HR 3258 Analysis – Political Background

Last week I posted a section-by-section analysis of HR 3258, the water system security companion to HR 2868. That analysis looked at what the legislation said and required. Today I would like to start to look at those requirements as a whole and compare how the affect on water treatment facilities would compare to both the current CFATS program and the updated program envisioned in HR 2868. But first we need to look at the differences between water treatment facilities and commercial chemical facilities. Water Treatment vs Chemical Facilities Before we can look at the affect of these regulations we first have to understand that there are fundamental differences between water treatment facilities and high-risk chemical facilities. These differences are going to color the differences between how chemical security regulations are applied at these two distinct types of facilities. First chemical facilities are privately owned and are operated to produce profits for their owners. Most water treatment facilities are government owned or closely controlled by a local government agency. The reason for government control is that these facilities are almost always a monopoly; the sole source for drinking water for the served population. An important part of this government control is that local politicians typically control the rates that the facility operator can charge for their product. While the US Environmental Protection Agency has some level of regulatory control over almost all CFATS covered facilities the regulations that govern those facilities are significantly different than the regulations that govern the relationship between the US EPA and water treatment facilities. Furthermore, for all but one state (Wyoming) and the District of Columbia, the US EPA has delegated most of the control for water treatment facilities to State agencies. Finally, there are already Federal regulations in place that address anti-terrorism security measures for water treatment facilities. Those regulations are designed to loosely protect water systems from contamination, not control the theft or release of water treatment chemicals. Those regulations do require covered water facilities to complete a security vulnerability assessment, but do not require the completion or independent evaluation of site security plans. Political Considerations One of the considerations that goes into the development of any major legislation in Congress is the determination of which committee has oversight responsibility for that legislation. As many commentators have discussed the formation of the Homeland Security Department has created a problem in Congress because a wide number of government agencies, all with their own history of Congressional oversight, were combined into a new organization with its own oversight committee. Again, many commentators have noted that Congressional committees jealously guard their oversight responsibility. This is a simplistic view of the situation. It is certainly true that surrendering some oversight responsibility to another committee would result in a reduction of the authority of a committee, most importantly the authority to direct the spending of money into member’s districts. But, to be perfectly fair, each committee staff has built-up a level of expertise in the operations, legislative background, developing plans of the supervised agency. Transferring that expertise is not simple, nor is has there been much effort made to encourage that transfer by the Congressional leadership on either side of the aisle. Other fights have had higher priority. This situation has been particularly difficult for those that have been considering the regulation of chemical security at water treatment plants. After 9/11 it was clear that public water treatment works were a potential terrorist target and the EPA and Congress worked out rules for the protection of those facilities from attacks that posed threats to the purity of the water output of those facilities. It was a natural outgrowth of the EPA regulation of water facilities; the EPA’s coverage had always been concerned with the water coming out of the facilities. It has been clear for some time that the regulation of chemical security at water treatment facilities was going to be primarily concerned with preventing the release of toxic inhalation hazard (TIH) chemicals, chlorine gas and anhydrous ammonia in particular. While there are available substitutes for these chemicals, that substitution is not as simple as stopping the shipment of chlorine and starting to receive industrial strength bleach instead. The technical challenges are further complicated by the fiscal realities that govern water treatment facilities; limited capital reserves, limited access to credit, and ultimately, voter approval requirements for any major expenditure of funds. Finally, there is always the conflict between local governance and federal oversight. This is a conflict that dates back to well before the establishment of United States, and is actually a direct outgrowth of revolution that separated the colonies from the control of the British government. Local communities jealously guard their control of police, schools and water treatment facilities. Members of Congress are well aware of this and tend to tread lightly when imposing requirements on local governments, especially laws that require those governments to spend local money, the infamous ‘unfunded mandates’. All of these political considerations color the application of chemical security regulations at water treatment facilities. Problems with these considerations have, to date, prevented the regulation of the widely recognized hazards of TIH chemicals at these facilities. Many water treatment facilities have, however, already started with the development of their own security plans and, frequently, the substitution of less hazardous chemicals. A good analysis of such actions can be found in the June 2008 testimony of Mr. Brad Coffey, Water Treatment Section Manager, Metropolitan Water District of Southern California, before the Subcommittee on Environment and Hazardous Materials. Separate Regulation A good understanding of these political realities is what lead to the development of HR 3258 as a separate bill from HR 2868. First this bill had to amend the Safe Drinking Water Act instead of the Homeland Security Act as that act already regulated the physical security of drinking water facilities. It only makes sense to extend those existing security regulations to include the protection of the chemicals used in water treatment. That logically lead to making the US EPA the lead agency for the expanded security regulations; they were already responsible for the managing the current security regulations. It also acknowledges the fact that the EPA has historically shared the responsibility for regulation of such facilities with State agencies and extends that shared responsibility to chemical security regulations. This will also color the details of the implementation that we will look at in future a future blog.