[House Report 111-327]
[From the U.S. Government Publishing Office]
111th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 111-327
======================================================================
PROVIDING FOR CONSIDERATION OF THE BILL (H.R. 2868) TO AMEND THE
HOMELAND SECURITY ACT OF 2002 TO EXTEND, MODIFY, AND RECODIFY THE
AUTHORITY OF THE SECRETARY OF HOMELAND SECURITY TO ENHANCE SECURITY AND
PROTECT AGAINST ACTS OF TERRORISM AGAINST CHEMICAL FACILITIES, AND FOR
OTHER PURPOSES
_______
November 3, 2009.--Referred to the House Calendar and ordered to be
printed
_______
Mr. Hastings of Florida, from the Committee on Rules,
submitted the following
R E P O R T
[To accompany H. Res. 885]
The Committee on Rules, having had under consideration
House Resolution 885, by a nonrecord vote, report the same to
the House with the recommendation that the resolution be
adopted.
SUMMARY OF PROVISIONS OF THE RESOLUTION
The resolution provides for consideration of H.R. 2868, the
``Chemical Facility Anti-Terrorism Act of 2009,'' under a
structured rule. The rule provides 90 minutes of general debate
equally divided among and controlled by the chair and ranking
minority member of the Committee on Homeland Security, the
chair and ranking minority member of the Committee on Energy
and Commerce, and the chair and ranking minority member of the
Committee on Transportation and Infrastructure. The resolution
waives all points of order against consideration of the bill
except those arising under clause 9 or 10 of rule XXI. The
resolution provides that in lieu of the amendments in the
nature of a substitute recommended by the Committees on
Homeland Security and Energy and Commerce now printed in the
bill, the amendment in the nature of a substitute printed in
part A of this report shall be considered as an original bill
for the purpose of amendment and shall be considered as read.
The resolution waives all points of order against the amendment
in the nature of a substitute except those arising under clause
10 of rule XXI. This waiver does not affect the point of order
available under clause 9 of rule XXI (regarding earmark
disclosure). The resolution makes in order only those
amendments printed in part B of this report. Each such
amendment may be offered only in the order printed in this
report, may be offered only by a Member designated, shall be
considered as read, shall be debatable for the time specified
in this report equally divided and controlled by the proponent
and an opponent, shall not be subject to amendment, and shall
not be subject to a demand for division of the question. All
points of order against the amendments printed in part B of
this report are waived except for clauses 9 and 10 of rule XXI.
The rule provides one motion to recommit with or without
instructions. The resolution provides that the Chair may
entertain a motion that the Committee rise only if offered by
the chair of the Committee on Homeland Security or a designee.
The resolution provides that the Chair may not entertain a
motion to strike out the enacting words of the bill. Finally,
the resolution authorizes the Speaker to entertain motions that
the House suspend the rules at any time through the legislative
day of November 7, 2009. The Speaker or her designee shall
consult with the Minority Leader or his designee on the
designation of any matter for consideration pursuant to this
resolution.
EXPLANATION OF WAIVERS
The waiver of all points of order against consideration of
the bill (except those arising under clauses 9 or 10 of rule
XXI) includes a waiver of clause 3(b) of rule XIII (regarding
the inclusion of record votes in a committee report).
Although the rule waives all points of order against the
amendment in the nature of a substitute (except for clause 10
of rule XXI), the Committee is not aware of any points of
order. The waiver of all points of order is prophylactic.
COMMITTEE VOTES
The results of each record vote on an amendment or motion
to report, together with the names of those voting for and
against, are printed below:
Rules Committee record vote No. 262
Date: November 3, 2009.
Measure: H.R. 2868.
Motion by: Mr. Sessions.
Summary of motion: To make in order and provide appropriate
waivers for an amendment by Rep. Upton (MI), #17, which would
exempt a covered chemical facility from implementing the
manufacturing changes mandated by the Department of Homeland
Security if the Secretary of Homeland Security determines such
changes would lead to the facility laying off at least 15% of
its workforce.
Results: Defeated 2-6.
Vote by Members: Hastings (FL)--Nay; Matsui--Nay; Arcuri--
Nay; Perlmutter--Nay; Polis--Nay; Dreier--Yea; Sessions--Yea;
Slaughter--Nay.
Rules Committee record vote No. 263
Date: November 3, 2009.
Measure: H.R. 2868.
Motion by: Mr. Sessions.
Summary of motion: To make in order and provide appropriate
waivers for an amendment by Rep. Barton (TX), #20, which would
prevent the EPA or, as appropriate, States from compelling
drinking water facilities to alter their processes or chemical
inputs by striking language relating to methods to reduce the
consequences of a chemical release from an intentional act, and
would remove language giving priority for preparation grants to
covered water systems posing the greatest security risk,
leaving greatest need as the sole determining factor.
Results: Defeated 2-6.
Vote by Members: Hastings (FL)--Nay; Matsui--Nay; Arcuri--
Nay; Perlmutter--Nay; Polis--Nay; Dreier--Yea; Sessions--Yea;
Slaughter--Nay.
SUMMARY OF AMENDMENT IN THE NATURE OF A SUBSTITUTE IN PART A TO BE
CONSIDERED AS AN ORIGINAL BILL FOR THE PURPOSE OF AMENDMENT
The Amendment in the Nature of a Substitute would rename
the ``Chemical Facility Anti-Terrorism Act'' the ``Chemical and
Water Security Act of 2009.'' This bill reauthorizes the
Department of Homeland Security's (DHS) authority to implement
and enforce the Chemical Facility Anti-Terrorism Standards
(CFATS), which are currently set to expire in October 2010, and
improves these standards in a number of ways (Title I). It also
requires the Environmental Protection Agency (EPA) to establish
parallel security programs for drinking water (Title II) and
wastewater facilities (Title III).
Title I codifies the risk-based performance-based approach
to securing chemicals that DHS has administered since 2007 and
includes provisions to ensure seamless transition from the
current DHS regulations. Under this Title, facilities are
regulated by DHS based upon several factors, including the
threats posed to them; their vulnerabilities; and the
consequences that would follow from an attack on them. In
addition to harmonizing statutory authority with the current
regulations, the amendment enhances the regulations by
including language to address: methods to reduce the
consequences of a terrorist act through inherently safer
technologies (IST); the impact on small business and
agricultural facilities; citizen enforcement; background
checks; disallowing preemption of state laws; protection of
information; port facilities; and whistleblower protections.
Title I authorizes $325 million for FY2011; $300 million for
FY2012; and $275 million for 2013.
Title II, the Drinking Water System Security Act of 2009,
replaces section 1433 of the Safe Drinking Water Act. This
title requires the EPA Administrator to establish risk-based
performance standards for community water systems serving more
than 3,300 people and other exceptional public water systems
that the EPA Administrator determines, in her discretion, pose
a security risk. Key provisions include: risk-based,
performance-based tiering and standards; consultation with
States and DHS; security vulnerability assessments and site
security plans; methods to reduce the consequences of an
intentional act (IST); employee participation in developing
security vulnerability assessments and site security plans;
protection of information; and disallowing preemption of state
laws. Title II authorizes $315 million for FY2011 and such sums
as may be necessary for FY2012 through FY2015.
Title III amends the Federal Water Pollution Control Act
(the ``Clean Water Act'') to enhance the security of operations
at wastewater treatment works from intentional acts that may
substantially disrupt the ability of the facility to safely and
reliably operate, or have a substantial adverse impact on,
critical infrastructure, public health or safety, or the
environment. This Title preserves the historic regulatory
oversight of sewage treatment facilities by the EPA and ensures
that security regulations appropriately balance water quality
and security goals. By charging EPA with security in the water
sector, this Act ensures seamless security-related requirements
for public utilities with both wastewater and drinking water
responsibilities. Key provisions include: significant Federal
resources to enhance the security of public sewage treatment
facilities; vulnerability assessments, site security plans, and
emergency response plans for treatment works; risk-based
evaluation of treatment works; methods to reduce the
consequences of a terrorist act through IST; security-related
audits and inspections, whistleblower protections, and
protection of security-related information; and disallowing
preemption of state laws. Title III authorizes $200 million for
each of fiscal years 2010 through 2014.
