Senate Report 108-149 - WASTEWATER TREATMENT SECURITY ACT OF 2003

[Senate Report 108-149]
[From the U.S. Government Publishing Office]

Calendar No. 281
108th Congress Report
SENATE
1st Session 108-149
======================================================================

WASTEWATER TREATMENT SECURITY ACT OF 2003

_______

September 17, 2003.--Ordered to be printed

_______

Mr. Inhofe, from the Committee on Environment and Public Works,
submitted the following

R E P O R T

together with

ADDITIONAL AND MINORITY VIEWS

[To accompany S. 1039]

[Including cost estimate of the Congressional Budget Office]

The Committee on Environment and Public Works, to which was
referred a bill (S. 1039) to amend the Federal Water Pollution
Control Act to enhance the security of wastewater treatment
works, having considered the same reports favorably thereon
with an amendment and recommends that the bill, as amended, do
pass.

General Statement and Background

As with many sectors of society, publicly owned wastewater
treatment works began the process of reexamining the security
of their facilities in light of the tragic events of September
11, 2001. The nation's 16,000 publicly owned treatment works
comprise not only treatment plants but also 100,000 major
pumping stations, 600,000 miles of sanitary sewers and 200,000
miles of storm sewers. The sewers create an underground network
that connects the population and financial centers of every
major U.S. city. Further, the sewers often run alongside or
beneath major roadways. The potential to use them for a
terrorist attack is significant. Further, damage to a
wastewater treatment plant could result in significant loss of
life, environmental damage and the contamination of surface and
groundwater/drinking water supplies.
In 1998, with Presidential Decision Directive 63, the
Federal Government began an assessment of the vulnerabilities
of the nation's critical infrastructures, including the
nation's water supply. The EPA was designated the lead agency
in charge of overseeing security of the nation's water systems
and has worked with Sandia National Labs to develop an
assessment tool for drinking water utilities. The EPA worked
with the Association of Metropolitan Water Agencies to develop
and operate the Information Sharing and Analysis Center (ISAC)
which was developed to distribute secure, critical information
to drinking water utilities throughout the Nation. It wasn't
until after September 11th, 2001 that the ISAC was expanded to
include wastewater utilities.
In the fiscal year 2002 Departments of Veterans Affairs and
Housing and Urban Development and Independent Agencies
Appropriations Act (P.L. 107-73), Congress appropriated
$500,000 for EPA to develop an assessment tool for wastewater
treatment works. The EPA contracted with the Association of
Metropolitan Sewerage Agencies (AMSA) to develop the tool which
has now been distributed to more than 2,600 public systems to
aid them in determining what vulnerabilities exist at their
facilities. In the fiscal year 2002 Supplemental Appropriations
bill, Congress provided EPA with $90 million to address
security at drinking water facilities. EPA earmarked $3 million
of those funds for wastewater utilities. EPA has also worked to
protect wastewater treatment works in accordance with the EPA
Strategic Plan for Homeland Security, issued in September 2002.

Objectives of the Legislation

While many treatment works have completed the task of
identifying their security needs, others need some assistance.
Therefore, S. 1039 provides treatment works of all sizes
resources to determine, and address, their security needs. S.
1039 will help secure these systems by providing treatment
works with an incentive to complete their assessments. The
legislation carries with it the full force of law to ensure
that those who receive Federal money have completed their
assessments. It authorizes EPA to continue working with
nonprofit organizations to improve and distribute vulnerability
assessment tools and provide technical assistance to small
utilities as they seek to identify and meet their security
needs. The bill also authorizes research into water security
threats and new technologies so that treatment works have the
most up-to-date information about their options when
determining how best to secure their individual facilities.

Section-by-Section Analysis

Section 1. Short title

The Wastewater Treatment Works Security Act of 2003.

Sec. 2. Wastewater treatment works security

(A) DEFINITION OF VULNERABILITY ASSESSMENT

Summary
Creates a new section 222 of the Federal Water Pollution
Control Act and defines a vulnerability assessment.
Discussion
An assessment is an examination of the treatment works'
vulnerability to an unlawful action intended to substantially
disrupt the ability of the treatment works to operate or to
have an adverse impact on the critical infrastructure, the
environment or public health or safety. The assessment includes
a review of the facilities, systems and devices used for
storing, treating, recycling or reclaiming municipal sewage or
industrial wastes; the sewer system; the electronic and
computer system; the pumping and power equipment; the use,
storage and handling of chemicals and the operation and
maintenance of the system. It will also include the
identification of procedures, countermeasures and equipment
that a treatment works may implement or use to reduce the
vulnerabilities identified in the assessment.

(B) GRANTS FOR VULNERABILITY ASSESSMENTS AND SECURITY ENHANCEMENTS

Summary
Authorizes the Administrator to provide grants to a State,
municipality or inter-municipal or interstate agency to conduct
a vulnerability assessment of a publicly owned treatment works
and address a security need identified in the assessment.
Discussion
Authorizes grants to conduct vulnerability assessments and
address a need identified in the assessment.

