The top Democrat on a House Homeland Security subcommittee called for Congress to reexamine the statutory exemption of drinking water and wastewater treatment facilities from the Department of Homeland Security’s chemical facility security program during a February 15 hearing on the need to extend the program when its authorization runs out at the end of this year.
Rep. Cedric Richmond (D-La.), the ranking member of the Homeland Security Subcommittee on Cybersecurity and Infrastructure Protection, made the comments during the panel’s hearing on the DHS Chemical Security Anti-Terrorism Standards (CFATS) program. CFATS was created in 2007 to govern anti-terrorism security measures at chemical treatment and storage facilities that handle hazardous substances like gaseous chlorine, and since the beginning Congress has exempted drinking water and wastewater facilities from CFATS regulations. Congress must reauthorize or extend the program before its scheduled expiration at the end of 2018, potentially giving lawmakers an opportunity to revisit the water and wastewater facility exemption.
AMWA and other water sector organizations have long supported the exemption of drinking water facilities from CFATS regulations, noting that the security of drinking water treatment plants is overseen by EPA though Section 1433 of the Safe Drinking Water Act, which was enacted after the 9/11 terrorist attacks through the Bioterrorism Act of 2002. Section 1433 required all drinking water treatment facilities to complete a vulnerability assessment that considered potential security threats, and an emergency response plan that outlined response actions. AMWA has warned that subjecting drinking water facilities to CFATS could lead to contradictory or duplicative mandates from DHS – up to and perhaps including mandates to eliminate the use of gaseous chlorine in the treatment process – even though for some communities this could complicate compliance with the water quality demands of the Safe Drinking Water Act.
In his opening statement at the February 15 hearing, Rep. Richmond noted that “every former DHS head” has called for the regulation of water systems through the CFATS program. Later during the hearing he asked a witness, Paul Orum of the Coalition to Prevent Chemical Disasters, whether water and wastewater systems should be regulated under CFATS. Orum replied that water facilities “should definitely be included in the program” – a position consistent with that of much of the public interest and environmental advocacy community. Orum’s written testimony also suggested that water utilities could broadly improve security by swapping out chlorine gas with “liquid chlorine bleach, ozone without storage, and ultraviolet light as appropriate.”
Rep. John Ratcliffe (R-Tex.), the chairman of the Cybersecurity and Infrastructure Protection Subcommittee, did not address the status of water and wastewater systems during the hearing. But in the past, including in 2014 when the CFATS program was most recently reauthorized, Congress has continued to exclude water systems from the program in part because of the concerns about overlapping or contradictory regulation that AMWA has raised. Additionally, leaders of the House Energy and Commerce Committee, which oversees drinking water system security in its capacity of having jurisdiction over EPA, would have to be willing to sign off on giving DHS regulatory authority over drinking water system security – something the past leaders of both Republican and Democratic members of the committee have refused to do.
Congress must take some action before the end of the year to keep CFATS operational into 2019 and beyond, so AMWA plans to monitor legislative proposals in this area to ensure they do not alter the existing drinking water facility exemption from the program.