II 

109TH CONGRESS 

2D SESSION S. 2855 

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

safer technologies. 

IN THE SENATE OF THE UNITED STATES 

MAY 18, 2006 

Mr. BIDEN (for himself and Mr. JEFFORDS) introduced the following bill; 

which was read twice and referred to the Committee on Environment and 

Public Works 

A BILL 

To amend the Safe Drinking Water Act to eliminate security 

risks by replacing the use of extremely hazardous gaseous chemicals with inherently safer technologies. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Community Water 

5 Treatment Hazards Reduction Act of 2006’’. 


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1 SEC. 2. USE OF INHERENTLY SAFER TECHNOLOGIES AT 

2 WATER FACILITIES. 

3 Part F of the Safe Drinking Water Act (42 U.S.C. 

4 300j–21 et seq.) is amended by adding at the end the fol5 lowing: 

6 ‘‘SEC. 1466. USE OF INHERENTLY SAFER TECHNOLOGIES AT 

7 WATER FACILITIES. 

8 ‘‘(a) DEFINITIONS.—In this section: 

9 ‘‘(1) HARMFUL INTENTIONAL ACT.—The term 

10 ‘harmful intentional act’ means a terrorist attack or 

11 other intentional act carried out upon a water facil12 ity that is intended— 

13 ‘‘(A) to substantially disrupt the ability of 

14 the water facility to provide safe and reliable— 

15 ‘‘(i) conveyance and treatment of 

16 wastewater or drinking water; 

17 ‘‘(ii) disposal of effluent; or 

18 ‘‘(iii) storage of a potentially haz19 ardous chemical used to treat wastewater 

20 or drinking water; 

21 ‘‘(B) to damage critical infrastructure; 

22 ‘‘(C) to have an adverse effect on the envi23 ronment; or 

24 ‘‘(D) to otherwise pose a significant threat 

25 to public health or safety. 


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1 ‘‘(2) INHERENTLY SAFER TECHNOLOGY.—The 

2 term ‘inherently safer technology’ means a tech3 nology, product, raw material, or practice the use of 

4 which, as compared to the current use of tech5 nologies, products, raw materials, or practices, sig6 nificantly reduces or eliminates— 

7 ‘‘(A) the possibility of release of a sub8 stance of concern; and 

9 ‘‘(B) the hazards to public health and safe10 ty and the environment associated with the re11 lease or potential release of a substance of con12 cern. 

13 ‘‘(3) SECRETARY.—The term ‘Secretary’ means 

14 the Secretary of Homeland Security (or a designee). 

15 ‘‘(4) SUBSTANCE OF CONCERN.— 

16 ‘‘(A) IN GENERAL.—The term ‘substance 

17 of concern’ means any chemical, toxin, or other 

18 substance that, if transported or stored in a 

19 sufficient quantity, would have a high likelihood 

20 of causing casualties and economic damage if 

21 released or otherwise successfully targeted by a 

22 harmful intentional act, as determined by the 

23 Administrator, in consultation with the Sec24 retary. 


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1 ‘‘(B) INCLUSIONS.—The term ‘substance 

2 of concern’ includes— 

3 ‘‘(i) any substance included in Table 1 

4 or 2 contained in section 68.130 of title 

5 40, Code of Federal Regulations (or a suc6 cessor regulation), published in accordance 

7 with section 112(r)(3) of the Clean Air Act 

8 (42 U.S.C. 7412(r)(3)); and 

9 ‘‘(ii) any other highly hazardous gas10 eous toxic material or substance that, if 

11 transported or stored in a sufficient quan12 tity, could cause casualties or economic 

13 damage if released or otherwise success14 fully targeted by a harmful intentional act, 

15 as determined by the Administrator, in 

16 consultation with the Secretary. 

17 ‘‘(5) TREATMENT WORKS.—The term ‘treat18 ment works’ has the meaning given the term in sec19 tion 212 of the Federal Water Pollution Control Act 

20 (33 U.S.C. 1292). 

21 ‘‘(6) VULNERABILITY ZONE.—The term ‘vulner22 ability zone’ means, with respect to a substance of 

23 concern, the geographic area that would be affected 

24 by a worst-case release of the substance of concern, 


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1 as determined by the Administrator on the basis 

2 of— 

3 ‘‘(A) an assessment that includes the infor4 mation described in section 112(r)(7)(B)(ii)(I) 

5 of the Clean Air Act (42 U.S.C. 