Summary
Paragraph (1) requires an applicant to certify to the EPA
that it has conducted a vulnerability assessment and that the
need for which it is seeking funding was identified in the
assessment. Upon receiving this certification, the EPA may
provide grants to the applicant for specific purposes listed in
paragraph (2).
Paragraph (2) establishes a list of security needs for
which an applicant may receive funding.
Paragraph (3) authorizes the Administrator to provide
grants to an applicant who certifies it has conducted a
vulnerability assessment and identified a need not included on
the list in Paragraph (2).
Paragraph (4) prohibits funds from being used for personnel
costs and the operation and maintenance of facilities,
equipment or systems. The Administrator may not require an
applicant to provide the Administrator with a copy of a
vulnerability assessment as a condition of applying for or
receiving a grant under this section.
Discussion
A treatment works must certify to EPA that it has conducted
an assessment and that one of the enhancements listed in
Paragraph (2) is included in the assessment. Falsely certifying
information to the Federal Government is a crime (18 U.S.C.
1001) punishable by fine or imprisonment. Further, EPA through
its grant making procedures has the authority to ensure that
grant money is used for its intended purposes. If the agency
finds that it was not, the grant can be revoked and a charge of
false certification made. The applicant may seek funding for a
need not in Paragraph (2) but identified in a vulnerability
assessment by submitting an application to the Administrator.
Funds cannot be used for personnel costs or operation and
maintenance of facilities, equipment or systems. EPA cannot
require the applicant submit its assessment to the agency as a
condition of applying for or receiving funds.

(D) GRANT AMOUNTS

Summary
Paragraph (1) establishes a Federal-local cost share of 75
percent-25 percent.
Paragraph (2) limits the size of any one applicant to
$150,000.
Discussion
Because securing our nation's infrastructure against
terrorism is a partnership between Federal, State and local
government, this section authorizes a Federal-local cost share.
In order to ensure that funds are widely distributed and not
absorbed by a few large systems, grants are limited to
$150,000.

(E) TECHNICAL ASSISTANCE FOR SMALL PUBLICLY OWNED TREATMENT WORKS

Summary
Paragraph (1) defines a small publicly owned treatment
works as a population of fewer than 20,000 individuals.
Paragraph (2) authorizes the Administrator to, in
coordination with the States, provide technical assistance to
small treatment works in assessing and addressing their
security needs.
Discussion
It is critical that small systems, which often have fewer
resources at their disposal, have the same level of protection
as large systems. Subsection (e) authorizes a technical
assistance program for treatment works serving less than 20,000
people. Technical guidance may include training, technical
assistance programs and preliminary engineering evaluations.
The Administrator may provide grants to nonprofit organizations
with expertise in assisting small systems.

(F) REFINEMENT OF VULNERABILITY ASSESSMENT METHODOLOGY FOR PUBLICLY
OWNED TREATMENT WORKS

Summary
Authorizes grants to nonprofit organizations to improve
vulnerability assessment methodologies and tools for publicly
owned treatment works at no cost to the treatment works.
Discussion
Authorizes the Administrator to provide grants to nonprofit
organizations to improve vulnerability assessment methodologies
and tools for publicly owned treatment works, including those
that are part of a combined public wastewater treatment and
water supply system. The grants may be used to develop and
distribute assessment software upgrades, improve and enhance
critical technical and user support functions, expand libraries
of information addressing threats and countermeasures and
implementing user training initiatives. These services are to
be provided at no cost to the participants/recipients.

(G) AUTHORIZATION OF APPROPRIATIONS

Summary and discussion
Authorizes $200 million for use in making grants to conduct
vulnerability assessments and implement security enhancements
under subsection (b); $15 million for technical assistance for
small systems; $5 million over 5 years for refinement of
vulnerability assessment methodology.

Sec. 3. Research and review

Creates a new section 223 of the Federal Water Pollution
Control Act (FWPCA).

(A) DEFINITIONS

Summary
Defines ``covered treatment works'' and ``harmful
intentional act.''
Discussion
A covered treatments works has the same definition as it
does in section 212 of FWPCA (33 U.S.C. 1292); a harmful
intentional act means a terrorist attack or other intentional
act carried out with respect to a covered treatment works that
is intended to substantially disrupt the ability of the
treatment works to provide safe and reliable conveyance and
treatment of wastewater, disposal of effluent or storage of
potentially harmful chemical used to treat wastewater. The
harmful intentional act is one that may also inflict damage to
critical infrastructures and have an adverse effect on the
environment or otherwise pose a significant threat to public
health or safety.

(B) REVIEW BY ADMINISTRATOR

Summary and discussion
Requires the Administrator to research and review means by
which terrorists, including domestic or foreign terrorists, or
other individuals or groups can carry out a harmful intentional
act against a treatment works and the identification of
alternative processes for treating, conveying and disposing of
wastewater.

Summary
The Administrator shall review the various means by which a
treatment works could be affected through a harmful intentional
act.
Discussion
The Administrator shall review the means by which the
treatment works, pipes and constructed conveyances could be
destroyed or otherwise prevented from providing adequate
conveyance, pretreatment, treatment and disposal of wastewater;
means by which the pipes, constructed conveyances,
pretreatment, treatment, storage and disposal systems could be
altered or affected so as to pose a threat to public health and
safety or the environment; means by which pipes, constructed
conveyances, pretreatment, treatment, storage and disposal
systems could be reasonably protected from harmful intentional
acts and reasonably secured from use as a means of
transportation by terrorists, including domestic or foreign
terrorists, or other individuals or groups; and the means by
which information systems at treatment works could be disrupted
by terrorists, including domestic or foreign terrorists, or
other individuals or groups.

(D) CONSIDERATIONS

Summary and discussion
The Administrator shall ensure that EPA's research
encompasses treatment works of all sizes and from various
geographic regions and may consider the vulnerability of, or
potential for forced interruption of service for, a region or
service area, including the National Capital Area.

