Reader Comment – 11-01-09 Title II & III

Anonymous left a fairly quick reply to my post of yesterday afternoon about the Title I and Title II provisions of the new version of HR 2868 that was posted on the House Rules Committee web site. Anonymous provided a number of answers to some of the concerns I had about the shortcomings associated with Title II and Title III. The post is too long to copy en toto here, but you can (and should) read it at the end of Sunday’s Post. I would like to respond to a couple of the issues that Anonymous addressed. Spelling out RBPS Where I complained about the lack of definition of the risk-based performance standards in Title II and Title III, Anonymous replied:

“I am guessing that the reason why RBPS were spelled out for title 1 is because they already exist for CFATS - in fact I think the bill text is very similar if not identical to the regs. If they had been left general or changed from CFATs, DHS might have had to completely re-do the regulations even for RBPS's that haven't been explicitly changed by the bill. Since no similar regulations exist on the water side, there was no need to be that explicit, especially since it is the Administration's position is that EPA will simply alter DHS's RBPS to suit the water facilities' imique characteristics.”

Actually, this argument is completely backwards. Since Title I, §2120(d)(4)(B) only requires that Secretary amend the current CFATS regulations to “ensure that such regulations are consistent with the requirements of this title and the amendments made by this title”, just mentioning the requirement for RBPS, as was done in Title II and III, would have allowed the current RBPS to stand unchanged. Instead the Homeland Security Committee chose to address those RBPS in detail, modifying and adding new requirements as they thought necessary. The Energy and Commerce Committee has questioned ability of DHS to appropriately address the unique security issues associated with water treatment facilities so much that they removed the oversight of that security from the only executive department specifically charged with protecting homeland security. I would have expected the Committee to control how much influence that DHS had over the drinking water security regulations by specifically outlining what parts of the CFATS RBPS could apply to water treatment facilities and what additional coverage was needed. Additionally, the CFATS RBPS do not address what are clearly unique security aspects of drinking water treatment. There is nothing said about providing security for off-site water sources, on-site water contamination, or downstream contamination of drinking water. Surely the Committee has some ideas of what types of requirements they want to see included in performance standards for these areas. Background Checks Where I complained about the lack any mention of background checks for personnel working at covered water treatment and waste water treatment works Anonymous replied:

“Personnel surety is, of course, one of the RBPS that EPA will need to develop. Since water facilities can be very spread out and in the middle of residential areas, it may be a harder thing to do - the Title 1 personnel surety requirement keys to the people who have unescorted access to sensitive areas of the facility. On the water facility side - all of the WATER is the sensitive area, because of the contamination risk.”

I agree that the personnel surety may be harder at water treatment facilities, but as Anonymous points out it is probably going to be more important because of the unsupervised, off-site access that many employees will have to the distribution network. This very difficulty makes it important that it is specifically addressed in the legislation. I find it absolutely ludicrous that the Energy and Commerce Committee spent so much time reworking the details of §2115 of Title I (so much so that their version of that section forms the backbone of the section in the amendment), and did nothing to address the issue in Title II or Title III. Now I do understand the literary difficulties of adding the provisions of a large section such as §2115 to a paragraph of §1433. It would be unreasonable to cram all that information into an already crowded §1433. This could have been easily handled by adding a new section to the Safe Drinking Water Act, or even just referencing the requirements of §2115 in the discussion of the personnel surety RBPS. Once again, the Energy and Commerce Committee chose to take the easy way out and let the Executive Branch both set and implement policy. Site Inspections I questioned the fact that these two titles make no mention of a security inspection force and suggested that provisions should have been made to require training of EPA inspectors at the DHS Chemical Security Academy. Anonymous responded that:

“Both SDWA and CWA already require inspections - security will need to be added, to be sure, but the personnel and structure already exists.”

From personal experience I question whether EPA has an effective inspection program. I spent 16 years working at RMP covered chemical facilities and we never saw an EPA inspector. With EPA already delegating much of their drinking water and waste water treatment inspection authority to State agencies, I really doubt that there are sufficient inspectors available to take on the security inspection role. Even if there are sufficient inspectors currently on staff, they certainly do not have adequate training to evaluate security matters. Now EPA inspectors will have an advantage over many of the DHS inspectors looking at chemical facilities, the EPA inspectors should be familiar with treatment facility operations. All they are going to need to learn is the security side of things. The DHS Chemical Security Academy program could easily be modified to provide the appropriate security issue instruction to the EPA inspectors. IST Appeal In my piece I questioned the lack of appeal provisions for facilities required to implement IST methods. Anonymous replied:

“In my read, both titles II and III contain appeal provisions for IST. They aren't as explicit probably because each State can provide its own ways of conducting appeals under SDWA or the CWA, so there could have been constitutional problems associated with directing something specific.”

I went back and re-checked my reading of the legislation and Anonymous is correct; §1433(g)(3)(D) provides that an appeal process will be established. I am still struck by the contrast between the requirements in Title I and the lack of requirements in Title II. The comment of Anonymous about ‘constitutional problems’ does not carry any significant weight. Since this legislation is giving the State authority to make the decision on IST implementation the legislation can also spell out the appeal provisions. This would be especially true if the appeal were to be made to the Administrator, in much the same way as Title I provides for the DHS Secretary to be the final appellate authority for IST provisions in the chemical facility program. Read the Remainder of the Comments Again, these are just a few of the areas that Anonymous addressed in reply to my posting. I urge all of those interested in this legislation to go back and read the entire posting. A real understanding of the legislation requires a detailed hearing of both sides of the issues. I also, as always, encourage others to join in the discussion.