[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 2855 Introduced in Senate (IS)]








109th CONGRESS
  2d Session
                                S. 2855

  To amend the Safe Drinking Water Act to eliminate security risks by 
    replacing the use of extremely hazardous gaseous chemicals with 
                     inherently safer technologies.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 18, 2006

Mr. Biden (for himself and Mr. Jeffords) introduced the following bill; 
 which was read twice and referred to the Committee on Environment and 
                              Public Works

_______________________________________________________________________

                                 A BILL


 
  To amend the Safe Drinking Water Act to eliminate security risks by 
    replacing the use of extremely hazardous gaseous chemicals with 
                     inherently safer technologies.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Community Water Treatment Hazards 
Reduction Act of 2006''.

SEC. 2. USE OF INHERENTLY SAFER TECHNOLOGIES AT WATER FACILITIES.

    Part F of the Safe Drinking Water Act (42 U.S.C. 300j-21 et seq.) 
is amended by adding at the end the following:

``SEC. 1466. USE OF INHERENTLY SAFER TECHNOLOGIES AT WATER FACILITIES.

    ``(a) Definitions.--In this section:
            ``(1) Harmful intentional act.--The term `harmful 
        intentional act' means a terrorist attack or other intentional 
        act carried out upon a water facility that is intended--
                    ``(A) to substantially disrupt the ability of the 
                water facility to provide safe and reliable--
                            ``(i) conveyance and treatment of 
                        wastewater or drinking water;
                            ``(ii) disposal of effluent; or
                            ``(iii) storage of a potentially hazardous 
                        chemical used to treat wastewater or drinking 
                        water;
                    ``(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.
            ``(2) Inherently safer technology.--The term `inherently 
        safer technology' means a technology, product, raw material, or 
        practice the use of which, as compared to the current use of 
        technologies, products, raw materials, or practices, 
        significantly reduces or eliminates--
                    ``(A) the possibility of release of a substance of 
                concern; and
                    ``(B) the hazards to public health and safety and 
                the environment associated with the release or 
                potential release of a substance of concern.
            ``(3) Secretary.--The term `Secretary' means the Secretary 
        of Homeland Security (or a designee).
            ``(4) Substance of concern.--
                    ``(A) In general.--The term `substance of concern' 
                means any chemical, toxin, or other substance that, if 
                transported or stored in a sufficient quantity, would 
                have a high likelihood of causing casualties and 
                economic damage if released or otherwise successfully 
                targeted by a harmful intentional act, as determined by 
                the Administrator, in consultation with the Secretary.
                    ``(B) Inclusions.--The term `substance of concern' 
                includes--
                            ``(i) any substance included in Table 1 or 
                        2 contained in section 68.130 of title 40, Code 
                        of Federal Regulations (or a successor 
                        regulation), published in accordance with 
                        section 112(r)(3) of the Clean Air Act (42 
                        U.S.C. 7412(r)(3)); and
                            ``(ii) any other highly hazardous gaseous 
                        toxic material or substance that, if 
                        transported or stored in a sufficient quantity, 
                        could cause casualties or economic damage if 
                        released or otherwise successfully targeted by 
                        a harmful intentional act, as determined by the 
                        Administrator, in consultation with the 
                        Secretary.
            ``(5) Treatment works.--The term `treatment works' has the 
        meaning given the term in section 212 of the Federal Water 
        Pollution Control Act (33 U.S.C. 1292).
            ``(6) Vulnerability zone.--The term `vulnerability zone' 
        means, with respect to a substance of concern, the geographic 
        area that would be affected by a worst-case release of the 
        substance of concern, as determined by the Administrator on the 
        basis of--
                    ``(A) an assessment that includes the information 
                described in section 112(r)(7)(B)(ii)(I) of the Clean 
                Air Act (42 U.S.C. 7412(r)(7)(B)(ii)(I)); or
                    ``(B) such other assessment or criteria as the 
                Administrator determines to be appropriate.
            ``(7) Water facility.--The term `water facility' means a 
        treatment works or public water system owned or operated by any 
        person.
    ``(b) Regulations.--
            ``(1) In general.--Not later than 90 days after the date of 
        enactment of this section, the Administrator, in consultation 
        with the Secretary and other Federal, State, and local 
        governmental entities, security experts, owners and operators 
        of water facilities, and other interested persons shall--
                    ``(A) compile a list of all high-consequence water 
                facilities, as determined in accordance with paragraph 
                (2); and
                    ``(B) notify each owner and operator of a water 
                facility that is included on the list.
            ``(2) Identification of high-consequence water 
        facilities.--
                    ``(A) In general.--Subject to subparagraph (B), in 
                determining whether a water facility is a high-
                consequence water facility, the Administrator shall 
                consider--
                            ``(i) the number of people located in the 
                        vulnerability zone of each substance of concern 
                        that could be released at the water facility;
                            ``(ii) the critical infrastructure (such as 
                        health care, governmental, or industrial 
                        facilities or centers) served by the water 
                        facility;
                            ``(iii) any use by the water facility of 
                        large quantities of 1 or more substances of 
                        concern; and
                            ``(iv) the quantity and volume of annual 
                        shipments of substances of concern to or from 
                        the water facility.
                    ``(B) Tiers of facilities.--
                            ``(i) In general.--Except as provided in 
                        clauses (ii) through (iv), the Administrator 
                        shall classify high-consequence water 
                        facilities designated under this paragraph into 
                        3 tiers, and give priority to orders issued 
                        for, actions taken by, and other matters 
                        relating to the security of, high-consequence 
