Chemical Facility Security
Chemical Facility Security
Updated December 15, 2006
Specialist in Environmental Policy
Resources, Science, and Industry Division
Chemical Facility Security
Facilities handling large amounts of potentially hazardous chemicals (i.e.,
chemical facilities) might be of interest to terrorists, either as targets for direct attacks
meant to release chemicals into the community or as a source of chemicals for use
elsewhere. Because few terrorist attacks have been attempted against chemical
facilities in the United States, the risk of death and injury in the near future is
estimated to be low, relative to the likelihood of accidents at such facilities or attacks
on other targets using conventional weapons. For any individual facility, the risk is
very small, but the risks may be increasing — with potentially severe consequences
for human health and the environment. Available evidence indicates that many
chemical facilities may lack adequate safeguards.
After 9/11, Congress enacted legislation that requires the Department of
Homeland Security (DHS) to analyze vulnerabilities and suggest security
enhancements for “critical infrastructure.” The Public Health Security and
Bioterrorism Preparedness and Response Act of 2002 (P.L. 107-188) and the
Maritime Transportation Security Act (MTSA, P.L. 107-295) require vulnerability
assessments and emergency response plans for some chemical facilities that supply
drinking water or are located in ports, as well as security plans for chemical facilities
in ports. Many other chemical facilities, including wastewater treatment facilities,
Congress could choose to rely on existing efforts in the public and private
sectors to improve chemical site security over time. Alternatively, Congress could
direct DHS to oversee security enhancement at potentially dangerous facilities. Or,
Congress might enact legislation to reduce risks, either by “hardening” defenses
against terrorists (for example by increasing security patrols) or by requiring
industries to consider use of safer chemicals, procedures, or processes. Restricting
terrorists’ access to information might be a least-cost approach to reducing risks, but
it would also limit public access to information about potential risks and reduce
accountability of facility owners. For more on this topic, see CRS Report RL33043,
Legislative Approaches to Chemical Facility Security, by Dana A. Shea.
The 109th Congress enacted chemical security legislation as Section 550 of the
DHS appropriations legislation, P.L. 109-295. The law provides authority to DHS
for three years to regulate high-risk chemical facilities other than drinking water and
wastewater treatment facilities and facilities in ports. The enacted provisions also are
found in H.R. 6348. These provisions combine certain elements of H.R. 5695, as
reported by the House Homeland Security Committee, and S.2145, as reported by the
Senate Committee on Homeland Security and Governmental Affairs. For example,
the enacted law directs DHS to establish risk-based security performance standards
for facilities, and requires facility owners or operators to prepare vulnerability
assessments and facility security plans. The new law also authorizes DHS to inspect
facilities and to close down any that are repeatedly noncompliant. However, the law
did not address the most controversial issues: whether state laws are preempted and
whether facilities should be required to consider use of inherently safer technology.
In troduction ..................................................1
Risks of Terrorism at Chemical Facilities...........................2
Nature of Hazards.........................................2
Recent Trends in Overall Terrorist Activities....................2
Trends in Chemical Terrorism................................4
Predicted Risks of Chemical Terrorism.........................4
Severity of Harm..........................................7
Chemical Site Vulnerability.................................11
Federal Requirements Established Prior to September 11, 2001,
To Reduce Risks at Chemical Facilities.......................15
CAA Section 112(r).......................................16
After September 11, 2001......................................20
Private Sector Initiatives...................................23
Collect Additional Information..............................28
Improve EPA Guidance and Enforcement......................28
Reduce Risk Through Legislation............................29
Responsibility and Accountability............................36th
Legislation in the 109 Congress.................................39
List of Tables
Table 1. Number of Facilities Reporting Risk Management Plans to EPA in
Selected Industrial Categories...................................18
Chemical Facility Security
The potential harm to public health and the environment from a large release of
hazardous chemicals has long concerned the U.S. Congress. The sudden, accidental
release in December 1984 of methyl isocyanate in an industrial incident at the Union
Carbide plant in Bhopal, India, and the attendant loss of thousands of lives and
widespread injuries spurred legislative proposals to reduce the risk of chemical
accidents in the United States. For example, federal environmental laws were
enacted in 1986 and 1990 to mitigate and reduce the risk of accidental releases of
hazardous chemicals from manufacturing facilities, processing plants, and storage
tanks. (These laws are discussed below.) The Hazardous Materials Transportation
Act of 1975 was passed to protect the public and environment in the event of an
accident during transportation of chemicals. Other federal laws coordinate
preparedness planning and response to significant chemical spills (e.g., the
Comprehensive Environmental Response, Compensation, and Liability Act).
The threat of terrorism manifested on September 11, 2001, prompted renewed
congressional attention to the potential risks to public health and the environment
posed by facilities handling large quantities of hazardous chemicals. Congress
addressed chemical facility security when it enacted legislation establishing the
Department of Homeland Security (DHS; P.L. 107-296). The law requires analysis
of vulnerabilities and suggestions for security enhancements for “critical
infrastructure.” The Public Health Security and Bioterrorism Preparedness and
Response Act of 2002 (P.L. 107-188) and the Maritime Transportation Security Act
(MTSA, P.L. 107-295) require vulnerability assessments, security plans, and incident
response plans for some chemical facilities which supply drinking water or are
located in ports. Many other chemical facilities remain unregulated with respect to
terrorism.1 Thus, the 109th Congress continued to discuss the risks and consequences
of potential terrorist attacks on chemical facilities and possible actions the federal
government might take to prevent or reduce them.
This report provides background information and summarizes issues relevant
to existing and proposed requirements aimed at reducing risks to the general public
of exposure to hazardous chemicals as a result of terrorist acts at U.S. facilities where
chemicals are produced, processed, stored, or used. It considers the likelihood and
severity of harm that might result from terrorist attacks on chemical facilities, as well
as from illicit use of such facilities to gain access to hazardous chemicals (or to
precursor chemicals that can be used to produce hazardous chemicals). Federal
requirements for contingency planning and responding to chemical emergencies after
1 There is no universally accepted definition of “terrorism.” Various definitions are
discussed in CRS Report RL33600, International Terrorism: Threat, Policy, and Response,
by Raphael Perl.
they occur are not the focus of this report. In addition, it does not consider
hazardous materials transport (or storage incidental to transport).
The report first describes the range of terrorist acts that might threaten chemical
facilities and summarizes publicly available information relevant to risks: recent
trends in terrorist activity, including chemical use by terrorists; expert estimates of
the harm that might be inflicted through chemical terrorism; and assessments of the
vulnerability of chemical facilities. The next section of the report discusses existing
federal mandates and incentives for reducing risks of accidental releases from
chemical facilities. The remainder of the report summarizes recent Administration
and private sector initiatives to improve chemical site security; analyzes policy
options and key issues; and describes legislation in the 109th Congress.
Risks of Terrorism at Chemical Facilities
Nature of Hazards. Potential terrorist acts against chemical facilities might
be classified roughly into two categories: direct attacks on facilities or chemicals on
site, or efforts to use business contacts, facilities, and materials (e.g., letterhead,
telephones, computers, etc.) to gain access to potentially harmful materials. In either
case, terrorists may be employees (saboteurs) or outsiders, acting alone or in
collaboration with others. In the case of a direct attack, traditional or nontraditional
weapons may be employed, including explosives, incendiary devices, firearms,
airplanes, or computer programs.
In obtaining chemicals, a terrorist’s intent may be to use them as weapons or to
make weapons, including explosives, incendiaries, poisons, and caustics. Access to
chemicals might be gained by physically entering a facility and stealing supplies, or
by using legitimate or fraudulent credentials (e.g., company stationary, order forms,
computers, telephones or other resources) to order, receive, or distribute chemicals.
Recent Trends in Overall Terrorist Activities. According to February
2003 testimony by the Director of the Federal Bureau of Investigation (FBI) to the
U.S. Senate, there were 353 known or suspected acts of terrorism (including terrorist2
acts by Americans) perpetrated within the United States between 1980 and 2001.
Only a few incidents involved chemical facilities. Attacks during the 1990s claimed3
although there were many more terrorist or suspected terrorist incidents, only 234
people were killed and 105 were injured. Thus, although the total number of
terrorist acts in the United States declined toward the end of the 20th century, the
casualties due to terrorism increased.
2 Mueller, Robert S., III, Director, Federal Bureau of Investigation. Testimony before the
Senate Select Committee on Intelligence, Feb. 11, 2003, at [http://www.intelcenter.com/
resource/2003/mueller.pdf], visited Feb. 4, 2005.
3 The Oklahoma City bombing of the federal building in 1995 accounts for 168 of the 182
deaths during the decade.
4 Counterterrorism Division, Counterterrorism Threat Assessment and Warning Unit,
Federal Bureau of Investigation, Department of Justice. Terrorism in the United States
The same trends have been evident internationally, although there is
considerable variation from year to year.5 The year 2003 had 208 international
terrorist attacks on noncombatants, a few more than 2002, but 42% fewer than in
2001.6 There were 725 persons killed in 2002 and 625 persons (35 U.S. citizens) in
In terms of U.S. casualties due to international terrorism, 2001 is the most costly
year on record, with 2,689 people killed.8 As noted by the FBI Executive Assistant
Director for Counterterrorism and Counterintelligence, the attack of September 11,
2001, “marked a dramatic escalation in a trend toward more destructive terrorist
attacks which began in the 1980s.”9
The September 11 attack also reflected a trend toward more indiscriminate
targeting among international terrorists. The vast majority of the ... victims of
the attack were civilians. In addition, the attack represented the first known case
of suicide attacks carried out by international terrorists in the United States. The
September 11 attack also marked the first successful act of international
terrorism in the United States since the vehicle bombing of the World Trade10
Center in February 1993.
Other potentially important trends identified by intelligence agencies include:
!an increase in activity by loosely affiliated extremists, both
domestically and internationally; and
!the propensity of such groups to focus on producing mass1112
5 The National Counterterrorism Center (NCTC) and the State Department changed the
methodology for tabulating terrorist incidents in 2004, and ceased publication of Patterns
of Global Terrorism. As a result, no comparable figures are available for 2004 or
subsequent years. A database on terrorist incidents is maintained by the NCTC at
[http://tkb.org/AboutTKB.jsp], visited Jan. 11, 2006.
6 U.S. Department of State. 2004. Patterns of Global Terrorism 2003. Revised June 22,
7 U.S. Department of State. 2004. The Year in Review (Revised), at [http://www.state.
gov/s/ct/rls/pgtrpt/2003/33771.htm], visited Sept. 20, 2004.
8 Ibid., p. 180. The anthrax killings may or may not be found to meet the FBI definition of
terror, depending on whether the criminal intended to further political or social objectives.
9 Watson, Dale L., Executive Assistant Director, Counterterrorism and Counterintelligence,
Federal Bureau of Investigation. Statement for the Record on the terrorist threat confronting
the United States before the Senate Select Committee on Intelligence. Feb. 6, 2002.
[http://www.fbi.gov/congress/congress02/watson020602.htm], visited Feb. 4, 2005.
10 Ibid., p. 1.
12 Counterterrorism Division, Counterterrorism Threat Assessment and Warning Unit,
Federal Bureau of Investigation, Department of Justice. Terrorism in the United States
Trends in Chemical Terrorism. With respect to chemical and biological
terrorism, hoaxes and unsuccessful attempts by terrorists to use chemicals increased
throughout the 1990s. Loosely affiliated terrorist groups, in particular, have
demonstrated a growing interest in chemical weapons and other weapons of mass13
destruction, but explosives are still the most frequently employed weapons.
During the 1990s, both international and domestic terrorists attempted to use
explosives to release chemicals from manufacturing and storage facilities. Most of
these attempts were abroad in war zones such as Croatia, including attacks on a plant
producing fertilizer, carbon black, and light fraction petroleum products; other plants
producing pesticides; and a pharmaceutical factory using ammonia, chlorine, and
other hazardous chemicals. All of these facilities were close to population centers.
In the United States, there were at least two instances during the late 1990s when
criminals attempted to cause releases of chemicals from facilities. One involved a14
large propane storage facility, and the other a gas refinery.
Evidence that U.S. chemical facilities may be used by terrorists to gain access
to chemicals also exists. For example, one of the 1993 World Trade Center bombers,
Nidal Ayyad, became a naturalized U.S. citizen, graduated from Rutgers University,
and worked as a chemical engineer at Allied Signal, from which he used company
stationery to order chemical ingredients to make the bomb. According to a U.S.
Prosecutor in the case against the bombers, though “some suppliers balked when the
order came from outside official channels, when the delivery address was a storage
park, or when [a co-conspirator] tried to pay for the chemicals in cash,” others did15
not. Moreover, testimony at the trial of the bombers indicated that they had
successfully stolen cyanide from a chemical facility and were training to introduce16
it into the ventilation systems of office buildings. More recently, chemical trade
publications reportedly were found in al Qaeda hideaways.17
Predicted Risks of Chemical Terrorism. The validity of any risk
assessment depends on how much is known about the hazard, risks (probabilities),
adverse effects, events and conditions that lead to or modify adverse effects or risks,
and populations or environments that influence or experience adverse effects. The
most accurate, and therefore the most useful, risk assessments generally are for
familiar, frequently occurring hazards and events with impacts that are experienced
13 Ibid., pp. 17, 25.
14 Department of Justice. Assessment of the Increased Risk of Terrorist or Other Criminal
Activity Associated with Posting Off-Site Consequence Analysis Information on the Internet,
Apr. 18, 2000. pp. 23-24.
15 Parachini, John V. “The World Trade Center Bombers (1993).” In: Jonathan B. Tucker
(ed.) 2000. Toxic Terror: Assessing Terrorist Use of Chemical and Biological Weapons,
Cambridge, MA: MIT Press. p. 190. Citing the summation statement of Henry J. DePippo,
Prosecutor, United States of America v. Mohammad A. Salameh et al., S593CR.180 (KTD),
Feb. 16, 1994, pp. 8435-8439.
17 Bond, Christopher. Statement on S. 2579. Congressional Record, Daily Edition, June 5,
with some regularity, such as severe storms or floods. In contrast, the risk of terrorist
activity is unfamiliar (at least in the United States), rarely experienced, and likely to
vary significantly over time, depending on rather unpredictable social and political
The risk of terrorism targeting chemical facilities is particularly difficult to
assess for at least three reasons:
!There are few prior examples of terrorists targeting chemical
!Numerous factors theoretically may increase or decrease risks; and
!Interactions among factors influencing risks are dynamic and
In part, these difficulties stem from the nature of terrorism and the terrorists’
deliberate efforts to do what is least expected — that is, to defy prediction. For these
reasons, most experts have not tried to quantify risks; existing analyses of chemical
terrorism risks in the open literature are speculative and qualitative.18
Until the mid to late 1990s, reports focused on the acquisition and use of
chemical weapons, such as sarin or mustard gas. One of the most comprehensive of
these reports was a 1995 review of the open literature on terrorism that was prepared
for the Canadian Security Intelligence Service.19 According to this review of the
literature, “[t]hose authors who have speculated about the future terrorist use of
chemical agents in particular have generally rated its likelihood as quite high.”20
According to some, the risk also appears to be increasing. Many experts today
believe that factors that might have inhibited proliferation and use of chemicals as
weapons in the past are eroding. For example, some experts hypothesized several
years ago that the combination of chemical and strategic skills necessary to create and
deploy chemical weapons would prevent the lone terrorist from using them.21
Security experts now believe that lack of personal expertise no longer limits chemical
weapon use, because there is a tendency for terrorists with similar extreme views to
affiliate loosely with others with complementary skills and abilities. Moreover, the
rising level of education worldwide means that more people have the requisite
18 Computerized databases on terrorist acts offer considerable promise for risk analysts who
have access. Nevertheless, the unpredictable nature of individuals and of the social and
political forces that shape them over time will continue to challenge predictions about future
19 Purver, Ron. “Chemical and Biological Terrorism: the Threat According to the Open
Literature.” June 1995. Canadian Security Intelligence Service, at [http://www.csis-scrs.
gc.ca/en/publications/other/c_b_terrorism01.asp], visited Feb. 4, 2005.