(E) INFORMATION SHARING

Summary
The Administrator, as soon as practicable, shall share the
information found in the review with covered treatment works
through the Information Sharing and Analysis Center (ISAC) or
other appropriate means.
Discussion
The Administrator will distribute the findings of EPA's
research to treatment works through the ISAC or other
appropriate means. Any new approaches identified by EPA will be
provided to treatment works for information only as they
consider what new approaches may be suitable for their
facility. Because each system may have different needs, the
committee intends that the determination of how to use this
information will be left to each individual treatment works, on
a voluntary basis.

(F) FUNDING

Summary and discussion
Authorizes $15 million for carrying out this section for
the period of fiscal years 2004 through 2008.

Legislative History

During the 107th Congress, Representatives Don Young, James
L. Oberstar, John J. Duncan Jr., and Peter DeFazio introduced
H.R. 5169, ``The Wastewater Treatment Works Security Act.'' On
July 24, 2002, the bill was reported out of committee by voice
vote. It passed the House of Representatives by voice vote on
October 7, 2002.
During the 108th Congress, Representatives Don Young, James
L. Oberstar, John J. Duncan Jr., and Jerry F. Costello
introduced legislation nearly identical to H.R. 5169, H.R. 866
which passed the committee on March 11, 2003 by voice vote. It
passed the House of Representatives on May 7, 2003 by a vote of
413-2. On May 12, Senators James Inhofe and Mike Crapo
introduced the Senate companion to H.R. 866, S. 1039. On May
15, the Committee on Environment and Public Works agreed to S.
1039, as amended, by a vote of 13 to 6 and ordered the bill
reported to the Senate.

Rollcall Votes

The Committee on Environment and Public Works met to
consider S. 1039 on May 15, 2003. The committee adopted by
unanimous consent an amendment by Senator Jeffords to establish
a $15 million research program on potential threats, best
practices and new technologies to help wastewater treatment
works better secure their facilities and processes from
terrorist attacks. The amendment was modified by unanimous
consent of the committee before adoption to clarify the
definition of a treatment works. The committee then defeated an
amendment offered by Senator Jeffords to require treatment
works to conduct vulnerability assessments and develop
emergency response plans and submit both to the Department of
Homeland Security. The amendment was defeated by a rollcall
vote of 9 ayes, 10 nays. Voting in favor were Jeffords, Baucus,
Reid, Graham, Lieberman, Boxer, Wyden, Carper and Clinton.
Voting against were Inhofe, Warner, Bond, Voinovich, Crapo,
Chafee, Cornyn, Murkowski, Thomas and Allard. The committee
then defeated by voice vote an amendment by Senator Jeffords to
eliminate the cost share and the limit on grant amounts. The
committee then favorably reported the bill by a vote of 13 to
6. Voting in favor were Senators Inhofe, Warner, Bond,
Voinovich, Crapo, Chafee, Cornyn, Murkowski, Thomas, Allard,
Reid, Graham, and Carper. Voting against were Senators
Jeffords, Baucus, Lieberman, Boxer, Wyden and Clinton.

Regulatory Impact Statement

In compliance with section 11(b) of rule XXVI of the
Standing Rules of the Senate, the committee makes evaluation of
the regulatory impact of the reported bill.
The bill does not create any additional regulatory burdens,
nor will it cause any adverse impact on the personal privacy of
individuals.

Mandates Assessment

In compliance with the Unfunded Mandates Reform Act of 1995
(Public Law 104-4), the committee finds that S. 1039 would not
impose Federal intergovernmental unfunded mandates on State,
local, or tribal governments.

Cost of Legislation

Section 403 of the Congressional Budget and Impoundment
Control Act requires that a statement of the cost of the
reported bill, prepared by the Congressional Budget Office, be
included in the report. That statement follows:

U.S. Congress,
Congressional Budget Office,
Washington, DC, May 20, 2003.
Hon. James M. Inhofe,
Chairman, Committee on Environment and Public Works,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 1039, the Wastewater
Treatment Works Security Act of 2003.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Susanne S.
Mehlman.
Sincerely,
Douglas Holtz-Eakin.

S. 1039--Wastewater Treatment Works Security Act of 2003, as ordered
reported by the Senate Committee on Environment and Public
Works on May 15, 2003

Summary: CBO estimates that implementing this legislation
would cost $234 million over the next 5 years, assuming
appropriation of the authorized amounts. The funds would be
used by the Environmental Protection Agency (EPA) to make
grants to States, municipalities, or intermunicipal or
interstate agencies to conduct vulnerability assessments of
publicly owned wastewater treatment facilities and to undertake
security enhancements at such facilities. In addition, the
funds would be used by EPA to provide technical assistance to
small publicly owned treatment facilities, such as training and
engineering evaluations of security measures, and to make
grants to treatment facilities operated by nonprofit
organizations to conduct self-assessments of security
vulnerabilities. S. 1039 also would authorize funding for EPA
to research and review ways that wastewater treatment
facilities could be intentionally harmed and how wastewater
could be treated and disposed of in the event a facility is
damaged.
Enacting S. 1039 would not affect direct spending or
revenues. S. 1039 contains no intergovernmental or private-
sector mandates as defined in the Unfunded Mandates Reform Act
(UMRA) and would impose no costs on State, local, or tribal
governments.
Estimated cost to the Federal Government: For this
estimate, CBO assumes that the bill will be enacted by the end
of fiscal year 2003. CBO estimates that implementing the bill
would cost $234 million over the 2004-2008 period, assuming
appropriation of the amounts authorized for each year. Those
estimated outlays are based on historical patterns for similar
activities. The estimated budgetary impact of S. 1039 is shown
in the following table. The costs of this legislation fall
within budget function 300 (natural resources and environment).