6 7412(r)(7)(B)(ii)(I)); or 

7 ‘‘(B) such other assessment or criteria as 

8 the Administrator determines to be appropriate. 

9 ‘‘(7) WATER FACILITY.—The term ‘water facil10 ity’ means a treatment works or public water system 

11 owned or operated by any person. 

12 ‘‘(b) REGULATIONS.— 

13 ‘‘(1) IN GENERAL.—Not later than 90 days 

14 after the date of enactment of this section, the Ad15 ministrator, in consultation with the Secretary and 

16 other Federal, State, and local governmental enti17 ties, security experts, owners and operators of water 

18 facilities, and other interested persons shall— 

19 ‘‘(A) compile a list of all high-consequence 

20 water facilities, as determined in accordance 

21 with paragraph (2); and 

22 ‘‘(B) notify each owner and operator of a 

23 water facility that is included on the list. 

24 ‘‘(2) IDENTIFICATION OF HIGH-CONSEQUENCE

25 WATER FACILITIES.— 


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1 ‘‘(A) IN GENERAL.—Subject to subpara2 graph (B), in determining whether a water fa3 cility is a high-consequence water facility, the 

4 Administrator shall consider— 

5 ‘‘(i) the number of people located in 

6 the vulnerability zone of each substance of 

7 concern that could be released at the water 

8 facility; 

9 ‘‘(ii) the critical infrastructure (such 

10 as health care, governmental, or industrial 

11 facilities or centers) served by the water 

12 facility; 

13 ‘‘(iii) any use by the water facility of 

14 large quantities of 1 or more substances of 

15 concern; and 

16 ‘‘(iv) the quantity and volume of an17 nual shipments of substances of concern to 

18 or from the water facility. 

19 ‘‘(B) TIERS OF FACILITIES.— 

20 ‘‘(i) IN GENERAL.—Except as pro21 vided in clauses (ii) through (iv), the Ad22 ministrator shall classify high-consequence 

23 water facilities designated under this para24 graph into 3 tiers, and give priority to or25 ders issued for, actions taken by, and other 


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1 matters relating to the security of, high2 consequence water facilities based on the 

3 tier classification of the high-consequence 

4 water facilities, as follows: 

5 ‘‘(I) TIER 1 FACILITIES.—A Tier 

6 1 high-consequence water facility shall 

7 have a vulnerability zone that covers 

8 more than 100,000 individuals and 

9 shall be given the highest priority by 

10 the Administrator. 

11 ‘‘(II) TIER 2 FACILITIES.—A 

12 Tier 2 high-consequence water facility 

13 shall have a vulnerability zone that 

14 covers more than 25,000, but not 

15 more than 100,000, individuals and 

16 shall be given the second-highest pri17 ority by the Administrator. 

18 ‘‘(III) TIER 3 FACILITIES.—A 

19 Tier 3 high-consequence water facility 

20 shall have a vulnerability zone that 

21 covers more than 10,000, but not 

22 more than 25,000, individuals and 

23 shall be given the third-highest pri24 ority by the Administrator. 


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1 ‘‘(ii) MANDATORY DESIGNATION.—If 

2 the vulnerability zone for a substance of 

3 concern at a water facility contains more 

4 than 10,000 individuals, the water facility 

5 shall be— 

6 ‘‘(I) considered to be a high-con7 sequence water facility; and 

8 ‘‘(II) classified by the Adminis9 trator to an appropriate tier under 

10 clause (i). 

11 ‘‘(iii) DISCRETIONARY CLASSIFICA12 TION.—A water facility with a vulnerability 

13 zone that covers 10,000 or fewer individ14 uals may be designated as a high con15 sequence facility, on the request of the 

16 owner or operator of a water facility, and 

17 classified into a tier described in clause (i), 

18 at the discretion of the Administrator. 

19 ‘‘(iv) RECLASSIFICATION.—The Ad20 ministrator— 

21 ‘‘(I) may reclassify a high-con22 sequence water facility into a tier with 

23 higher priority, as described in clause 

24 (i), based on an increase of population 

25 covered by the vulnerability zone or 


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1 any other appropriate factor, as deter2 mined by the Administrator; but 

3 ‘‘(II) may not reclassify a high4 consequence water facility into a tier 

5 with a lower priority, as described in 

6 clause (i), for any reason. 