20 Ibid., Chemical Terrorism, p. 28. This prediction about the use of chemical agents
contrasts with conventional wisdom that the probability of chemical weapon use is relatively
small. The conventional prediction, however, focuses on military use of chemical weapons
in future wars among nations, rather than on chemical use by terrorists.
21 Ibid., p. 29.
training in chemical engineering, and the Internet has simplified communications,
training, and cooperation within geographically dispersed terrorist groups.
Others have argued that chemical attacks would be unlikely, due to the
difficulties of producing and effectively delivering chemical agents in sufficient
amounts to produce mass casualties.22 However, while this may be true with regard
to military use on a large scale, where weapons are delivered by advanced systems,
it is not necessarily relevant to terrorists who may have more limited ambitions. A
1999 report by the U.S. General Accounting Office (GAO, now the Government
Accountability Office) summarized the situation —
... many conflicting statements have been made in public testimony before
Congress ... concerning the ease or difficulty with which terrorists could
effectively disseminate a chemical or biological agent on U.S. soil and cause23
GAO studied the threat and concluded that the ease or difficulty for terrorists to cause
more than 1,000 casualties depends on the chemical or biological agent selected. The
report stated —
Experts from the scientific, intelligence, and law enforcement communities told
us that terrorists do not need sophisticated knowledge or dissemination methods
to use toxic industrial chemicals such as chlorine. In contrast, terrorists would
need a relatively high degree of sophistication to successfully cause mass
casualties with some other chemical and most biological agents.
On the other hand,
“[t]errorists with less sophistication could make a chemical or biological weapon
and disseminate agents, but these would be less likely to cause mass24
Other factors that might have inhibited chemical use by some terrorists in the
past might not apply to loosely affiliated terrorist groups. For example, some experts
argue that terrorists supported by nation-states have been reluctant to use chemical
weapons for fear of offending other nations and neutral parties, particularly if the
sponsors were signatories of the Chemical Weapons Convention.25 Another possible
deterrent to chemical use, fear of retaliation, probably is of little concern to attackers
with no identifiable homeland or headquarters. Lack of a homeland might also lessen
concern about environmental damage that may be associated with chemical
production. Finally, one must presume that occupational safety would be of limited
22 Purver, p. 5-13.
23 U.S. GAO. Combating Terrorism: Need for Comprehensive Threat and Risk Assessments
of Chemical and Biological Attacks. Sept. 1999. GAO/NSIAD-99-163. Washington, DC:
U.S. Govt. Print. Off. p. 1.
24 Ibid., p. 3.
25 Purver, p. 28.
concern to terrorists who are not accountable to a government, and who are willing
to sacrifice their own lives for a religious, political, or social cause.
However, many experts believe that the relative risk of terrorism involving
chemical weapons remains small. This point was stressed by John V. Parachini, a
senior associate at the Center for Nonproliferation Studies, Monterey Institute of
International Studies at a 1999 hearing before the U.S. House of Representatives,
Committee on Government Reform, Subcommittee on National Security, Veterans
Affairs, and International Relations. Referring to the risk of any use of chemical or
biological weapons he stated:
... attacks with chemical and biological weapons are strikingly infrequent and the
number of fatalities and casualties are far lower than those caused by
conventional explosives. According to an analysis of 105 U.S. incidents featured
in the Monterey Institute database from 1900 to 1998, only one fatality resulted
from a [chemical or biological weapon] attack. This incident involved a 1973
assassination of an Oakland, California school superintendent by the Symbionese26
Severity of Harm. It is generally agreed that chemical agents are likely to be
the least lethal of the three “weapons of mass destruction.” In part, this judgment
reflects the difficulty of producing and delivering large quantities of a lethal chemical
to the target area prior to release. On the other hand, industrial chemicals and
pesticides are readily available for purchase, and are stored in large quantities in
thousands of locations throughout the United States, often near population centers.
A key question for chemical facilities then is “How much damage could terrorists do
using existing stationary chemical manufacturing, processing, distribution, and
There are two key sources of information for answering this question: accident
reports and hazard assessments conducted by facility personnel or outside experts.27
There is no comprehensive database for either kind of information, but various
groups have used publicly available data to estimate hazard potential, usually limited
to accidental releases of chemicals from chemical facilities.
A 1998 report by the U.S. Public Interest Research Group (US PIRG) and the
National Environmental Law Center, Too Close to Home: Chemical Accident Risks
in the United States, addressed the distribution of chemical facilities in the United
States relative to population distribution. It stated that “more than 41 million
Americans live within range of a toxic cloud that could result from a chemical
26 U.S. Congress. House Committee on Government Reform. Subcommittee on National
Security, Veterans’ Affairs, and International Relations. Combating Terrorism: Assessingthst
the Threat. Hearings, 106 Cong., 1 sess., Oct. 20, 1999. Washington, U.S. Govt. Print.
Off., 2000, pp. 55-56.
27 The most comprehensive, but still incomplete, listing of chemical spills and releases is
kept by the National Response Center and available on the Internet at [http://www.
nrc.uscg.mil/foia.html], visited Feb. 4, 2005.
accident at a facility located in their home zip code.”28 Those 41 million Americans
live in zip codes that contain manufacturing companies with “vulnerable zones”
extending more than three miles from the facility, the report states. A “vulnerable
zone” is the geographic area that could be affected by the worst possible accident at
a facility.29 According to the report, the estimate of 41 million Americans at risk may
underestimate the hazard, because it was based on “assumptions about facility and
atmospheric conditions that would lead to small vulnerability zones.”30 To produce
the estimate, the study author stated that he used standard methodology used by the
U.S. Environmental Protection Agency (EPA) and data on chemical storage from
EPA’s 1995 Toxics Release Inventory, a database of routine releases of industrial
chemicals from manufacturing facilities.
Hazard estimates by James C. Belke, an EPA employee in the Chemical
Emergency Preparedness and Prevention Office, are more detailed. Based on a
preliminary analysis of approximately 15,000 facility risk management plans for
chemical facilities that were filed under the Clean Air Act, Section 112(r) before
September 25, 2000,31 Belke concluded that the median distance from a facility to
the outer edge of its vulnerable zone is 1.6 miles in the case of toxic worst case
scenarios, and 0.4 miles for flammable worst case scenarios. However, many
facilities reported vulnerable zones potentially extending 14 miles from the facility
(primarily for releases in urban areas of chlorine stored in 90-ton rail tank cars) and
Other chemicals for which reported vulnerable zones equaled or exceeded 25 miles
include anhydrous ammonia, hydrogen fluoride, sulfur dioxide, chlorine dioxide,
oleum (fuming sulfuric acid), sulfur trioxide, hydrogen chloride, hydrocyanic acid,
phosgene, propionitrile, bromine, and acrylonitrile.)
Belke found the median population “affected” in a worst case accident was 15
people, for a flammable substance, while the median for toxic substances was 1,500
people.32 (“Affected” means potentially exposed. It is highly unlikely that all people
within the vulnerable zone would be exposed due to a single release. However,
anyone within the zone could be in the path of the chemical released, given certain
environmental conditions.) Further EPA analysis of risk management plans
submitted by facilities handling chemicals covered by the CAA Section 112 revealed
that at least 123 plants reported a worst-case scenario with a vulnerability zone
28 Laplante, Allison. 1998. Too Close To Home: A Report on Chemical Accident Risks in
the United States. U.S. Public Interest Research Group. [http://uspirg.org/uspirg.asp?id2=
29 “Vulnerable zones” apply to facilities required to prepare risk management plans under
the Clean Air Act, Section 112(r). By definition, people within the zone could (but would
not necessarily) sustain serious injuries from short-term exposures.
30 Laplante, Executive Summary. p. 2.
31 Belke, James C. “Chemical Accident Risks in U.S. Industry — a Preliminary Analysis
of Accident Risk Data from U.S. Hazardous Chemical Facilities,” Sept. 25, 2000, p. 24, at
[http://www.epa.gov/swercepp/pubs/stockholmpaper.pdf], visited Jan. 11, 2006.
32 Belke, p. 26.
containing more than a million people.33 The analysis also found that more than 700
plants could threaten 100,000 people, and at least 3,000 facilities could threaten
The Department of Justice (DOJ) analyzed EPA data and concluded that among
facilities submitting risk management plans to EPA, more than 7,000 facilities
projected worst case scenarios for toxic substances that could potentially affect more
than 1,000 people.35 Almost 1,700 facilities reported the possibility that a less
extreme accident might potentially affect more than 1,000 people.36
Histories of actual accidents (as opposed to hypothetical worst-case scenarios)
for facilities submitting risk management plans to EPA prior to October 21, 1999,
were summarized in a working paper prepared by the Center for Risk Management
and Decision Processes at the Wharton School, University of Pennsylvania.37 Of
14,500 reporting facilities, 1,145 reported 1,913 accidents between June 21, 1994 and
June 20, 1999. Of the 1,145 facilities reporting accidents, 346 facilities had multiple
accidents. Half of the chemicals for which risk management planning is required
under the CAA Section 112(r) were involved in accidents. Half of the accidents
resulted in reported injuries to workers. Accidents caused a reported 1,897 injuries
and 33 deaths to employees, 141 injuries and no deaths to non-employees. No deaths
were reported off-site. However, over 200,000 community residents were involved
in evacuations and shelter-in-place incidents.38
Further analysis by the Wharton group revealed that the risk of accidental
chemical releases and of worker injuries or property damage increased with the size
33 Belke, J. (2001), “Chemical Accident Risks in U.S. Industry — A Preliminary Analysis
of Accident Risk Data from U.S. Hazardous Chemical Facilities,” Proceedings of the 10th
International Symposium on Loss Prevention and Safety Promotion in the Process
Industries, Stockholm, Sweden, Pasman, Fredholm, and Jacobson (eds.), Elsevier
Science B.V. — Note: This does not mean that more than a million people would be
exposed and injured, but rather that, depending on wind direction and other factors, some
portion of the population in the zone might be exposed and injured.
34 Ibid. These numbers change each month, as facilities open or close, or change production
processes and chemical quantities. As of June 1, 2005, EPA has approximately 13,260
facilities registered which project potential off-site consequences to one or more community
residents in the event of a worst-case chemical release. Of these, roughly 600 facilities
report vulnerability zones encompassing populations of more than 100,000, and about 2,200
facilities potentially threaten some portion of populations ranging between 10,000 and
99,999 residents. More than 1,000 RMP facilities report worst-case off-site consequence
scenarios that threaten no residents.
35 Department of Justice, p. 13.
37 Kleindorfer, Paul R., Harold Feldman, and Robert A. Lowe. “Accident Epidemiology and
the U.S. Chemical Industry: Preliminary Results from RMP*Info.” Working Paper 00-01-
15. Center for Risk Management and Decision Processes, The Wharton School, University
of Pennsylvania. Revised March 6, 2000. 27 p.
38 Ibid., p. 9.
of the facility (from 10 to 1,000 full-time equivalent employees or FTEs).39 Note that
this refers to accidents of any kind, not to worst-case events. In addition, facilities
reporting that they handled large amounts and many types of chemicals had much
higher accident rates than facilities handling smaller amounts and fewer types of
chemicals. The probability that a facility had experienced a chemical accident of any
size approached 100% for the very largest chemical manufacturers. Toxic chemicals
were more strongly associated with worker injuries, while flammable chemicals were
more strongly associated with property damage. No regional trends in accident rates
were discovered (i.e., facilities in various geographical regions had similar accident
Risk management plans submitted to the EPA report the worst-case potentially
affected population for a release from a single process. As such, these populations
may under-represent the population potentially affected as a consequence of a
terrorist attack. Approximately 70% of RMP facilities possess reportable quantities
of chemicals in amounts greater than a single process. For roughly 10% of RMP
facilities, the quantity of chemical on-site is more than 10 times the quantity in the
single process used to calculate the worst-case scenario. Some 250 facilities report
having 100 times as much chemical on-site as is found in the single process. Thus,
the EPA methodology for calculating the potentially affected population in the worst
case, which was developed for accidental releases, may understate the potential
worst-case consequences of a terrorist attack.
In contrast to the above figures, which all were based on hypothetical or actual
accidents described in risk management plans, the Washington Post reported March
12, 2002, that a classified study conducted by the U.S. Army Surgeon General dated
October 29, 2001, found that a terrorist attack resulting in a chemical release in a
densely populated area could injure or kill as many as 2.4 million people.40
According to the news article, the study found “even middle-range casualty estimates
from a chemical weapons attack or explosion of a toxic chemical manufacturing plant
are as high as 903,400 people.”41 The worst-case estimate of 2.4 million casualties
from a chemical release was roughly half the surgeon general’s estimate for
casualties due to widespread use of biological weapons, according to the report. The
Army Surgeon General recently explained that the estimate of 2.4 million casualties
is of “the number of people who might request medical treatment during a total
release of a large industrial chemical manufacturing plant, in a densely populated
area, and under ideal weather conditions for maximum exposure.”42 As in most
39 Elliott, Michael R., Paul Kleindorfer, and Robert A. Lowe. “The Role of Hazardousness
and Regulatory Practice in the Accidental Release of Chemicals at US Industrial Facilities.”
Working Paper 01-37-PK. Risk Management and Decision Processes Center, The Wharton
School, University of Pennsylvania. Summer 2001. 22 p. [http://opim.wharton.upenn.edu/
risk/downloads/01-37-PK.pdf], visited Jan. 11, 2006.
40 Pianin, Eric. “Study Assesses Risk of Attack on Chemical Plant.” Washington Post, Mar.
42 “Army Recants Attack Estimates.” Chemical Week, May 22, 2002. p. 38.
studies of this kind, some question the magnitude and likelihood of the casualty
In 2004, the Department of Homeland Security used EPA data to estimate the
number of potential fatalities that might result if all the various chemicals at a facility
were released suddenly.43 The purpose of the exercise was to allow DHS to prioritize
chemical facility sites for inspections. Assuming that released chemicals would
move in the direction of the prevailing winds, DHS determined possible fatalities
within a wedge-shaped zone. It identified two facilities that threaten at least one
million people downwind. DHS selected 360 facilities for its attention in the near
term based on these estimates.
In July 2004, the Homeland Security Council issued 15 national planning
scenarios to guide federal, state, and local homeland security preparedness
activities.44 Included in these scenarios are two that refer to industrial chemical
releases. One describes a terrorist assault on a petroleum refinery while the other
treats the release of a large volume of chlorine from an industrial facility. The
planning figures cited for the hypothetical refinery attack include 350 fatalities and
an additional 1,000 casualties. For the chlorine release, 17,500 fatalities, 10,000
severe injuries, and 100,000 additional casualties are postulated.
More recent calculations by DHS, based on more sophisticated models, have
reduced hazard estimates.
In our best estimate, based on an incredible amount of modeling that we’ve done,
the highest-risk facility in the United States would produce under 10,000
potential fatalities and less than 40,000 people that would demonstrate some
effects in terms of anywhere from a near-death experience from exposure to
inhalation of the toxic chemical to a minor skin blemish caused by irritation45
through contact with the chemical.
Chemical Site Vulnerability. CRS identified two publicly available reports
that assess site security at U.S. chemical plants. In addition, investigative reports
published in newspapers or documented with video recordings indicate that reporters
have been able to visit various facilities without being supervised. The studies and
selected newspaper accounts are summarized below.