----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
--------------------------------------------
2004 2005 2006 2007 2008
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Grants for Wastewater Treatment Security:
Authorization Level............................................ 200 0 0 0 0
Estimated Outlays.............................................. 100 60 30 10 0
Grants for Small Publicly Owned Treatment Facilities:
Authorization Level............................................ 16 1 1 1 0
Estimated Outlays.............................................. 8 5 3 3 0
EPA Research and Review:
Authorization Level............................................ 15 0 0 0 0
Estimated Outlays.............................................. 10 4 1 0 0
Total Proposed Changes:
Authorization Level............................................ 231 1 1 1 0
Estimated Outlays.............................................. 118 69 34 13 0
----------------------------------------------------------------------------------------------------------------

Intergovernmental and private-sector impact: S. 1039
contains no intergovernmental or private-sector mandates as
defined in UMRA and would impose no costs on State, local, or
tribal governments. This bill would benefit State and local
governments by authorizing $216 million in 2003 for grants to
conduct vulnerability assessments, implement security
enhancements, provide technical assistance, and to improve
self-assessment methodologies and tools. The recipients of
grants for vulnerability assessments and security enhancements
would be required to match Federal funds, but such costs would
be incurred voluntarily.
Previous cost estimate: On February 28, 2003, CBO
transmitted a cost estimate for H.R. 866, the Wastewater
Treatment Security Act of 2003, as ordered by the House
Committee on Transportation and Infrastructure. CBO estimated
that implementing H.R. 866 would cost about $220 million over a
5-year period. The two bills are similar, but S. 1039 would
authorize additional funding for EPA to research and review the
impact that intentional damages would have on wastewater
treatment facilities.
Estimate prepared by: Federal Costs: Susanne S. Mehlman;
Impact on State, Local, and Tribal Governments: Greg Waring;
Impact on the Private Sector: Jean Talarico.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.