SUMMARY OF AMENDMENTS IN PART B TO BE MADE IN ORDER
1. Thompson, Bennie (MS): The Thompson amendment to the
Amendment in the Nature of a Substitute for H.R. 2868 makes a
number of technical corrections and fixes typos and verbiage
issues. (10 minutes)
2. Barton (TX): Would place provisions in the bill allowing
the new Federal chemical facility regulations enacted by this
bill to preempt state and local laws that ``hinder, pose
obstacles to, or frustrate the purpose of the federal
program''. (10 minutes)
3. Hastings, Alcee (FL): Would establish a point of contact
within the Office of Chemical Facility Security responsible for
interagency coordination. Would require the Secretary to liaise
with State Emergency Response Commissions and Local Emergency
Planning Committees to update emergency planning and training
procedures. (10 minutes)
4. Dent (PA), Olson (TX): The amendment would strike Title
I, affecting chemical facilities, and replace it with an
extension of the Department of Homeland Security's current
regulatory authority under section 550(b) of the Department of
Homeland Security Appropriations Act, 2007. (10 minutes)
5. Dent (PA): The amendment would strike section 2111,
which requires assessments and implementation of methods to
reduce the consequences of a terrorist attack. (10 minutes)
6. Flake, Jeff (AZ): Would prevent earmarking in a new
grant program established in the bill, and would clarify that
Congress presumes that grants awarded through that program will
be awarded on a competitive basis, and if they are not, require
the Secretary to submit a report to Congress as to why not. (10
minutes)
7. Schrader (OR), Kissell, Larry (NC): Would require DHS to
conduct a study on the scope and potential impacts of the
provisions that require the use of safer processes or chemicals
on manufacturers or retailers of pesticide or fertilizer. (10
minutes)
8. McCaul (TX): Would strike the citizen enforcement
section of the bill. (10 minutes)
9. Halvorson (IL): Would permit the Secretary to provide
guidance, tools, methodologies, or software to assist small
covered chemical facilities in complying with the security
requirements. (10 minutes)
10. Foster (IL), Lujan (NM): The amendment would direct the
Secretary to establish appropriate protocols and security
procedures for covered chemical facilities that are also
Universities and Academic labs, separate from commercial
chemical facilities. (10 minutes)
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Chemical and
Water Security Act of 2009''.
(b) Table of Contents.--The table of contents for this Act is
as follows:
Sec. 1. Short title; table of contents.
TITLE I--CHEMICAL FACILITY SECURITY
Sec. 101. Short title.
Sec. 102. Findings and purpose.
Sec. 103. Extension, modification, and recodification of authority of
Secretary of Homeland Security to regulate security practices
at chemical facilities.
TITLE II--DRINKING WATER SECURITY
Sec. 201. Short title.
Sec. 202. Intentional acts affecting the security of covered water
systems.
Sec. 203. Study to assess the threat of contamination of drinking water
distribution systems.
TITLE III--WASTEWATER TREATMENT WORKS SECURITY
Sec. 301. Short title.
Sec. 302. Wastewater treatment works security.
TITLE I--CHEMICAL FACILITY SECURITY
SEC. 101. SHORT TITLE.
This title may be cited as the ``Chemical Facility Anti-
Terrorism Act of 2009''.
SEC. 102. FINDINGS AND PURPOSE.
(a) Findings.--Congress makes the following findings:
(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.
(2) Chemical facilities that pose such potential
consequences and that are vulnerable to terrorist
attacks must be protected.
(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.
(4) The Secretary of Homeland Security issued interim
final regulations called the Chemical Facility Anti-
Terrorism Standards, which became effective on June 8,
2007.
(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.
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:
``TITLE XXI--REGULATION OF SECURITY PRACTICES AT CHEMICAL FACILITIES
``SEC. 2101. DEFINITIONS.
``In this title, the following definitions apply:
``(1) The term `chemical facility' means any
facility--
``(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;
or
``(B) that meets other risk-related criteria
identified by the Secretary.
``(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:
``(A) Restricting the area perimeter.
``(B) Securing site assets.
``(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--
``(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; and
``(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.
``(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--
``(i) deter vehicles from penetrating
the chemical facility perimeter,
gaining unauthorized access to
restricted areas, or otherwise
presenting a hazard to potentially
critical targets;
``(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;
``(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; and
``(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.
``(E) Securing and monitoring the shipping,
receipt, and storage of a substance of concern
for the chemical facility.
``(F) Deterring theft or diversion of a
substance of concern.
``(G) Deterring insider sabotage.
``(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.
``(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. Any such
plan shall include 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.
``(J) Maintaining effective monitoring,
communications, and warning systems,
including--
``(i) measures designed to ensure
that security systems and equipment are
in good working order and inspected,
tested, calibrated, and otherwise
maintained;
``(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 Department; and
``(iii) measures to allow the
chemical facility to promptly identify
and respond to security system and
equipment failures or malfunctions.
``(K) Ensuring mandatory annual security
training, exercises, and drills of chemical
facility personnel appropriate to their roles,
responsibilities, and access to chemicals,
including participation by local law
enforcement, local emergency response
providers, appropriate supervisory and non-
supervisory facility employees and their
employee representatives, if any.
``(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--
``(i) measures designed to verify and
validate identity;
``(ii) measures designed to check
criminal history;
``(iii) measures designed to verify
and validate legal authorization to
work; and
``(iv) measures designed to identify
people with terrorist ties.
``(M) Escalating the level of protective
measures for periods of elevated threat.
``(N) Specific threats, vulnerabilities, or
risks identified by the Secretary for that
chemical facility.
``(O) Reporting of significant security
incidents to the Department and to appropriate
local law enforcement officials.
``(P) Identifying, investigating, reporting,
and maintaining records of significant security
incidents and suspicious activities in or near
the site.
``(Q) Establishing one or more officials and
an organization responsible for--
``(i) security;
``(ii) compliance with the standards
under this paragraph;
``(iii) serving as the point of
contact for incident management
purposes with Federal, State, local,
and tribal agencies, law enforcement,
and emergency response providers; and
``(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.
``(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.
``(S) Assessing and, as appropriate,
utilizing methods to reduce the consequences of
a terrorist attack.
``(T) Methods to recover or mitigate the
release of a substance of concern in the event
of a chemical facility terrorist incident.
``(U) Any additional security performance
standards the Secretary may specify.
``(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--
``(A) the release of a substance of concern
from a chemical facility;
``(B) the theft, misappropriation, or misuse
of a substance of concern from a chemical
facility; or
``(C) the sabotage of a chemical facility or
a substance of concern at a chemical facility.
``(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.
``(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.
``(6) The term `covered chemical facility' means a
chemical facility that meets the criteria of section
2102(b)(1).
``(7) The term `environment' means--
``(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.); and
``(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.
``(8) The term `owner or operator' with respect to a
facility means any of the following:
``(A) The person who owns the facility.
``(B) The person who has responsibility for
daily operation of the facility.
``(C) The person who leases the facility.
``(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.
``(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).
``(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).
``(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--
``(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;
``(B) the modification of pressures,
temperatures, or concentrations of a substance
of concern; and
``(C) the reduction or elimination of onsite
handling of a substance of concern through
improvement of inventory control or chemical
use efficiency.
``SEC. 2102. RISK-BASED DESIGNATION AND RANKING OF CHEMICAL FACILITIES.
``(a) Substances of Concern.--
``(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.
``(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.
``(b) List of Covered Chemical Facilities.--
``(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:
``(A) The potential threat or likelihood that
the chemical facility will be the target of a
chemical facility terrorist incident.
``(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.
``(C) The proximity of the chemical facility
to large population centers.
``(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.
``(c) Assignment of Chemical Facilities to Risk-Based
Tiers.--
``(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.
``(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).
``(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:
``(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.
``(B) Information related to the criticality
of the covered chemical facility.
``(C) The proximity or interrelationship of
the covered chemical facility to other critical
infrastructure.
``(d) Requirement for Review.--The Secretary--
``(1) shall periodically review--
``(A) the designation of a substance of
concern and the threshold quantity under
subsection (a)(1); and
``(B) the criteria under subsection (b)(1);
and
``(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).
``(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.
``SEC. 2103. SECURITY VULNERABILITY ASSESSMENTS AND SITE SECURITY
PLANS.
``(a) In General.--
``(1) Requirement.--The Secretary shall--
``(A) establish standards, protocols, and
procedures for security vulnerability
assessments and site security plans to be
required for covered chemical facilities;
``(B) require the owner or operator of each
covered chemical facility to--
``(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;
``(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;
``(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; and
``(iv) include, with the submission
of a security vulnerability assessment
and the site security plan of the
covered chemical facility under this
title, 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;
``(C) set deadlines, by tier, for the
completion of security vulnerability
assessments and site security plans;
``(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;
``(E) establish specific deadlines and
requirements for the submission by a covered
chemical facility of information describing--
``(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; or
``(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;
``(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; and
``(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.
``(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.
``(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.
``(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--
``(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; and
``(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.
``(d) Co-Located Chemical Facilities.--The Secretary may
allow an owner or operator of a covered chemical facility that
is located geographically close to another covered chemical
facility to develop and implement coordinated security
vulnerability assessments and site security plans.
``(e) Alternate Security Programs Satisfying Requirements for
Security Vulnerability Assessment and Site Security Plan.--
``(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--
``(A) meets the requirements of this title
and the regulations promulgated pursuant to
this title;
``(B) provides an equivalent level of
security to the level of security established
pursuant to the regulations promulgated under
this title; and
``(C) includes employee participation as
required under subsection (a)(1)(B)(iii).
``(2) Secretarial review required.--Nothing in this
subsection shall relieve the Secretary of the
obligation--
``(A) to review a security vulnerability
assessment and site security plan submitted by
a covered chemical facility under this section;
and
``(B) to approve or disapprove each such
assessment or plan on an individual basis
according to the deadlines established under
subsection (a).
``(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.
``(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--
``(A) expedited, affordable, reliable, and
accurate;
``(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.); and
``(C) is a single background check consistent
with a risk-based tiered program.
``(f) Other Authorities.--
``(1) Regulation of maritime facilities.--
``(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.
``(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.
``(C) Personnel surety.--
``(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.
``(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.
``(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).
``(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.
``(F) Formal agreement.--The Secretary
shall--
``(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; and
``(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).