Prior to September 11, an assessment of chemical plant site security by the
Agency for Toxic Substances and Disease Registry (ATSDR) was considered by
many to be the most comprehensive analysis that was publicly available. ATSDR
43 Block, Robert. “Chemical Plants Still Have Few Terror Controls.” Wall Street Journal.
Aug. 20, 2004, p. B1.
44 Homeland Security Council, The White House, National Planning Scenarios — Executive
Summaries, July 2004, at [http://www.globalsecurity.org/security/library/report/2004/
hsc-planning-scenarios-jul04.htm], visited July 29, 2005.
45 Stephan, Robert. Testimony before the House Subcommittee on Economic Security,
Infrastructure Protection, and Cybersecurity, House Homeland Security Committee, June
researchers reviewed national statistics on domestic terrorism compiled by the FBI
in 1995, and interviewed security staff from facilities and potential targets in one
community with numerous chemical plants.46 ATSDR researchers concluded:
!“security at chemical plants ranged from fair to very poor;”47
!chemical plant security managers “were very pessimistic about their
ability to deter sabotage by employees, yet none of them had
implemented simple background checks for key employees such as
chemical process operators”; and
!“none of the corporate security staff had been trained to identify
combinations of common chemicals at their facilities that could be
used as improvised explosives and incendiaries.”48
The full ATSDR report was never made public, but a DOJ report noted that
... among the ‘soft targets’ that the ATSDR identified as potential terrorist sites
were chemical manufacturing plants (chlorine, peroxides, other industrial gases,
plastics, and pesticides); compressed gases in tanks, pipelines, and pumping49
stations; and pesticide manufacturing and supply distributors.
The DOJ released a study April 18, 2000, describing the risk of terrorism aimed
at chemical plants.50 It concluded that “the risk of terrorists attempting in the51
foreseeable future to cause an industrial chemical release is both real and credible.”
The study also noted that security at many industrial facilities generally is “not as52
substantial as the security at other comparable potential terrorist targets.”
In April and May, 2002, six to seven months after September 11, 2001, the
Pittsburgh Tribune-Review published a series of articles describing an investigation
of plant security conducted by the paper’s reporters. On April 7, 2002, the newspaper
stated that “anyone has unfettered access to more than two dozen potentially
46 ATSDR. Industrial Chemicals and Terrorism: Human Health Threat Analysis, Mitigation
and Prevention. At [http://www.mipt.org/pdf/industrialchemicalsandterrorism.pdf].
47 Greenpeace activists dramatized the poor security at one chlorine manufacturing plant in
Feb. 2001. According to a report in the Washington Post, activists scaled the fence of a
large Dow Chemical plant near Baton Rouge, Louisiana, and gained access to the control
panel that regulates discharges into the Mississippi River. (“Toxic Chemicals’ Security
Worries Officials.” Washington Post, Nov. 12, 2001, p. A14.)
48 ATSDR studied two communities in different parts of the United States but only
interviewed plant security personnel in one community.
49 Department of Justice, p. 27.
51 Ibid., p. 2.
52 Ibid., p. 30.
dangerous plants in the region” (referring to western Pennsylvania).53 The author of
the report continued:
The security was so lax at 30 sites that in broad daylight a Trib reporter —
wearing a press pass and carrying a camera — could walk or drive right up to
tanks, pipes and control rooms considered key targets for terrorists.
The report was based on reporters’ trips to 30 plants in western Pennsylvania which
have filed risk management plans under the Clean Air Act, Section 112. Two of the
plants were among the 123 plants nationwide that projected potential risks to more
than 1,000,000 residents in the event of a worst-case accident or attack.54 The 30
companies constituted more than half of the 61 sites in the region required to file risk
management plans. Fifteen of the sites to which reporters gained unchallenged
access were water treatment facilities in Pennsylvania and Maryland.
In May, another Tribune-Review article described a similar investigation of 30
additional plants in Houston, Baltimore, and Chicago.55 The report concluded that
security was lax at some of “the potentially deadliest plants” in all three cities; access
was easy to some sites owned by corporations with large security budgets;
employees, customers, neighbors, and contractors “not only let a stranger walk
through warehouses, factories, tank houses and rail depots, but also gave directions
to the most sensitive valves and control rooms”; and access to 19 sites was allowed
due to “unguarded rail lines and drainage ditches, dilapidated or nonexistent fences,
open doors, poorly angled cameras and unmanned train gates.”
Chemical manufacturers and users contacted by reporters said that they had
bolstered security recently. Several site managers reported that they made immediate
changes in procedures or construction plans in response to security breaches by the
reporters. But security cannot be ensured “overnight,”according to the president of
the Pennsylvania Chemical Industry Council,56 and it can be expensive. For example,
the newspaper reported that U.S. Steel spends more than $1 million each year to
equip, train, and hire its own hazardous chemicals response team, firefighters,
paramedics, and gate guards at its coke factory.57 The American Chemistry Council,
which represents large chemical manufacturers, has reported that since September 11,
53 Prine, Carl. “Lax Security Exposes Lethal Chemical Supplies.” Pittsburgh Tribune-
Review, Apr. 7, 2002, at [http://www.pittsburghlive.com/x/tribunereview/specialreports/
potentialfordisaster/s_64612.html], visited Jan. 11, 2006.
54 As noted above, these numbers change each month, as facilities open or close, or change
production processes and chemical quantities. As of June 1, 2005, EPA had approximately
110 facilities registered which projected potential off-site consequences to a million or more
community residents in the event of a worst-case chemical release.
55 Prine, Carl. “Chemicals Pose Risks Nationwide.” Pittsburgh Tribune-Review, May 5,
56 Prine, Apr. 7, 2002.
2001, its members have spent over $2 billion at about 2,000 facilities (about
$1,000,000, on average, per facility).58
Television crews again entered and photographed chemical storage areas in
November 2003.59 Robert Full, Chief of the Allegheny County Department of
Emergency Services in Pennsylvania testified February 23, 2004, before the
Subcommittee on National Security, Emerging Threats, and International Relations,
House Committee on Government Reform, that there continued to be facilities in his
county “that one could walk straight in under the guise of darkness and cause
significant damage and public danger.” He stated, “Some of the facilities have no
more security than maybe perhaps a padlock or a chain.”
In mid-2004, surveys were distributed to 189 U.S. chemical facilities where
workers were represented by the Paper, Allied-Industrial, Chemical and Energy
Workers International Union (PACE). Of the 133 surveys returned, 125 were from
facilities where workers agreed that there were quantities of hazardous materials on
site large enough to cause a catastrophic event if they were released. Responses to
the survey indicated that surveyed workers believed nearly three-quarters of the
plants had improved systems to guard toxic chemicals and had conducted drills to
respond to an intrusion by terrorists.60 On the other hand, according to employees
who responded to questionnaires, fewer than half had improved communications,
emergency response training, warning signals, or protective equipment, or contacted
local first responders about the hazards on their sites. Nearly two-thirds of the plants
had not discussed terrorist concerns with neighbors, according to surveyed workers.61
Conclusion. Whether recent trends in domestic and international terrorism
will continue into the future, and whether they will be reflected in risks to U.S.
chemical facilities, is unknown. Historically, there have been very few terrorist
attacks on chemical facilities in the United States. Therefore, the estimated risk of
death and injury from such attacks in the immediate future is low relative to the
likelihood of other hazardous events, such as industrial accidents or terrorist attacks
on other targets using conventional weapons. For any individual chemical plant, the
58 American Chemistry Council. News & Media website. Security. At
July 9, 2005.
59 CBS News. “U.S. Plants: Open to Terrorists.” Sixty Minutes. Nov. 17, 2003. At [http://
www.cbsnews.com/stories/2003/11/13/60minutes/main583528.shtml], visited Jan. 11, 2006.
60 New Perspectives Consulting Group, Inc., PACE Evaluation Team. October 2004. PACE
International Union Survey: Workplace Incident Prevention and Response Since 9/11
Report. Durham, NC. p. 48.
61 The 125 facilities where surveys were distributed were subject to risk management
planning requirements of the Clean Air Act, Section 112(r), based on public databases that
were available and current in 2002. Therefore, the survey in 2004 may have included a few
facilities that were no longer covered by RMP requirements. Also, the PACE report notes
in the Executive Summary on page iii, “This survey looked at perceptions only. It did not
include an independent assessment of, for example, which employees actually received
training since September 11, 2001, or which actions companies actually took.”
risk of attack is extremely small. However, the overall risks to chemical facilities
may be increasing.
In contrast to the low probability of chemical terrorism, possible consequences
for human health and the environment from such an event could be severe.
Moreover, limited evidence suggests that chemical facilities may be “soft targets,”
lacking in adequate safeguards against criminal and terrorist attacks.
Federal Requirements Established Prior to September 11,
2001, To Reduce Risks at Chemical Facilities
Two key federal laws require or encourage certain chemical facility operators
to reduce risks to the general public associated with releases of hazardous chemicals:
the Emergency Response and Community Right-to-Know Act (EPCRA) and the
Clean Air Act (CAA). Both focus on accidental releases of hazardous chemicals.
EPCRA. In 1986, two years after the Bhopal accident, Congress enacted
EPCRA (codified at 42 U.S.C. 11001-11050) as Title III of the Superfund
Amendments and Reauthorization Act (P.L. 99-499).62 EPCRA mandated the
establishment of State Emergency Response Commissions (SERCs) and Local
Emergency Response Committees (LEPCs) to coordinate planning and response to
potentially large releases of specified “extremely hazardous substances.”63 The act
requires facility operators, LEPCs, and SERCs to prepare contingency plans for such
Facility managers are required to provide information to LEPCs and local
emergency responders (fire fighters, police officers, etc.) about chemicals present at
facilities and to notify those officials in the event of a sudden release. EPCRA
requires local officials to provide information about emergency plans and chemical
hazards to the general public.
EPCRA’s reporting and disclosure requirements are meant to facilitate planning,
but sometimes they also promote risk reduction. For example, facility managers
concerned about community relations sometimes reduce use of particularly toxic or
otherwise hazardous materials, sometimes to the point that they no longer have to
report, because they no longer handle reportable quantities of EPCRA chemicals. In
62 For additional information about EPCRA, see CRS Report RL30798, Environmental
Laws: Summaries of Statutes Administered by the Environmental Protection Agency, by
Susan Fletcher, coordinator.
63 EPCRA required EPA to list “extremely hazardous substances” and to establish threshold
planning quantities for each substance. Originally, Congress defined chemicals as
“extremely hazardous substances” if they appeared on a list EPA published in Nov. 1985
as Appendix A in “Chemical Emergency Preparedness Program Interim Guidance.”
However, Congress gave EPA authority to revise the list and the threshold quantities of
chemicals. Based on listing criteria, the intent appears to be to include only chemicals in
quantities that could harm people exposed to them for only a short period of time.
Currently, there are approximately 356 such substances listed. For the list, see
[http://www.epa.gov/swercepp/ehs/ehsalpha.html], visited Jan. 11, 2006.
other cases, the public disclosure requirement may encourage them to change
chemical processes and handling in order to reduce the risk of reportable spills.
Although EPCRA requires facility reporting and cooperation in local emergency
response planning, and it may encourage risk reduction, it stops short of requiring
facilities to assess or reduce risks of chemical releases.64 Instead, the act directed the
EPA to study the problem and to identify any gaps in federal regulation.
CAA Section 112(r). In 1990, data accumulated by EPA on chemical
accidents in the United States prompted Congress again to address the threat of
catastrophic releases of chemicals that might cause immediate deaths or injuries in
communities. It amended the Clean Air Act (CAA) to mandate EPA oversight of
risk management planning at facilities that handle more than specified threshold
quantities of hazardous substances.65 The act defined “hazardous substances” to
include chlorine, anhydrous ammonia, methyl chloride, ethylene oxide, vinyl
chloride, methyl isocyanate, hydrogen cyanide, ammonia, hydrogen sulfide, toluene
diisocyanate, phosgene, bromine, anhydrous sulfur dioxide, sulfur trioxide, and at
least 100 other chemicals to be designated by EPA. EPA was directed to designate
chemicals posing the greatest risks to human health or to the environment, based on
three criteria: severity of potential acute adverse health effects, the likelihood of
accidental releases, and the potential magnitude of human exposure. EPA
promulgated a list of 77 acutely toxic substances, 63 flammable gases and volatile
flammable liquids, and “high explosive substances” (59 Federal Register 4478,
January 31, 1994). Fourteen chemicals met EPA criteria for listing as both toxic and
flammable substances. The list was amended several times, notably on January 6,
1998 (63 Federal Register 640-645) to exclude explosive substances, and on March
13, 2000 (65 Federal Register 13243-13250) to exclude flammable substances when
used as a fuel, or held for sale as a fuel at a retail facility. Selected categories of
industries with large numbers of reporting facilities are identified in Table 1.
The CAA Section 112(r) imposes “a general duty” on owners and operators of
facilities producing, processing, handling or storing any “extremely hazardous
substance” to detect and prevent or minimize accidental releases and to provide
prompt emergency response to a release in order to protect human health and the
environment. The act requires owners and operators of covered facilities to prepare
Risk Management Plans (RMPs) that summarize the potential threat of sudden, large
releases of certain chemicals, including the results of off-site consequence analysis
(OCA) for a worst-case chemical accident, and facilities’ plans to prevent releases
64 Many proponents of the reporting provisions of EPCRA argue, however, that public
disclosure of information about chemicals present and released into communities sometimes
prompts facility operators to reduce risks.
65 The Clean Air Act Amendments of 1990 gave responsibility for the prevention of
accidental chemical releases to the Occupational Safety and Health Administration (OSHA)
and EPA. OSHA has responsibility for the protection of workers from accidental chemical
releases and has promulgated the Process Safety Management Standard (29 CFR 1910.119)
in response to this requirement. EPA has incorporated the OSHA Process Safety
Management Standard as the chemical accident prevention program for certain facilities
subject to both rules.
and mitigate any damage. Plans were to be submitted to EPA and made “available
to the public” by June 21, 1999. EPA is required to review RMPs regularly, and if
necessary, require revisions. EPA has delegated this responsibility to some states and
localities.66 (All states have authority to review RMPs at facilities that are major
sources of air pollution, which are required to obtain permits under Title V of the
Clean Air Act.) Plans must be revised and resubmitted to EPA every five years.
Many facilities were required to submit updates by the end of June 2004.
In October 1996, the Accident Prevention Subcommittee of the Clean Air Act
Advisory Committee to EPA created the Electronic Submission Workgroup to
consider the technical and practical issues associated with an electronic database of
risk management plans. In spring 1997, the workgroup unanimously agreed that EPA
should provide full, unrestricted access via the Internet to most RMP information.
However, advisors did not reach consensus regarding access to OCA data.
There were concerns that in facilitating electronic access to the general U.S.
public through the Internet, EPA also would be facilitating access to these data
internationally, which might permit misuse by terrorists.67 Several members of the
Accident Prevention Subcommittee recommended EPA undertake a security study
to determine how much risk might increase as a result of putting OCA data on the
Internet. Aegis Research Corporation, ICF Incorporated, and Science Applications
International Corporation conducted the security study for EPA. The Agency
concluded from the study that —
... the risk (although still very small) was slightly more than two times higher
with unrestricted availability of the RMP with OCA data on the Internet. This
increase reflects several factors, including the nature of the OCA data elements
and the enhanced accessibility of data on the Internet to an international
audience. Taken together, the primary utility of the unrestricted RMP and OCA
data to a terrorist emerges from the capability to scan across the entire country68
for the “best” targets.
