Sunday, November 1, 2009

Title II and III of HR 2868

As promised in an earlier blog, I have gone back and reviewed Title II, Drinking Water Security, and Title III, Waste Water Treatment Works Security, of the new version of HR 2868 that was introduced last week in the Rules Committee as an ‘amendment in the form of a substitute’. Title II is essentially a transfer of the contents of HR 3258 as reported by the Energy and Commerce Committee. Title III was written out of whole cloth since treatment works were originally included under the provisions of HR 2868. Chairman Oberstar and his staff presumably prepared Title III so that treatment works would receive the same special security treatment accorded to water treatment facilities. Changes in Title II As I had predicted before reading Title II, it is essentially a word for word transfer of the provisions of the reported version of HR 3258. There have been some minor revisions that clear up some legal ambiguities but no real changes have been made in the provisions. The following changes were made:
§1433(a)(1)(B)(i) – added wording to specifically require submission of vulnerability assessments to the Administrator of the US EPA. §1433(a)(1)(B)(iii) – added wording to specifically require submission of site security plans to the Administrator of the US EPA. §1433(l)(2)(C) – changed the legal standard for determining violations of the information disclosure rules to: “Whoever discloses protected information in knowing violation of the regulations and orders issued under subparagraph (A)”. §1433l(l)(7)(A)(v) – added ‘documents, or records’ to the information protected. §1433(m) – changed the wording of this section to specifically refer to amendments made by Title I of the Chemical and Water Security Act of 2009 to Title XX1 of the Homeland Security Act of 2002 as regulations that do not apply to water treatment facilities.
Title III Title III, the Wastewater Treatment Works Security Act of 2009, adds a new section to Title II of the Federal Water Pol1lution Control Act (33 U.S.C. 1281 et seq.). Section 222 will do for the treatment works what the proposed §1433 of the Safe Drinking Water Act (42 U.S.C. 300i–2) does for drinking water treatment facilities. It would have been nice if the Transportation and Infrastructure Committee staff had taken the easy way out and copied HR3258 and then made revisions appropriate to treatment works. No, instead, they used the ideas and most of the provisions from HR 3258, but wrote the actual provisions of HR 3258 in original language. That meant extra work for the staffers, for people like me who review legislation, as well as for the lawyers and courts that will inevitably have to interpret these regulations. This last part is particularly aggravating since there is no congressional record of hearings or committee reports supporting Title III. Thus courts will have little or no record of congressional intent when they are required to interpret the provisions of this legislation. Title III does provide another unique standard to determine what treatment works are covered by this title. Where Title II uses the number of customers that a facility supports, Title III uses a 2.5 million gallon/day of treatment capacity as the standard. Shortcomings It is clear that the Energy and Commerce Committee staff did not do as much work on Title II (or HR 3258) as they did on their revisions to the introduced version of HR 2868. It is equally apparent that the Transportation and Infrastructure Committee staff did even less work on Title III, though they certainly have a legitimate excuse given the short amount of time they had to work on this legislation. There are several serious shortcomings in these sections of this legislation that will go to the floor of the House in the next week or so. It seems to me that these shortcomings reflect the lack of concern and expertise in these two committees for security in general or chemical security in particular. To paraphrase Rep Dingell’s snide comments about the Homeland Security Committee in the full markup hearing of the Energy and Commerce Committees, it is apparent that these two committees don’t know anything about security. Risk-Based Performance Standards Each of these titles requires the Administrator of the Environmental Protection Agency to establish risk-based performance standards (RBPS) that the facilities will have to use to establish their site security plans. Both require the Administrator “take into account section 27.230 of” 6 CFR. This vague wording provides little guidance to an agency that has little experience in security matters. Title I, on the other hand spelled out in great detail the areas that the Homeland Security Committee wanted the DHS Secretary to address in the development of risk-based performance standards for high-risk chemical facilities. This shortcoming is particularly acute when considering that these two titles address chemical security as just a minor part of the security planning that the facilities must address. Both of these titles rightly recognize that the unique missions of these types of facilities make them potential terrorist targets even if they have no significant quantities of substances of concern on site. These two committees did the communities surrounding these treatment facilities a serious disservice when they ignored this fact when they wrote these weak and ineffectual RBPS provisions into these two titles. They punted on their oversight and policy setting responsibilities. Background Checks There are no provisions in these security regulations for conducting background checks on facility employees. It seems absolutely ludicrous for facilities that can have multiple rail cars of chlorine gas on site, not to be required to have the background of their employees and contractors checked to ensure that they are, at the very least, not on a terrorist watch list. Title I goes into great depth and detail into the procedures required for these background checks and the protections provided to employees to ensure that these checks