HR 3258 Analysis – IST Assessments

This is another in a continuing series of blog postings about the recently introduced 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. Previous postings in this series include: HR 3258 Section-by-Section Analysis HR 3258 Analysis – Political Background HR 3258 Analysis – 50 Enforcement Agencies HR 3258 Analysis – Substance of Concern HR 3258 Analysis – Vulnerability Assessments Every covered water treatment facility that possesses a substance of concern (SOC) above the established threshold quantity would be required to conduct an assessment of ‘methods to reduce the consequences of a chemical release from an intentional act’ (Methods) {§1433(g)}. These Methods, commonly referred to as ‘inherently safer technology’ or IST (though those terms are not used in the text of this bill), include {§1433(g)(1)}:

The “use of alternate substances, formulations, or processes”; The “modification of pressures, temperatures, or concentrations of a substance of concern”; or The “improvement of inventory control or chemical use efficiency”.

The wording of this section does not limit which SOC must be covered under such assessments. While most public discussion of IST provisions focuses on toxic chemicals such as chlorine gas, anhydrous ammonia or sulfur dioxide gas, there is no specification of which SOC should be addressed. Presumably then, every SOC possessed or planned to be possessed at the site would be required to undergo such an assessment. The Assessment The assessment of Methods is required to be included in the Site Security Plan submission required under §1433(e) and must be submitted to the Administrator and the State agency exercising primary enforcement responsibility over the facility (except Wyoming and DC). Section 1433(g)(2) specifies what information must be included in the report of the assessment. That section requires that the regulations developed by the Administrator require that the assessment “consider factors appropriate to the system’s security, public health, or environmental mission”. In addition to a description of the methods assessed, the assessment must include a description of how each method would “reduce the potential extent of death, injury, or serious adverse effects to human health resulting from a chemical release” {1433(g)(2)(B)}. These potential benefits are to be contrasted with potential adverse affects of the implementation of the Methods to include how it would affect “the presence of contaminants in treated water, human health, or the environment” {1433(g)(2)(C)}. The assessment would then have to address the feasibility of implementing each Method. It specifies that the facility will use the feasibility rules currently described in §1412(b)(4)(D) of the Safe Drinking Water Act (42 U.S.C. 300i–2). This feasibility assessment would specifically exclude cost factors. Costs will be reported separately from the feasibility assessment. Cost analysis would be done showing the costs of implementation (both capital and operational costs) and the avoided costs (savings and liabilities). This cost analysis would be done for each of the Methods described for that facility. There are no definitions provided for what avoided liabilities should be required in this cost reporting. Finally, after reporting any other “relevant information that the covered water system relied on in conducting the assessment” {1433(g)(2)(F)}, the facility would report if the facility has implemented or plans to implement any of the reported Methods. The assessment report would have to explain why any of the described Methods is not being implemented. Implementation Requirements In regulations implementing this legislation the Administrator will establish a time limit for the administrative review of these assessments. Within that time limit, the State agency exercising enforcement authority (or the Administrator for Wyoming or Washington, DC) over the facility will evaluate the assessment and determine if the facility will be required to implement any of the assessed Methods. Only facilities in the two highest ranked Tiers may be required to implement such Methods. The State agency will report the result of their determination to the Administrator. In making the determination the State agency (Administrator) will “consider factors appropriate to the security, public health, and environmental missions of covered water systems” {1433(g)(3)(C)}. Included in those factors will be an analysis of:

The reduction of “the risk of death, injury, or serious adverse effects to human health”; The “interim storage of a substance of concern”; The ability of the facility 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 The feasibility of the Method under §1412(b)(4)(D)

Enforcement In the event of an incomplete assessment, the Administrator may require an assessment to be re-submitted within 60 days. The Administrator may take enforcement actions under §1433(o) if the assessment is not submitted within the required time frame. If the State agency fails to make a timely determination of whether or not to require a covered facility to implement a Method, the Administrator will provide the agency and the covered facility with a 30 day notice to make the determination. Failure of the State agency to make a determination within that time frame will allow the Administrator the authority to make that determination. A similar 30 day notice would be provided if the State agency fails to take enforcement action for failure to implement a required Method in a timely manner. The ultimate sanction available against the State agency is for failure to act under the provisions of this section includes removing the State agency’s authority to supervise water treatment facilities. There are no provisions included in this legislation for the Administrator to review or overturn a determination made by the State agency to require (or not require) the implementation of Methods. Neither are there any provisions made for the covered facility to appeal a requirement to implement such Methods.