HR 3258 Section-by-Section Analysis

On July 20th Chairman Waxman and four fellow Democrats from the House Energy and Commerce Committee introduce HR 3258, the Drinking Water System Security Act of 2009. This bill is designed to be a companion bill to HR 2868, the Chemical Facility Anti-Terrorism Act of 2009, extending chemical facility security rules to water treatment facilities. This bill would amend §1431 of the Safe Drinking Water Act (42 U.S.C. 300i–2) by completely rewording that section of the Act {§2(a)}. Any violations of the current version of §1431 that occur before the effective date of the regulations required in this bill will result in those rules remaining in effect for that facility until the issues are resolved or enforcement proceedings have been completed {§2(b)(3)}. What follows is a section-by-section analysis of the provisions of this proposed legislation. I will reserve my comments for a later posting. Section 1431(a) This section requires that the Administrator of the US EPA issue regulations establishing risk-based performance standards for the security of covered water treatment facilities. A covered water treatment system would be any system that serves a population of 3,300 or more or is so designated by the Administrator. It would require those regulations to establish requirements for the conduct of security vulnerability assessments (SVA), development of site security plans (SSP) and the preparation of emergency response plans (ERP) for covered facilities. The regulations would require an update those SVA’s every 5 years or whenever system changes at the facility could result in the reassignment of the risk-based tier ranking of the facility. SSP’s and ERP’s would also be updated every five years, but SSP’s would have to be updated after every update of the SVA. Because most States have primary enforcement responsibility for water treatment systems, the Administrator is required to consult with State authorities during the development and carrying out these regulations. The Administrator is also required to consult with the Secretary of DHS regarding {§1431(a)(4)}:

“(A) provision of threat-related and other baseline information to covered water systems; “(B) designation of substances of concern; “(C) development of risk-based performance standards; “(D) establishment of risk-based tiers and process for the assignment of covered water systems to risk-based tiers; “(E) process for the development and eval1uation of vulnerability assessments, site security plans, and emergency response plans; “(F) treatment of protected information; and “(G) security at co-managed drinking water and wastewater facilities.”

In establishing a list of substances of concern the Administrator should establish a threshold quantity for release or theft of the substances. The Administrator would take into consideration the toxicity, reactivity, volatility, dispersability, combustibility, and flammability of the substance. The selection of the threshold quantity should reflect the amount of the substance that, when released, would result in death, injury, or serious adverse effects to human health or the environment. The Administrator should take Appendix A to 6 CFR part 27 into account when establishing the list. The Administrator would also provide baseline information to covered water systems on what intentional acts are probable threats to{§1431(a)(6)}:

“(A) substantially disrupt the ability of the system to provide a safe and reliable supply of drinking water; “(B) cause the release of a substance of concern at the covered water system; or “(C) cause the theft, misuse, or misappropriation of a substance of concern.”

Section 1431(b) The risk-based performance standards (RBPS) will provide for separate and increasing stringent standards based on the covered water system’s risk-based tier assignment. The Administrator will take into account 6 CFR 27.230 when developing these RBPS. Section 1431(c) The SVA will assess the system’s vulnerability to a range of intentional acts, including intentional release of a substance of concern. At a minimum the assessment will include:

“(1) pipes and constructed conveyances; “(2) physical barriers; “(3) water collection, pretreatment, treatment, storage, and distribution facilities; “(4) electronic, computer, and other automated systems that are used by the covered water system; “(5) the use, storage, or handling of various chemicals, including substances of concern; “(6) the operation and maintenance of the covered water system; and “(7) the covered water system’s resiliency and ability to ensure continuity of operations in the event of a disruption caused by an intentional act.”

Section 1431(d) The regulations will provide for a risk-based tier ranking system with four tiers and tier 1 being the highest risk tier. The Administrator will require covered water systems to submit information necessary to asses the tier ranking for that system. The Administrator will advise the covered water systems of the reason for their ranking. In determining the ranking the Administrator will take into account the potential consequences from {§1431(d)(1)(B)}:

“(i) an intentional act to cause a release, including a worst-case release, of a substance of concern at the covered water system; “(ii) an intentional act to introduce a contaminant into the drinking water supply or disrupt the safe and reliable supply of drinking water; and “(iii) an intentional act to steal, misappropriate, or misuse substances of concern.”

Section 1431(e) The regulations will allow each covered water system to develop it’s site security plan by providing a layered security and preparedness measures that will address each of the vulnerabilities identified in the SVA and all of the RBPS required by this legislation. Section 1431(f) The SSP and ERP shall describe the roles and responsibilities for employees and contractors in deterring and responding to intentional acts. Each covered water system will provide annual training for its employees and contractor employees on those roles and responsibilities Each covered water system will include at least one supervisory and at least one non-supervisory employee and an employee representative from each recognized/certified bargaining agent (for either facility or contractor employees) in the development of the SVA, SSP and ERP for the facility. Section 1431(g) For each covered water system that possesses or plans to possess an substance of concern above the threshold quantity, there will be a requirement to include in the SSP for that system an assessment of ‘methods to reduce the consequences of a chemical release from an intentional act’. The assessment would consider factors appropriate to the system’s security, public health, or environmental mission, and include a discussion of:

The methods assessed; How the methods could reduce the potential extent of death, injury, or serious adverse effects to human health resulting from a chemical release; How the methods could affect the presence of contaminants in treated water, human health, or the environment; Of the feasibility of the methods; The costs associated with implementing the methods; Any other relevant information; and Whether the facility has implemented or plans to implement any of the methods discussed.

