NACWA Legislative Alert (LA06-2)

To:	Members & Affiliates, Security & Emergency Preparedness Committee, Legislative Policy Committee
From:	National Office
Date:	January 23, 2006
Subject:	CHEMICAL SECURITY BILL – COMMENTS REQUESTED
Reference:	LA06-2

Action Please By:
February 15, 2006

Chairman of the Senate Homeland Security and Governmental Affairs (HSGA) Committee Susan Collins (R-ME) and Ranking Member Joseph Lieberman (D-CT) have introduced major, comprehensive legislation that would address security at the nation’s chemical plants. All wastewater facilities required to submit a Risk Management Plan (RMP) to the U.S. Environmental Protection Agency (EPA) under Clean Air Act Section 112(r) are explicitly covered. NACWA estimates that approximately one-third of its members would be covered by this legislation and is preparing a response to S. 2145, which will address NACWA utility member concerns. This Legislative Alert includes a preliminary list of issues NACWA has identified and requests that its members review the document and provide us with comments on how the bill would impact covered utilities. Please send comments by February 15, 2006 to Lee Garrigan, NACWA Director of Legislative Affairs (lgarrigan@nacwa.org).

Impact on Wastewater Utilities
The Chemical Facility Anti-terrorism Act of 2005 (S. 2145), available for download from the internet on the NACWA Bill Tracker (http://www.nacwa.org/private/legreg/legupdate/leg_tracker.cfm#2), would provide broad new authority to the Department of Homeland Security (DHS) to establish risk-based criteria to determine which chemical facilities are vulnerable to terrorist attack and establish security standards for those facilities. Chemical plant facilities would be required to conduct vulnerability assessments and create site security and emergency response plans based on their specific vulnerabilities, subject to approval by the Secretary of Homeland Security. NACWA’s initial analysis of the legislation has identified the following overarching issues that utilities are encouraged to consider when to reviewing the legislation.

• In addition to those facilities on the EPA RMP list, DHS could designate other stationary facilities, including POTWs, to be included under the Act, based on a facility’s critical economic importance or other risk-based factors. (Section 3).

• DHS would develop regulations based on risk and would place the covered facilities, or “Chemical Sources”, into tiers with increasingly strict security performance standards (Section 3).

• Chemical Sources would have to submit three documents to DHS for approval: a Security Vulnerability Assessment (SVA), a Security Plan and an Emergency Response Plan (ERP). Members should consider whether or not the documents are duplicative or overlapping, and whether it is possible to combine one or more of the documents to make the process less resource intensive (Section 4).

• Individual wastewater facilities may petition DHS to approve for compliance purposes, existing SVAs, Security Plans, and Emergency Response Plans under the Alternative Security Programs provision of the bill. There are no assurances, however, that existing alternative programs will be approved (Section 4(f)).

• The bill does not provide financial assistance for public entities to comply with the extensive new rules.

• Although DHS, and not EPA, has jurisdiction under this Act, issues may arise for joint wastewater/water utilities that have already submitted drinking water vulnerability assessments to EPA under that agency’s security program.

• The protection of information submitted by Chemical Sources to DHS may not provide sufficient safeguards. NACWA members have raised concerns in the past with the submittal of assessments and response plans to federal agencies. NACWA members may want to consider whether covered public agencies should be required to submit information to DHS or whether certification of the necessary documents would be more protective of confidential information. (Section 9).

• An operator who knowingly violates any order issued by the Secretary, or fails to comply with a site security plan, can be fined up to $50,000 a day and/or imprisoned for up to two years (Section 8).

If possible, NACWA member utilities that would be covered by S. 2145 should include in their comments to NACWA an estimate of the cost to their community to comply with the legislation.

The Chemical Facility Anti-terrorism Act of 2005 (S. 2145) is the result of four Senate hearings held last year. Since the bill is far-reaching and would create new rules and regulations, extensive debate is anticipated this year. Senator Collins would like to schedule hearings in the HSGA Committee this year to begin to receive comments on the bill. Similar legislation is being discussed and could be introduced this year in the U.S. House of Representatives. If you have any questions on the legislation, please call NACWA’s Lee Garrigan at (202) 833-4655 and send your comments by February 15, 2006 to Lee at lgarrigan@nacwa.org.