``(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.
``(g) Role of Employees.--
``(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.
``(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--
``(A) include an identification and
discussion of substances of concern;
``(B) include a discussion of possible
consequences of a chemical facility terrorist
incident;
``(C) review and exercise the covered
chemical facility's site security plan,
including any requirements for differing threat
levels;
``(D) include a review of information
protection requirements;
``(E) include a discussion of physical and
cyber security equipment, systems, and methods
used to achieve chemical security performance
standards;
``(F) allow training with other relevant
participants, including Federal, State, local,
and tribal authorities, and first responders,
where appropriate;
``(G) use existing national voluntary
consensus standards, chosen jointly with
employee representatives, if any;
``(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;
``(I) use multiple training media and
methods; and
``(J) include a discussion of appropriate
emergency response procedures, including
procedures to mitigate the effects of a
chemical facility terrorist incident.
``(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 subparagraphs (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.
``(4) Worker training grant program.--
``(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 that would respond to a chemical
facility terrorist incident.
``(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.
``(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--
``(i) the annual mandatory training
specified in paragraph (2); and
``(ii) other appropriate training to
protect nearby persons, property,
critical infrastructure, or the
environment from the effects of a
chemical facility terrorist incident.
``(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.
``(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.
``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.
``(b) Inspections and Verifications.--
``(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.
``(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.
``(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--
``(1) conducted without prior notice to the facility;
``(2) designed to evaluate at the chemical facility
undergoing inspection--
``(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;
``(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; and
``(C) any weaknesses in the site security
plan of the chemical facility;
``(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; and
``(4) conducted--
``(A) every two years in the case of a
covered chemical facility assigned to tier 1;
and
``(B) every four years in the case of a
covered chemical facility assigned to tier 2.
``(d) Chemical Facility Inspectors Authorized.--During the
period of 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.
``(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.
``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--
``(1) reviewing or analyzing a security vulnerability
assessment or site security plan submitted under
section 2103; or
``(2) assessing the implementation of such a site
security plan.
``(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.
``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.
``(b) Responsibilities of Owner or Operator.--The Secretary
shall require the owner or operator of a covered chemical
facility to provide information concerning a threat in a timely
manner 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.
``SEC. 2107. ENFORCEMENT.
``(a) Review of Security Vulnerability Assessment and Site
Security Plan.--
``(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--
``(A) the security vulnerability assessment
or site security plan does not comply with the
standards, protocols, or procedures under
section 2103(a)(1)(A); or
``(B) in the case of a site security plan--
``(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; or
``(ii) the plan fails to meet all
applicable chemical facility security
performance standards.
``(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--
``(A) includes a clear explanation of
deficiencies in the assessment, plan, or
implementation of the plan; and
``(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.
``(b) Remedies.--
``(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--
``(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 review within the Department
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; or
``(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.
``(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.
``(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.
``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.
``(b) Confidentiality.--The Secretary shall keep confidential
the identity of a person that 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.
``(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.
``(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.
``(e) Retaliation Prohibited.--
``(1) Prohibition.--No owner or operator of a covered
chemical facility, 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)--
``(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;
``(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;
``(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;
``(D) commenced, caused to be commenced, or
is about to commence or cause to be commenced a
proceeding under this title;
``(E) testified or is about to testify in any
such proceeding; or
``(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.
``(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.
``(3) Prohibited personnel practices affecting the
department.--
``(A) In general.--Notwithstanding any other
provision of law, any individual holding or
applying for a position within the Department
shall be covered by--
``(i) paragraphs (1), (8), and (9) of
section 2302(b) of title 5, United
States Code;
``(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; and
``(iii) any rule or regulation
prescribed under any such paragraph.
``(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.
``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.
``SEC. 2110. PROTECTION OF INFORMATION.
``(a) Prohibition of Public Disclosure of Protected
Information.--Protected information, as described in subsection
(g)--
``(1) shall be exempt from disclosure under section
552 of title 5, United States Code; and
``(2) shall not be made available pursuant to any
State, local, or tribal law requiring disclosure of
information or records.
``(b) Information Sharing.--
``(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).
``(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).
``(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.
``(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).
``(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.
``(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.
``(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.
``(g) Protected Information.--
``(1) In general.--For purposes of this title,
protected information is any of the following:
``(A) Security vulnerability assessments and
site security plans, including any assessment
required under section 2111.
``(B) Portions of the following documents,
records, orders, notices, or letters that the
Secretary determines 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:
``(i) Documents directly related to
the Secretary's review and approval or
disapproval of vulnerability
assessments and site security plans
under this title.
``(ii) Documents directly related to
inspections and audits under this
title.
``(iii) Orders, notices, or letters
regarding the compliance of a covered
chemical facility with the requirements
of this title.
``(iv) Information, documents, or
records required to be provided to or
created by the Secretary under
subsection (b) or (c) of section 2102.
``(v) Documents directly related to
security drills and training exercises,
security threats and breaches of
security, and maintenance, calibration,
and testing of security equipment.
``(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.
``(2) Exclusions.--For purposes of this section,
protected information does not include--
``(A) information that is otherwise publicly
available, including information that is
required to be made publicly available under
any law;
``(B) information that a chemical facility
has lawfully disclosed other than in accordance
with this title; or
``(C) information that, if disclosed, would
not be detrimental to the security of a
chemical facility, including aggregate
regulatory data that the Secretary has
determined by regulation to be appropriate to
describe facility compliance with the
requirements of this title and the Secretary's
implementation of such requirements.
``SEC. 2111. METHODS TO REDUCE THE CONSEQUENCES OF A TERRORIST ATTACK.
``(a) Assessment Required.--
``(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--
``(A) a description of the methods to reduce
the consequences of a terrorist attack
implemented and considered for implementation
by the covered chemical facility;
``(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;
``(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;
and
``(D) any other information that the owner or
operator of the covered chemical facility
considered in conducting the assessment.
``(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.
``(b) Implementation.--
``(1) Implementation.--
``(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--
``(i) would significantly reduce the
risk of death, injury, or serious
adverse effects to human health
resulting from a chemical facility
terrorist incident but--
``(I) would not increase the
interim storage of a substance
of concern outside the
facility;
``(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;
``(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; and
``(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;
``(ii) can feasibly be incorporated
into the operation of the covered
chemical facility; and
``(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.
``(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.
``(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.
``(2) Review of inability to comply.--
``(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.
``(B) Review.--Not later than 120 days of
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.
``(c) Sectoral Impacts.--
``(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.
``(2) Assessment of impacts of compliance.--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 by manufacturers,
retailers, aerial commercial applicators, and
distributors of pesticide and fertilizer 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. Such assessment shall be conducted by the
Secretary in consultation with other appropriate
Federal agencies and shall include the following:
``(A) Data on the scope of 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.
``(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.
``(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 other sectors engaged in
commerce.
``(D) Recommendations for how to mitigate any
adverse impacts identified pursuant to
subparagraph (C).
``(3) Farm supplies merchant wholesaler.--In this
subsection, 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.
``(d) Assessment of Impacts on Small Covered Chemical
Facilities.--
``(1) In general.--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--
``(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; and
``(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.
``(2) 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.
``(e) Provision of Information on Alternative Approaches.--
``(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.
``(2) Information to be included.--The information
under paragraph (1) may include information about--
``(A) general and specific types of such
methods;
``(B) combinations of chemical sources,
substances of concern, and hazardous processes
or conditions for which such methods could be
appropriate;
``(C) the availability of specific methods to
reduce the consequences of a terrorist attack;
``(D) the costs and cost savings resulting
from the use of such methods;
``(E) emerging technologies that could be
transferred from research models or prototypes
to practical applications;
``(F) the availability of technical
assistance and best practices; and
``(G) such other matters that the Secretary
determines are appropriate.
``(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.
``(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.
``SEC. 2112. APPLICABILITY.
``This title shall not apply to--
``(1) any chemical facility that is owned and
operated by the Secretary of Defense;
``(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;
``(3) all or a specified portion of any chemical
facility that--
``(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.);
``(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; and
``(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;
``(4) any public water system subject to the Safe
Drinking Water Act (42 U.S.C. 300f et seq.); or
``(5) any treatment works, as defined in section 212
of the Federal Water Pollution Control Act (33 U.S.C.
1292).
``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 1996 (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.).
``(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.
``(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.
``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.
``(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.
``(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.
``SEC. 2115. SECURITY BACKGROUND CHECKS OF COVERED INDIVIDUALS AT
CERTAIN CHEMICAL FACILITIES.
``(a) Regulations Issued by the Secretary.--
``(1) In general.--
``(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--
``(i) measures designed to verify and
validate identity;
``(ii) measures designed to check
criminal history;
``(iii) measures designed to verify
and validate legal authorization to
work; and
``(iv) measures designed to identify
people with terrorist ties.
``(B) Individuals described.--For purposes of
subparagraph (A), an individual described in
this subparagraph is--
``(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;
``(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; or
``(iii) a person who is determined by
the Secretary to require a security
background check based on chemical
facility security performance
standards.
``(2) Regulations.--The regulations required by
paragraph (1) shall set forth--
``(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);
``(B) the processes to conduct the security
background checks;
``(C) the necessary biographical information
and other data required in order to conduct the
security background checks;
``(D) a redress process for an adversely-
affected person consistent with subsections (b)
and (c); and
``(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.
