[Congressional Record Volume 147, Number 178 (Thursday, December 20, 2001)]
[Extensions of Remarks]
[Pages E2410-E2411]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




      PUBLIC HEALTH SECURITY AND BIOTERRORISM RESPONSE ACT OF 2001

                                 ______
                                 

                          HON. PAUL E. GILLMOR

                                of ohio

                    in the house of representatives

                      Thursday, December 20, 2001

  Mr. GILLMOR. Mr. Speaker, as Chairman of the Environment and 
Hazardous Materials Subcommittee of the House Energy and Commerce 
Committee, which has jurisdiction over the Safe Drinking Water Act, I 
am taking this opportunity to elaborate on and clarify the provisions 
of the legislative text of Title IV of H.R. 3448, the Public Health 
Security and Bioterrorism Response Act of 2001. Because this 
legislation was considered under suspension of the Rules and without 
the filing of a report by the House Energy and Commerce Committee, I 
want to provide and more detailed explanation of Title IV for the 
Record.

           Section 401: Amendment to Safe Drinking Water Act

       Title IV of the Public Health Security and Bioterrorism 
     Response Act of 2001 requires community water systems serving 
     over 3,300 individuals to conduct vulnerability assessments 
     and to prepare or revise emergency response plans which 
     incorporate the results of the vulnerability assessment. The 
     legislation, however, also recognizes that many community 
     water systems have conducted or will be in the process of 
     conducting vulnerability assessments at the time of 
     enactment. Title IV is thus explicitly drafted not to create 
     a regulatory program which could slow down ongoing efforts or 
     to require systems that have completed vulnerability 
     assessments to undertake another such assessment. The title 
     only requires that systems certify that an assessment has 
     been completed by a specific date, not that the assessment 
     was initiated and/or completed before or after the date of 
     enactment.
       Title IV does not create a regulatory role for the 
     Environmental Protection Agency (EPA) in defining what is or 
     is not an ``acceptable'' vulnerability assessment. EPA is 
     provided no regulatory authority in this regard; instead, the 
     Agency is only to provide information once to community water 
     systems (by March 1, 2002) regarding what kinds of terrorist 
     attacks are probable threats. EPA is to coordinate its 
     efforts with other agencies and departments of government who 
     have expertise in this area, to compile information readily 
     available or already developed, and to promptly distribute 
     this information. The statute does not provide a continuing 
     duty for EPA in this area past the date specified in the 
     legislation.
       In this regard, vulnerability assessments are defined in 
     statute only to the extent that they include a review of 
     certain specified items. These items are those which make up 
     the physical structure of a public water system (as defined 
     in section 1401 of the Safe Drinking Water Act (SDWA)), 
     electronic, computer or other automated systems, physical 
     barriers, the use, storage, or handling of various 
     chemicals and the operation and maintenance of a drinking 
     water system. Title IV recognizes that there are many 
     different types and sizes of community water systems (CWS) 
     and gives CWS wide discretion to devise and conduct a 
     vulnerability assessment. EPA is not given any rulemaking 
     or other authority to define further what is or is not a 
     vulnerability assessment meeting the requirements of 
     section 1433. Nor does Title IV require that a community 
     water system utilize any particular vulnerability 
     assessment tool, or conduct any specific type of analysis. 
     Community water systems are not required to determine the 
     consequences of intentional acts or terrorist acts, 
     analyze their use of specific chemicals, including 
     chlorine, as opposed to other chemicals, or to 
     characterize the risk of any offsite impacts. Further, the 
     term ``physical barriers'' does not necessarily include 
     ``buffer zones'' or any other area around physical 
     structures.
       Title IV does not contain any requirement that the EPA or 
     any other governmental body receive for review vulnerability 
     assessments conducted by water systems. Nor does Title IV 
     contain any requirement that community water systems provide 
     such information to EPA or to any other person or 
     governmental entity. It only requires that community water 
     systems certify that they have completed an assessment. 
     Community water systems are to coordinate with local 
     emergency planning committees (LEPCs) in the preparation or 
     revision of emergency response plans for the purpose of 
     avoiding duplication of effort and taking advantage of 
     previous information developed by the LEPCs for first 
     responders and local government response. There is no 
     requirement that community water systems disclose any of the 
     information developed by the vulnerability assessments to the 
     LEPCs.
       Vulnerability assessments could contain very sensitive 
     information about a drinking water system which would be of 
     assistance to a terrorist or an individual contemplating an 
     attack. Therefore, Title IV was explicitly and intentionally 
     drafted to avoid triggering any requirement under the Freedom 
     of Information Act (FOIA) (Section 552 of Title 5, United 
     States Code) to disclose any information developed in 
     connection with a vulnerability assessment. The President 
     should carefully consider whether assessments and related 
     materials should be exempted from the FOIA by executive 
     order.
       The legislation authorizes EPA to provide financial 
     assistance to CWS for several specified purposes. EPA may 
     provide assistance for vulnerability assessments, for 
     developing or revising emergency response plans and for 
     expenses and contracts designed to address basic security 
     enhancements of critical importance and significant threats 
     to public health. Title IV does not define either ``basic