66 EPA has delegated authority to implement CAA Section 112(r) to the following states,
territories, and localities: Delaware, Florida, Georgia, Kentucky, Mississippi, New Jersey,
North Carolina, Ohio, South Carolina, Puerto Rico, Virgin Islands, Jefferson County,
Kentucky, Buncombe County and the City of Asheville, North Carolina, Forsyth County,
North Carolina, and Allegheny County, Pennsylvania. Rhode Island, Nevada, and Hawaii
are seeking delegated authority. See [http://yosemite.epa.gov/oswer/ceppoweb.nsf/content/
67 U.S. EPA. Security Study: An Analysis of the Terrorist Risk Associated with the Public
Availability of Offsite Consequence Analysis Data under EPA’s Risk Management Program
Regulations. EPA 550-R97-003. Dec. 1997. p. 1.
68 Ibid., p. 10.
Table 1. Number of Facilities Reporting Risk Management
Plans to EPA in Selected Industrial Categories
Number of registered
Industrial Categories (NAICS code)a(Total = 14,343)
Farm supplies wholesalers (42291, 42491)3,699
Water supply and irrigation (22131)1,777
Wastewater treatment (22132)1,157
Refrigerated warehousing and storage facilities (49312)717
Support activities for crop production (11511)439
Oil and gas extraction (21111)495
Meat processing (31161)460
Other chemical and allied production wholesalers447
Basic organic chemical manufacturing (32519)357
Electric power generation (22111)322
Basic inorganic chemical manufacture (32518)319
Farm production warehousing and storage (49313)307
Plastics material and resin manufacturing (32521)283
Fertilizer manufacturing (32531)224
Other Farm Product Raw Material Merchant Wholesalers179
Petroleum refineries (32411)153
Petroleum bulk stations and terminals (42271, 42471)142
All other chemical product manufacturing (32599)133
Industrial gas manufacturing (32512)130
Corn farming (111150)116
General warehousing and storage facilities (49311)102
Source: Congressional Research Service. Numbers were obtained by searching the risk management
plans for U.S. facilities using the June 1, 2005 version of the EPA National Database (with off-site
consequence data) and EPA’s software RMP*Review (version 3.1). Facilities that have deregistered
are not included in the tallies.
a. North American Industry Classification System (NAICS) codes.
In December 1997, EPA began discussions with the FBI and other federal
agencies about the electronic RMP distribution plan. National security concerns
centered on the OCA data and their potential utility to terrorists. An interagency
agreement was reached in late October 1998 that OCA data would not be included
in RMP information placed on the Internet. Instead, EPA would make “appropriate”
OCA data available in some form on request, but access would be restricted and not
anonymous.69 The possibility that OCA data could have been distributed via the
Internet remained, however, because it could have been obtained and distributed by
any citizen under the Freedom of Information Act (FOIA), according to the EPA
To address the security concerns raised by the Section 112(r) requirements, the
Clinton Administration submitted draft legislation to Congress May 7, 1999.
Congress enacted an amended version of the legislation as an amendment to S. 880,
the Chemical Safety Information, Site Security and Fuels Regulatory Relief Act (P.L.
106-40). The new law amended Section 112 of the CAA to exempt OCA data from
disclosure under FOIA, and limited public availability until EPA and DOJ issued
regulations in August, 2000.
The final RMP regulation on data access was published August 4, 2000.70 It
allows public access to paper copies of sensitive OCA information through federal
reading rooms, approximately one per state,71 and provides Internet access to the
OCA data elements that pose the least serious criminal risk. State and local agencies
are encouraged to provide the public with read-only access to OCA information on
local facilities. At the federal reading rooms, members of the public may read OCA
information for up to 10 facilities per calendar month and for all facilities with
potential effects in the jurisdiction of the local emergency planning committee. State
and local officials and other members of the public may share OCA information as
long as the data are not conveyed in the format of sensitive portions of the RMP or
any electronic database developed by EPA from those sections.72 A Clinton
Administration proposal to implement the final rule (66 Federal Register 4021,
January 17, 2001) would have allowed people to view plans of facilities outside their
local area and enhanced access for “qualified researchers.” The draft plan was
rescinded by the Bush Administration (66 Federal Register 15254, March 16, 2001).
69 Blitzer, Robert M., Former Section Chief, Domestic Terrorism/Counterterrorism Planning
Section, Federal Bureau of Investigation. Testimony before the Senate Committee on
Environment and Public Works, Subcommittee on Clean Air, Wetlands, Private Property
and Nuclear Safety. Mar. 16, 1999.
70 65 Federal Register 48107-48133.
71 The number of available reading rooms appears to have varied over time, and their
location is not always easy to determine. Several telephone calls were necessary before
CRS identified a reading room near Maine.
72 EPA Fact Sheet. “Chemical Safety Information, Site Security and Fuels Regulatory Relief
Act: Public Distribution of Off-Site Consequence Analysis Information.” EPA 550-F00-
The 1999 Act also directed GAO to report to Congress within three years (i.e.,
before August 2002) on “the adequacy of chemical information required to be
submitted to local emergency response personnel to help them respond to chemical
incidents, the adequacy of the delivery of that information, and the level of
compliance with the requirement to submit the information.”73 That report was
released July 31, 2002. GAO concluded that EPA officials believe industries
generally are complying with reporting requirements. GAO’s conclusions about the
adequacy of information and its delivery were tentative and could not be generalized
to the universe of LEPCs.
DOJ also was directed to report to Congress within three years on the extent to
which RMP regulations led to actions “that are effective in detecting, preventing, and
minimizing the consequences of releases of regulated substances that may be caused
by criminal activity,” the vulnerability of facilities to criminal and terrorist activity,
“current industry practices regarding site security,” and security of transportation of
substances listed under CAA Section 112(r).”74 The law directed DOJ to consult
with state, local and federal agencies, affected industry, and the public in preparing
the report, and to submit any recommendations to Congress. An interim report was
due within one year of enactment (i.e., by August 2000), and a final report within
three years of enactment (i.e., by August 2002). DOJ missed both deadlines. The
Natural Resources Defense Council (NRDC) filed a lawsuit against DOJ March 11,
2002, asserting that DOJ unlawfully withheld or unreasonably delayed the report’s
submission to Congress.75 The interim report was released to Congress May 30,
2002, but withheld from the public. On June 3, 2002, DOJ filed a motion to dismiss
the NRDC lawsuit. The NRDC moved to dismiss its lawsuit on July 1, 2002.
A GAO study released October 10, 2002, concluded that DOJ failed to complete
the mandated study, and that the Department had the funds to do so, although it had
no specific appropriation. “Generally, when Congress imposes a new requirement
on an agency but does not appropriate funds specifically to implement it, the agency
must use existing appropriations to fund the requirement.”76
After September 11, 2001
Administrative Initiatives. The events of September 11, 2001, bolstered the
view that access to information about facilities should be restricted if it might make
them more vulnerable to terrorist attacks. This led EPA to limit Internet access on
its website to “sensitive” data.
73 U.S. GAO. Chemical Safety: Emergency Response Community Views on the Adequacy
of Federally Required Chemical Information. July 31, 2002. GAO-02-799. Washington,
DC: U.S. Govt. Print. Off. 23 pp.
74 42 USC 7412(r)(7)(H)(xi).
75 Natural Resources Defense Council v. Ashcroft, D.D.C., No. 02-0449, Mar. 11, 2002.
76 U.S. GAO. Homeland Security: Department of Justice’s Response to Its Congressional
Mandate to Assess and Report on Chemical Industry Vulnerabilities. Oct. 10, 2002. GAO-
d0324r.pdf], visited July 14, 2005.
Early in October 2001, EPA removed from its website facility-specific
information of a general nature that had been compiled from the executive summaries
of risk management plans — for example, about the physical state and concentrations
of chemicals at facilities and the duration of a possible chemical release — which
previously had been considered acceptable for Internet posting. That information
remained available on the Internet through OMB Watch’s Right-to-Know Network
(RTK NET),77 but EPA refused repeated requests (including a formal FOIA request)
to provide updated information about facility plans. EPA released that information
only after OMB Watch filed a complaint in the U.S. District Court for the District of
Columbia. In July 2005, EPA provided the electronic database to OMB Watch,
which promptly made it accessible on its website.78
In March 2002, EPA restricted access to Envirofacts, a link to several EPA
databases that allowed the user to access facility-specific information about chemical
releases, compliance with environmental laws, and other issues. The next week, the
White House sent a memorandum to all federal agencies, ordering them to further
review and protect information that might be used to threaten national security or
public safety. On May 6, 2002, President Bush signed an administrative order
granting the EPA Administrator the authority to classify as “secret” information that
might pose a national security risk.79
On the other hand, the attacks of September 11 led to increased communication
among government officials at all levels, as well as facility owners and operators.
For example, EPA advised pesticide companies and applicators to be especially
vigilant about physical security of chemicals and equipment. The Agency issued a
“chemical safety alert” tailored to the security needs of the pesticide industry, based
on an earlier paper on site security of chemical plants that first was issued in February
2000.80 In September 2002, EPA also sent about 9,400 drinking water utilities advice
about securing facilities from terrorists. (About 2,000 drinking water utilities submit
risk management plans that include worst-case scenarios under the CAA Section
In February 2003, the White House released The National Strategy for the
Physical Protection of Critical Infrastructures and Key Assets. It outlines goals,
principles, “a unifying structure,” roles and responsibilities, and the major cross-
sector and sector-specific initiatives of national efforts to secure infrastructures and
“assets vital to our public health and safety, national security, governance, economy,
77 OMB Watch is a nonprofit research and advocacy group dedicated to promoting
government accountability and public participation in public policy decisions.
78 The recently updated executive summaries of risk management plans submitted to EPA
may be examined using RTK NET at [http://www.rtknet.org/rmp/wgrmp.php], visited July
79 67 Federal Register 31109, May 9, 2002.
80 The alerts are available through the EPA website at [http://yosemite.epa.gov/oswer/
ceppoweb.nsf/content/ap-chsa.htm], visited Jan. 11, 2006.
and public confidence.”81 Chemical facilities are addressed in connection with three
critical infrastructure sectors: the chemical industry and hazardous materials, water,
and energy. EPA was the designated lead federal agency for the chemical industry
and water, while the Department of Energy (DOE) was the designated lead agency
With respect to the chemical industry and hazardous materials, the Strategy
acknowledged both the potential economic consequences of a successful attack on
the sector and the potential threat to public health and safety. It aimed to assure
supply to downstream users of chemical products, to protect and assure the quality
of chemical stockpiles, and to reduce the risk of malicious use of inherently
hazardous chemicals. The Strategy noted that “there is currently no clear,
unambiguous legal or regulatory authority at the federal level to help ensure
comprehensive, uniform security standards for chemical facilities.”82 In particular,
the Strategy observed that federal laws might be out-of-date and no longer effective
for monitoring and controlling access to dangerous substances. The President
proposed that DHS, in concert with EPA, should “work with Congress to enact
legislation to require certain chemical facilities, particularly those that maintain large
quantities of hazardous chemicals in close proximity to population centers, to
undertake vulnerability assessments and take reasonable steps to reduce the
vulnerabilities identified.”83 The Strategy also proposed that EPA, in concert with
DHS, should review current laws and regulations pertaining to “the distribution and
sale of highly toxic pesticides and industrial chemicals.” Finally, the Strategy
suggested that DHS and EPA should encourage participation in the chemical sector’s
Information Sharing Analysis Center. The fact that security can be expensive also
The Strategy described the importance of water from a public health and an
economic standpoint and noted that security of the water sector against terrorism had
been greatly enhanced since September 11, 2001. Challenges facing the water sector,
according to the Strategy, included the need to protect against intentional release of
toxic chemicals so as to protect the safety of people who reside or work near water
facilities. The Strategy proposed that EPA and DHS identify better ways to secure
key points of storage and distribution; improve monitoring and analysis, information
exchange, and contingency planning; and manage risks due to interdependencies with
other critical infrastructures.
The energy sector was divided into two sections: electricity and the oil/natural
gas industries. Overall, energy was described as “essential to our economy, national
defense, and quality of life.”84 The Strategy proposed that DHS and DOE work with
state and local governments and industry to identify “appropriate levels of
81 Bush, George W. Cover letter to The National Strategy for the Physical Protection of
Critical Infrastructures and Key Assets. Feb. 2003. 83 pp. At [http://www.whitehouse.gov/
pcipb/physical.html], visited Jan. 11, 2006.
82 Ibid., p. 65.
83 Ibid., p. 66.
84 Ibid., p. 50.
redundancy” and requirements for “designing and enhancing reliability.” In addition,
DHS and DOE were to work with oil and natural gas industry representatives to
“define consistent criteria for criticality, standard approaches for vulnerability and
risk assessments,” and “physical security training for industry personnel.”85 An
advisory task force was to be convened by DHS and DOE to identify appropriate
planning requirements and approaches. Finally, the Strategy proposed that DHS and
DOE work with industry “to develop regional and national programs for identifying
spare parts, requirements, notifying parties of their availability, and distributing them
in an emergency.” There is no mention in this section of the hazardous chemicals
present in some facilities in the energy sector.86 However, it may be the
Administration’s intention that certain facilities, such as oil refineries, electric/gas
utilities, and bulk storage facilities, would be included in, and targeted by initiatives
in, multiple critical infrastructure sectors.
As the war began in Iraq, the President launched Operation Liberty Shield, a
surveillance program to provide additional security for potentially threatened
facilities in the critical infrastructure. Chemical plants were among the potential
focal points of the initiative.
On December 17, 2003, the President issued Homeland Security Presidential
Directive (HSPD) 7, transferring to DHS all EPA authority for overseeing the
security of chemical facilities, with the single exception of drinking water and water
treatment plants. In addition, the directive revised the Administration’s strategy for
protecting critical infrastructure by designating DHS the lead agency for the chemical
sector. The directive requires that DHS “identify, prioritize, and coordinate the
protection of critical infrastructure and key resources with an emphasis on critical
infrastructure and key resources that could be exploited to cause catastrophic health
effects or mass casualties comparable to those from the use of a weapon of mass
destruction” (HSPD 7, paragraph 12). In addition, DHS must conduct or facilitate
vulnerability assessments of the chemical sector and “encourage risk management
strategies to protect against and mitigate the effects of attacks.” Finally, all
departments and agencies are directed “to work with sectors relevant to their
responsibilities to reduce the consequences of catastrophic failures not caused by
terrorism” and to cooperate with the DHS Secretary.
Private Sector Initiatives. Although trade associations for the chemical
industries have been engaged in emergency planning for many years, and began
developing guidelines for site security at least a year before September 11, 2001, the
events of that date infused on-going efforts with commitment and energy that
previously were not evident.
The American Chemistry Council (ACC, formerly the Chemical Manufacturers
Association), the Chlorine Institute, Inc., and the Synthetic Organic Chemical
Manufacturers Association issued Site Security Guidelines for the U.S. Chemical
Industry on October 23, 2001. The guidelines build on “Management Practice 15:
86 However, the first of the eight guiding principles underpinning the strategy is “assure
public safety, public confidence, and services.”
Site Security” in the Responsible Care® Employee Health and Safety Code.
Responsible Care® is the ACC’s response to general public concerns about the
manufacture and use of chemicals. Members of the ACC are required to commit to
the principles of Responsible Care® and “to support a continuing effort to improve
the industry’s responsible management of chemicals” by continually improving their
health, safety and environmental performance; listening and responding to public
concerns; assisting other companies to achieve optimum performance; and reporting
their goals and progress to the public.”87 There are today about 130 corporate ACC
members operating approximately 2,000 chemical facilities, representing almost 90%
of U.S. chemical productive capacity.88 About half of the ACC facilities are covered
by the CAA Section 112(r) requirements for risk management planning.89 The ACC
guidelines for site security are general, and must be adapted by chemical companies
to meet site requirements.