MINORITY VIEWS OF SENATORS JEFFORDS, BAUCUS, LIEBERMAN, BOXER, AND
CLINTON

General statement
In the wake of September 11, 2001, it is imperative that
the Nation takes every reasonable action we can to prevent
terrorism, create effective response and recovery mechanisms,
and find ways to minimize any impacts should an event occur.
The Congress has a key role in facilitating these actions by
establishing authorities for government agencies, establishing
the legal framework in which homeland security improvements
will occur, and appropriating adequate funding for the homeland
security mission. Protecting our nation's critical
infrastructure is a major piece of our homeland security
strategy.
The water sector has been identified as an element in our
nation's critical infrastructure since the issuance of
Presidential Decision Directive 63 (PDD-63), issued in by
President Clinton in May 1998, which was the first major
governmental action focused on reducing the vulnerability of
our nation's critical infrastructure. At that time, and in each
document outlining homeland security responsibilities since
that time, the Environmental Protection Agency (EPA) was
designated as the lead for water infrastructure protection.
The security needs are significant in the water and
wastewater sectors. There are over 16,000 publicly owned
treatment works in the United States, serving almost 190
million people. These industrial facilities use large
quantities of toxic chemicals in their treatment and
disinfection processes. They are located near population
centers and other critical infrastructure. A chemical accident
would pose a serious threat. In addition, collection systems
run beneath every city and town in America, creating potential
corridors for travel or opportunities for access.
There are also serious public health risks associated with
a disruption or service failure at a wastewater treatment
plant. Treatment works clean wastewater that comes from our
toilets, showers, and sewers and send it back into our rivers,
streams, lakes, and oceans. Those same bodies of water are our
drinking water sources. Without proper treatment, we would see
the public health effects of the same type of water-borne
disease outbreaks such as cholera that we saw in Iraq earlier
this year due to the failure of wastewater treatment plants.
After the recent events during the 2003 blackout, we have
seen firsthand the impact that a cessation of operations at a
drinking water or wastewater plant can have. In Cleveland,
Ohio, after the August 2003 blackout, several sewage treatment
plants discharged at least 60 million gallons of sewage into
the Cuyahoga River, Lake Erie, and their tributaries after the
power outage caused the plants pumps and blowers to cease
operations. Raw sewage bypassed the treatment process and
entered receiving waters untreated. The plants have no back-up
power systems. Five Cleveland beaches were closed to swimming
to protect against water-borne disease. Cleveland's water
system also suffered a hit when 1.5 million customers lost
water or water pressure due to power failures at four water
plants. The city was under a boil water notice for 4 days. In
Detroit, Michigan, after the blackout in August 2003 caused the
city's water treatment plants to cease operations, the city was
under a boil-water advisory for almost a week.
We believe that the Congress should take the risk to
wastewater treatment plants on seriously. Unfortunately, we
believe that S. 1039, the Wastewater Treatment Works Security
and Safety Act, as reported out of committee, provides security
for our nation's wastewater infrastructure in name, only.
Background
Almost immediately after September 11, 2001, the Committee
on Environment and Public Works began working with the water
and wastewater industries and the EPA to ensure that the
nation's water infrastructure was adequately protected. The
committee met with key members of the EPA's security team to
review the status of our nation's water infrastructure. Several
short-term actions had already been taken. Based on the
recommendations of PDD 63, the EPA and its industry partner,
the Association of Metropolitan Water Agencies (AMWA), had
already established a communication system, the water
infrastructure Information Sharing and Analysis Center (ISAC),
designed to provide real-time threat assessment data to water
utilities throughout the Nation.
Through this partnership, the EPA and AMWA, in cooperation
with Sandia National Laboratory, developed an assessment tool
that individual water utilities can use to assess their
facilities for potential physical and cyber threats. The
committee endorsed the concept of vulnerability assessments
with bi-partisan action early in the debate on homeland
security. On October 11, 2001, Senators Jeffords (I-VT), Smith
(R-NH), Graham (D-FL), and Crapo (R-ID) sent a letter to the
President with Representatives Tauzin (R-LA), Dingell (D-MI),
Gillmor (R-OH), and Pallone (D-NJ) requesting that the
President use a portion of discretionary funds to provide
assistance for these assessments to water utilities. No
response was received.
Legislative action quickly followed. During the 107th
Congress, Senator Jeffords (I-VT) and Senator Smith (R-NH), at
that time the chair and ranking member of the committee
introduced S. 1593, the Water Infrastructure Security and
Research Development Act, which authorized the U.S. EPA to
provide funding to support research projects on critical
infrastructure protection for water supply systems. The two
leaders of the committee also introduced S. 1608, which sought
to provide grants to drinking water and wastewater facilities
to meet immediate security needs.
S. 1593, the Water Infrastructure Security and Research
Development Act, sought to complement the ongoing work at EPA
and in the water industry by focusing on mid- to long-term
actions designed to enhance our current water security
capabilities. The bill authorized $12 million over 5 years to
continue ongoing work called for by Presidential Decision
Directive 63, conduct research to assess potential threats to
our water supply system, and develop solutions to safeguard our
water systems against those threats. Projects were intended to
address both water and wastewater security needs. S. 1608
focused on short term security needs such as re-keying of doors
and locks or installation and maintenance of fencing, gating,
or lighting. The committee reported both bills on December 10,
2001.
The provisions of S. 1593 and S. 1608 were modified and
incorporated into H.R. 3448, the Public Health and Bioterrorism
Preparedness Response Act of 2002 (P.L. 107-188), which was
signed into law on June 12, 2002. This Act requires that all
community water systems serving a population greater than 3,300
people conduct a vulnerability assessment and an emergency
response plan that incorporates the results of the
vulnerability assessment. The Act establishes specific
deadlines and requires that the vulnerability assessments be
submitted to the EPA. It includes extensive information
protection requirements at the Agency. The Act authorizes $160
million for fiscal year 2002 and such sums as necessary for
fiscal years 2003 through 2005 for these purposes and to
address basic security enhancements. Finally, the Act requires
the Administrator to review and disseminate information to the
drinking water industry on current and future methods of
prevention of, detection of, and response to contaminant and
supply disruption. Despite the fact that the original Senate
bills addressed both water and wastewater needs, the provisions
of H.R. 3448 were modified to address drinking water facilities
only due to jurisdictional concerns raised by a House
committee.
Under the authorities provided by P.L. 107-188, EPA
continued its work with AMWA to refine and operate the ISAC.
EPA provided $51 million in funding to water utilities in
fiscal year 2002, and the Agency partnered with numerous
industry associations to develop vulnerability assessment and
emergency response plan tools and training tailored for
specific applications. EPA has also worked to protect
wastewater treatment works in accordance with the EPA Strategic
Plan for Homeland Security, issued in September 2002. Since
September 11, 2001, EPA has provided $1.1M to the Association
of Metropolitan Sewerage Agencies (AMSA) to develop a
wastewater security vulnerability assessment tool. That tool is
now available to individual treatment works.
After the Public Health and Bioterrorism Preparedness
Response Act of 2002 was enacted without addressing wastewater
security, Senator Jeffords introduced S. 3037, the Wastewater
Treatment Works Security and Safety Act, on October 3, 2002. S.
3037 mirrors the original provisions of S. 1593 and S. 1608 as
well as the modified provisions for drinking water in H.R.
3448. The legislation requires all wastewater utilities to
conduct vulnerability assessments and to develop or modify
emergency response plans to incorporate the results of the
vulnerability assessments. It requires that these documents be
presented to the EPA for review, and it includes significant
