Legislation signed by President Bush on October 4, 2006 requires the Department of Homeland Security ("DHS") to publish interim-final rules on chemical plant security in the next six months. Previous analyses by DHS found that 272 chemical plants in the United States are at risk of an attack or accident that could affect at least 50,000 people and there are an additional 3,400 plants for which more than 1,000 people would be at risk of harm from an attack. (See Debate Over Security for Chemical Plants Focuses on How Strict to Make Rules, by Eric Lipton, New York Times, sec. A, Column 1, Sept. 21, 2006, Late Edition-Final.) The legislation aims to reduce these risks.
Title V of the 2007 Department of Homeland Security Appropriation Act requires the Secretary of Homeland Security to establish "risk-based performance standards" for chemical facilities. The regulations will also require facilities that "present high levels of security risk" to develop and implement site-specific security plans.
The Secretary of Homeland Security is required to disapprove any site-specific security plans that do not meet the "risk-based performance standards," and is also required to audit and inspect chemical facilities. The legislation grants DHS the authority to assess civil penalties, compliance orders, and – ultimately – shut down any facilities in that are not in compliance.
Public drinking water systems regulated by the Safe Drinking Water Act and wastewater treatment facilities regulated under the Clean Water Act are exempt from the legislation.
This short, one page piece of legislation leaves many important gaps to be filled by DHS in its regulations, including: the list of covered chemicals, a definition for "high level of security risk," and the required contents for acceptable security plans. Alternate legislation introduced in Congress this year would have filled in many of these gaps, including the definition of a covered chemical, which was based the list of hazardous air pollutants set forth by section 112 of the Clean Air Act (see Chemical Facility Anti-Terrorism Act of 2006, H.R. 5695). Instead, Congress decided to leave these gaps to be filled by the DHS rulemaking process. DHS will need to move quickly to meet the six month deadline for interim final regulations, but the legislation does not exempt DHS from Administrative Procedure Act requirements, so interested parties will have advance notice of the proposed rules and an opportunity to provide comments to the agency.
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