[Congressional Record Volume 152, Number 62 (Thursday, May 18, 2006)]
[Senate]
[Pages S4805-S4807]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. BIDEN (for himself and Mr. Jeffords):
  S. 2855. 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; to the Committee on 
Environment and Public Works.
  Mr. BIDEN. Mr. President, I rise today to introduce the Community 
Water Treatment Hazards Reduction Act of 2006. This legislation would 
completely eliminate a known security risk to millions of Americans 
across the United States by facilitating the transfer to safer 
technologies from deadly toxic chemicals at our Nation's water 
treatment facilities.
  Across our Nation, there are thousands of water treatment facilities 
that utilize gaseous toxic chemicals to treat drinking and wastewater. 
Approximately 2,850 facilities are currently regulated under the Clean 
Air Act because they store large quantities of these dangerous 
chemicals. In fact, 98 of these facilities threaten over 100,000 
citizens. For example, the Fiveash Water Treatment Plant in Fort 
Lauderdale, FL, threatens 1,526,000 citizens. The Bachman Water 
Treatment in Dallas, TX, threatens up to 2 million citizens. And there 
are similar examples in communities throughout the Nation. If these 
facilities--and the 95 other facilities that threaten over 100,000 
citizens--switched from the use of toxic chemicals to safer 
technologies that are widely used within the industry we could 
completely eliminate a known threat to nearly 50 million Americans.
  Many facilities have already made the prudent decision to switch 
without intervention by the government. The Middlesex County Utilities 
Authority in Sayreville, NJ, switched to safer technologies and 
eliminated the risk to 10.7 million people. The Nottingham Water 
Treatment Plant in Cleveland, OH, switched and eliminated the risk to 
1.1 million citizens. The Blue Plains Wastewater Treatment Plant 
switched and eliminated the risk to 1.7 million people. In my hometown 
of Wilmington, DE, the Wilmington Water Pollution Control Facility 
switched from using chlorine gas to liquid bleach. This commendable 
decision has eliminated the risk to 560,000 citizens, including the 
entire city of Wilmington. In fact, this facility no longer has to 
submit risk management plans to the Environmental Protection Agency 
required by the Clean Air Act because the threat has been completely 
eliminated. There are many other examples of facilities that have done 
the right thing and eliminated the use of these dangerous, gaseous 
chemicals.
  The bottom line is that if we can eliminate a known risk, we should. 
The legislation I am introducing today will do just that. It will 
require the Administrator of the Environmental Protection Agency, in 
consultation with the Secretary of Homeland Security, to do a few 
simple things. First, water facilities will be prioritized based upon 
the risk that they pose to citizens and critical infrastructure. These 
facilities--beginning with the most dangerous ones--will be required to 
submit a report on the feasibility of utilizing safer technologies and 
the anticipated costs to transition. If grant funding is available, the 
Administrator will issue a grant and order the facility to transition 
to the safer technology chosen by the owner of the facility. I believe 
that this approach will allow us to use Federal funds responsibly while 
reducing risk to our citizens.
  Once the transition is complete, the facility will be required to 
track all cost-savings related to the switch, such as decreased 
security costs, costs saving by eliminating administrative requirements 
under the EPA risk management plan, lower insurance premiums, and 
others. If savings are ultimately realized by the facility, it will be 
required to return one half of these savings, not to exceed the grant 
amount, back to the EPA. In turn, the EPA will utilize any returned 
savings to help facilitate the transition of more water facilities.
  A 2005 report by the Government Accountability Office found that 
providing grants to assist water facilities to transition to safer 
technologies was an appropriate use of Federal funds. The costs for an 
individual facility to transition will vary, but the cost is very cheap 
when you consider the security benefits. For example, the Wilmington 
facility invested approximately $160,000 to transition and eliminated 
the risk to nearly 600,000 people. Similarly, the Blue Plains facility 
spent $500,000 to transition after 9-11 and eliminated the risk to 1.2 
million citizens immediately. This, in my view, is a sound use of 
funds. And, this legislation will provide sufficient funding to 
transition all of our high-priority facilities throughout Nation.
  Finally, I would like to point out that facilities making the 
decision to transition after 9-11, but before the enactment date of 
this legislation will be eligible to participate in the program 
authorized by this legislation. I have included this provision because 
I believe that the Federal Government should acknowledge--and promote--
local decisions that enhance our homeland security. In addition, we 
don't want to create a situation where water facilities wait for 
Federal funding, before doing the right thing and eliminating those 
dangerous gaseous chemicals.
  Last December the 9-11 Discourse Project released its report card for 
the

[[Page S4806]]

administration and Congress on efforts to implement the 9-11 Commission 
recommendations. It was replete with D's and F's demonstrating that we 
have been going in the wrong direction with respect to homeland 
security. One of the most troubling findings made by the 9-11 
Commission is that with respect to our Nation's critical infrastructure 
that ``no risk and vulnerability assessments actually made; no national 
priorities established; no recommendations made on allocations of 
scarce resources. All key decisions are at least a year away. It is 
time that we stop talking about priorities and actually set some.'' 
While much remains to be done, the Community Water Treatment Hazards 
Reduction Act of 2006 sets an important priority for our homeland 
security and it affirmatively addresses it. I urge my colleagues to 
support this important legislation.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 2855

       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;

[[Page S4807]]

       ``(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.''.

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