Legislative Update on Security Issues : Recent Developments Regarding Chemical Facility Security

As you know, in 2006 the 109^th Congress enacted legislation requiring chemical facilities that store, produce or use certain hazardous chemicals on site to demonstrate that these facilities are secure against potential terrorist threats by conducting vulnerability assessments, site security plans and emergency response plans and submitting these plans to the Department of Homeland Security (DHS).  These requirements expire in October 2009 unless Congress reauthorizes the law.   Drinking water and wastewater utilities were granted an exempted from the legislation’s requirements, along with certain other facilities.

During the 110^th Congress, the House Homeland Security Committee, chaired by Congressman Bennie Thompson (D-MS), introduced legislation to make permanent the 2006 legislation. The legislation, H.R. 5577, the Chemical Facilities Anti-Terrorism Act of 2008 would, among other things, discontinue the current exemption for water and wastewater facilities.  The legislation was reported out of the House Homeland Security Committee in early March and referred to the House Energy and Commerce Committee for review based on this committee’s jurisdiction over hazardous chemicals. A request for jurisdictional review has also been made by the House Transportation and Infrastructure Committee because the legislation requires wastewater utilities to comply with it; WEF sent a letter in support for the Committee’s request for jurisdiction.

Specific highlights of H.R. 5577 relevant to wastewater utilities include:

• Requirement that covered facilities submit vulnerability assessments and site security plans to the Secretary of DHS, with additional requirements for facilities deemed to be high-risk by the Secretary.
• Enforcement provisions that include DHS authority to shut-down high-risk drinking water and wastewater facilities that do not comply with DHS orders if DHS determines continued operations would pose a danger to homeland security.
• DHS authority to require drinking water and wastewater facilities use alternative disinfection technologies, if funding is provided.  

Under H.R. 5577, “covered facilities” are considered any facility that stores, uses, or produces a chemical substance deemed to be a chemical of concern by the Secretary of DHS in sufficient quantities that it poses a public threat, as well as the likelihood that facility could be a terrorist target, the potential extent of adverse effects should the facility be attacked, and the facilities’ proximity to population centers.  As currently drafted, all water and wastewater facilities would be required to submit preliminary information to DHS for a determination as to whether the facility is a “covered facility” under the Act. 

Competing House legislation has been introduced by Congressman Albert Wynn (D-MD) with the same title, H.R. 5533.  This legislation basically mirrors the legislative language enacted in 2006 and continues current exemptions granted in that law, including the exemption granted to drinking water and wastewater facilities.  H.R. 5533 was introduced and immediately referred to the House Energy and Commerce Committee where it awaits action. 

You can access both bills by going to http://thomas.loc.gov/ and searching these bill numbers.

The Water Environment Federation has taken the position that publicly-owned treatment works should continue to be exempted from DHS regulatory requirements, and, in the alternative, that legislation regarding security at wastewater treatment facilities should be enacted that takes into consideration the unique responsibilities and characteristics of municipal wastewater utilities, with oversight given to the Environmental Protection Agency, rather than to DHS.  For this reason, WEF wrote a letter to Transportation and Infrastructure Committee chairman James Oberstar (D-MN) that supported his committee’s request for jurisdiction over the POTW-related provisions of H.R. 5577.  A copy of this letter is attached.

The WEF letter also provided information from a recently completed survey of chemical security practices at water and wastewater treatment facilities.  Almost 1,200 drinking water utilities and over 950 wastewater utilities responded to this survey, and the results showed that approximately 95 percent of the respondents had evaluated their disinfection methods in light of public health, environmental, and security concerns, and 94 percent had emergency response plans in effect. An Executive Summary of this survey is attached.  WEF and the other sponsoring associations believe that these results demonstrate the significant efforts that the water sector has undertaken to ensure the safety of their facilities and any hazardous chemicals that may be used or stored at them. 

The Senate Homeland Security and Government Affairs Committee is not expected to take up similar legislation this year, so the likelihood that any legislation concerning security over chemical facilities is enacted by this Congress is remote.  According to Senate committee staff, they are taking a wait and see approach to how the current Chemical Facility Anti-Terrorism Program is implemented before recommending changes or modifications to it. 

In addition to activity on the legislative front, WEF continues to provide resources to water sector utilities on security and emergency response issues.  WEF just completed a five year training program for all size water and wastewater facilities to conduct a vulnerability assessment of their facility and update their emergency response plan.  Currently, WEF is working with DHS to examine the interdependencies of water among various other critical infrastructures, including energy, transportation, and emergency services. 
 

WEF will continue to track legislation pertaining to plant security issues and advise you of major developments as they occur.  If you have any questions, please contact Patricia Sinicropi, WEF Legislative Counsel, at (703) 684-2416.