security measures designed to protect this information from
unauthorized disclosure. It authorizes $185 million for
assistance in completing vulnerability assessments, for
immediate security improvements, and for assistance to small
treatment works. It authorizes $15 million for research to
identify threats, detection methods, and response actions. AMSA
endorsed S. 3037 on October 1, 2002. During the 107th Congress,
the House passed a wastewater security bill, H.R. 3169, the
Wastewater Treatment Works Security and Safety Act. Due to
significant differences over the treatment of vulnerability
assessments in each bill, the House and the Senate were unable
to reach agreement on this issue during the 107th Congress.
In the 108th Congress, on April 3, 2002, Senators Jeffords
(I-VT), Graham (D-FL), Lieberman (D-CT), and Lautenberg (D-NJ)
introduced the Wastewater Treatment Works Security and Safety
Act, S. 779. On May 12, 2002, Senators James Inhofe (R-OK) and
Mike Crapo (R-ID) introduced S. 1039, also entitled the
Wastewater Treatment Works Security and Safety Act. The
committee considered and passed S. 1039 on May, 15, 2003. We
were very pleased that the committee granted our requests to
take action on wastewater security. However, we believe that S.
1039, as it passed the committee, does not fulfill our
responsibility to provide the American people with the level of
security that is required for our wastewater treatment works.
Discussion
During the committee's consideration of S. 1039, Senator
Jeffords offered an amendment that would have required publicly
owned treatment works serving more than 25,000 people conduct a
vulnerability assessment and an emergency response plan and
submit those documents to the Department of Homeland Security.
The Jeffords amendment failed on party lines with 9 Democrats
voting yes, 1 Independent voting yes, and 9 Republicans voting
no. Without the modifications that were included in the
Jeffords amendment, we believe that S. 1039 as passed by the
committee provides security to wastewater treatment works in
name only.
First, S. 1039 does not require the completion of a
vulnerability assessment or the incorporation of the results
into a treatment works' emergency response plan. The Jeffords
amendment would have required these actions to increase
security at treatment works serving more than 25,000 people. We
believe that conducting a vulnerability assessment, addressing
the security needs it identifies, and incorporating the results
into a facility's emergency response plan are most basic
actions that must be taken in each sector of our nation's
critical infrastructure. In the General Statement section of
this report, we detail the potential impacts of an interruption
of water and wastewater systems. One of the examples cited is
the Cleveland water system which suffered a disruption during
the August 2003 blackout. The Plain Dealer reported on August
16, 2003 that the Mayor of Cleveland called FirstEnergy
executives to request that the water plants be placed on a
``protected'' list of addresses that would not be affected by
the rolling blackouts. This is an example of exactly the type
of action that could be identified in a vulnerability
assessment and taken in advance of a power outage,
significantly reducing the impact of an event on the citizens
of the city.
S. 1039 fails to increase the level of security of our
nation's publicly owned treatment works. We do not know if
individual publicly owned treatment works will choose to
complete a vulnerability assessment, because there is no
requirement to do so. In addition, we do not know if they will
incorporate their findings into emergency response plans that
are designed to protect communities surrounding those plants,
because there is no requirement to do so. We believe that these
most basic actions are not too heavy a burden for the
wastewater treatment industry, which is no different than other
critical infrastructure sectors. We believe that the wastewater
industry should not be exempt from taking basic precautions to
evaluate and address its security needs. Therefore, we believe
that S. 1039 as reported from committee fails to ensure that
even the most basic steps toward a higher level of security in
the nation's critical infrastructure sectors are taken.
Second, S. 1039 as reported does not require, and may
actually preclude, the submission of vulnerability assessments
that are conducted to the Federal Government--a serious
obstacle in the DHS's ability to perform its mission. We
believe that providing the results of a facility's
vulnerability assessment and its emergency response plan to the
Federal Government is a vital step both to ensure that
vulnerability assessments are completed in critical
infrastructure sectors and to ensure that the Federal
Government has all of the information it requires to secure the
Nation against a potential terrorist attack. In addition,
elected officials in Congress have a Constitutional oversight
role over Federal agencies and the laws they implement. Under
S. 1039, Congress will not be accountable to the public for the
purpose or implementation of this law--Congress will not be
able to request or access information from the Federal agencies
because the agencies will not have such information.
In the President's National Strategy for Homeland Security,
issued in July 2002, ``Protecting Critical Infrastructures and
Key Assets'' is identified as a ``Critical Mission Area'' for
the DHS. One of the ``Major Initiatives'' of DHS in this area
is identified as, ``Build and maintain a complete and accurate
assessment of America's critical infrastructure and key
assets.'' The Strategy states: * * * the Department would
build and maintain a complete, current, and accurate assessment
of vulnerabilities and preparedness of critical targets across
critical infrastructure sectors. The Department would thus have
a crucial capability that does not exist in our government
today: the ability to continuously evaluate threat information
against our current vulnerabilities, inform the President,
issue warnings, and effect action accordingly.
It is clear that the Department believes that the ability
to produce a map of the nation's critical infrastructure and
cross-reference it to threat information is one of the most
basic tasks that must be completed to increase the security of
the Nation.
In addition, the President's Strategy states, ``A complete
and thorough assessment of America's vulnerabilities will not
only enable decisive near-term action, but guide the rational
long-term investment of effort and resources.'' Not only does
DHS plan to use vulnerability assessments to evaluate threat
information and provide warnings, but also to allocate
resources. We agree with DHS that identifying where we are
vulnerable, where we are threatened, and targeting resources to
the cross-section of those two areas is the most efficient way
to spend limited resources.
Under S. 1039 as reported, it is unclear where DHS will get
the information they require to complete its national
vulnerability assessment and make resource allocation decisions
that will increase the level of security in our Nation. It is
clear that DHS is likely to receive partial information
covering only the subset of the wastewater treatment industry
that voluntarily chooses to complete a vulnerability assessment
and that voluntarily chooses to share the information they
collect with DHS. In fact, subsection (c)(4)(B) of S. 1039,
which precludes EPA from asking for a vulnerability assessment
as a condition of receiving assistance under this Act, is
likely to make it extremely difficult for the Federal
Government, including DHS, to seek this information for any
purpose. Without the best, most up-to-date, accurate
information available, DHS will be unable to fully perform its
mission.
Senator Jeffords' amendment sought to correct this
situation by requiring that vulnerability assessments and
emergency response plans be sent to DHS. Despite the fact that
the President designated the EPA as the lead for water security
and the fact that the drinking water vulnerability assessments
are already housed there, the Jeffords amendment would have
sent the wastewater documents to DHS in response to preference
for DHS raised by some members. However, this amendment was
defeated along party lines.
We believe that the Federal Government has a responsibility
to protect the American people. Without the provisions in the
Jeffords amendment, we believe that S. 1039 does not fulfill
this responsibility. If S. 1039 is implemented as it passed the
committee, the Federal Government will not know if publicly
owned treatment works will voluntarily conduct a vulnerability
assessment, if they will voluntarily implement the security
needs identified, or if they will incorporate the results into
their emergency response plans, and there will be no way of
finding out. The DHS's mission to increase the security of the
country will be hindered. We believe that S. 1039 fails to take
responsible, basic steps to protect our wastewater
infrastructure security from terrorist attack, putting
Americans at risk.