``(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--
``(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;
``(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;
``(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;
``(4) is determined by the Secretary to be on the
consolidated terrorist watchlist; or
``(5) is determined, as a result of the security
background check, not to be legally authorized to work
in the United States.
``(c) Redress Processes.--Upon the issuance of regulations
under subsection (a), the Secretary shall--
``(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;
``(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;
``(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;
``(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);
``(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);
``(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; and
``(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.
``(d) Reconsideration Process.--
``(1) In general.--The reconsideration process
required under subsection (c)(4) shall--
``(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; and
``(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.
``(2) Determination by the secretary.--In making a
determination described under paragraph (1)(A), the
Secretary shall--
``(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; and
``(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.
``(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).
``(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:
``(1) Such information may not be made available to
the public.
``(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.
``(3) Such information shall be maintained
confidentially by the facility and the Secretary and
may be used only for making determinations under this
section.
``(4) The Secretary may share such information with
other Federal, State, local, and tribal law enforcement
agencies.
``(f) Savings Clause.--
``(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.
``(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.
``(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).
``(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:
``(1) Relevant databases to verify and validate
identity.
``(2) Relevant criminal history databases.
``(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.
``(4) The consolidated terrorist watchlist.
``(5) Other relevant information or databases, as
determined by the Secretary.
``(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
Department 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.
``(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.
``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--
``(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; or
``(2) against the Secretary, for an alleged failure
to perform any act or duty under this title that is not
discretionary for the Secretary.
``(b) Court of Jurisdiction.--
``(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.
``(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.
``(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--
``(1) the Secretary; and
``(2) in the case of an action under subsection
(a)(1), any governmental entity alleged to be in
violation of an order.
``(d) Notice.--Notice under this section shall be given in
such manner as the Secretary shall prescribe by regulation.
``(e) Intervention.--In any action under this section, the
Secretary, if not a party, may intervene as a matter of right.
``(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.
``(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.
``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--
``(1) the format for such petitions;
``(2) the procedure for investigation of petitions;
``(3) the procedure for response to such petitions,
including timelines; and
``(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; and
``(5) the procedure for rejection or acceptance by
the Secretary of the recommendation of the Office of
the Inspector General.
``(b) Petitions.--The regulations issued pursuant to
subsection (a) shall allow any person to file a petition with
the Secretary--
``(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; and
``(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.
``(c) Requirements.--Upon issuance of regulations under
subsection (a), the Secretary shall--
``(1) accept all petitions described under subsection
(b) that meet the requirements of the regulations
promulgated under subsection (a);
``(2) investigate all allegations contained in
accepted petitions;
``(3) determine whether enforcement action will be
taken concerning the alleged violation or violations;
``(4) respond to all accepted petitions promptly and
in writing;
``(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;
``(6) maintain an internal record including all
protected information related to the determination; and
``(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--
``(A) a review of the full record by the
Inspector General of the Department, including
a review of protected information; and
``(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; and
``(8) respond to a recommendation submitted by the
Inspector General under paragraph (7) by adopting or
rejecting the recommendation.
``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.
``(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.
``(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.
``(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.
``(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.
``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:
``(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--
``(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--
``(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; and
``(ii) in the case of each subsequent
report, since the submittal of the most
recent report submitted under this
section; and
``(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.
``(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--
``(A) the number of chemical facilities that
provided the Secretary with information about
possessing substances of concern, as described
in section 2102(b)(2);
``(B) the number of covered chemical
facilities assigned to each tier;
``(C) the number of security vulnerability
assessments and site security plans submitted
by covered chemical facilities;
``(D) the number of security vulnerability
assessments and site security plans approved
and disapproved by the Secretary;
``(E) the number of covered chemical
facilities without approved security
vulnerability assessments or site security
plans;
``(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;
``(G) the number of orders for compliance
issued by the Secretary;
``(H) the administrative penalties assessed
by the Secretary for non-compliance with the
requirements of this title;
``(I) the civil penalties assessed by the
court for non-compliance with the requirements
of this title;
``(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; and
``(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.
``(b) Public Availability.--A report submitted under this
section shall be made publicly available.
``SEC. 2120. AUTHORIZATION OF APPROPRIATIONS.
``There is authorized to be appropriated to the Secretary of
Homeland Security to carry out this title--
``(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);
``(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); and
``(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).''.
(b) Clerical Amendment.--The table of contents in section
1(b) of such Act is amended by adding at the end the following:
``TITLE XXI--REGULATION OF SECURITY PRACTICES AT CHEMICAL FACILITIES
``Sec. 2101. Definitions.
``Sec. 2102. Risk-based designation and ranking of chemical facilities.
``Sec. 2103. Security vulnerability assessments and site security plans.
``Sec. 2104. Site inspections.
``Sec. 2105. Records.
``Sec. 2106. Timely sharing of threat information.
``Sec. 2107. Enforcement.
``Sec. 2108. Whistleblower protections.
``Sec. 2109. Federal preemption.
``Sec. 2110. Protection of information.
``Sec. 2111. Methods to reduce the consequences of a terrorist attack.
``Sec. 2112. Applicability.
``Sec. 2113. Savings clause.
``Sec. 2114. Office of Chemical Facility Security.
``Sec. 2115. Security background checks of covered individuals at
certain chemical facilities.
``Sec. 2116. Citizen enforcement.
``Sec. 2117. Citizen petitions.
``Sec. 2118. Notification system to address public concerns.
``Sec. 2119. Annual report to Congress.
``Sec. 2120. Authorization of appropriations.''.
(c) Conforming Repeal.--
(1) Repeal.--The Department of Homeland Security
Appropriations Act, 2007 (Public Law 109-295) is
amended by striking section 550.
(2) Effective date.--The amendment made by paragraph
(1) shall take effect on the date of the enactment of
this title.
(d) Regulations.--
(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.
(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--
(A) the designation of substances of concern;
(B) methods to reduce the consequences of a
terrorist attack;
(C) security at drinking water facilities and
wastewater treatment works;
(D) the treatment of protected information;
and
(E) such other matters as the Secretary
determines necessary.
(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'').
(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--
(A) continue to carry out the CFATS
regulations, as in effect immediately before
the date of the enactment of this title;
(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; and
(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).
(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.
(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:
(1) The date of the first periodic review conducted
pursuant to such subsection after the date of the
enactment of this title.
(2) The date that is one year after the date of the
enactment of this title.
TITLE II--DRINKING WATER SECURITY
SEC. 201. SHORT TITLE.
This title may be cited as the ``Drinking Water System
Security Act of 2009''.
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:
``SEC. 1433. INTENTIONAL ACTS.
``(a) Risk-based Performance Standards; Vulnerability
Assessments; Site Security Plans; Emergency Response Plans.--
``(1) In general.--The Administrator shall issue
regulations--
``(A) establishing risk-based performance
standards for the security of covered water
systems; and
``(B) establishing requirements and deadlines
for each covered water system--
``(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;
``(ii) to update 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);
``(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;
``(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; and
``(v) to provide annual training to
employees and contractor employees of
covered water systems on implementing
site security plans and emergency
response plans.
``(2) Covered water systems.--For purposes of this
section, the term `covered water system' means a public
water system that--
``(A) is a community water system serving a
population greater than 3,300; or
``(B) in the discretion of the Administrator,
presents a security risk making regulation
under this section appropriate.
``(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.
``(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--
``(A) provision of threat-related and other
baseline information to covered water systems;
``(B) designation of substances of concern;
``(C) development of risk-based performance
standards;
``(D) establishment of risk-based tiers and
process for the assignment of covered water
systems to risk-based tiers;
``(E) process for the development and
evaluation of vulnerability assessments, site
security plans, and emergency response plans;
``(F) treatment of protected information; and
``(G) such other matters as the Administrator
determines necessary.
``(5) Substances of concern.--For purposes of this
section, the Administrator, in consultation with the
Secretary of Homeland Security--
``(A) may designate any chemical substance as
a substance of concern;
``(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; and
``(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).
``(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--
``(A) substantially disrupt the ability of
the system to provide a safe and reliable
supply of drinking water;
``(B) cause the release of a substance of
concern at the covered water system; or
``(C) cause the theft, misuse, or
misappropriation of a substance of concern.
``(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).
``(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--
``(1) pipes and constructed conveyances;
``(2) physical barriers;
``(3) water collection, pretreatment, treatment,
storage, and distribution facilities, including fire
hydrants;
``(4) electronic, computer, and other automated
systems that are used by the covered water system;
``(5) the use, storage, or handling of various
chemicals, including substances of concern;
``(6) the operation and maintenance of the covered
water system; and
``(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.
``(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.
``(1) Assignment of risk-based tiers.--
``(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.
``(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--
``(i) an intentional act to cause a
release, including a worst-case
release, of a substance of concern at
the covered water system;
``(ii) an intentional act to
introduce a contaminant into the
drinking water supply or disrupt the
safe and reliable supply of drinking
water; and
``(iii) an intentional act to steal,
misappropriate, or misuse substances of
concern.
``(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).
``(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--
``(1) address the security risks identified in its
vulnerability assessment; and
``(2) comply with the applicable risk-based
performance standards required under this section.