During April 2002, ACC circulated a draft of a Security Code of Management
... to help companies achieve continuous improvement in security performance
using a risk-based approach to identify, assess and address vulnerabilities,
prevent or mitigate incidents, enhance training and response capabilities, and90
maintain and improve relationships with key stakeholders.
On June 5, 2002, the ACC Board of Directors approved the code and voted to make
it mandatory for ACC members. Under the Security Code, ACC members are
required to evaluate site security using vulnerability assessment methodology
equivalent to that developed by the Department of Energy’s Sandia Laboratories for91
the Department of Justice or by the Center for Chemical Process Safety (an
industry-funded research center). They are then required to implement security
enhancements commensurate with the risks identified by the assessments. Other key
requirements of the code include
!training and drills for employees, contractors, customers, and
!consideration of process changes, material substitutions, and other
inherently safer approaches to chemical production;
87 The principles of Responsible Care® are listed on the ACC website at
Jan. 11, 2006.
88 Durbin, Martin. Testimony before the U.S. Senate Committee on Homeland Security and
Governmental Affairs, July 13, 2005.
89 Durbin, Martin. Personal communication. Feb. 4, 2005.
90 ACC. Responsible Care® Security Code of Management Practices Draft Concepts, Apr.
91 National Institute of Justice, U.S. Department of Justice. Chemical Facility Vulnerability
Assessment Methodology, NCJ 195171, July 2, 2002. At [http://www.ojp.usdoj.gov/nij/
pubs-sum/195171.htm], visited Jan. 11, 2006.
!evaluation, response, and reporting of security threats; and
ACC members began by assessing security, including computer security, at
high-risk facilities, as well as from supplier to manufacturer, to wholesaler, to
retailer, and finally to customer. On March 7, 2003, ACC announced that all of its
member companies had completed site vulnerability assessments for their 120
highest priority facilities, prior to the end of 2002, a deadline established by the
industry’s security code.93 In early 2005, ACC announced that members had
completed implementation of security measures at all 2,040 of their facilities.
However, the security code does not require specific expenditures for risk reduction;
rather, it recommends decisions should be based on an evaluation of risks and costs.
According to ACC, facilities have spent more than $2 billion since September 11 to
In addition to developing guidelines and a management code on site security,
ACC and other chemical trade organizations have been communicating extensively
with one another and with government officials about how to reduce the risks of
chemical terrorism. For example, ACC and the Association of American Railroads
formed a task force to develop strategies to ensure the safety of communities near
chemical and rail facilities.95 In addition, as mentioned above, the Center for
Chemical Process Safety has developed a risk-based methodology for assessing the
vulnerability of chemical facilities to terrorist attacks. The Synthetic Organic
Chemical Manufacturers Association (SOCMA) has developed a vulnerability
assessment methodology for smaller chemical producers.96 In addition, SOCMA has
adopted the ACC security code as a condition of membership. According to Tom
Hall, director of stewardship for CropLife America (a pesticide industry trade
association), pesticide and fertilizer distributors represented by CropLife America,
the Fertilizer Institute, and the Agricultural Retailers Association formed a working
group to tailor a vulnerability assessment methodology for rural facilities, where theft
is a greater threat than a direct attack on a facility.97 A document, Guidelines to Help
92 Responsible Care® website. At [http://www.americanchemistry.com/
s_acc/sec_article.asp?CID=258&DID=1232], visited Jan. 11, 2006.
93 ACC. “Chemical Makers Complete Priority Site Vulnerability Assessments, Continue
Security Performance Through Responsible Care®.” Press release, Mar. 7, 2003. At [http://
www.accnewsmedia.com/docs/1100/1090.doc?DocTypeID=4&TrackID=], visited July 9,
94 American Chemistry Council. News & Media website. Security. At
July 9, 2005.
95 “ACC Teams up with Railroad Association to Boost Chemical Security,” Pesticide &
Toxic Chemical News Daily, vol. 4, no. 5, Mar. 28, 2002, p. 2.
96 DeConti, Angela. Personal communication, July 9, 2002.
97 Hall, Tom. Personal communication, July 2, 2002.
Ensure a Secure Agribusiness, was released October 24, 2002.98 Finally, the
American Petroleum Institute has published security guidelines developed in
consultation with the Department of Energy.
GAO examined the voluntary initiatives underway in a report released in March
2003, Homeland Security: Voluntary Initiatives Are Under Way at Chemical
Facilities but the Extent of Security Preparedness Is Unknown.99 GAO concluded
that many initiatives are admirable, but “the extent of security preparedness at U.S.
chemical facilities is unknown ... [because] no federal requirements are in place to
require chemical facilities to assess their vulnerabilities and take steps to reduce them
... [and] no federal oversight or third-party verification ensures that voluntary
industry assessments are adequate and that necessary corrective actions are taken.”
Congressional Action. The 107th Congress passed the Public Health
Security and Bioterrorism Preparedness and Response Act of 2002 (P.L. 107-188),
which requires many community water systems to perform vulnerability assessments
and to prepare emergency preparedness and response plans. Some of these facilities
handle significant quantities of hazardous chemicals. Funding is authorized to assist
communities in complying with the act. It also directs EPA to review methods to
prevent, detect, and respond to threats to water safety and infrastructure security.
P.L. 107-117 provided EPA with roughly $90 million to enhance the security of
drinking water treatment facilities.
The 107th Congress also enacted the Maritime Transportation Security Act
(MTSA, P.L. 107-295), which requires the DHS Secretary to identify port facilities
“that pose a high risk of being involved in a transportation security incident,” and to
conduct a vulnerability assessment of such facilities. Facility owners or operators are
required to develop and submit to DHS both security plans and incident response
plans that deter “to the maximum extent practicable a transportation security incident
or a substantial threat of such a security incident”; are consistent with national and
area security plans; and conform to requirements specified by the U.S. Coast Guard.
DHS must review and approve each plan. The act also authorized a grant program
that finances security upgrades. For more information about the MTSA and related
issues, see CRS Report RL31733, Port and Maritime Security: Background and
Issues for Congress, by John Fritelli.
P.L. 107-296, establishing DHS, does not address chemical plant security
directly. However, the law does require DHS to analyze vulnerabilities and
recommend methods of enhancing site security at facilities that are part of the
“critical infrastructure.” As noted above, the Administration has identified chemical
facilities as part of the critical infrastructure in the National Strategy for the Physical
Protection of Critical Infrastructures and Key Assets. Chemical facilities are
included in several sectors: water utilities, the energy sector, and the chemical and
98 The Guidelines may be accessed through the Internet at [http://www.aradc.org/secure
agribusinessguidelines.pdf], visited Jan. 11, 2006.
99 U.S. GAO. Homeland Security: Voluntary Initiatives Are Under Way at Chemical
Facilities but the Extent of Security Preparedness is Unknown. Mar. 2003. GAO-03-439.
hazardous materials sector. The law exempts from public disclosure requirements
(i.e., FOIA) any information about physical and cyber security if it is submitted
voluntarily to DHS by such facilities for use by that agency related to “the security
of critical infrastructure and protected systems.” Disclosure under the authority of
state or local laws also is prohibited. Unauthorized disclosure of “critical
infrastructure information” by government employees is punishable by imprisonment,
fines, and removal from office.
The 108th Congress amended the MTSA in the Coast Guard and Maritime
Transportation Act of 2004, P.L. 108-293, on August 9, 2004. Title VIII of that act
requires the DHS to submit a plan for a maritime security grant program, including
recommendations on how funds should be allocated.
The 109th Congress enacted security provisions attached to the DHS
appropriations bill for 2007, H.R. 5441. The law, P.L. 109-295, provides authority
to DHS for three years to issue regulations for high-risk chemical facilities, other than
drinking water and wastewater treatment facilities and facilities in ports. DHS is
directed to establish risk-based security performance standards for such facilities, and
designated chemical facilities are required to prepare vulnerability assessments and
facility security plans. DHS has authority to inspect facilities and to order
compliance. Failure to comply with an order may be punished with a civil penalty
of $25,000. There are no criminal penalties for noncompliance, although criminal
penalties are authorized for unauthorized disclosure of “protected information.” In
the event of repeated compliance failures, DHS may order a facility to cease
operations. The law is silent on numerous issues debated during markup of other
bills reported in the House and the Senate, including the criteria for weighing risks
of various facilities, federal preemption of state and local right-to-know laws, how
to facilitate congressional oversight, and the role of IST.
September 11, 2001 prompted policy makers to reconsider federal policy
options regarding potential terrorist threats to chemical facilities. A range of possible
strategies is summarized below. Additional information on this topic is provided by
CRS Report RL33043, Legislative Approaches to Chemical Facility Security, by
Dana A. Shea.
Status Quo. Congress could rely on existing mechanisms in the public and
private sectors to continuously evaluate and improve site security. Federal statutes
already mandate facility assessments of chemical hazards and planning to prevent,
mitigate, and respond to accidental releases of hazardous chemicals. And the events
of September 11, 2001, undoubtedly have reinvigorated implementation efforts by
federal, state, and local government officials, as well as facility operators. Some state
and local governments have instituted additional security requirements. For example,
Baltimore, Maryland, requires chemical facilities to implement security measures
described by police and fire officials. Moreover, trade associations have developed
vulnerability assessment methodologies to facilitate planning for diverse types of
facilities. The ACC requires that its members assess vulnerability and devise plans
to improve security.
The establishment of DHS and Homeland Security Presidential Directive 7 on
the protection of critical infrastructure, as well as the newly enacted P.L. 109-295,
ensure a federal role in chemical facility security planning. DHS must identify and
prioritize facilities needing protection from terrorists, require vulnerability
assessment and security planning, and oversee compliance with security plans at
high-risk facilities. However, the DHS authority is limited to three years, which may
not be adequate.100
Collect Additional Information. Another option would be to delay
addressing chemical facility security until additional information is gathered on
which to base proposals. The final DOJ assessment of chemical site security and the
impact of the current risk management planning program might provide needed
insights. For a broader view of the issue, including analysis of policy options,
Congress might establish a Blue Ribbon Panel or request a study by the National
Academy of Sciences. Studies could provide information about the risks of
terrorism, the risks of accidents, the views of public interest groups, and the
effectiveness of public disclosure to reduce risks. Such information might assist
Congress in evaluating alternative approaches to reducing risks. However, the
benefits gained from delaying federal decisions pending development of better risk
information should be weighed against the possibility that terrorists might strike this
kind of facility before Congress acts.
Improve EPA Guidance and Enforcement. Congress also might provide
additional resources for, or exercise increased oversight over, implementation of
existing statutes. Although neither EPCRA nor the CAA explicitly addresses
chemical releases due to criminal or terrorist acts, EPA arguably has sufficient
authority under the acts to more strongly encourage facilities to reduce their
vulnerability to terrorists. Additional resources could facilitate EPA review of
facility risk management plans. Through September 2001, EPA had reviewed only
As previously mentioned, EPA already has provided guidance to facilities on
this subject, but many public interest groups would like EPA to go farther in
interpreting the risk management planning requirements of the CAA Section
EPA missed opportunities to require companies to identify inherently safer
technologies, and ignored comments made by a coalition of environmental and
labor organizations calling for a requirement that companies undertake103
Technology Options analyses to identify inherently safer technologies.
100 President George W. Bush. Sept. 10, 2003. “President Bush Discusses Homeland
Security at the FBI Academy,” FBI Academy, Quantico, Virginia.
101 U.S. GAO, p. 4.
102 Hind, Rick. Legislative Director, Greenpeace Toxics Campaign. Letter to Christine Todd
Whitman, EPA Administrator. March 14, 2002.
103 Laplante, Allison. Too Close To Home: A Report on Chemical Accident Risks in the
United States, U.S. Public Interest Research Group, Washington, DC. July 22, 1998.
In lieu of regulations, EPA could be urged to provide technical assistance or
demonstration programs, or to develop incentives to encourage risk reduction.
EPA has considered revisions to either the risk management planning rule or
EPA guidance under the CAA Section 112(r)(7) to require or encourage chemical
facility owners to assess their vulnerability to terrorists and correct any significant
weaknesses. Some EPA officials expected new principles for risk management
planning to address both site and computer security; building access; background
checks; inventory controls; storage safety; and other physical security measures, as
well as changes that improve “inherent safety.”104
However, EPA has stated that its authority to regulate chemical site security is
unclear, and authority under the Clean Air Act has been questioned by the House
Committee on Energy and Commerce.105 In October 2002, Administrator Whitman
announced that EPA would not pursue chemical security regulations under the
CAA.106 President Bush has made it clear that he does not envision a large role for
EPA with respect to security from terrorism. Congress might ultimately elect to
clarify EPA authority through legislation, expanding or narrowing current
interpretations, or examine the adequacy of EPA’s implementation of the risk
management planning rule in congressional hearings.
A potential disadvantage of relying on existing environmental law is that it may
not apply to all facilities of interest. For example, the CAA, Section 112 applies to
chemicals that were selected based on severity of potential acute adverse health
effects, the likelihood of accidental releases, and the potential magnitude of human
exposure. It excludes explosives, as well as flammable substances when used as a
fuel, or held for sale as a fuel at a retail facility.
Congressional oversight and guidance for DHS implementation of the newly
enacted provisions of P.L. 109-295 also is an option.
Reduce Risk Through Legislation. GAO has recommended that DHS and
EPA, in consultation with the Office of Homeland Security, jointly develop a
comprehensive national chemical security strategy, which should include a legislative
proposal “to require chemical facilities to expeditiously assess their vulnerability to
terrorist attacks and, where necessary, require these facilities to take corrective107108
action.” DHS and EPA agree. The National Strategy for the Physical
104 Heilprin, John. “Government to Require 15,000 Chemical, Waste, Water Plants to
Assess Terrorism Risks, Make Fixes,” The Associated Press, via NewsEdge Insight, June
105 EPA. 2002. Lessons Learned in the Aftermath of September 11, 2001. p. ES-10.
106 Preston, Meredith. “EPA Announces Strategy to Meet Homeland Protection
Responsibility,” Daily Environment Report, Oct. 3, 2002. p. A-1.
107 GAO. Homeland Security: Voluntary Initiatives Are Under Way at Chemical Facilities,
but the Extent of Security Preparedness Is Unknown. March 2003. GAO-03-439.
Washington, DC: U.S. Govt. Print. Off. p. 31. At [http://www.gao.gov/new.items/d03439.
Protection of Critical Infrastructures and Key Assets asks DHS to work with
Congress to enact such legislation.109
If Congress decides that legislation is required to reduce the risks of terrorism
targeting chemical plants, proposals might focus on preventing terrorism in general
or on reducing risks of terrorism specifically targeting chemical plants. A broad
focus on reducing terrorism would involve numerous issues that are beyond the scope
of this report. Interested readers are referred to CRS Report RL33600, International
Terrorism: Threat, Policy, and Response, by Raphael Perl.
A narrower focus on chemical plants might provide incentives for voluntary
private sector initiatives or new regulatory authorities to reduce risks. Economists
Robert Litan and Peter Orszag have suggested that a blended approach involving
performance-based regulation and a requirement for insurance coverage against
terrorist acts might be the most cost-effective approach.110 Stakeholder views
regarding the relative merits of voluntary versus mandatory approaches are discussed
in the next major section of this report, Policy Issues, in the subsection on
Responsibility and Accountability. Bills considered and enacted during the 109th
Congress are described in the last major section of this report, Legislation in the 109th
The remainder of the present discussion analyzes selected strategies and tactics
for reducing risks that may be incorporated into legislation.