Hillary Rodham Clinton.
Barbara Boxer.
Max Baucus.
Jim Jeffords.
Joe Lieberman.

ADDITIONAL VIEWS OF SENATORS REID, GRAHAM, AND CARPER

We voted to support S. 1039 with the hope of moving forward
on this issue which is so critical to our nation's security in
a timely manner while working to resolve the concerns we have
with the legislation. Because that has not occurred, we are
joining our colleagues in expressing our opposition to S. 1039
as it passed the committee. We concur with the minority views.

Harry Reid.
Tom Carper.
Bob Graham.

Changes in Existing Law

In compliance with section 12 of rule XXVI of the Standing
Rules of the Senate, changes in existing law made by the bill
as reported are shown as follows: Existing law proposed to be
omitted is enclosed in black brackets, new matter is printed in
italic, existing law in which no change is proposed is shown in
roman:

FEDERAL WATER POLLUTION CONTROL ACT

[As Amended Through P.L. 107-303, November 27, 2002]

(33 U.S.C. 1251 et seq.)

AN ACT To provide for water pollution control activities in the Public
Health Service of the Federal Security Agency and in the Federal Works
Agency, and for other purposes.

* * * * * * *

TITLE II--GRANTS FOR CONSTRUCTION OF TREATMENT WORKS

* * * * * * *

SEC. 221. SEWER OVERFLOW CONTROL GRANTS.

(a) In General.--In any fiscal year in which the
Administrator has available for obligation at least
$1,350,000,000 for the purposes of section 601--

* * * * * * *

SEC. 222. WASTEWATER TREATMENT WORKS SECURITY.

(a) Definition of Vulnerability Assessment.--
(1) In general.--In this section, the term
``vulnerability assessment'' means an assessment of the
vulnerability of a treatment works to an unlawful
action intended--
(A) to substantially disrupt the ability of
the treatment works to safely and reliably
operate; or
(B) to have a substantial adverse effect on
critical in- frastructure, public health or
safety, or the environment.
(2) Inclusions.--The term ``vulnerability
assessment'' includes--
(A) a review of the vulnerabilities of the
treatment works that identifies, with respect
to the treatment works--
(i) facilities, systems, and devices
used in the stor- age, treatment,
recycling, or reclamation of municipal
sewage or industrial wastes;
(ii) intercepting sewers, outfall
sewers, sewage col- lection systems,
and other constructed conveyances;
(iii) electronic, computer, and other
automated sys- tems;
(iv) pumping, power, and other
equipment;
(v) use, storage, and handling of
various chemicals; and
(vi) operation and maintenance
procedures; and
(B) the identification of procedures,
countermeasures, and equipment that a treatment
works may implement or use to reduce the
vulnerabilities of the treatment works
identified in a review described in
subparagraph (A).
(b) Grants for Vulnerability Assessments and Security
Enhancements.--The Administrator may provide grants to a State,
municipality, or intermunicipal or interstate agency--
(1) to conduct a vulnerability assessment of a
publicly owned treatment works; and
(2) to implement security enhancements described in
subsection (c)(1) and other security enhancements to
reduce vulnerabilities identified in a vulnerability
assessment.
(c) Grants for Security Enhancements.--
(1) Preapproved security enhancements.--Except as
provided in paragraph (3), on certification by an
applicant that a vulnerability assessment has been
completed for a treatment works, and that the security
enhancement for which assistance is sought is for the
purpose of reducing vulnerabilities of the treatment
works identified in the vulnerability assessment, the
Administrator may provide grants to the applicant under
subsection (b)(2) for 1 or more of the uses described
in paragraph (2).
(2) Uses of grant funds.--The uses referred to in
paragraph (1) are--
(A) the purchase and installation of
equipment for materials and activities relating
to access control, intrusion prevention and
delay, and detection of intruders and hazardous
or dangerous substances, including--
(i) barriers, fencing, and gates;
(ii) security lighting and cameras;
(iii) metal grates, wire mesh, and
outfall entry barriers;
(iv) securing of manhole covers and
fill and vent pipes;
(v) installation and rekeying of
doors and locks; and
(vi) smoke, chemical, and explosive
mixture detection systems;
(B) the conduct of an activity to improve the
security for electronic, computer, or other
automated systems and remote security systems,
including--
(i) controlling access to those
systems;
(ii) intrusion detection and
prevention; and
(iii) system backup;
(C) participation in a training program, and
the purchase of training manuals and guidance
material, relating to security; and
(D) the conduct of security screening of
employees or contractor support services.
(3) Additional security enhancements.--
(A) Grants.--The Administrator may provide a
grant under subsection (b) to an applicant for
additional security enhancements not specified
in paragraph (2).
(B) Eligibility.--To be eligible for a grant
under this subsection, an applicant shall--
(i) submit to the Administrator an
application containing a description of
the security enhancement; and
(ii) obtain approval of the
application by the Administrator.
(4) Limitations.--
(A) Use of funds.--A grant provided under
subsection (b) shall not be used for--
(i) payment of personnel costs; or
(ii) operation or maintenance of
facilities, equipment, or, systems.
(B) Disclosure of vulnerability assessment.--
As a condition of applying for or receiving a
grant under this subsection, the Administrator
may not require an applicant to provide the
Administrator with a copy of a vulnerability
assessment.
(d) Grant Amounts.--
(1) Federal share.--The Federal share of the cost of
an activity funded by a grant under subsection (b)
shall not exceed 75 percent, as determined by the
Administrator.
(2) Maximum amount.--The total amount of grants made
under subsection (b) for any publicly owned treatment
works shall not exceed $150,000, as determined by the
Administrator.
(e) Technical Assistance for Small Publicly Owned Treatment
Works.--
(1) Definition of small publicly owned treatment
works.--In this subsection, the term ``small publicly
owned treatment works'' means a publicly owned
treatment works that services a population of fewer
than 20,000 individuals.
(2) Security assessment and planning assistance.--
(A) In general.--The Administrator, in
coordination with the States, may provide
technical guidance and assistance to small
publicly owned treatment works for--
(i) the conduct of a vulnerability
assessment; and
(ii) the implementation of security
enhancements to reduce vulnerabilities
identified in a vulnerability
assessment.
(B) Inclusions.--Technical guidance and
assistance provided under subparagraph (A) may
include technical assistance programs,
training, and preliminary engineering
evaluations.
(3) Participation by nonprofit organizations.--The
Administrator may provide grants to nonprofit
organizations to assist in accomplishing the purposes
of this subsection.
(f) Refinement of Vulnerability Assessment Methodology for
Publicly Owned Treatment Works.--
(1) Grants.--The Administrator may provide to
nonprofit organizations 1 or more grants to be used in
improving vulnerability assessment methodologies and
tools for publicly owned treatment works, including
publicly owned treatment works that are part of a
combined public wastewater treatment and water supply
system.
(2) Eligible activities.--A grant provided under this
subsection may be used--
(A) to develop and distribute vulnerability
self-assessment methodology software upgrades;
(B) to improve and enhance critical technical
and user support functions;
(C) to expand libraries of information
addressing threats and countermeasures; and
(D) to implement user training initiatives.
(3) Cost.--A service described in paragraph (2) that
is funded by a grant under this subsection shall be
provided at no cost to the recipients of the service.
(g) Authorization of Appropriations.--There is authorized
to be appropriated, to remain available until expended--
(1) $200,000,000 for use in making grants under
subsection (b);
(2) $15,000,000 for use in providing assistance under
subsection (e); and
(3) to carry out subsection (f), $1,000,000 for each
of fiscal years 2003 through 2007.

