Draft chemical security legislation that would give the Department of Homeland Security authority to regulate wastewater treatment plants but require drinking water plants to be regulated by the Environmental Protection Agency has drawn the ire of both utility sectors.

Splitting jurisdiction would lead to duplicative regulations, could allow certain security measures to fall by the wayside, and would pose particular problems for municipalities that combine drinking water and wastewater facilities under one authority, utility representatives told BNA June 9.

Two draft bills have been prepared by separate House committees in preparation for markups. The Homeland Security Committee is circulating a draft that would put DHS in charge of chemical plants and wastewater treatment systems, which use chemicals in treatment. The Energy and Commerce Committee is working on a separate bill that addresses only drinking water systems, giving EPA authority in that sector.

The Homeland Security Committee is expected to mark up its bill June 18 following a June 16 hearing, environmental and industry advocates have told BNA.

The legislation would establish permanent regulations for facilities handling chemicals that could pose a risk in a terrorist attack. A bill has not yet been introduced (107 DEN A-12, 6/8/09).

The House Energy and Commerce Committee is expected to take up its portion in July, according to utility and industry representatives and environmental advocates.

Water Treatment Plants Now Exempt
Wastewater and drinking water treatment plants are currently exempt from chemical security regulations.

The existing regulatory regime for security at chemical-handling facilities was authorized under the 2007 Department of Homeland Security Appropriations Act (Pub. L. No. 109-295), which was signed in October 2006. Those provisions sunset after three years.

Pat Sinicropi, legislative director of the National Association of Clean Water Agencies, told BNA June 9: “We think it's nonsense that wastewater treatment plants would be regulated under a separate security program than drinking water. They should be regulated under one single agency. Our members would prefer EPA.”

EPA regulates pollutant discharges from wastewater treatment plants under the Clean Water Act.

Sinicropi said up to 40 percent of NACWA members' wastewater treatment plants are jointly owned with drinking water plants.
“Splitting the security programs for water and wastewater utilities raises vulnerability and security issues in general that could create unforeseen gaps,” she said.

NACWA has expressed concern to staff on the House Transportation and Infrastructure Committee, which has jurisdiction over wastewater issues under the Clean Water Act, and the group has urged the committee to address the issue.

Committee staff have indicated that Chairman James Oberstar (D-Minn.) could soon introduce a chemical security wastewater title, Sinicropi told BNA.

“The staff is hopeful once separate legislation is introduced it will force a jurisdictional decision,” she said. “We'll just have to wait and see how this plays out. Jurisdictional turf battles are going on for no apparent reason.”

Mary Kerr, spokeswoman for the House Transportation and Infrastructure Committee, told BNA: “No decisions have been made yet about this issue. We're watching what other committees are doing and weighing our options.”

Drinking water utility groups also have also expressed concerns about the split. Tom Curtis, executive director of the American Water Works Association, said splitting jurisdiction between EPA and Homeland Security “is untenable for municipalities that operate a combined water and wastewater system.”

AWWA is membership organization representing water industry professionals and more than 4,600 drinking water utilities.

A split in oversight of drinking water and wastewater security between DHS and EPA is a major concern, according to Diane VanDe Hei, executive director of the Association of Metropolitan Water Agencies, which represents large publicly owned drinking water systems.

“Hundreds of municipalities across the country operate joint drinking water and wastewater utilities, so the proposal would force the employees of these systems to comply with two varying sets of security rules issued by two different federal departments,” she said. “A much more sensible alternative is to cover all of the nation's water systems under a consistent set of security regulations issued by a single federal agency.”

Drinking water and wastewater utility representatives also oppose a provision in both draft bills, but not in current law, that would require the highest-risk facilities to implement measures to reduce the consequences of a terrorist attack if DHS or a state regulator determines the measures would significantly reduce the risk of death, injury, or serious adverse effects to human health and can be feasibly incorporated.

Utility group representatives said decisions on treatment methods or chemicals used should be left to localities, not the state or federal government.

By Linda Roeder