``(f) Role of Employees.--
``(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).
``(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.
``(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--
``(A) at least one supervisory and at least
one non-supervisory employee of the covered
water system; and
``(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.
``(g) Methods To Reduce the Consequences of a Chemical
Release From an Intentional Act.--
``(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--
``(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;
``(B) the modification of pressures,
temperatures, or concentrations of a substance
of concern; and
``(C) the reduction or elimination of onsite
handling of a substance of concern through
improvement of inventory control or chemical
use efficiency.
``(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--
``(A) a description of the methods to reduce
the consequences of a chemical release from an
intentional act;
``(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;
``(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;
``(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);
``(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;
``(F) any other relevant information that the
covered water system relied on in conducting
the assessment; and
``(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.
``(3) Required methods.--
``(A) Application.--This paragraph applies to
a covered water system--
``(i) that is assigned to one of the
two highest risk-based tiers under
subsection (d); and
``(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).
``(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--
``(i) determine whether to require
the covered water system to implement
the methods; and
``(ii) for States exercising primary
enforcement responsibility, report such
determination to the Administrator.
``(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--
``(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;
``(ii) would not increase the interim
storage of a substance of concern by
the covered water system;
``(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; and
``(iv) is feasible, as defined in
section 1412(b)(4)(D), to be
incorporated into the operation of the
covered water system.
``(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.
``(4) Incomplete or late assessments.--
``(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.
``(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).
``(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).
``(5) Enforcement.--
``(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).
``(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
commence an enforcement action against the
system, including by seeking or imposing civil
penalties under subsection (o), to require
implementation of such methods.
``(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.
``(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.
``(h) Review by Administrator.--
``(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--
``(A) if the assessment or plan has any
significant deficiency described in paragraph
(2), require the covered water system to
correct the deficiency; or
``(B) approve such assessment or plan.
``(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--
``(A) such assessment does not comply with
the regulations established under section
(a)(1); or
``(B) such plan--
``(i) fails to address
vulnerabilities identified in a
vulnerability assessment; or
``(ii) fails to meet applicable risk-
based performance standards.
``(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.
``(i) Emergency Response Plan.--
``(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.
``(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.
``(3) Contents.--A covered water system's emergency
response plan shall include--
``(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; and
``(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.
``(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.
``(j) Maintenance of Records.--Each covered water system
shall maintain an updated copy of its vulnerability assessment,
site security plan, and emergency response plan.
``(k) Audit; Inspection.--
``(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.
``(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.
``(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.
``(l) Protection of Information.--
``(1) Prohibition of public disclosure of protected
information.--Protected information shall--
``(A) be exempt from disclosure under section
552 of title 5, United States Code; and
``(B) not be made available pursuant to any
State, local, or tribal law requiring
disclosure of information or records.
``(2) Information sharing.--
``(A) In general.--The Administrator shall
prescribe such regulations, and may issue such
orders, as necessary to prohibit the
unauthorized disclosure of protected
information, as described in paragraph (7).
``(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).
``(C) Penalties.--Protected information, as
described in paragraph (7), 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.
``(3) Treatment of information in adjudicative
proceedings.--In any judicial or administrative
proceeding, protected information, as described in
paragraph (7), 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).
``(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--
``(A) to submit or make available information
to system employees, employee organizations, or
a Federal, State, tribal, or local government
agency under any other law; or
``(B) to comply with any other law.
``(5) Congressional oversight.--Nothing in this
section permits or authorizes the withholding of
information from Congress or any committee or
subcommittee thereof.
``(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 law.
``(7) Protected information.--
``(A) In general.--For purposes of this
section, protected information is any of the
following:
``(i) Vulnerability assessments and
site security plans under this section,
including any assessment developed
pursuant to subsection (g)(2).
``(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).
``(iii) Documents directly related to
inspections and audits under this
section.
``(iv) Orders, notices, or letters
regarding the compliance of a covered
water system with the requirements of
this section.
``(v) Information, documents, or
records required to be provided to or
created by, the Administrator under
subsection (d).
``(vi) Documents directly related to
security drills and training exercises,
security threats and breaches of
security, and maintenance, calibration,
and testing of security equipment.
``(vii) Other information, documents,
and records developed exclusively for
the purposes of this section that the
Administrator determines would be
detrimental to the security of one or
more covered water systems if
disclosed.
``(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--
``(i) would be detrimental to the
security of one or more covered water
systems if disclosed; and
``(ii) are developed by the
Administrator, the State, or the
covered water system for the purposes
of this section.
``(C) Exclusions.--For purposes of this
section, protected information does not
include--
``(i) information that is otherwise
publicly available, including
information that is required to be made
publicly available under any law;
``(ii) information that a covered
water system has lawfully disclosed
other than in accordance with this
section; and
``(iii) information that, if
disclosed, would not be detrimental to
the security of one or more covered
water systems, including aggregate
regulatory data that the Administrator
determines appropriate to describe
system compliance with the requirements
of this section and the Administrator's
implementation of such requirements.
``(m) Relation to Chemical Facility Security Requirements.--
Title XXI of the Homeland Security Act of 2002 and the
amendments made by title I of the Chemical and Water Security
Act of 2009 shall not apply to any public water system subject
to this Act.
``(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.
``(o) Violations.--
``(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.
``(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--
``(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; or
``(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.
``(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)).
``(p) Report to Congress.--
``(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:
``(A) A generalized summary of measures
implemented by covered water systems in order
to meet each risk-based performance standard
established by this section.
``(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--
``(i) the number of public water
systems that provided the Administrator
with information pursuant to subsection
(d)(1);
``(ii) the number of covered water
systems assigned to each risk-based
tier;
``(iii) the number of vulnerability
assessments and site security plans
submitted by covered water systems;
``(iv) the number of vulnerability
assessments and site security plans
approved and disapproved by the
Administrator;
``(v) the number of covered water
systems without approved vulnerability
assessments or site security plans;
``(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;
``(vii) the number of audits and
inspections conducted by the
Administrator or duly designated
representatives of the Administrator;
``(viii) the number of orders for
compliance issued by the Administrator;
``(ix) the administrative penalties
assessed by the Administrator for non-
compliance with the requirements of
this section;
``(x) the civil penalties assessed by
courts for non-compliance with the
requirements of this section; and
``(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.
``(2) Public availability.--A report submitted under
this section shall be made publicly available.
``(q) Grant Programs.--
``(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.
``(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.
``(3) Preparation grants.--
``(A) Grants.--The Administrator may award
grants to, or enter into cooperative agreements
with, covered water systems to assist such
systems in--
``(i) preparing and updating
vulnerability assessments, site
security plans, and emergency response
plans;
``(ii) assessing and implementing
methods to reduce the consequences of a
release of a substance of concern from
an intentional act; and
``(iii) implementing any other
security reviews and enhancements
necessary to comply with this section.
``(B) Priority.--
``(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.
``(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.
``(4) Worker training grants program authority.--
``(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.
``(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.
``(C) Use of funds.--The recipient of a grant
under this paragraph shall use the grant to
provide for--
``(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);
and
``(ii) appropriate training for first
responders and emergency response
providers who would respond to an
intentional act at a covered water
system.
``(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.
``(r) Authorization of Appropriations.--
``(1) In general.--To carry out this section, there
are authorized to be appropriated--
``(A) $315,000,000 for fiscal year 2011, of
which up to--
``(i) $30,000,000 may be used for
administrative costs incurred by the
Administrator or the States, as
appropriate; and
``(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); and
``(B) such sums as may be necessary for
fiscal years 2012 through 2015.
``(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.''.
(b) Regulations; Transition.--
(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).
(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.
(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.
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--
(1) conduct a study to assess the threat of
contamination of drinking water being distributed
through public water systems, including fire main
systems; and
(2) submit a report to the Congress on the results of
such study.
TITLE III--WASTEWATER TREATMENT WORKS SECURITY
SECTION 301. SHORT TITLE.
This title may be cited as the ``Wastewater Treatment Works
Security Act of 2009''.
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:
``SEC. 222. WASTEWATER TREATMENT WORKS SECURITY.
``(a) Assessment of Treatment Works Vulnerability and
Implementation of Site Security and Emergency Response Plans.--
``(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)--
``(A) conduct and, as required, update a
vulnerability assessment of its treatment
works;
``(B) develop, periodically update, and
implement a site security plan for the
treatment works; and
``(C) develop and, as required, revise an
emergency response plan for the treatment
works.
``(2) Vulnerability assessment.--
``(A) Definition.--In this section, the term
`vulnerability assessment' means an assessment
of the vulnerability of a treatment works to
intentional acts that may--
``(i) substantially disrupt the
ability of the treatment works to
safely and reliably operate; or
``(ii) have a substantial adverse
effect on critical infrastructure,
public health or safety, or the
environment.
``(B) Review.--A vulnerability assessment
shall include an identification of the
vulnerability of the treatment works'--
``(i) facilities, systems, and
devices used in the storage, treatment,
recycling, or reclamation of municipal
sewage or industrial wastes;
``(ii) intercepting sewers, outfall
sewers, sewage collection systems, and
other constructed conveyances under the
control of the owner or operator of the
treatment works;
``(iii) electronic, computer, and
other automated systems;
``(iv) pumping, power, and other
equipment;
``(v) use, storage, and handling of
various chemicals, including substances
of concern, as identified by the
Administrator;
``(vi) operation and maintenance
procedures; and
``(vii) ability to ensure continuity
of operations.
