AMSA Legal Alert (Leg02-2)

The National Office is pleased to provide you with this complimentary copy of AMSA's Protecting Wastewater Infrastructure Assets . . . Legal Issues in a Time of Crisis Checklist. The Checklist is one of the first elements of a series of tools that AMSA developed in the wake of the tragic terrorist attacks of September 11, 2001. These horrific events without question focused public agencies' attention across the nation on protecting critical infrastructure - in particular, wastewater collection systems and treatment facilities. Although several months have passed since the attacks, publicly owned treatment works (POTWs) continue to wrestle with the possibility that their infrastructure assets may become targets for direct physical threats, or be used as conduits for indirect threats.

The Legal Checklist will assist POTWs in identifying the range of legal considerations public utility attorneys and managers should consider relative to potential acts of terrorism or other crisis situations. The Legal Checklist is designed to accompany the AMSA's Protecting Wastewater Infrastructure Assets . . . Asset-Based Vulnerability Checklist, also released today via Member Update 02-4 and downloadable from AMSA's web site. AMSA created the Asset-Based Vulnerability Checklist in partnership with the U.S. Environmental Protection Agency with federal grant funds.

Legal Topics Addressed in the Checklist
The Legal Checklist goes in depth on a number of important issues to public agencies, including:

Vulnerability Assessments of Infrastructure Assets

• Deciding whether to undertake a vulnerability assessment
• Obligations created by undertaking a vulnerability assessment
• Public, press, or state or federal government access to vulnerability assessments
• Maintaining confidentiality of a vulnerability assessment

Internal Operations and Procedures

• Employee background checks, screening, and surveillance
• Employee harassment or workplace violence
• Duties to provide a safe workplace
• Testing the workplace environment for biological threats
• Obligations to employees accused of criminal activity

Prevention of and Response to Environmental Releases

• Obligations to report suspicious events
• Revision of environmental risk management plans and public access thereto
• Governmental requests to obtain access to agency property
• Additional sampling

Duty to the Public

• Duty of care
• Strict liability for ultrahazardous activity
• Governmental immunity
• Collection systems and lift stations located in other jurisdictions
• Effect of governmental warnings of credible or possible threats
• Effect of an Article of War on obligations, duties, and operations
• Federal, state and common law claims for exposure to and damages by environmental releases

Contract Issues

• Contracts with outside service providers, suppliers, and vendors
• Addressing crisis events in new contracts or contract renewals
• Verifying customers' compliance with security requirements
• Contract termination for security concerns
• Effect of crisis events on labor contracts

Insurance Issues

• Assessing coverage for acts of terrorism or crisis events
• Exclusions in existing insurance policies
• Changes in insurance policies following acts of terrorism or crisis event

Obtaining Additional Copies
You can obtain additional copies of the Legal Issues in a Time of Crisis Checklist from AMSA for $40. Simply visit AMSA's online bookstore at http://www.amsa-cleanwater.org/pubs/ to place your order request.

We hope you find the Legal Checklist useful to you in your Agency. Please do not hesitate to contact AMSA's General Counsel, Alexandra Dunn, with any comments or questions on this matter at 202/533-1803 or adunn@amsa-cleanwater.org.