                        water facilities based on the tier 
                        classification of the high-consequence water 
                        facilities, as follows:
                                    ``(I) Tier 1 facilities.--A Tier 1 
                                high-consequence water facility shall 
                                have a vulnerability zone that covers 
                                more than 100,000 individuals and shall 
                                be given the highest priority by the 
                                Administrator.
                                    ``(II) Tier 2 facilities.--A Tier 2 
                                high-consequence water facility shall 
                                have a vulnerability zone that covers 
                                more than 25,000, but not more than 
                                100,000, individuals and shall be given 
                                the second-highest priority by the 
                                Administrator.
                                    ``(III) Tier 3 facilities.--A Tier 
                                3 high-consequence water facility shall 
                                have a vulnerability zone that covers 
                                more than 10,000, but not more than 
                                25,000, individuals and shall be given 
                                the third-highest priority by the 
                                Administrator.
                            ``(ii) Mandatory designation.--If the 
                        vulnerability zone for a substance of concern 
                        at a water facility contains more than 10,000 
                        individuals, the water facility shall be--
                                    ``(I) considered to be a high-
                                consequence water facility; and
                                    ``(II) classified by the 
                                Administrator to an appropriate tier 
                                under clause (i).
                            ``(iii) Discretionary classification.--A 
                        water facility with a vulnerability zone that 
                        covers 10,000 or fewer individuals may be 
                        designated as a high consequence facility, on 
                        the request of the owner or operator of a water 
                        facility, and classified into a tier described 
                        in clause (i), at the discretion of the 
                        Administrator.
                            ``(iv) Reclassification.--The 
                        Administrator--
                                    ``(I) may reclassify a high-
                                consequence water facility into a tier 
                                with higher priority, as described in 
                                clause (i), based on an increase of 
                                population covered by the vulnerability 
                                zone or any other appropriate factor, 
                                as determined by the Administrator; but
                                    ``(II) may not reclassify a high-
                                consequence water facility into a tier 
                                with a lower priority, as described in 
                                clause (i), for any reason.
            ``(3) Options feasibility assessment on use of inherently 
        safer technology.--
                    ``(A) In general.--Not later than 90 days after the 
                date on which the owner or operator of a high-
                consequence water facility receives notice under 
                paragraph (1)(B), the owner or operator shall submit to 
                the Administrator an options feasibility assessment 
                that describes--
                            ``(i) an estimate of the costs that would 
                        be directly incurred by the high-consequence 
                        water facility in transitioning from the use of 
                        the current technology used for 1 or more 
                        substances of concern to inherently safer 
                        technologies; and
                            ``(ii) comparisons of the costs and 
                        benefits to transitioning between different 
                        inherently safer technologies, including the 
                        use of--
                                    ``(I) sodium hypochlorite;
                                    ``(II) ultraviolet light;
                                    ``(III) other inherently safer 
                                technologies that are in use within the 
                                applicable industry; or
                                    ``(IV) any combination of the 
                                technologies described in subclauses 
                                (I) through (III).
                    ``(B) Considerations in determining estimated 
                costs.--In estimating the transition costs described in 
                subparagraph (A)(i), an owner or operator of a high-
                consequence water facility shall consider--
                            ``(i) the costs of capital upgrades to 
                        transition to the use of inherently safer 
                        technologies;
                            ``(ii) anticipated increases in operating 
                        costs of the high-consequence water facility;
                            ``(iii) offsets that may be available to 
                        reduce or eliminate the transition costs, such 
                        as the savings that may be achieved by--
                                    ``(I) eliminating security needs 
                                (such as personnel and fencing);
                                    ``(II) complying with safety 
                                regulations;
                                    ``(III) complying with 
                                environmental regulations and permits;
                                    ``(IV) complying with fire code 
                                requirements;
                                    ``(V) providing personal protective 
                                equipment;
                                    ``(VI) installing safety devices 
                                (such as alarms and scrubbers);
                                    ``(VII) purchasing and maintaining 
                                insurance coverage;
                                    ``(VIII) conducting appropriate 
                                emergency response and contingency 
                                planning;
                                    ``(IX) conducting employee 
                                background checks; and
                                    ``(X) potential liability for 
                                personal injury and damage to property; 
                                and
                            ``(iv) the efficacy of each technology in 
                        treating or neutralizing biological or chemical 
                        agents that could be introduced into a drinking 
                        water supply by a terrorist or act of 
                        terrorism.
                    ``(C) Use of inherently safer technologies.--
