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:

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.