``(3) Site security plan.--
``(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.
``(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).
``(b) Rulemaking and Guidance Documents.--
``(1) In general.--Not later than December 31, 2010,
the Administrator, after providing notice and an
opportunity for public comment, shall issue
regulations--
``(A) establishing risk-based performance
standards for the security of a treatment works
identified under subsection (a)(1); and
``(B) establishing requirements and deadlines
for each owner or operator of a treatment works
identified under subsection (a)(1)--
``(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;
``(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);
``(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;
``(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; and
``(v) to provide annual training to
employees of the treatment works on
implementing site security plans and
emergency response plans.
``(2) Risk-based tiers and performance standards.--
``(A) In general.--In developing regulations
under this subsection, the Administrator
shall--
``(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; and
``(ii) establish risk-based
performance standards for site security
plans and emergency response plans
required under this section.
``(B) Risk-based tiers.--
``(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.
``(ii) Factors to consider.--In
assigning a treatment works to a risk-
based tier, the Administrator shall
consider--
``(I) the size of the
treatment works;
``(II) the proximity of the
treatment works to large
population centers;
``(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;
and
``(IV) any other factor that
the Administrator determines to
be appropriate.
``(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.
``(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).
``(C) Risk-based performance standards.--
``(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.
``(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).
``(D) Site security plans.--
``(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--
``(I) address the security
risks identified in its
vulnerability assessment; and
``(II) comply with the
applicable risk-based
performance standards required
by this subsection.
``(3) Methods to reduce the consequences of a
chemical release from an intentional act.--
``(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--
``(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;
``(ii) the modification of pressures,
temperatures, or concentrations of a
substance of concern; and
``(iii) the reduction or elimination
of onsite handling of a substance of
concern through the improvement of
inventory control or chemical use
efficiency.
``(B) Assessment.--
``(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.
``(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--
``(I) a description of the
methods to reduce the
consequences of a chemical
release from an intentional
act;
``(II) a description of how
each described method to reduce
the consequences of a chemical
release from an intentional act
could, if applied--
``(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); and
``(bb) impact the
operations of the
treatment works in
meeting the goals and
requirements of this
Act;
``(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;
``(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;
``(V) any other relevant
information that the owner or
operator of a treatment works
relied on in conducting the
assessment; and
``(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.
``(C) Required methods.--
``(i) Application.--This subparagraph
applies to a treatment works identified
under subsection (a)(1) that--
``(I) is assigned to one of
the two highest risk-based
tiers established under
paragraph (2)(A); and
``(II) possesses or plans to
possess a substance of concern
in excess of the threshold
quantity set by the
Administrator under subsection
(c)(2).
``(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--
``(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; and
``(II) in the case of a State
with such approved program, the
State shall report such
determination to the
Administrator.
``(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--
``(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;
``(II) would not increase the
interim storage by the
treatment works of a substance
of concern designated under
subsection (c);
``(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; and
``(IV) is feasible, as
determined by the
Administrator, to be
incorporated into the
operations of the treatment
works.
``(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.
``(E) Incomplete or late assessments.--
``(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.
``(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).
``(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).
``(F) Enforcement.--
``(i) Failure by state to make
determination.--
``(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.
``(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).
``(ii) Failure by state to bring
enforcement action.--
``(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.
``(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.
``(4) Consultation with state authorities.--In
developing the regulations under this subsection, the
Administrator shall consult with States with approved
programs under section 402.
``(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--
``(A) the provision of threat-related and
other baseline information to treatment works
identified under subsection (a)(1);
``(B) the designation of substances of
concern under subsection (c);
``(C) the development of risk-based
performance standards;
``(D) the establishment of risk-based tiers
and the process for the assignment of treatment
works identified under subsection (a)(1) to
such tiers;
``(E) the process for the development and
evaluation of vulnerability assessments, site
security plans, and emergency response plans;
``(F) the treatment of protected information;
and
``(G) any other factor that the Administrator
determines to be appropriate.
``(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.
``(c) Substances of Concern.--For purposes of this section,
the Administrator, in consultation with the Secretary of
Homeland Security--
``(1) may designate any chemical substance as a
substance of concern;
``(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 death, injury, or serious adverse
impacts to human health or the environment; and
``(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).
``(d) Review of Vulnerability Assessment and Site Security
Plan.--
``(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.
``(2) Standard of review.--The Administrator shall
review each vulnerability assessment and site security
plan submitted under this subsection and--
``(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; or
``(B) approve such assessment or plan.
``(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--
``(A) such assessment does not comply with
the regulations promulgated under subsection
(b); or
``(B) such plan--
``(i) fails to address
vulnerabilities identified in a
vulnerability assessment; or
``(ii) fails to meet applicable risk-
based performance standards.
``(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--
``(A) includes a clear explanation of the
deficiency in the vulnerability assessment or
site security plan;
``(B) provides guidance to assist the owner
or operator in addressing the deficiency; and
``(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.
``(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.
``(e) Emergency Response Plan.--
``(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.
``(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.
``(3) Contents.--An emergency response plan shall
include a description of--
``(A) plans, procedures, and identification
of equipment that can be implemented or used in
the event of an intentional act at the
treatment works; and
``(B) actions, procedures, and identification
of equipment that can obviate or significantly
reduce the impact of intentional acts to--
``(i) substantially disrupt the
ability of the treatment works to
safely and reliably operate; or
``(ii) have a substantial adverse
effect on critical infrastructure,
public health or safety, or the
environment.
``(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.
``(f) Role of Employees.--
``(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.
``(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.
``(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--
``(A) at least one supervisory and at least
one nonsupervisory employee of the treatment
works; and
``(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.
``(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.
``(h) Audit; Inspection.--
``(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.
``(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.
``(3) Confidential communication of information;
aiding inspections.--The Administrator shall offer
nonsupervisory employees of a treatment works the
opportunity confidentially to communicate information
relevant to the compliance or noncompliance of the
owner or operator of the treatment works 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 nonsupervisory employee, shall be
given an opportunity to accompany the Administrator
during the physical inspection of any treatment works
for the purpose of aiding such inspection, if
representatives of the treatment works will also be
accompanying the Administrator on such inspection.
``(i) Protection of Information.--
``(1) Prohibition of public disclosure of protected
information.--Protected information shall--
``(A) be exempt from disclosure under section
552 of title 5, United States Code; and
``(B) not be made available pursuant to any
State, local, or tribal law requiring
disclosure of information or records.
``(2) Information sharing.--
``(A) In general.--The Administrator shall
prescribe such regulations, and may issue such
orders, as necessary to prohibit the
unauthorized disclosure of protected
information, as described in paragraph (7).
``(B) Sharing of protected information.--The
regulations under subparagraph (A) shall
provide standards for and facilitate the
appropriate sharing of protected information
with and among Federal, State, local, and
tribal authorities, first responders, law
enforcement officials, supervisory and
nonsupervisory treatment works personnel with
security, operational, or fiduciary
responsibility for the system designated by the
owner or operator of the treatment works, and
facility employee representatives designated by
the owner or operator of the treatment works,
if any.
``(C) Information sharing procedures.--Such
standards shall include procedures for the
sharing of all portions of the vulnerability
assessment and site security plan of a
treatment works relating to the roles and
responsibilities of the employees or contractor
employees of a treatment works 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).
``(D) Penalties.--Protected information, as
described in paragraph (7), 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.
``(3) Treatment of information in adjudicative
proceedings.--In any judicial or administrative
proceeding, protected information, as described in
paragraph (7), 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 (120 Stat. 1381).
``(4) Other obligations unaffected.--Nothing in this
section amends or affects an obligation of the owner or
operator of a treatment works to--
``(A) submit or make available information to
employees of the treatment works, employee
organizations, or a Federal, State, local, or
tribal government agency under any other law;
or
``(B) comply with any other law.
``(5) Congressional oversight.--Nothing in this
section permits or authorizes the withholding of
information from Congress or any committee or
subcommittee thereof.
``(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 treatment works or the
Administrator under any other law except as provided in
subsection (d)(5).
``(7) Protected information.--
``(A) In general.--For purposes of this
section, protected information is any of the
following:
``(i) Vulnerability assessments and
site security plans under this section,
including any assessment developed
under subsection (b)(3)(B).
``(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
developed under subsection (b)(3)(B).
``(iii) Documents directly related to
inspections and audits under this
section.
``(iv) Orders, notices, or letters
regarding the compliance of a treatment
works described in subsection (a)(1)
with the requirements of this section.
``(v) Information required to be
provided to, or documents and records
created by, the Administrator under
subsection (b)(2).
``(vi) Documents directly related to
security drills and training exercises,
security threats and breaches of
security, and maintenance, calibration,
and testing of security equipment.
``(vii) Other information, documents,
and records developed for the purposes
of this section that the Administrator
determines would be detrimental to the
security of a treatment works if
disclosed.
``(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--
``(i) would be detrimental to the
security of a treatment works if
disclosed; and
``(ii) are developed by the
Administrator, the State, or the
treatment works for the purposes of
this section.