Physical Security Enhancement. Perhaps the most common approach to
improving site security is to “harden” defenses so that sites would be less vulnerable111
to terrorists. According to the recently released DOJ vulnerability assessment
methodology, an effective protection system serves three functions: detection
(discovery or sensing of adversary action), delay (impediment to adversary progress),
and response by security personnel to ensure that a threat is neutralized.112 Examples
of hardening tactics include increasing security patrols, strengthening fences,
installing better locks on doors, relocating sensitive chemical processes within the
facility, installing intruder detection systems and alarms, and performing background
checks on employees. Congress has adopted such tactics in other contexts. For
example, the USA Patriot Act (P.L. 107-56) requires background checks as a
condition for obtaining a license to operate a motor vehicle transporting a hazardous
material in commerce.
pdf], visited Jan. 11, 2006.
109 Bush, George W. The National Strategy for the Physical Protection of Critical
Infrastructures and Key Assets, Feb. 2003. p. 66.
110 Litan, Robert, and Peter Orszag. 2002. A complicated intersection: Public action to
protect private property. Brookings Review, vol. 20, no. 3 (summer). pp. 20-23.
111 National Institute of Justice, p. 1.
112 Ibid., pp. 15-16.
A key advantage of hardening tactics is their variety and adaptability to a range
of security needs. Other advantages include the ability to deepen defenses by adding
layers of protection and, in many cases, relatively low costs. A potential weakness
of this strategy is that even the most effective security measures might be disabled
or overwhelmed by a determined, skilled terrorist organization. For example, guards
might be bribed or killed, passwords discovered, alarms short-circuited, or computers
hacked. The World Trade Center and Pentagon attacks demonstrate the vulnerability
of any site to a novel and vigorous attack.
Technology Assessment and Inherently Safer Options. An alternative
strategy for reducing risk is advocated by environmental groups. It would reduce the
hazardous characteristics of the facility, for example, by reducing production,
processing, storage, and use of dangerous chemicals, or changing the characteristics
of chemicals to make them less dangerous (e.g., by reducing volatility). Such tactics
aim to improve the “inherent safety” of a site, and are preferred by advocates to
target-hardening tactics, which they often refer to as “add-on safety systems.”113
According to this view, “‘Inherent Safety’ activities reduce or eliminate the
possibility of an accident occurring through the fundamental redesign of production
systems or products, reductions in chemical inventories, or substitution for hazardous
chemicals at the facility.”114 Currently, there is no federal U.S. law that explicitly
promotes use of inherently safer technologies (IST) by the chemical industry.
Two potential advantages of this approach are that consequences of terrorism
may be reduced even if a terrorist succeeds in his mission, and that risks associated
with accidental releases of chemicals also are likely to be reduced. In addition,
efforts to promote inherent safety of production could fill gaps in current laws, which
address risks associated with specified chemicals and industries. According to the
U.S. Chemical Safety and Hazard Investigation Board, many reactive chemicals115
responsible for industrial accidents are not covered by the CAA Section 112.
The chemical industry developed the concept of inherent safety,116 and the ACC
Security Code requires members to “consider” it in choosing security measures.
Many facility operators have applied this approach in recent years. For example, a
utility in Ohio chose to employ a urea-based pollution control system instead of117
another system which would have required storage of large quantities of ammonia.
Shortly after September 11, the Blue Plains wastewater treatment facility in
Washington D.C. stopped using chlorine in favor of the less volatile sodium
113 Laplante, Allison. Too Close To Home: A Report on Chemical Accident Risks in the
United States, U.S. Public Interest Research Group, Washington, DC. July 22, 1998.
115 U.S. Chemical Safety and Hazard Investigation Board website, at [http://www.csb.gov/],
visited Aug. 7, 2003.
116 Bollinger, Robert E., et al., 1996. Inherently Safer Processes: A Life Cycle Approach.
John Wiley & Sons, Inc., Hoboken, New Jersey. 154 pp.
117 American Electric Power, press release, Dec. 18, 2000.
hypochlorite bleach.118 Other water and wastewater treatment plants are making
similar changes in chemical usage.
The key disadvantages of this “safer” facility strategy are potentially higher
production and research and development costs, delays in achieving security while
new processes are put into place, and, at least in some cases, lack of feasibility.
However, advocates argue that use of safer technologies may reduce production costs
by reducing regulatory burdens, insurance premiums, transportation costs, and waste
disposal costs. Another potential disadvantage of the strategy is that some “safer”
tactics may simply spread a risk around, shift the risk to other locations or
populations, or substitute one risk for another. For example, in replacing an acutely
toxic chemical (that produces relatively severe health effects after a short exposure)
with a less acutely toxic chemical, one might increase chronic risks (due to low-level,
long-term exposures) or environmental risks (e.g., due to the chemical’s persistence).
Deterrence. A third approach to reducing risks aims to reduce theft, rather
than direct attacks, by making dangerous chemicals in use at a facility less attractive
to criminals, for example, by introducing a color or other property that facilitates
detection and tracking by authorities (so-called “taggants”), or by creating and storing
antidotes to toxic effects. A disadvantage of the use of taggants is that they act as
contaminants, and therefore may impede chemical processes. For this reason,
taggants typically are useful only in end products, not in intermediate (i.e., process)
chemicals. Generally, such deterrents appear to be in the development stage and are
not available for immediate application.
Restricted Access to Information. Restricting terrorists’ access to
information about vulnerability and location of chemical facilities also might reduce
the risk of terrorism. This approach was taken by the 106th Congress when it enacted
amendments to the CAA Section 112(r) to prevent Internet posting of risk
management plans and worst-case scenarios for accidents. Internet access to
information is a particular concern, because it permits anonymous inquiries about
sensitive U.S. facilities from remote locations. P.L. 107-296, that established DHS,
limits access to sensitive information potentially useful to terrorists by exempting
information about critical infrastructures submitted voluntarily to DHS from
disclosure requirements of the Freedom of Information Act (FOIA).
A key advantage of restricting access to sensitive information is that it is an
inexpensive method of reducing risk. However, some argue that information
restriction is contrary to American values, reduces public oversight of chemical
facilities and consequently facility operators’ incentives to reduce risk, and is not119
likely to prevent determined terrorist groups from obtaining needed information.
The general issue of public access to facility-specific information is discussed
under Key Issues, in the section on Public Disclosure.
118 “Toxic Chemicals’ Security Worries Officials,” Washington Post, Nov. 12, 2001.
119 Ament, Lucy. “Greenpeace Maps Possible Chemical accidents,” Pesticide & Toxic
Chemical News, July 1, 2002, p. 9-10.
Policy makers choosing among policy options for reducing terrorist risks
associated with chemical plants are faced with at least three fundamentally political
issues: the effect of public disclosure; the relative importance of diverse risks (and
associated costs and benefits of risk reduction), and who should be responsible (and
held accountable) for achieving results.
Public Disclosure. Public disclosure of information about chemical hazards120
and risk management plans at industrial facilities is controversial. Professional and
trade groups representing the chemical industry oppose the release of information
regarding the vulnerability of facilities to terrorism and the potential off-site
consequences (OCA) to public health and the environment. They argue that terrorists
might use the information to target facilities that are most vulnerable or located near
large population centers. Congress responded to this view when it enacted
amendments to the CAA Section 112(r) in 1999.
Environmental and right-to-know advocates often oppose restrictions on public
disclosure. They argue that communities have a right to be informed about hazards
to which they might be exposed, and that free access to information is important to
ensure public accountability of facility managers. Opponents of limiting public
information also point out that citizens need information to assess facility compliance
with laws, and if necessary, to petition the Administration or the courts for121
enforcement. Unsafe practices and inadequate risk management plans, in
particular, should be publicized, they contend, so that communities may exert
political or social pressure on plant managers to improve the inherent safety of their
facilities. Moreover, these groups want access to information about similar facilities
handling comparable chemicals across the United States, so that plans and accident
rates can be compared and analyzed to determine the effectiveness of various safety
measures. Informed citizens can work with local plant managers to reduce the risk
of accidents, they argue. This view was adopted by Congress in the 1990122
amendments to the CAA Section 112(r).
Another argument in favor of public disclosure has been advanced by
investment groups, who argue, “Investors need to know about potential liabilities of123
companies in which they invest.” Although some have argued that environmental
120 Davis, Ann. “New Alarms Heat up Debate on Publicizing Chemical Risks,” Wall Street
Journal, May 30, 2002, p. A1.
121 American Association of Law Libraries, American Library Association, et al. Letter to
U.S. Senators, July 12, 2002.
122 “Coalition says response to terrorism should not limit access to information,” Chemical
Regulation Reporter, vol. 25, no. 45, Nov. 12, 2001. p. 1654.
123 Frieder, Julie (Calvert), Adam Kanzer (Domini Social Investments), Kathy Leonard
(Center for Responsible Investing), Sam Pierce (Ideals Work, Inc.), Steven J. Schueth (First
Affirmative Financial Network), Kenneth Scott (Walden Asset Management), Conrad
MacKerron (As You Sow Foundation), and Alison L.F. Wise (Progressive Asset
information is inadequately disclosed, due in part to vague disclosure requirements
established by the Securities and Exchange Commission (SEC), the GAO reported
in 2004 that the situation is not clear.124 GAO found: (1) “Key stakeholders
disagree” about how well SEC has defined the environmental disclosure
requirements; (2) “Little is known about the extent to which companies are
disclosing” such information in their filings with SEC; and (3) SEC enforcement of
environmental disclosure requirements may or may not be adequate.
With respect to the possibility that information may be used by terrorists, right-
to-know advocates claim that public disclosure of chemical hazards motivates facility
operators to reduce chemical hazards, thereby reducing the likelihood and severity
of harm from terrorist attacks, as well as the risk of chemical accidents.
The net effect on risk to public health and the environment of public disclosure,
therefore, appears to depend on the relative risks of releases due to accidents, versus
those due to terrorism, and on the extent to which those risks are reduced or enhanced
by publication of risk management plans and similar information. However, data are
not available to calculate risks, relative risks, or risk reduction/enhancement
A related issue is the extent to which federal laws regarding public disclosure
should preempt state and local disclosure laws. P.L. 107-296, establishing DHS,
prohibits release under the authority of state and local disclosure laws of
“information (including the identity of the submitting person or entity) that is
voluntarily submitted to a covered Federal agency for use by that agency regarding
the security of critical infrastructure and protected systems.” For more on issues
related to information disclosure, see CRS Report RL31547, Critical Infrastructure
Information Disclosure and Homeland Security, by John D. Moteff and Gina Marie
Relative Risks. Another important issue involves the diverse and sometimes
conflicting goals implicit in discussions of chemical site security enhancement; there
is general agreement that risks should be reduced and that “the greatest risks” should
be addressed first, but little discussion of which risks are “greatest” and should be
targeted and at what cost. For example, should we focus on lowering death rates or
rates of sickness and disability? Should we focus on preventive measures or
emergency response and recovery services? Should we allocate resources to prevent
worst-case scenarios, or everyday risks that add up over time? Are risks due to
chemical terrorism worse than risks of equal or greater magnitude due to explosions
or firearms? Should we emphasize measures to reduce terrorist risks that also may
improve federal efforts to prepare for and respond to other disasters, as the
Management). Letter to U.S. Senators, July 11, 2002.
124 U.S. GAO. SEC Should Explore Ways to Improve Tracking and Transparency of
Information. July 14, 2004. GAO-04-808. Washington, DC: Govt. Print. Off. 80 pp.
President’s National Strategy suggests?125 To what extent are we willing to sacrifice
access to information about facilities in our neighborhoods, privacy, or government
accountability for the sake of risk reduction? Are we willing to shift federal
resources to DHS and away from other programs? The answers to such questions
depend on value judgments and are likely to lead to diverse policy approaches and
decisions about particular federal initiatives to reduce the threat of terrorism.
For example, on the one hand, it often is argued that federal expenditures are
most efficient when they are allocated with respect to relative risks and risk reduction
opportunities. According to this view, relatively more federal funding should be
provided to programs targeting risks that are greater and more clearly documented
(e.g., to prevent smoking or motor vehicle accidents), than for programs targeting
small, hypothetical risks (e.g., from exposure to pesticide residues on food). Based
on this reasoning, the risks of chemical terrorism in the United States would deserve
relatively few resources, because they are hypothetical and very small. This is
especially true for individual chemical facilities. Such reasoning might leave some
chemical facilities vulnerable to attack. As explained by the President of the
Louisiana Chemical Association, “Worst-case scenarios are just that Virtually every
safety system in every process would have to fail for a worst-case scenario to actually
happen.”126 Will the federal government or some plant operators find such a scenario
incredible, and thus, not worth additional security investments? What cost is
justified for risk reduction at individual chemical facilities?
On the other hand, some have argued that the distribution of risk is more
important than the absolute or relative magnitude of risk. Scholars at the Brookings
Institution, for example, argue that federal resources to combat terrorism should be
devoted primarily to avoiding or mitigating potentially catastrophic terrorist acts.127
Catastrophic events, in which many people are killed or injured at once often strain
local social, political, and economic systems, as well as emergency response
resources, as was well illustrated by the attack on the World Trade Center and again
during the hurricane season of 2005. Thus, the Brookings report focuses on
protecting against nuclear, chemical, or biological terrorism and large-scale attacks
at airports, seaports, nuclear and chemical facilities, stadiums, big commercial
buildings, monuments, and American icons, as opposed to preventing numerous
smaller attacks that might produce an equal number of casualties over a longer period
President Bush has directed the DHS Secretary to set priorities for critical
infrastructure protection “with an emphasis on critical infrastructure and key
resources that could be exploited to cause catastrophic health effects or mass
casualties comparable to those from the use of a weapon of mass destruction,” but
125 Office of Homeland Security. National Strategy for Homeland Security, July 2002. p.
126 Johnson, Jeff. Chemical accident debate rolls on. Chemical and Engineering News, Apr.
127 O’Hanlon, Michael E., Peter R. Orszag, Ivo H. Daalder, et al. 2002. Protecting the
American Homeland: A Preliminary Analysis, Brookings Institution Press, Washington, DC.
with consideration of numerous other potential effects of terrorist acts. As a result,
DHS has been developing a vulnerability-assessment tool, working its way through,
“in priority order, first with the nuclear energy sector, and with the chemical sector,
and shortly to follow many others across the top tier of consequences, vulnerabilities
Still others object to reliance on any form of cost-benefit accounting with
respect to public health and environmental risk management, because quantitative,
analytic tools often do not consider risk factors and management options that they
consider important.129 For example, one cannot produce a reliable estimate of
benefits that might accrue from basing decisions on the so-called “precautionary
principle” or most other preventive management tools, because specific kinds of
damages and clean-up costs may never occur, and thus cannot be validated or
corrected. Moreover, it can be argued that quantitative analysis is biased against
preventive measures, because the hypothetical benefits, as well as the hypothetical
risks, accrue (or not) in the future and generally are discounted (reduced in value).
Many observers feel this kind of process inevitably estimates that preventive options
will have relatively high short-term costs and relatively low and uncertain long-term
Responsibility and Accountability. Deciding who should be responsible
for achieving results (or who should be held accountable) requires consideration of
many factors, including statutory authority, resource availability, technical
competence, political feasibility, and moral or ethical constraints. Responsibility is
multifaceted, involving financial, operational, and managerial duties, and may be
layered hierarchically. In addition, responsibility may be shared or distributed among
several private and public entities. For example, in the case of chemical plant safety,
responsibility probably will be divided in some manner to include owners/operators
of facilities, insurers, and some unit of government. It is up to policy makers to
decide upon the appropriate distribution of each component.