For Tier 1 and Tier 2 facilities that are required to complete the assessment and are located in a State that exercises primary responsibility for water treatment facilities, the State may require the facility to implement methods to reduce the consequences of a chemical release from an intentional act. If a State decides not to require that implementation it will so notify the Administrator. In all other states the Administrator retains the authority to require Tier 1 and Tier 2 water treatment facilities to implement the methods assessed by that facility. The authority making the decision to mandate implementation will consider factors appropriate to the security, public health, and environmental missions of covered water systems, including an evaluation of whether the method{§1431(g)(3)(C)}:

“(i) would significantly reduce the risk of death, injury, or serious adverse effects to human health resulting directly from a chemical release from an intentional act at the covered water system “(ii) would not increase the interim storage of a substance of concern by the covered water system; “(iii) would not render the covered water system unable to comply with other requirements of this Act or drinking water standards established by the State or political subdivision in which the system is located; and “(iv) is feasible, as defined in section 1412(b)(4)(D), to be incorporated into the operation of the covered water system.”

If a covered water system prepares an inadequate assessment, or the State fails to make a decision about the implementation of methods, or the State fails to enforce an order to implement methods, the Administrator may assume the appropriate responsibility and order compliance after providing a 30 day notice. Failure of a State with primary enforcement authority to fail to properly implement and enforce this rule may result in the Administrator reviewing the primary enforcement authority of that State. Section 1431(h) Each covered facility is required to submit an SVA and an SSP to the Administrator and the Administrator is required to review those documents. The Administrator has the option to approve the submitted documents if they meet the requirements of this section, or to require the covered facility to correct significant deficiencies. One of the required documents has a ‘serious deficiency’ if the Administrator, in consultation (if appropriate) with the State exercising primary enforcement authority, determines that {§1431(h)(2)}:

“(A) such assessment does not comply with the regulations established under section (a)(1); or “(B) such plan— “(i) fails to address vulnerabilities identified in a vulnerability assessment; or “(ii) fails to meet applicable risk-based performance standards.”

Section 1431(i) Each covered water facility is required to prepare and Emergency Response Plan (ERP). They are required to certify the completion of the ERP to the Administrator not later than 6 months after the first completion or each revision of the facility SVA, or after any revision of the ERP. Each covered water facility ERP will include {§1431(i)(3)}:

“(A) plans, procedures, and identification of equipment that can be implemented or used in the event of an intentional act at the covered water system; and “(B) actions, procedures, and identification of equipment that can obviate or significantly lessen the impact of intentional acts on public health and the safety and supply of drinking water provided to communities and individuals.”

The covered water facility will provide appropriate information to any local emergency planning committee, local law enforcement officials, and local emergency response providers to ensure an effective, collective response. Section 1431(j) Each covered facility will maintain copies of their current SVA, SSP and ERP. Section 1431(k) The Administrator will audit and inspect covered water facilities to ensure compliance with this section. During such inspections the Administrator or designated representative will have full access to all personnel at the facilty. Section 1431(l) The Administrator will prepare regulations covering the prohibition of public disclosure of protected information. The level of protection will be similar to those required for Sensitive Security Information under §525 of the Department of Homeland Security Appropriations Act, 2007 (Public Law 109–295; 120 Stat. 1381). Those regulations will make the unauthorized disclosure of protected information the equivalent of a Class A Misdemeanor with up to a year in prison and/or fines in accordance with chapter 227 title 18 USC. The regulations will include provisions for sharing information with {§1431(l)(1)(A)} “Federal, State, local, and tribal authorities, first responders, law enforcement officials, designated supervisory and non-supervisory covered water system personnel with security, operational, or fiduciary responsibility for the system, and designated facility employee representatives, if any. Such standards shall include procedures for the sharing of all portions of a covered water system’s vulnerability assessment and site security plan relating to the roles and responsibilities of system employees or contractor employees under subsection (f)(1) with a representative of each certified or recognized bargaining agent representing such employees, if any”. Section 1431(m) Covered water facilities will continue to be exempt from the CFATS regulations, underlying legislation, HR 2868 and the rules resulting there from. Section 1431(n) This section does not preempt any State or political subdivision thereof, from adopting and enforcing more stringent regulations. Section 1431(o) The Administrator may assess a civil penalty of up to $25,000 per day for violations of these regulations including failure to fully implement the SSP by the required date. The Administrator may also seek injunctive relief in US District Court. The Administrator may not take action against a covered facility for an inadequate assessment of, or failure to implement, methods to reduce the consequences of a chemical release as result of an intentional act, if the State exercising enforcement authority has approved the assessment or the decision not to implement such methods. Section 1431(p) The Administrator will prepare a report to Congress three years after passage of this act, and every three years there after, on the progress of the implementation of the rules required by this section. Detailed requirements for the report are provided. Section 1431(q) The Administrator will establish a grant program to assist the States in implementing this rule. The Administrator will contract with the National Institute of Health Sciences to make and administer worker training grants; worker training would cover facility employees and contractor employees, as well as first responders and emergency responders that would respond to an intentional act at a covered facility. Section 1431(r) The Act would appropriate $315 million for FY2011. Of that money $30 million would go to administrative costs of the Administrator or States and $125 million may be used to implement methods of reducing consequences of a chemical release from an intentional act at a covered facility.