``(C) Exclusions.--For purposes of this
paragraph, protected information does not
include--
``(i) information that is otherwise
publicly available, including
information that is required to be made
publicly available under any law;
``(ii) information that a treatment
works has lawfully disclosed other than
in accordance with this section; and
``(iii) information that, if
disclosed, would not be detrimental to
the security of a treatment works,
including aggregate regulatory data
that the Administrator determines
appropriate to describe compliance with
the requirements of this section and
the Administrator's implementation of
such requirements.
``(j) Violations.--For the purposes of section 309 of this
Act, any violation of any requirement of this section,
including any regulations promulgated pursuant to this section,
by an owner or operator of a treatment works described in
subsection (a)(1) shall be treated in the same manner as a
violation of a permit condition under section 402 of this Act.
``(k) Report to Congress.--
``(1) Periodic report.--Not later than 3 years after
the effective date of the regulations issued under
subsection (b) and every 3 years thereafter, the
Administrator shall transmit to the Committee on
Transportation and Infrastructure 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.
``(2) Contents of the report.--Each such report shall
include, at a minimum, the following:
``(A) A generalized summary of measures
implemented by the owner or operator of a
treatment works identified under subsection
(a)(1) in order to meet each risk-based
performance standard established by this
section.
``(B) A summary of how the treatment works,
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--
``(i) the number of treatment works
that provided the Administrator with
information pursuant to subsection
(b)(2)(B)(iii);
``(ii) the number of treatment works
assigned to each risk-based tier;
``(iii) the number of vulnerability
assessments and site security plans
submitted by treatment works;
``(iv) the number of vulnerability
assessments and site security plans
approved or found to have a significant
deficiency under subsection (d)(2) by
the Administrator;
``(v) the number of treatment works
without approved vulnerability
assessments or site security plans;
``(vi) the number of treatment works
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;
``(vii) the number of audits and
inspections conducted by the
Administrator; and
``(viii) any other regulatory data
the Administrator determines
appropriate to describe the compliance
of owners or operators of treatment
works with the requirements of this
section and the Administrator's
implementation of such requirements.
``(3) Public availability.--A report submitted under
this section shall be made publicly available.
``(l) Grants for Vulnerability Assessments, Security
Enhancements, and Worker Training Programs.--
``(1) In general.--The Administrator may make a grant
to a State, municipality, or intermunicipal or
interstate agency--
``(A) to conduct or update a vulnerability
assessment, site security plan, or emergency
response plan for a publicly owned treatment
works identified under subsection (a)(1);
``(B) to implement a security enhancement at
a publicly owned treatment works identified
under subsection (a)(1), including a method to
reduce the consequences of a chemical release
from an intentional act, identified in an
approved site security plan and listed in
paragraph (2);
``(C) to implement an additional security
enhancement at a publicly owned treatment works
identified under subsection (a)(1), including a
method to reduce the consequences of a chemical
release from an intentional act, identified in
an approved site security plan; and
``(D) to provide for security-related
training of employees or contractor employees
of the treatment works and training for first
responders and emergency response providers.
``(2) Grants for security enhancements.--
``(A) Preapproved security enhancements.--The
Administrator may make a grant under paragraph
(1)(B) to implement a security enhancement of a
treatment works for one or more of the
following:
``(i) Purchase and installation of
equipment for access control, intrusion
prevention and delay, and detection of
intruders and hazardous or dangerous
substances, including--
``(I) barriers, fencing, and
gates;
``(II) security lighting and
cameras;
``(III) metal grates, wire
mesh, and outfall entry
barriers;
``(IV) securing of manhole
covers and fill and vent pipes;
``(V) installation and re-
keying of doors and locks; and
``(VI) smoke, chemical, and
explosive mixture detection
systems.
``(ii) Security improvements to
electronic, computer, or other
automated systems and remote security
systems, including controlling access
to such systems, intrusion detection
and prevention, and system backup.
``(iii) Participation in training
programs and the purchase of training
manuals and guidance materials relating
to security.
``(iv) Security screening of
employees or contractor support
services.
``(B) Additional security enhancements.--The
Administrator may make a grant under paragraph
(1)(C) for additional security enhancements not
listed in subparagraph (A) that are identified
in an approved site security plan. The
additional security enhancements may include
the implementation of a method to reduce the
consequences of a chemical release from an
intentional act.
``(C) Limitation on use of funds.--Grants
under this subsection may not be used for
personnel costs or operation or maintenance of
facilities, equipment, or systems.
``(D) Federal share.--The Federal share of
the cost of activities funded by a grant under
paragraph (1) may not exceed 75 percent.
``(3) Eligibility.--To be eligible for a grant under
this subsection, a State, municipality, or
intermunicipal or interstate agency shall submit
information to the Administrator at such time, in such
form, and with such assurances as the Administrator may
require.
``(m) 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 treatment works that is more stringent than a
regulation, requirement, or standard of performance under this
section.
``(n) Authorization of Appropriations.--There is authorized
to be appropriated to the Administrator $200,000,000 for each
of fiscal years 2010 through 2014 for making grants under
subsection (l). Such sums shall remain available until
expended.
``(o) Relation to Chemical Facility Security Requirements.--
Title XXI of the Homeland Security Act of 2002 and the
amendments made by title I of the Chemical and Water Security
Act of 2009 shall not apply to any treatment works.''.
Amend the title so as to read: ``A bill 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.''.
PART B--TEXT OF AMENDMENTS MADE IN ORDER
1. An Amendment To Be Offered by Representative Thompson, Bennie of
Mississippi, or His Designee, Debatable for 10 Minutes
Page 5, beginning on line 22, strike ``counter surveillance''
and insert ``counter-surveillance''.
Page 7, beginning on line 2, strike ``. Any such plan shall
include'' and insert ``, including''.
Page 7, line 19, strike ``Department'' and insert
``Secretary''.
Page 8, line 2, strike ``chemicals'' and insert ``a substance
of concern''.
Page 8, line 4, insert ``and'' after the comma.
Page 9, line 5, strike ``Department'' and insert
``Secretary''.
Page 9, line 9, strike ``in'' and insert ``at''.
Page 9, line 10, strike ``site'' and insert ``covered
chemical facility''.
Page 10, line 6, insert a comma after ``plan''.
Page 17, line 3, insert ``chemical'' after ``designation of
a''.
Page 17, line 3, insert ``as a substance'' after
``substance''.
Page 17, line 4, insert ``for the substance'' after
``quantity''.
Page 17, line 8, strike ``may at any time'' and insert ``may,
at any time,''.
Page 18, line 10, insert a comma after ``concern''.
Page 18, line 22, strike the comma after ``representative''.
Page 19, line 6, strike ``this title'' and insert ``this
section''.
Page 22, line 3, insert ``, as determined by the Secretary,''
after ``geographically close''.
Page 23, line 1, strike ``under'' and insert ``pursuant to''.
Page 24, line 11, strike ``is''.
Page 30, line 22, strike ``that'' and insert ``who''.
Page 34, line 9, strike ``the period of''.
Page 36, line 8, strike ``information'' and insert ``to the
Secretary in a timely manner, information''.
Page 36, line 9, strike ``in a timely manner''.
Page 38, line 17, insert ``departmental'' after ``seek''.
Page 38, line 17, strike ``within the Department''.
Page 39, line 24, strike ``that'' and insert ``who''.
Page 39, line 25, insert a comma after ``subsection (a)''.
Page 40, line 15, strike ``, profit'' and insert ``, for-
profit''.
Page 46, line 16, strike ``protected information is any of
the following'''' and insert ``the term `protected information'
means any of the following''.
Page 46, line 22, strike ``determines'' and insert ``has
determined by regulation''.
Page 48, strike lines 3 through 17 and insert the following:
``(2) Exclusions.--Notwithstanding paragraph (1), the
term `protected information' does not include--
``(A) information, other than a security
vulnerability assessment or site security plan,
that the Secretary has determined by regulation
to be--
``(i) appropriate to describe
facility compliance with the
requirements of this title and the
Secretary's implementation of such
requirements; and
``(ii) not detrimental to chemical
facility security if disclosed; or
``(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--
``(i) information that is required to
be made publicly available under any
other provision of law; and
``(ii) information that a chemical
facility has lawfully disclosed other
than in a submission to the Secretary
pursuant to a requirement of this
title.
Page 54, line 3, strike ``of'' and insert ``after''.
Page 63, line 7, strike ``1996'' and insert ``1986''.
Page 75, line 13, strike ``Department'' and insert
``Secretary''.
Page 92, line 23, insert ``and resubmit'' after ``update''.
Page 93, beginning on line 10, strike ``(or, if the system
has already developed an emergency response plan, to revise the
plan to be in accordance with this section)'' and insert ``or,
if the system has already developed an emergency response plan,
to revise the plan to be in accordance with this section,''.
Page 110, beginning on line 2, strike ``commence an
enforcement action against the system, including by seeking or
imposing civil penalties'' and insert ``take appropriate
enforcement action''.
Page 115, beginning on line 22, strike ``, as described in
paragraph (7)''.
Page 116, beginning on line 21, strike ``, as described in
paragraph (7),''.
Page 117, beginning on line 9, strike ``, as described in
paragraph (7),''.
Page 117, line 22, insert ``provision of'' before ``law''.