Generally, people agree that the federal government is responsible for
protecting citizens and the homeland, and that business owners are responsible for
not causing hazards for their employees, neighbors, and assets. However, people
have different views about who should be held accountable for the consequences of
an act of terrorism, what level of protection from risk is acceptable, whether the
private sector is likely to achieve that level of protection without public assistance
or oversight, and who should bear the costs of achieving greater safety. These
different views largely reflect general political philosophies (e.g., regarding the
appropriate role of government and the value of public involvement in risk
management decisions), but they also are influenced by specific knowledge of, and
128 Stephan, Robert. Testimony before the House Subcommittee on Economic Security,
Infrastructure Protection, and Cybersecurity, House Homeland Security Committee, June
129 For more on policy issues related to risk analysis and cost-benefit analysis, see CRS
Report 98-618, Environmental Risk Analysis: A Review of Public Policy Issues, by Linda-Jo
attitudes toward, the chemical industry, EPA, and other governmental and non-
Some argue that the risks of terrorism for individual chemical facilities are so
small that many facility managers are unlikely to invest sufficient resources to
adequately ensure site security. Based on this view, some argue that sufficient
reductions in terrorist risks for the nation as a whole can be assured only if chemical
facilities are required to comply with federal standards for risk management — that
is, if they are held accountable by government. Federally mandated standards are
likely to ensure a greater level of safety, according to this view, because
administrative rule-making procedures provide for public comments, including
comments by people potentially at risk if a terrorist attacks, but who do not directly
profit from neighboring facilities. Voluntary chemical site security measures
advocated by trade associations do not suffice, it is argued, because they do not cover
all potentially dangerous facilities and have no standards, no timelines, no hazard
reduction policies, no measurable hazard reduction goals, no accountability, and are
not enforceable.130 However, at least some trade associations require independent
audits of risk management plans, as discussed below.
Recent testimony by Robert Stephan, Assistant Secretary of Infrastructure
Protection, indicates that approximately 20% of chemical facilities that are relatively
hazardous are not voluntarily signed up to an industry security code and are not
covered by MTSA.131 As a result, DHS does not know whether they are acting to
secure themselves from terrorist acts.
Some contend that chemical facility operators are willing and prepared to reduce
significant risks, for personal, professional, and business reasons.132 They argue that
well-managed businesses routinely assess, prioritize, and manage risks of all kinds,
including risks of potential exposure to hazardous chemicals due to criminal or
terrorist acts. Business incentives to good chemical risk management include
reduced legal liability, reduced insurance costs, enhanced reputation, improved
employee relations, and reduced costs for remediation and victim compensation. In
the United States, environmental and occupational health and safety laws provide
additional incentives to many facility operators to responsibly manage hazardous
Some are opposed to new legislation, because it might disrupt and delay
installation of security enhancements by individual companies. On the other hand,
such legislation could benefit businesses by shifting liability to the government and
discouraging states from adopting diverse regulatory strategies.
130 Orum, Paul. Additional testimony in response to questions from Senator Jon Corzine
concerning the Chemical Security act, S. 1602, Jan. 15, 2002, at [http://crtk.org/detail.
cfm?docID=243&cat=spills%20and%20emergencies], visited Jan. 11, 2006.
131 Stephan, Robert. Testimony before the House Subcommittee on Economic Security,
Infrastructure Protection, and Cybersecurity, House Homeland Security Committee, June
132 Zahodiakin, Phil. 2002. “Industry sees few unturned stones in anti-terror effort,”
Pesticide & Toxic Chemical News, Mar. 18, 2002, p. 10.
Some industry representatives, while acknowledging that some guidance,
training, and financial assistance for threat assessment and risk management are
needed, especially for addressing risks to small businesses, point out that trade
associations and industrial research centers have been working for several years to
fill such needs. Such groups advocate a flexible, risk-based approach to securing
facilities, arguing that “most plants are not likely terrorist targets.”133 Some business
groups argue that most regulations inappropriately force diverse enterprises to adopt
a “one-size-fits-all” strategy. To satisfy any public demand for assurance that risk
reduction is occurring, some industry representatives have recommended a safety
certification process and are willing to submit their facilities to independent audits.
In the National Strategy for the Physical Protection of Critical Infrastructures
and Key Assets, released in February 2003, the Bush Administration recommended
legislation to enhance security measures at chemical facilities,134 although it had
hoped to avoid that approach, according to the Secretary of the Department of
Homeland Security, Tom Ridge.135 He acknowledged that the Administration (as of
mid-July 2002) had been leaning toward a voluntary approach.136 The
Administration would assign financial responsibility to chemical facility owners.
According to Ridge, “[T]his is a cost [chemical companies] have to absorb.” For
their part, some pesticide trade groups would welcome increased government
assistance in the form of funding for education.137
Administrative support for legislation again was expressed at a Senate hearing
June 15, 2005. Although this was interpreted by many news reports as a change in
Administration policy,138 Robert B. Stephan, Acting Undersecretary of DHS for
Information Analysis and Infrastructure Protection, testified that there has been no
change in the Administration’s position: It has always been willing to work with
Congress to produce new regulatory authority to enhance the security of chemical
facilities. However, the Undersecretary emphasized that the Administration will only
support risk-based regulation of chemical security. Mr. Stephan stated that DHS was
not quite ready to propose or approve of any particular legislative provisions, but
would be in a position to do so soon.139
134 Bush, George W. National Strategy for the Physical Protection of Critical Infrastructures
and Key Assets, Feb. 2003, p. 66.
135 Preston, Meredith. “Administration Wants to Avoid Legislation Requiring Safety
Measures at Chemical Sites,” Daily Environment Report, July 11, 2002, p. A-6.
138 Hall, Mimi. Chemical Plants Need More Protection, Official Says. USA Today, June 15,
2005, p. A8
139 Stephan, Robert. Statement before the U.S. Senate Committee on Homeland Security and
Governmental Affairs. June 15, 2005. At [http://hsgac.senate.gov/_files/TestimonyStephan.
pdf], visited July 9, 2005.
The 109th Congress ultimately decided that the private sector should be held
accountable and enacted legislation (P.L. 109-295) authorizing DHS to oversee
facility vulnerability studies and set performance standards for facility risk
management. The American Chemistry Council and the Administration support the
enacted legislation. Others in the 109th Congress would have preferred legislation
(H.R. 2237) that would have would have required submission of assessments and
plans to EPA. Many would have preferred S. 2145/H.R. 4999 or H.R. 5695, which
were more comprehensive and addressed controversial issues such as federal
preemption of state and local laws and whether to require consideration or
implementation of inherently safer technology.
Legislation in the 109th Congress
Although legislation to enhance the security of a broad range of chemical
facilities was introduced in previous Congresses (the 107th and 108th), none was
enacted. A shift in committee structure in both the House and the Senate may have
affected the fate of legislation in the 109th Congress. The Committee on Homeland
Security and Governmental Affairs took the lead in holding hearings and developing
legislation in the Senate. However, Senator Inhofe, Chairman of the Senate
Committee on Environment and Public Works, which held hearings during the
previous Congress, placed a hold on the bill because of concerns about its coverage
of drinking water and wastewater treatment facilities (which fall within the purview
of his committee). In the House, bills were referred to both the Committee on Energy
and Commerce, which held hearings during the 108th Congress, and to the now
permanent Committee on Homeland Security, which reported a bill very similar to
the Senate bill. As the 109th Congress approached the end of the 2nd session, the
Chairman of the Committee on Energy and Commerce supported an amendment to
the DHS FY2007 appropriations bill, H.R. 5441, which was adopted and became law
when the bill was enacted on October 4, 2006. On December 5, 2006, the Chairman
introduced the same provisions as a stand-alone bill, H.R. 6348. P.L. 109-295
provides authority to DHS for three years to issue regulations for high-risk chemical
facilities, other than drinking water and wastewater treatment facilities and facilities
in ports. The enacted provisions combine certain elements of H.R. 5695, as reported
by the House Homeland Security Committee, and S.2145, as reported by the Senate
Committee on Homeland Security and Governmental Affairs. The various legislative
proposals, as well as the enacted provisions, are summarized below.
S. 2145/H.R. 4999. Senator Collins, Chairman of the Homeland Security and
Governmental Affairs Committee (HSGAC), introduced S. 2145, the Chemical
Facility Anti-Terrorism Act, in December 2005, after holding four hearings to frame
the problem and possible solutions.140 The bill was co-sponsored by Senator
140 The four hearings may be viewed through the Committee’s website. They are “Chemical
Attack on America: How Vulnerable Are We?” held April 27, 2005; “Is the Federal
Government Doing Enough to Secure Chemical Facilities and Is More Authority Needed?”
held June 15, 2005; “Chemical Facility Security: What Is the Appropriate Federal Role?”
held July 13, 2005; and “Chemical Facility Security: What Is the Appropriate Federal Role?
(Part II)” held July 27, 2005. The House Committee on Homeland Security, Subcommittee
Lieberman, Ranking Member of the HSGAC. Congressmen Shays and Langevin
introduced a companion bill, H.R. 4999, in the House on March 16, 2006. The
HSGAC amended and approved S. 2145 on June 15, 2006. The bill was reported on
September 11, 2006.
S. 2145 would direct the Secretary of DHS to promulgate rules for designating
chemical sources for regulation, assigning sources to various risk-based tiers, and
establishing performance-based security standards for each tier. Facilities would be
considered for listing (i.e., designation) if they produced, used, or stored a substance
of concern in a quantity equal to or greater than a threshold quantity. Substances of
concern would be those that trigger risk management planning requirements under
the Clean Air Act, Section 112(r), as well as ammonium nitrate and any other
substance designated by the Secretary, based on the potential extent of death, injury,
or serious adverse effects to human health and safety or the environment or the
potential impact on national or economic security or critical infrastructure caused by
a terrorist incident. Designated facilities would be assigned to risk-based tiers and
required to complete and submit to DHS vulnerability assessments, security plans,
and emergency response plans for terrorist incidents. DHS would be required to
review these submissions. For facilities in the higher risk tiers, S. 2145 would
require a written DHS determination to approve, disapprove, or modify facility
assessments and plans within 21 months of the date of enactment (within nine
months of the date when DHS issues regulations concerning assessments and plans).
S. 2145 would establish a duty to report to DHS for facilities handling more
than a threshold quantity of a designated substance of concern, and it would require
plans to specify “steps taken by the chemical source to coordinate security measures
and plans for response to a terrorist incident with Federal, State, and local
government officials, including law enforcement and first responders.” Plans would
have to be “sufficient to deter, to the maximum extent practicable, a terrorist incident
or a substantial threat of such an incident,” and “include security measures to
mitigate the consequences of a terrorist incident.”
S. 2145 would provide administrative, civil, and criminal penalties for facility
owners or operators who failed to submit assessments or plans or to implement plans
adequately. DHS would be authorized to issue an order for the chemical source to
cease operation if the facility persisted in noncompliance with the requirements
established under S. 2145.
Other S. 2145 provisions would require reports from DHS and GAO, establish
a process by which any person may submit a report to DHS regarding vulnerabilities
of a chemical source, and protect whistle-blowers from retaliation. The bill would
mandate coordination with existing security and emergency response planning,
including planning under MTSA. To that end, S. 2145 establishes regional security
on Economic Security, Infrastructure Protection, and Cybersecurity also held a hearing on
this issue on June 15, 2005, “Preventing Terrorist Attacks on America’s Chemical Plants.”
The House hearing is not posted on the Committee website, but a transcript is available on
the Congressional Quarterly website at [http://www.cq.com/].
offices and area security committees and plans. State and local laws would not be
preempted unless they were in “actual conflict” with the federal law.
With respect to information protection, S. 2145 would prohibit DHS and other
federal, state, and local agencies from releasing to the public vulnerability
assessments, site security plans, security addenda to emergency response plans, area
security plans, or materials developed or produced exclusively in preparation for
assessments or plans. The introduced bill would have required public disclosure of
written certifications of compliance by facility owners/operators, DHS certificates of
compliance issued for individual sources, DHS orders issued for noncompliance, and
lists of facilities for which DHS has issued an approval or disapproval, unless the
Secretary determined that release of a particular record would increase security risk.
This provision was modified during markup. As reported, S. 2145 would prohibit
disclosure of such documents and would permit disclosure of certifications only if
DHS determined that release would not increase security risk.
S. 2145 also was modified with respect to judicial review of agency action. As
introduced, the bill was silent, so that all final agency actions would have been
subject to judicial review under the provisions of the generally applicable
Administrative Procedure Act (5 U.S. C. §701 et seq.). However, S. 2145, as
reported, distinguishes between rulemaking and other final agency actions with
respect to courts of jurisdiction, as well as parties authorized to act. S. 2145 would
allow challenges to final rules only in the U.S. Court of Appeals for the District of
Columbia, whereas challenges to any other final actions could be filed in district
courts. In addition, S. 2145, as reported, would authorize any person to file a petition
for judicial review of a final regulation, but would authorize only the owner or
operator of a chemical source to file a petition for review of a final agency action or
order. Only that owner or operator and the Secretary would be authorized to
participate in such civil action.
S. 2486. Senator Lautenberg introduced the Chemical Security and Safety Act
of 2006 (S. 2486) on March 30, 2006. On introduction, the bill was co-sponsored by
Senators Biden, Durbin, Kerry, Menendez, and Obama. The bill addresses security
and safety at “stationary sources,” which are facilities covered by the CAA Section
112(r)(2) and other facilities that the DHS Secretary designates as “high priority” that
produce, process, handle, or store any “substance of concern.”141 Substances of
concern are defined as substances listed under the CAA Section 112(r)(3) in a
threshold quantity or any other substance designated by the Secretary.
For all stationary sources, S. 2486 would establish a general duty to —
141 “Stationary source” is defined as in the Clean Air Act, Section 112(r)(2), in which
various terms are cross-referenced. Thus, paraphrasing the CAA, “stationary source” means
any buildings, structures, or activities from which an “accidental release” may occur. An
“accidental release” is an unanticipated emission of a “regulated substance.” A “regulated
substance” means a substance listed under Section 112(r)(3), which requires EPA to produce
a list of substances. That list of substances must be developed based on criteria specified
in Section 112(r)(4).
!identify hazards that may result from a criminal release of a
!ensure that the facility is designed, operated, and maintained in a
safe manner; and
!reduce the consequences of a criminal release.
Owners or operators would be required to involve employees in ensuring the
“design, operation, and maintenance of safe facilities,” an obligation that includes “to
the maximum extent practicable” use of inherently safer technology (IST). IST is
defined as the “use of a technology, product, raw material, or practice that, as
compared to the technology, products, raw materials, or practices currently in use,”
“significantly reduces or eliminates the possibility of the release of a substance of
concern, and” “significantly reduces or eliminates the hazards to public health and
safety and the environment associated with the release or potential release.” This
definition includes such actions as “chemical substitution, process redesign, product
reformulation, and procedural and technological modification.”
The DHS Secretary, in consultation with the EPA Administrator, would be
directed to designate by rule at least 3,000 facilities handling substances of concern
as “high priority categories,” based on potential severity of harm; proximity to
population centers; threats to national security; threats to critical infrastructure;
threshold quantities of substances of concern that pose a serious threat; and other
safety or security factors that the DHS Secretary, in consultation with the EPA
Administrator, determines to be appropriate. S. 2486 also would require the
Secretary to identify the 600 highest priority stationary sources.
Each owner or operator of these high-priority facilities would be required to
submit to DHS a written report that would include a vulnerability assessment, an
assessment of the hazards, and a prevention, preparedness, and response plan that
would incorporate the results of the assessments and meet requirements established
by DHS. Each plan would have to include discussion of the practicability of
implementing each element of “safe” facility design, operation, and maintenance.
