May 2010, Vol. 22, No.5

Legal Perspective

Should Water Sector Utilities Be Regulated As Chemical Facilities?

James K. Sullivan

The Clean Water Act and Safe Drinking Water Act, generally regarded as two of the most successful environmental laws in a generation, impose strict requirements on water and wastewater utilities through regulations established by the U.S. Environmental Protection Agency (EPA). Now, legislation is moving through the U.S. Congress that, if enacted, would impose additional regulations on water-sector utilities — similar to those currently in place for chemical facilities — with standards established by the U.S. Department of Homeland Security (DHS).

Following the events of 9/11, the U.S. government focused on securing “critical infrastructures” from terrorist threats. The water and chemical sectors are two of 18 critical infrastructures outlined in the National Infrastructure Protection Plan (NIPP), which provides a unifying structure for a voluntarypartnership between the government and private sector in protecting U.S. assets. As with the water sector, the chemical sector is subject to mandatory regulatory programs that existed prior to 9/11. But recently, the mandatory regulatory program for chemical facilities was significantly enhanced with the Chemical Facility Anti-Terrorism Standards (CFATS), published April 9, 2007, in the Federal Register. CFATS is the first regulatory program that categorizes chemical facilities based on their level of risk to the community.

Water-sector utilities currently are exempt from the CFATS program because Congress determined that they are not chemical facilities and the security of water-sector utilities and their assets should continue to be regulated by EPA. DHS has long objected to this “loophole” and now is pressing Congress to remove the exemption for the water sector, citing significant security concerns if Congress does not act. On March 3, a senior DHS official told the Senate Committee on Homeland Security and Governmental Affairs that DHS is writing legislation to reauthorize CFATS to include water. The bill, said to be released before the Senate’s August recess, could require use of safer chemicals in some cases, could force water-sector utilities to adopt security measures similar to those of chemical facilities, and will contain similar provisions to a bill that already has passed the House of Representatives (H.R. 2868). The approved House bill and the draft DHS bill would strengthen and expand existing interim security standards and make them permanent for all “high-risk” chemical facilities.

Under the current CFATS, DHS determines if a facility is high risk after the facility completes a mandatory “top screen” analysis, which, according to DHS, “follows a logical data collection progression: first, collecting basic facility identification information and then asking a series of questions regarding which chemicals are manufactured, processed, used, stored or distributed at the subject facility, followed by a request for additional supplemental information for any listed chemicals found onsite.” Depending on whether the facility stores, uses, or transports “chemicals of interest” at a certain threshold, DHS informs the facility if it must conduct a security vulnerability assessment, develop site security plans, and implement protective measures necessary to meet risk-based performance standards established by DHS. CFATS Appendix A, published in the Nov. 20, 2007, Federal Register, contains a list of chemicals and their screening threshold quantities. One of these chemicals is chlorine, with a minimum threshold of 227 kg (500 lb). DHS cites the potential for “toxic release” and “theft” as two reasons chlorine was included on this list. Since water and wastewater utilities use chlorine and other chemicals on the list, they would be required to go through a top screen analysis under the proposed legislation so DHS could determine if they are high-risk chemical facilities.

Without this mandate, many water-sector utilities already have begun to make the transition from chlorine to other disinfection methods. According to a survey released March 2 by the Center for American Progress (Washington, D.C.), hundreds of drinking water and wastewater treatment plants have replaced “hazardous substances” with safer, more secure chemicals or processes. The survey found that 554 drinking water and wastewater treatment plants in 47 states and the District of Columbia have accomplished this; however, at least 2600 drinking water and wastewater treatment facilities still use large amounts of chlorine gas. Of the 554 converted facilities, 235 treat drinking water, 315 treat wastewater, and four treat both. Of the 315 wastewater facilities, approximately 140 switched from chlorine gas to ultraviolet-light disinfection, and 175 switched to liquid bleach. Citing data from the U.S. Government Accountability Office, the center said about two-thirds of U.S. wastewater treatment plants already use a disinfectant other than chlorine gas. Drinking water utilities in at least 160 large cities already use liquid bleach.

So, two main issues exist. First, is the voluntary security program outlined in NIPP enough of an incentive for water-sector utilities to determine the choice of disinfectant used to protect public health and the environment, and should water-sector utilities continue to be allowed to make this decision based on all factors, including cost as well as security? And if not, then what is the most effective regulatory program for water-sector utilities to meet the goals of securing drinking water and wastewater services?

Regulating water facilities as chemical facilities under the CFATS rule would pose an enforcement challenge. In the chemical sector, facilities that do not comply with CFATS are subject to being shut down by DHS, which is a significant compliance incentive. According to DHS, the majority of chemical-sector facilities are privately owned and comprise an “integral component of the U.S. economy, employing nearly 1 million people, and earning revenues of more than $637 billion per year.”

On the other hand, according to EPA, the majority of drinking water and wastewater facilities are publicly owned. There are approximately 160,000 public drinking water systems and more than 16,000 publicly owned wastewater treatment systems in the United States. Approximately 84% of the U.S. population receives its potable water from, and more than 75% has its wastewater treated by, publicly owned systems. Unlike the chemical sector, the water sector does not produce a product to generate revenue but rather to protect public health and the environment. Therefore, is it advisable for a water-sector utility to be shut down for noncompliance with CFATS standards?

Certainly, chemicals used, stored, and transported by water-sector utilities pose a security risk, as they are subject to flammable and explosive release, theft, sabotage, and contamination. The question is how the water sector’s use, storage, and transportation of these chemicals should be overseen by federal and state governments. Should oversight be provided by EPA in partnership with DHS, as NIPP outlines, or under the DHS CFATS program, which would classify water-sector utilities as chemical facilities?

Ultimately, the regulations regarding water-sector utilities’ use of chemicals will be authorized by Congress and implemented by DHS and/or EPA. Perhaps the real question is, are water-sector utilities chemical facilities that treat water or public-health facilities that use chemicals?

 

James K. Sullivan is general counsel at the Water Environment Federation (WEF; Alexandria, Va.) and directs the WEF Security and Emergency Response Program.

 

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