcement officials, and local emergency response providers to ensure an effective, collective response.CommentsClose CommentsPermalink





‘(f) Role of Employees-CommentsClose CommentsPermalink





‘(1) DESCRIPTION OF ROLE- Site security plans and emergency response plans required under this section shall describe the appropriate roles or responsibilities that employees and contractor employees of treatment works are expected to perform to deter or respond to the intentional acts identified in a current vulnerability assessment.CommentsClose CommentsPermalink





‘(2) TRAINING FOR EMPLOYEES- The owner or operator of a treatment works identified under subsection (a)(1) shall annually provide employees and contractor employees with the roles or responsibilities described in paragraph (1) with sufficient training, as determined by the Administrator, on carrying out those roles or responsibilities.CommentsClose CommentsPermalink





‘(3) EMPLOYEE PARTICIPATION- In developing, revising, or updating a vulnerability assessment, site security plan, and emergency response plan required under this section, the owner or operator of a treatment works shall include--CommentsClose CommentsPermalink





‘(A) at least one supervisory and at least one nonsupervisory employee of the treatment works; andCommentsClose CommentsPermalink





‘(B) at least one representative of each certified or recognized bargaining agent representing facility employees or contractor employees with roles or responsibilities described in paragraph (1), if any, in a collective bargaining relationship with the owner or operator of the treatment works or with a contractor to the treatment works.CommentsClose CommentsPermalink





‘(g) Maintenance of Records- The owner or operator of a treatment works identified under subsection (a)(1) shall maintain an updated copy of its vulnerability assessment, site security plan, and emergency response plan on the premises of the treatment works.CommentsClose CommentsPermalink





‘(h) Audit; Inspection-CommentsClose CommentsPermalink





‘(1) IN GENERAL- The Administrator shall audit and inspect a treatment works identified under subsection (a)(1), as necessary, for purposes of determining compliance with this section.CommentsClose CommentsPermalink





‘(2) ACCESS- In conducting an audit or inspection of a treatment works under paragraph (1), the Administrator shall have access to the owners, operators, employees and contractor employees, and employee representatives, if any, of such treatment works.CommentsClose CommentsPermalink