The bill also requires consultation with employees at the facility in developing the
assessments and plan.
S. 2486 requires the DHS Secretary to review each report submitted to
determine whether it complies with DHS regulations, and to certify approval for
compliant facilities. In addition, the bill directs the DHS Secretary to notify any
owner or operator who submits a plan that is disapproved. S. 2486 would establish
an information clearinghouse to assist facilities in complying with requirements.
S. 2486 would provide administrative, civil, and criminal penalties for facility
owners or operators who failed to comply with a compliance order or directive issued
by the Secretary. If a threat of a terrorist attack is beyond the scope of a submitted
prevention, preparedness, and response plan, or if current implementation of the plan
is insufficient, DHS would be authorized to issue a compliance order. If a facility
persisted in noncompliance, the Secretary would be authorized, after notifying the
facility of that fact, to seek judicial relief to abate the threat. Such judicial relief
could include an order to cease operation and such other orders as would be
necessary to protect public health or welfare.
The bill mandates annual employee training at all stationary sources with respect
to the Act’s requirements. At stationary sources with at least 15 employees, S. 2486
would establish Employees’ Safety and Security Committees to identify, discuss, and
make recommendations to owners or operators concerning potential hazards and risks
relevant to security, safety, health, and the environment. These committees are to
participate in developing, reviewing, and revising vulnerability assessments, hazard
assessments, and prevention, preparedness, and response plans at their facilities. In
addition, the bill would require notification and involvement of employees in facility
inspections and investigations.
S. 2486 provides extensive and detailed protection for whistle-blowers who
might report problems at their facilities to authorities. Penalties for employers who
do not comply with worker protections increase with repeated violations.
S. 2486 does not require owners or operators of chemical sources to notify DHS
when there are changes affecting the source’s security. However, the bill does
require updates for vulnerability assessments and security plans on a regular basis.
S. 2486 mandates coordination of implementation of requirements with the
Maritime Transportation Security Act of 2004 (MTSA; P.L. 108-293) and requires
that the DHS Secretary minimize duplication of the requirements for risk assessment
and response plans under other federal law.
S. 2486 would protect DHS from public disclosure requirements under the
federal Freedom of Information Act for “all documents provided to the DHS
Secretary under this Act, and all information that describes a specific vulnerability
or stationary source derived from those documents,” with a few exceptions, such as
compliance certifications by the DHS Secretary. No similar protection is provided
for information at other federal agencies, but state and local government agencies are
protected from disclosure requirements of all federal, state, and local laws. S. 2486
does not authorize penalties for disclosure of protected information by federal
H.R. 5695. On June 28, 2006, Representative Daniel E. Lungren, Chairman
of the House Subcommittee on Economic Security, Infrastructure Protection, and
Cybersecurity, Committee on Homeland Security, introduced H.R. 5695. The
Subcommittee held a hearing on the bill June 29, 2006, and approved it, amended,
July 11, 2006. On September 29, 2006, the House Homeland Security Committee
reported an amended version of the bill, and the House Committee on Energy and
Commerce was granted an extension until November 17, 2006, of its referral for
consideration of the bill. Similar in many ways to S. 2145, H.R. 5695 is described
as more “streamlined,” but it also includes provisions not in S. 2145.142
H.R. 5695, as reported, would amend the Homeland Security Act of 2002 (6
U.S.C. 101 et seq.) by adding at the end a new title. It would authorize the Secretary
of Homeland Security to designate chemical substances of concern and threshold
142 Roeder, Linda. “House Subcommittee to Consider Bill to Require Chemical Plant
Assessments,” Daily Environment Report, June 27, 2006, p. A7.
quantities for regulation. In designating or exempting substances and setting
threshold quantities, the Secretary would be required to consider “the potential extent
of death, injury, or serious adverse effects to human health, the environment, critical
infrastructure, national security, the national economy, or public welfare that would
result from a terrorist release of the chemical substance.”
The Secretary would be required to keep a list of chemical facilities that have
more than the threshold quantity of any substance of concern, as well as other
facilities the Secretary may choose to designate “significant.” Each selected facility
would have to be assigned to one of at least four risk-based tiers.
H.R. 5695 would require the Secretary, within a year of enactment, to prescribe
regulations to establish standards, protocols, and procedures for vulnerability
assessments and facility security plans that might be required for listed facilities.
Regulations must be risk-based and performance-based and must take into
consideration, among other factors, the cost and technical feasibility of compliance.
H.R. 5695 also requires the Secretary to establish security performance requirements
for security plans in each tier.
The bill requires the owner or operator of a facility assigned to the high-risk tier
to conduct a vulnerability assessment and to prepare and implement a facility security
plan. Owners or operators or high-risk facilities must submit assessments and plans
within six months of the date on which regulations are prescribed. H.R. 5695 would
exempt facilities subject to the Public Health Security and Bioterrorism Preparedness
and Response Act or the MTSA from additional requirements for submitting
vulnerability assessments and security plans to DHS, unless the Secretary finds that
the facility requires more stringent security measures.143
The DHS Secretary, or a designated third-party entity, would be directed to
review and approve or disapprove plans and assessments for facilities within 180
days of receiving such documents. The Secretary would be required to disapprove
an assessment or plan if it did not comply with regulations or was insufficient to
address vulnerabilities identified in the assessment or a threat to the facility. As
reported, H.R. 5695 would allow the DHS Secretary to require a high-risk facility to
use inherently safer technology (IST), if the Secretary determined that incorporation
of IST into the facility would significantly reduce the consequences of terrorist
actions, would be feasible, and would not significantly impair the ability of the owner
to continue in business. Written notice of disapproval of a security plan must be
provided to an owner or operator. The bill explicitly denies any private right of
action against an owner or operator to enforce any provision of the Act. A facility
owner or operator would have the right to appeal to a chemical security review board
a decision of the Secretary with respect to the use of IST.
143 However, the Public Health Security and Bioterrorism Preparedness and Response Act
of 2002 (P.L. 107-188) does not require security plans; rather, it requires emergency
H.R. 5695 would establish a process by which any person might report problems
or vulnerabilities at a chemical facility, and for employees, the bill provides
protection against retaliation by the employer.
Administrative, civil, and criminal penalties for noncompliance with the
provisions of this law would be authorized. A chemical facility owner or operator
would have the right to a formal hearing to dispute a penalty for a violation. State
and local laws would not be preempted by the law, unless they “may frustrate the
purposes of this title or any regulations or standards prescribed under this title.” As
amended, the bill would specify that it did not prevent a state from enacting or
enforcing a law or regulation related to environmental protection, health, or safety.
The bill directs the Secretary to prevent disclosure of protected information by
any federal agency under FOIA or under any state or local law. Protected
information would include the criteria and data used to assign facilities to risk-based
tiers and the tier assignments for specific facilities, vulnerability assessments, facility
security plans, assessments of IST, security performance requirements for a facility,
and any other information generated or collected by a government agency or a
chemical facility to fulfill requirements of this title if it describes any vulnerability,
describes the assignment of a facility to a risk-based tier, describes a security measure
for the protection of a chemical facility from terrorism, or if “the disclosure of which
the Secretary determines would be detrimental to the security of any chemical
H.R. 5695 also establishes a procedure for certifying third-party auditors under
the Homeland Security Act, Section 863-864. As reported, the bill includes
provisions to reduce the potential for a conflict of interest for auditors.
As reported, H.R. 5695 would establish an Office of Chemical Facility Security
H.R. 5441/H.R. 6348. As the 109th Congress drew to a close, the Senate and
House passed the DHS appropriations bill for 2007, H.R. 5441, which included
certain provisions found in H.R. 5695, as reported by the House Committee on
Homeland Security, and S. 2145, as reported by the Senate Committee on Homeland
Security and Governmental Affairs. The law, P.L. 109-295, provides authority to
DHS for three years to issue regulations for high-risk chemical facilities, other than
drinking water and wastewater treatment facilities and facilities in ports. DHS is
directed to establish risk-based security performance standards for such facilities, and
designated chemical facilities are required to prepare vulnerability assessments and
facility security plans. DHS has authority to inspect facilities and order compliance.
Failure to comply with an order may be punished with a civil penalty of $25,000.
There are no criminal penalties for noncompliance, although criminal penalties are
authorized for unauthorized disclosure of “protected information.” In the event of
repeated compliance failures, DHS may order a facility to cease operations. The law
is silent on numerous issues, including the criteria for weighing risks of various
facilities, federal preemption of state and local right-to-know laws, how to facilitate
congressional oversight, and the role of IST.
H.R. 1562. Two other chemical facility security bills in the House were
similar to proposals in the 108th Congress. H.R. 1562 was introduced by
Representative Fossella. It offers an approach somewhat similar to that of S. 994, as
reported in the 108th Congress. H.R. 1562 would make DHS the lead agency
overseeing chemical facility security, but it would require consultation between DHS
and EPA. The bill would give the DHS Secretary discretionary authority to select
facilities that should conduct vulnerability assessments and security planning, but it
would require designation of high-priority facilities. H.R. 1562 would exempt from
its requirements drinking water treatment facilities required to conduct vulnerability
assessment under the Safe Drinking Water Act and facilities subject to the MTSA,
unless the owner or operator of such a facility petitioned the Secretary to be subject
to the requirements of this act in lieu of the former act. Vulnerability assessments
and plans would be focused in H.R. 1562 on security (i.e., hardening) and emergency
measures, in order to prevent and respond to releases caused by terrorism, rather than
on inherent safety measures that might reduce the consequences of an unauthorized
release, regardless of cause.
H.R. 1562 also would protect from public disclosure under FOIA and state and
local disclosure laws the certification documents submitted by facility managers
indicating that they have complied with assessment, planning, and implementation
requirements. (This is in addition to a provision that protects from public disclosure
information related to vulnerability assessments and security plans.) H.R. 1562 also
would withhold such information from civil judicial or administrative proceedings
(except with respect to compliance with the chemical facility security legislation),
thus shielding facility owners from lawsuits based on those documents. Criminal
penalties are provided for unauthorized knowing disclosure of protected information
by government officials.
H.R. 1562 would authorize DHS to disapprove any assessment or plan and to
order revision if it did not comply with regulations, or if the plan or implementation
were insufficient to address the results of a vulnerability assessment or a threat of a
terrorist release. Civil, but not criminal, penalties would be available if facility
owners or operators failed to comply with an administrative order.
H.R. 2237. H.R. 2237 (introduced by Representative Pallone and similar to S.
157/H.R. 1861 in the 108th Congress) would build on existing EPA authority to
oversee chemical facilities but would require consultation with DHS. It would
require EPA to designate “certain combinations of chemical sources and substances
of concern” as high priority categories based on the severity of the threat posed by
an unauthorized release, proximity to population centers, and other criteria. Owners
and operators of facilities within high priority categories would be required to
conduct vulnerability assessments, identify hazards, and prepare prevention,
preparedness, and response plans to eliminate or significantly lessen the potential
consequences of an unauthorized release. Plans would be required to incorporate
inherently safer technology, if practicable. Copies of vulnerability assessments and
plans would be submitted to EPA and updated periodically.
H.R. 2237 would protect vulnerability assessments and plans from public
disclosure under FOIA, but H.R. 2237 would allow disclosure of information under
state or local laws, if the state or local government received the information
independently of DHS.
H.R. 2237 would direct EPA to review each assessment and plan, determine
compliance, and certify that determination. EPA would be authorized to issue
compliance orders 30 days after notifying a chemical source that its assessment or
plan was inadequate and offering compliance assistance, if the plan was not revised
to comply with EPA requirements. If DHS notified a chemical source that its plan
or implementation was insufficient to address a threat of terrorist attack, and the
chemical source took inadequate action in response to that notice, DHS would be
authorized to secure necessary relief to abate the threat from a district court in the
district where the threat existed.
Other Legislation. In addition to these comprehensive proposals to enhance
the security of chemical facilities, bills have been introduced that address a specific
category of facility or chemical. For example, S. 2052/H.R. 713 would provide a tax
credit to agricultural businesses for security enhancements. S. 1995 and S. 2781
address the security of wastewater treatment facilities. S. 2781 was reported by the
Senate Committee on Environment and Public Works on September 21, 2006. S.
2855 would require community drinking water and wastewater treatment facilities
to replace hazardous gaseous chemicals, such as chlorine gas, with IST. H.R.
3197/S. 1141 and H.R. 1389 aim to secure supplies of ammonium nitrate, an
explosive. H.R. 3197 was approved by the House Homeland Security Committee on
June 14, 2006. Some of the provisions of H.R. 3197/S. 1141 were incorporated as
an amendment into S. 2145 on June 15, 2006, by the Senate HSGAC.
On July 14, 2005, the Senate unanimously agreed to an amendment to H.R.
2360, the Department of Homeland Security Appropriations Act for 2006, expressing
the “Sense of the Senate that Congress should pass legislation establishing
enforceable federal standards to protect against a terrorist attack on chemical
facilities within the United States.” The conference report on H.R. 2360, which
became P.L. 109-90 on October 18, 2005, included the same support for legislation
and added a requirement for DHS to submit a report to the Appropriations
Committees by February 10, 2006, “on the resources needed to implement mandatory
security requirements ... and to create a system for auditing and ensuring compliance
with the security standards.” The conferees also directed the Secretary to complete
vulnerability assessments of the highest risk chemical facilities by December 2006
and to complete a national security strategy for the chemical sector by February 10,
The threat of terrorism in the United States challenges the existing balance
maintained in federal laws between the public’s right to know about chemical
hazards and the chemical industry’s right to protect confidential business
information. At issue are risks to public health and safety, environmental protection,
civil rights and duties, national security, and privacy. Some are advocating a strategy
of relative risk analysis and analysis of risk management options to reveal the best
course of action. However, information appears to be inadequate for quantitative
evaluation of the risks of chemical releases, whether deliberate or accidental, and the
nature of terrorism makes prediction difficult. Moreover, there is no universally
accepted level of tolerable risk, no obvious basis for a comparison of relative risks
and benefits, and no established federal mechanism for ensuring responsible
management of the risks of chemical terrorism.
A variety of federal policy options are available for enhancing chemical security.
In choosing among options, policy makers face three key issues: how to evaluate the
risks versus the benefits of public disclosure; how to determine and prioritize the
relative importance of diverse risks; and who to hold responsible for achieving
results. Section 550 of P.L. 109-295, the FY2007 DHS appropriation, resolved these
issues temporarily by providing three years of regulatory authority for DHS. The law
requires vulnerability assessments for high-risk chemical facilities and
implementation of security plans to address hazards revealed in such assessments.
Other legislative proposals that were considered by the 109th Congress would have
done the same, but also addressed issues such as how to facilitate congressional
oversight of DHS implementation, the role of inherently safer technology, the criteria
used to designate facilities as more or less “risky,” and whether state and local right-
to-know laws should be preempted by the federal provisions. It remains to be seen
whether Congress will tackle such issues in the future.
CRS Report RL31547, Critical Infrastructure Information Disclosure and Homeland
Security, by John D. Moteff and Gina Marie Stevens.
CRS Report RL31861, High-Threat Chemical Agents: Characteristics, Effects, and
Policy Implications, by Dana A. Shea.
CRS Report RL31542, Homeland Security — Reducing the Vulnerability of Public
and Private Information Infrastructures to Terrorism: An Overview, by Jeffrey
CRS Report RL33043, Legislative Approaches to Chemical Facility Security, by
Dana A. Shea.
CRS Report RL31294, Safeguarding the Nation’s Drinking Water: EPA and
Congressional Actions, by Mary Tiemann.
CRS Report RL32189, Terrorism and Security Issues Facing the Water
Infrastructure Sector, by Claudia Copeland and Betsy Cody.