                            ``(i) In general.--Subject to clause (ii), 
                        not later than 90 days after the date of 
                        submission of the options feasibility 
                        assessment required under this paragraph, the 
                        owner or operator of a high-consequence water 
                        facility, in consultation with the 
                        Administrator, the Secretary, the United States 
                        Chemical Safety and Hazard Investigation Board, 
                        local officials, and other interested parties, 
                        shall determine which inherently safer 
                        technologies are to be used by the high-
                        consequence water facility.
                            ``(ii) Considerations.--In making the 
                        determination under clause (i), an owner or 
                        operator--
                                    ``(I) may consider transition costs 
                                estimated in the options feasibility 
                                assessment of the owner or operator 
                                (except that those transition costs 
                                shall not be the sole basis for the 
                                determination of the owner or 
                                operator);
                                    ``(II) shall consider long-term 
                                security enhancement of the high-
                                consequence water facility;
                                    ``(III) shall consider comparable 
                                water facilities that have transitioned 
                                to inherently safer technologies; and
                                    ``(IV) shall consider the overall 
                                security impact of the determination, 
                                including on the production, 
                                processing, and transportation of 
                                substances of concern at other 
                                facilities.
    ``(c) Enforcement.--
            ``(1) In general.--In accordance with the tiers and 
        priority system established under subsection (b)(2)(B), subject 
        to paragraph (2), the Administrator--
                    ``(A) shall prioritize the use of inherently safer 
                technologies at high-consequence facilities listed 
                under subsection (b)(1);
                    ``(B) subject to the availability of grant funds 
                under this section, not later than 90 days after the 
                date on which the Administrator receives an options 
                feasibility assessment from an owner or operator of a 
                high-consequence water facility under subsection 
                (b)(3)(A), shall issue an order requiring the high-
                consequence water facility to eliminate the use of 1 or 
                more substances of concern and adopt 1 or more 
                inherently safer technologies; and
                    ``(C) may seek enforcement of an order issued under 
                paragraph (2) in the appropriate United States district 
                court.
            ``(2) De minimis use.--Nothing in this section prohibits 
        the de minimis use of a substance of concern as a residual 
        disinfectant.
    ``(d) Grants.--
            ``(1) In general.--In accordance with the tiers and 
        priority system established under subsection (b)(2)(B), the 
        Administrator shall provide grants to high-consequence 
        facilities (including high-consequence facilities subject to an 
        order issued under subsection (c)(1)(C) and water facilities 
        described in paragraph (6)) for use in paying capital 
        expenditures directly required to complete the transition of 
        the high-consequence water facility to the use of 1 or more 
        inherently safer technologies.
            ``(2) Application.--A high-consequence water facility that 
        seeks to receive a grant under this subsection shall submit to 
        the Administrator an application by such date, in such form, 
        and containing such information as the Administrator shall 
        require, including information relating to the transfer to 
        inherently safer technologies, and the proposed date of such a 
        transfer, described in subsection (b)(3)(B).
            ``(3) Deadline for transition.--An owner or operator of a 
        high-consequence water facility that is subject to an order 
        under subsection (c)(1)(C) and that receives a grant under this 
        subsection shall begin the transition to inherently safer 
        technologies described in paragraph (1) not later than 90 days 
        after the date of issuance of the order under subsection 
        (c)(1)(C).
            ``(4) Facility upgrades.--An owner or operator of a high-
        consequence water facility--
                    ``(A) may complete the transition to inherently 
                safer technologies described in paragraph (1) within 
                the scope of a greater facility upgrade; but
                    ``(B) shall use amounts from a grant received under 
                this subsection only for the capital expenditures 
                directly relating to the transition to inherently safer 
                technologies.
            ``(5) Operational costs.--An owner or operator of a high-
        consequence water facility that receives a grant under this 
        subsection may not use funds from the grant to pay or offset 
        any ongoing operational cost of the high-consequence water 
        facility.
            ``(6) Other requirements.--As a condition of receiving a 
        grant under this subsection, the owner or operator of a high-
        consequence water facility shall--
                    ``(A) upon receipt of a grant, track all cost 
                savings resulting from the transition to inherently 
                safer technologies, including those savings identified 
                in subsection (b)(4)(B)(iii); and
                    ``(B) for each fiscal year for which grant funds 
                are received, return an amount to the Administrator 
                equal to 50 percent of the savings achieved by the 
                high-consequence water facility (but not to exceed the 
                amount of grant funds received for the fiscal year) for 
                use by the Administrator in facilitating the future 
                transition of other high-consequence water facilities 
                to the use of inherently safer technologies.
            ``(7) Interim transitions.--A water facility that 
        transitioned to the use of 1 or more inherently safer 
        technologies after September 11, 2001, but before the date of 
        enactment of this section, and that qualifies as a high-
        consequence facility under subsection (b)(2), in accordance 
        with any previous report submitted by the water facility under 
        section 112(r) of the Clean Air Act (42 U.S.C. 7412(r)) and as 
        determined by the Administrator, shall be eligible to receive a 
        grant under this subsection.
    ``(e) Authorization of Appropriations.--There is authorized to be 
appropriated to carry out this section $125,000,000 for each of fiscal 
years 2007 through 2011.''.
                                 <all>