SEC. 223. RESEARCH AND REVIEW.

(a) Definitions.--In this section:
(1) Covered treatment works.--The term ``covered
treatment works'' has the meaning given the term
``treatment works'' in section 212.
(2) Harmful intentional act.--The term ``harmful
intentional act'' means a terrorist attack or other
intentional act carried out with respect to a covered
treatment works that is intended--
(A) to substantially disrupt the ability of
the covered treatment works to provide safe and
reliable--
(i) conveyance and treatment of
wastewater;
(ii) disposal of effluent; or
(iii) storage of a potentially
hazardous chemical used to treat
wastewater;
(B) to damage critical infrastructure;
(C) to have an adverse effect on the
environment; or
(D) to otherwise pose a significant threat to
public health or safety.
(b) Review by Administrator.--Not later than 2 years after
the date of enactment of this section, the Administrator, in
coordination with appropriate Federal agencies, shall research
and review (or enter into a contract or cooperative agreement
to provide for research and review of)--
(1) means by which terrorists or other individuals or
groups could carry out harmful intentional acts; and
(2) means by which alternative processes of
conveying, treating, and disposing of wastewater could
be provided in the event of the destruction,
impairment, or disruption of covered treatment works as
the result of harmful intentional acts.
(c) Means of Carrying Out Harmful Intentional Acts.--Means
referred to in subsection (b)(1) include--
(1) means by which pipes and other constructed
conveyances used in covered treatment works could be
destroyed or otherwise prevented from providing
adequate conveyance, pretreatment, treatment, and
disposal of wastewater meeting applicable public health
standards;
(2) means by which conveyance, pretreatment,
treatment, storage, and disposal facilities used by, or
in connection with, covered treatment works could be
destroyed or otherwise prevented from providing
adequate treatment of wastewater meeting applicable
public health standards;
(3) means by which pipes, constructed conveyances,
pretreatment, treatment, storage, and disposal systems
that are used in connection with treatment works could
be altered or affected so as to pose a threat to public
health, public safety, or the environment;
(4) means by which pipes, constructed conveyances,
pretreatment, treatment, storage, and disposal systems
that are used in connection with covered treatment
works could be reasonably protected from harmful
intentional acts;
(5) means by which pipes, constructed conveyances,
pretreatment, treatment, storage, and disposal systems
could be reasonably secured from use as a means of
transportation by terrorists or other individuals or
groups who intend to threaten public health or safety;
and
(6) means by which information systems, including
process controls and supervisory control, data
acquisition, and cyber systems, at covered treatment
works could be disrupted by terrorists or other
individuals or groups.
(d) Considerations.--In carrying out the review under this
section, the Administrator--
(1) shall ensure that the review reflects the needs
of covered treatment works of various sizes and various
geographic areas of the United States; and
(2) may consider the vulnerability of, or potential
for forced interruption of service for, a region or
service area, including the National Capital Area.
(e) Information Sharing.--As soon as practicable after the
review carried out under this section has been evaluated by the
Administrator, the Administrator shall disseminate to covered
treatment works information on the results of the review
through the Information Sharing and Analysis Center or other
appropriate means.
(f) Funding.--There is authorized to be appropriated to
carry out this section $15,000,000 for the period of fiscal
years 2004 through 2008.