Page 117, line 23, insert ``provision of'' before ``law''.
Page 118, line 10, insert ``provision of'' before ``law''.
Page 118, beginning on line 13, strike ``protected
information is any of the following'' and insert ``the term
`protected information' means any of the following''.
Page 119, line 17, strike ``determines'' and insert ``has
determined by regulation''.
Page 120, line 1, insert before ``would'' the following:
``the Secretary has determined by regulation''
Page 120, strike lines 7 through 24 and insert the following:
``(C) Exclusions.--Notwithstanding
subparagraphs (A) and (B), the term `protected
information' does not include--
``(i) information, other than a
security vulnerability assessment or
site security plan, that the
Administrator has determined by
regulation to be--
``(I) appropriate to describe
system compliance with the
requirements of this title and
the Administrator's
implementation of such
requirements; and
``(II) not detrimental to the
security of one or more covered
water systems if disclosed; or
``(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--
``(I) information that is
required to be made publicly
available under any other
provision of law; and
``(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.
Page 121, line 3, strike ``the amendments made by''.
Page 131, beginning on line 3, strike ``threat of
contamination of drinking water being distributed through
public water systems, including fire main systems'' and insert
``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''.
Page 151, line 24, after ``cause'' and insert ``, or may be
reasonably anticipated to cause,''.
Page 161, line 12, insert ``provision of'' before ``law''.
Page 161, line 13, insert ``provision of'' before ``law''.
Page 161, line 25, insert ``provision of'' before ``law''.
Page 162, beginning on line 3, strike ``protected information
is any of the following'' and insert ``the term `protected
information' means any of the following''.
Page 163, beginning on line 6, strike ``determines'' and
insert ``has determined by regulation''.
Page 163, line 15, before ``would'' insert the following:
``the Secretary has determined by regulation''.
Strike line 20 on page 163 and all that follows through page
164, line 13, and insert the following:
``(C) Exclusions.--Notwithstanding
subparagraphs (A) and (B), the term `protected
information' does not include--
``(i) information, other than a
security vulnerability assessment or
site security plan, that the
Administrator has determined by
regulation to be--
``(I) appropriate to describe
treatment works compliance with
the requirements of this title
and the Administrator's
implementation of such
requirements; and
``(II) not detrimental to the
security of one or more
treatment works if disclosed;
or
``(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--
``(I) information that is
required to be made publicly
available under any other
provision of law; and
``(II) information that a
treatment works has lawfully
disclosed other than in a
submission to the Administrator
pursuant to a requirement of
this title.
Page 171, line 5, strike ``the amendments made by''.
----------
2. An Amendment To Be Offered by Representative Barton, Joe of Texas,
or His Designee, Debatable for 10 Minutes
Page 43, strike lines 7 through 16, and insert the following:
``SEC. 2109. FEDERAL PREEMPTION.
``No State or political subdivision thereof may adopt or
attempt to enforce any regulation, requirement, or standard of
performance with respect to a covered chemical facility if such
regulation, requirement, or standard of performance poses
obstacles to, hinders, or frustrates the purpose of any
requirement or standard of performance under this title.
Page 121, strike lines 6 through 11, and insert the
following:
``(n) Preemption.--No State or political subdivision thereof
may adopt or attempt to enforce any regulation, requirement, or
standard of performance with respect to a covered water system
if such regulation, requirement, or standard of performance
poses obstacles to, hinders, or frustrates the purpose of any
requirement or standard of performance under this section.
Page 170, strike lines 17 through 22, and insert the
following:
``(m) Preemption.--No State or political subdivision thereof
may adopt or attempt to enforce any regulation, requirement, or
standard of performance with respect to a treatment works if
such regulation, requirement, or standard of performance poses
obstacles to, hinders, or frustrates the purpose of any
requirement or standard of performance under this section.
----------
3. An Amendment To Be Offered by Representative Hastings, Alcee of
Florida, or His Designee, Debatable for 10 Minutes
Page 65, after line 2, insert the following:
``(d) Outreach Support.--
``(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.
``(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.
----------
4. An Amendment To Be Offered by Representative Dent, Charles of
Pennsylvania, or His Designee, Debatable for 10 Minutes
Page 2, beginning on line 1, strike title I and insert the
following (and conform the table of contents accordingly):
TITLE I--CHEMICAL FACILITY SECURITY
SEC. 101. SHORT TITLE.
This Act may be cited as the ``Chemical Facility Security
Authorization Act of 2009''.
SEC. 102. EXTENSION OF AUTHORITY OF SECRETARY OF HOMELAND SECURITY TO
REGULATE THE SECURITY OF CHEMICAL FACILITIES.
Section 550(b) of the Department of Homeland Security
Appropriations Act, 2007 (Public Law 109-295; 6 U.S.C. 121
note) is amended by striking ``three years after the date of
enactment of this Act'' and inserting ``on October 1, 2012''.
----------
5. An Amendment To Be Offered by Representative Dent, Charles of
Pennsylvania, or His Designee, Debatable for 10 Minutes
Page 25, line 12, strike ``, including the requirements under
section 2111''.
Page 46, line 18, strike ``, including any assessment
required under section 2111''.
Page 48, beginning on line 18, strike the proposed section
2111 and redesignate the proposed sections 2112 through 2120 as
sections 2111 through 2119, respectively.
Pg 87, line 4, strike ``, of which up to $3,000,000 shall be
made available for grants authorized under section
2111(c)(1)''.
Pg 87, line 10, strike ``, of which up to $3,000,000 shall be
made available for grants authorized under section
2111(c)(1)''.
Pg 87, line 16, strike ``, of which up to $3,000,000 shall be
made available for grants authorized under section
2111(c)(1)''.
Page 88, in the proposed amendment to the table of contents
of the Homeland Security Act of 2002, strike the item relating
to section 2111 and redesignate the items relating to sections
2112 through 2120 as items relating to sections 2111 through
2119, respectively.
----------
6. An Amendment To Be Offered by Representative Flake, Jeff of Arizona,
or His Designee, Debatable for 10 Minutes
Page 31, after line 25, insert the following:
``(E) Presumption of congress relating to
competitive procedures.--
``(i) Presumption.--It is the
presumption of Congress that grants
awarded under this paragraph will be
awarded using competitive procedures
based on merit.
``(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.
``(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.''.
----------
7. An Amendment To Be Offered by Representative Schrader, Kurt of
Oregon, or His Designee, Debatable for 10 Minutes
Page 54, line 24, strike ``Sectoral Impacts'' and insert
``Agricultural Sector''.
Page 55, beginning on line 12, strike ``impacts of
compliance'' and insert ``agricultural impacts''.
Page 55, beginning on line 19, strike ``by manufacturers,
retailers, aerial commercial applicators, and distributors of
pesticide and fertilizer'' and insert ``on the agricultural
sector''.
Page 55, line 23, insert a comma after ``Representatives''.
Page 55, line 24, strike ``and'' before ``the Committee''.
Page 55 line 25, insert ``, the Committee on Agriculture of
the House of Representatives, and the Committee on Agriculture,
Nutrition and Forestry of the Senate'' after ``Senate''.
Page 56, line 4, insert ``agricultural'' after ``scope of''.
Page 57, beginning on line 15, strike ``other sectors engaged
in commerce'' and insert ``agricultural end-users''.
Strike line 20 on page 57 and all that follows through page
58, line 2, and insert the following:
``(3) Definitions.--In this subsection:
``(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.
``(B) Agricultural end-users.--The term
`agricultural end-users' means facilities such
as--
``(i) farms, including crop, fruit,
nut, and vegetable farms;
``(ii) ranches and rangeland;
``(iii) poultry, dairy, and equine
facilities;
``(iv) turfgrass growers;
``(v) golf courses;
``(vi) nurseries;
``(vii) floricultural operations; and
``(viii) public and private parks.
----------
8. An Amendment To Be Offered by Representative McCaul, Michael of
Texas, or His Designee, Debatable for 10 Minutes
Page 76, beginning on line 11, strike the proposed section
2116 and redesignate the proposed sections 2117 through 2120 as
sections 2116 through 2119, respectively.
Page 88, in the proposed amendment to the table of contents
of the Homeland Security Act of 2002, strike the item relating
to section 2116 and redesignate the items relating to sections
2117 through 2120 as items relating to sections 2116 through
2119, respectively.
----------
9. An Amendment To Be Offered by Representative Halvorson, Deborah of
Illinois, or Her Designee, Debatable for 10 Minutes
Page 58, beginning on line 3, strike ``Assessment of Impacts
on Small Covered Chemical Facilities'' and insert ``Small
Covered Chemical Facilities''.
Page 58, after line 4, insert the following:
``(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.
Page 58, line 5, strike ``(1) in general'' and insert ``(2)
assessment of impacts on small covered chemical facilities''.
Page 59, line 20, strike ``(2) Definition'' and insert ``(3)
Definition''.
----------
10. An Amendment To Be Offered by Representative Foster, Bill of
Illinois, or His Designee, Debatable for 10 Minutes
Page 13, after line 21, insert the following:
``(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.
Page 20, line 12, strike ``and'' after the semicolon.
Page 20, line 19, strike the period after ``disapproval'' and
insert ``; and''.
Page 20, after line 19, insert the following:
``(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.