[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.

                  (C) GRANTS FOR SECURITY ENHANCEMENTS

            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.

           (C) MEANS OF CARRYING OUT HARMFUL INTENTIONAL ACT

            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.

                                
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