HR 3258 Analysis – EPA Enforcement

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 HR 3258 Analysis – IST Assessments HR 3258 Analysis – VA-SSP Review HR 3258 Analysis – Protected Information HR 3258 Analysis – Employee Participation HR 3258 Analysis – Emergency Response Plans HR 3258 Analysis – Risk Based Tiers The Administrator of the US EPA is given responsibility and authority for the assessment of civil penalties for violations of “any requirement of this section, including by not implementing all or part of its site security plan by such date as the Administrator requires” {§1433(o)(1)}. The Administrator may assess civil penalties of up to $25,000 per day. Enforcement Actions When it has been determined that a violation exists, the Administrator will consult with State authorities (except for Wyoming and Washington, DC) and take into account the “the severity of the violation or deficiency and the record of the covered water system in carrying out the requirements of this section” {§1433(o)(2)} before deciding how to proceed. The options would include:

Assessing a civil penalty and requiring compliance within a specified time, or Commencing a civil action in US District Court for ‘appropriate relief’ including injunctive relief.

IST Exemption This section includes a specific exemption form these enforcement actions for activities required under the provisions of §1433(g), commonly referred to as the IST provisions. For systems located anywhere but Wyoming and Washington, DC “the Administrator may not issue an order or commence a civil action under this section for any deficiency in the content or implementation of the portion of the system’s site security plan relating to methods to reduce the consequences of a chemical release from an intentional act” {§1433(o)(3)}. This is a conditional prohibition. If the facility is late in submitting its IST assessment or has failed to implement IST measures as required by the State authorities, the Administrator may take actions under this section after notifying the State authority and giving the facility 30 days to come into compliance. These exemptions were discussed in more detail in the posting discussing IST assessment issues