S 67 – Secure Water Facilities Act

The GPO now has the official print of S67, the Secure Water Facilities Act, available on its web site. This bill is virtually identical to S 711 introduced during the last session and S 3598 introduced in the 111^th Congress. There are two titles in this bill; Title 1 is the Secure Drinking Water Facilities Act and Title II is the Secure Wastewater Treatment Facilities Act. They both do basically the same thing but modify different laws covering existing security requirement at the two types of facilities.

Drinking Water Treatment Facilities

This title completely re-writes §1433 of the Safe Drinking Water Act (42 USC 300i-2). It requires the Administrator of the EPA to prepare regulations within two years to establish {§1433(b)(1)}:

• Risk-based performance standards (RBPS) for the security of covered (serving more than 3,300 individuals) water systems {§1433(b)(1)(A)};

• Requirements and deadlines for each covered water system to conduct a vulnerability assessment {§1433(b)(1)(B)}; and

• Requirements and deadlines for each covered water system to develop, implement, and submit to the Administrator a site security plan{§1433(b)(1)(C)};

The RBPS would be based in part on the CFATS standards in 6 CFR §27.230. The vulnerability assessment would specifically be required to address the risk of “a release of a substance of concern that is known, or may be reasonably anticipated, to cause death, injury, or serious adverse effects to human health or the environment” (§1433(d)(1).

There is still a requirement {§1433(f)} for facilities to prepare an emergency response plan (ERP) and to certify that plan to the Administrator, but those plans are not specifically to be included in the regulations described above. Nor is there a requirement to submit those plans for approval. A copy of the ERP would now be required to be provided to {§1433(f)(e)(B)}:

• A local emergency planning committee;

• A State emergency response commission;

• A local law enforcement official; or [emphasis added]

• A local emergency response provider.

There are two additional items adopted from the CFATS program; tier ranking {§1433(h)} and substances of concern (SOC) {§1433(i)}. The tier ranking provisions of the bill include a description of factors to be considered and a requirement to inform system owners of why they were assigned to a specific tier. The SOC provisions require the Administrator to develop a list of chemicals and screening threshold quantities similar to the DHS chemicals of interest (COI) list in Appendix A, 6 CFR Part 27 [NOTE: the GPO is currently having problems with their .PDF files corrupting Internet Explorer. When that is corrected this should be a good link].

There is an inherently safer technology (IST) provision in this bill; Methods to Reduce Consequences of Chemical Releases from Intentional Acts {§1433(i)}. All systems with SOC in excess of the screening threshold quantity are required to do an IST assessment as part of their site security plan. Tier 1 and 2 (highest risk rankings) facilities may be required by State regulatory authorities to implement assessed technologies.

Waste Water Treatment Facilities

Title II modifies Title III of the Federal Water Pollution Control Act (33 U.S.C. 1311) by adding §321 at the end. It establishes that a covered facility is one that has a treatment capacity of 2,500,000 gallons per day. The remainder of the Title is the same as Title I with the exception of some minor word changes to reflect the differences in the types of facilities involved.

No Way Forward

There was just one hearing held during the 111^th Congress that Sen. Lautenberg (D,NJ) chaired that addressed the IST provisions in this bill, but no other work has been done on the two earlier versions of the bill. While the most vociferous opponent of IST requirements (contained in a weakened version in this bill for water treatment plants), Sen. Collins (R,ME) is no longer in the Senate, it is unlikely that this bill will move through the Senate Environment and Public Works Committee, very little does.

It is remotely possible that this bill could pass in the Senate if it came to a vote there. The water treatment industry does not have a large and powerful lobby and has never been vociferously opposed to IST like the chemical industry has. This bill would receive no consideration in the House even though there is some support for including water treatment and waste water treatment facilities with high-risk chemicals on site in the CFATS regulations. The IST provisions of the bill would, however, produce a knee jerk reaction in the Republican leadership that would prevent its consideration.