[[Page E2411]]

     security enhancements of critical importance'' or 
     ``significant threats to public health.'' However, existing 
     SDWA programs which provide assistance to water systems have 
     not provided assistance for continuing expenses such as 
     operations and maintenance or personnel expenses. This 
     legislation does not change this long-established public 
     policy.
       Finally, Title IV clarifies that EPA has discretion to act 
     under Part D, Emergency Powers, of the Safe Drinking Water 
     Act (SDWA) when the Agency has received information about a 
     specific threatened terrorist attack or when the Agency has 
     received information concerning a potential terrorist attack 
     (but not necessarily a specific, identified threat) at a 
     drinking water facility. In exercising this discretion, the 
     EPA should only rely upon substantial, credible information. 
     EPA should not interpret ``potential terrorist attack'' to 
     mean that there is merely some possibility or statistical 
     probability of a terrorist attack. Neither should EPA 
     interpret a general warning, general announcement or general 
     condition to be sufficient information of a threatened or 
     potential terrorist attack. Specific, credible information is 
     required, and all other elements of section 1431 must be met, 
     including the existence of an imminent and substantial 
     endangerment to the health of persons, that appropriate State 
     and local authorities have not acted to protect the health of 
     persons served by the drinking water system, and that the EPA 
     Administrator has consulted with State and local authorities 
     regarding the correctness of the information regarding both 
     the specific threat and the actions which the State or local 
     authorities have taken. The authority granted to EPA in 
     section 1431 is a limited, case-by-case, contingent emergency 
     power.

                                 ______
                                 

                                         House of Representatives,


                             Committee on Energy and Commerce,

                                Washington, DC, December 11, 2001.
     Hon. Don Young,
     Chairman, Committee on Transportation and Infrastructure, 
         Rayburn House Office Building, Washington, DC.
       Dear Mr. Chairman: The Committee on Energy and Commerce has 
     requested that the House take up the Public Health Security 
     and Bioterrorism Response Act of 2001, H.R. 3448. While the 
     bill primarily contains provisions related to the matters in 
     the jurisdiction of the Committee on Energy and Commerce, I 
     recognize that section 135, which amends the Stafford Act (42 
     U.S.C. Sec. Sec. 5121, et seq.), to require release of 
     emergency plans, falls under the jurisdiction of the 
     Committee on Transportation and Infrastructure.
       Allowing this bill to move forward in no way impairs your 
     jurisdiction over that provision, and I would be pleased to 
     place this letter and any response you may have in the 
     Congressional Record when the bill is considered on the 
     floor. In addition, if a conference is necessary on this 
     bill, I recognize your right to request that the Committee on 
     Transportation and Infrastructure be represented on the 
     conference with respect to the provision amending the 
     Stafford Act.
           Sincerely,
                                            W.J. ``Billy'' Tauzin,
                                                         Chairman.

                                 ______
                                 

       U.S. House of Representatives, Committee on Transportation 
                                               and Infrastructure,
                                Washington, DC, December 11, 2001.
     Hon. W.J. Billy Tauzin,
     Chairman, Committee on Energy and Commerce, Washington, DC.
       Dear Mr. Chairman: Thank you for your recent letter 
     regarding The Public Health Security and Bioterrorism 
     Response Act of 2001, H.R. 3448. As you know, this bill 
     contains a provision related to matters in the jurisdiction 
     of the Committee on Transportation and Infrasturcture. 
     Specifically, Section 135 of the bill amends the Stafford Act 
     (42 U.S.C. Sec. Sec. 5121, et seq.), which is under the 
     jurisdiction of the Committee on Transportation and 
     Infrastructure.
       In the interest of expediting consideration of the bill, 
     the Committee will not seek a referral of this legislation 
     and will support your request to schedule floor action on the 
     bill. This action should not, however, be construed as 
     waiving the Committee's jurisdiction over future legislation 
     of a similar nature.
       Thank you for your cooperation on this matter.
           Sincerely,
                                                        Don Young,
                                                         Chairman.

     

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