are not used as methods to get rid of politically troublesome (ie: labor organizers) employees. The exact same provisions should have been included in each of these titles. Methods to Reduce Consequences Both titles require facilities that “possesses or plans to possess a substance of concern in excess of the release threshold quantity set by the Administrator” {Title II, §1433(g)(2)} must complete an assessment of methods to reduce the consequences of a terrorist attack. They also allow for Tier I and II facilities that must conduct such an assessment to be required to implement such methods. In states where the State has enforcement authority for drinking water treatment or wastewater treatment, the appropriate State official is given authority to order the implementation. In all other States, the Administrator is given that authority. The Administrator is given authority to ensure State officials obtain timely submissions and make timely decisions about requiring implementation. The Administrator is not allowed to review the actual implementation decision made by the State. This ensures that there will be a wide variety of standards used to evaluate the implementation requirements. In most States, there will be few if any required implementations. This assessment is supported by testimony of Brian Ramaley, President of the American Water Works Association, before the Energy and Environment Subcommittee on October 1st. He stated in his written testimony (pg 7) that he was confident that state enforcement agencies would “generally defer to the water treatment determinations made by local water experts.” This may explain why these two titles do not provide any provisions for the appeal of implantation decisions. It appears that the assumption is being made that the States will not require implementation so there is no need for an appeal procedure. Even if that is true, there needs to be a procedure in the legislation for an appeal process because the States are being given full authority to require privately owned facilities to spend money without any safeguards against capricious or arbitrary decisions. If appeals procedures are not included in the legislation these cases will inevitably end up in court with the attendant threats of unintentional disclosure of security information. No provisions for Inspectors Neither title provides any requirement for the Administrator to develop and train an inspection organization to enforce the security provisions of this legislation. It is not clear that either committee made an effort to determine how many facilities would actually be covered by the standards in this bill. I would suspect that the EPA will, between the two titles, be inspecting a comparable number of covered facilities as DHS is currently dealing with high-risk chemical facilities. This means that EPA will have to have a security-trained inspection force of about 250 personnel to provide the same level of service to the covered facilities. To fulfill the Obama Administration’s desire to have similar standards used for chemical security at all federally covered facilities this legislation should have required that the inspection personnel used by the EPA would have to be trained by the ISCD’s Chemical Security Academy. Suits and Petitions With all of the concerns that the Democrats have expressed about the requirements for citizen suits and petitions in Title I for high-risk chemical facilities, it is amazing to me that there are no similar provisions in Title II or III. This may simply be that there are already provisions for these actions in the underlying legislation. If that is the case, then there should be specific provisions that deal with the security implications of such suits. The Way Forward The House Rule’s Committee is accepting proposed amendments to this new version of HR 2868 until 6:30 p.m. EST on Monday. They will be holding a Committee hearing on HR 2868 on Tuesday at 3:00 pm to formulate the ‘rule’ and resolution to bring the bill to the floor of the House. The bill could come to the floor on Wednesday or Thursday. You can expect a late posting on Tuesday evening on this blog describing the amendments that will be considered during the House floor debate on this bill. The timing will depend on when the Rule’s Committee posts their ‘unofficial copy’ of the rule on their website. The official publication of the resolution on the GPO web site will likely not take place until Wednesday afternoon.

1 comment:

Anonymous said...

1) 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. 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.

2) both SDWA and the CWA contain citizen suit provisions that are identical to that contained in HR 2868 as-introduced. Both titles II and III are amendments to SDWA and the CWA respectively - hence, there ARE citizen suits that apply to these titles. There are provisions of the bills that ensure that security-related information used in judicial proceedings is protected.

3) States implement the SDWA and the CWA already. They award permits for disinfectants - the very chemicals that one is concerned about from a security perspective. If EPA had been granted the IST authority, there could have been a situation, for example, where EPA told a wastewater facility to switch to a different chemical or process, but the State regulator denied the operating permit for doing so. I'm guessing the Committees who know SDWA and CWA recognized this problem and that is why the STate regulators had to be the IST implementors in the end.

4) 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.

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

6) HR 3258 as introduced was endorsed by AMWA, the drinking water organization for the largest utilities - the ones who will be subject to the IST provision - and a wide bunch of environmental and labor organizations. Since all stakeholders were already on board, perhaps the work occured prior to introduction and thus no further major changes were needed?

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