CFATS Reauthorization and Water Facilities

One aspect of potential CFATS reauthorization legislation that we haven’t looked at much since the 111th Congress came into session has been the issue of the exemption for water treatment and waste water treatment facilities. This last week 130 members of the American Water Works Association (AWWA) flew into Washington, DC to talk about this issue, among others, with their elected representatives. According to a press release from the AWWA, these local leaders made the following points about their facilities and any new chemical security legislation:

“Allow decisions about disinfectant choices to be made locally. “Prohibit the federal government from ordering the shut-down of water facilities. “Apply only to drinking water systems if they have chemicals of concern above certain threshold quantities.”

HR 5577 and Water Facilities Last year’s attempt at reauthorizing CFATS, HR 5577, clearly addressed the water treatment facility exemption. It would have removed that exemption and brought water treatment and waste water treatment facilities under the CFATS regulations. They could only have become ‘covered facilities’ if they had one or more DHS chemicals of interest (COI; typically chlorine, anhydrous ammonia and/or sulfur dioxide for this type facility) on-site above the screening threshold quantity (STQ) listed in Appendix A to 6 CFR part 27. Chairman Thompson’s proposal specifically addressed water facilities when it authorized the Secretary to shut down non-complying facilities. In §2105(b)(4) the legislation established a higher standard for that sanction for water facilities:

“Notwithstanding the preceding sentence, the Secretary may not issue an order to cease operations under this paragraph to the owner or operator of a drinking water or wastewater facility unless the Secretary determines that continued operation of the facility represents a clear and present danger to homeland security.”

There were no provisions in HR 5577 that would have exempted water facilities from the IST provisions of the legislation. In fact, there are many that feel that a large number of the facilities that the IST provisions were designed to affect would have been water treatment facilities using chlorine gas to disinfect the water. This is reflected in the large number of water treatment facilities that are listed in the Center for American Progress publication, Chemical Security 101. AWWA and CFATS Reauthorization It is almost a certainty that the legislation being developed by the House Homeland Security Committee will remove the water facility exemption from the §550 authorization. Where the AWWA will fall on the issue of CFATS authorization legislation then will be determined by the wording of the IST provisions. The AWWA had promised to come up with a model method for analyzing for technical and financial feasibility of replacing chlorine gas at water and waste water treatment facilities. If they can convince the Committee that the method provides a ‘legitimate analysis’ (technically and politically) they have a chance of getting IST wording that they can live with. Having the analysis peer reviewed would go a long way to convincing the Committee of the legitimacy of the analytical method.