7 ‘‘(3) OPTIONS FEASIBILITY ASSESSMENT ON

8 USE OF INHERENTLY SAFER TECHNOLOGY.— 

9 ‘‘(A) IN GENERAL.—Not later than 90 

10 days after the date on which the owner or oper11 ator of a high-consequence water facility re12 ceives notice under paragraph (1)(B), the owner 

13 or operator shall submit to the Administrator 

14 an options feasibility assessment that de15 scribes— 

16 ‘‘(i) an estimate of the costs that 

17 would be directly incurred by the high-con18 sequence water facility in transitioning 

19 from the use of the current technology 

20 used for 1 or more substances of concern 

21 to inherently safer technologies; and 

22 ‘‘(ii) comparisons of the costs and 

23 benefits to transitioning between different 

24 inherently safer technologies, including the 

25 use of— 


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1 ‘‘(I) sodium hypochlorite; 

2 ‘‘(II) ultraviolet light; 

3 ‘‘(III) other inherently safer tech4 nologies that are in use within the ap5 plicable industry; or 

6 ‘‘(IV) any combination of the 

7 technologies described in subclauses 

8 (I) through (III). 

9 ‘‘(B) CONSIDERATIONS IN DETERMINING

10 ESTIMATED COSTS.—In estimating the transi11 tion costs described in subparagraph (A)(i), an 

12 owner or operator of a high-consequence water 

13 facility shall consider— 

14 ‘‘(i) the costs of capital upgrades to 

15 transition to the use of inherently safer 

16 technologies; 

17 ‘‘(ii) anticipated increases in operating 

18 costs of the high-consequence water facil19 ity; 

20 ‘‘(iii) offsets that may be available to 

21 reduce or eliminate the transition costs, 

22 such as the savings that may be achieved 

23 by— 

24 ‘‘(I) eliminating security needs 

25 (such as personnel and fencing); 


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1 ‘‘(II) complying with safety regu2 lations; 

3 ‘‘(III) complying with environ4 mental regulations and permits; 

5 ‘‘(IV) complying with fire code 

6 requirements; 

7 ‘‘(V) providing personal protec8 tive equipment; 

9 ‘‘(VI) installing safety devices 

10 (such as alarms and scrubbers); 

11 ‘‘(VII) purchasing and maintain12 ing insurance coverage; 

13 ‘‘(VIII) conducting appropriate 

14 emergency response and contingency 

15 planning; 

16 ‘‘(IX) conducting employee back17 ground checks; and 

18 ‘‘(X) potential liability for per19 sonal injury and damage to property; 

20 and 

21 ‘‘(iv) the efficacy of each technology in 

22 treating or neutralizing biological or chem23 ical agents that could be introduced into a 

24 drinking water supply by a terrorist or act 

25 of terrorism. 


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1 ‘‘(C) USE OF INHERENTLY SAFER TECH2 NOLOGIES.— 

3 ‘‘(i) IN GENERAL.—Subject to clause 

4 (ii), not later than 90 days after the date 

5 of submission of the options feasibility as6 sessment required under this paragraph, 

7 the owner or operator of a high-con8 sequence water facility, in consultation 

9 with the Administrator, the Secretary, the 

10 United States Chemical Safety and Hazard 

11 Investigation Board, local officials, and 

12 other interested parties, shall determine 

13 which inherently safer technologies are to 

14 be used by the high-consequence water fa15 cility. 

16 ‘‘(ii) CONSIDERATIONS.—In making 

17 the determination under clause (i), an 

18 owner or operator— 

19 ‘‘(I) may consider transition 

20 costs estimated in the options feasi21 bility assessment of the owner or op22 erator (except that those transition 

23 costs shall not be the sole basis for 

24 the determination of the owner or op25 erator); 


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1 ‘‘(II) shall consider long-term se2 curity enhancement of the high-con3 sequence water facility; 

4 ‘‘(III) shall consider comparable 

5 water facilities that have transitioned 

6 to inherently safer technologies; and 

7 ‘‘(IV) shall consider the overall 

8 security impact of the determination, 

9 including on the production, proc10 essing, and transportation of sub11 stances of concern at other facilities. 

12 ‘‘(c) ENFORCEMENT.— 

13 ‘‘(1) IN GENERAL.—In accordance with the 

14 tiers and priority system established under sub15 section (b)(2)(B), subject to paragraph (2), the Ad16 ministrator— 

17 ‘‘(A) shall prioritize the use of inherently 

18 safer technologies at high-consequence facilities 

19 listed under subsection (b)(1); 

20 ‘‘(B) subject to the availability of grant 

21 funds under this section, not later than 90 days 

22 after the date on which the Administrator re23 ceives an options feasibility assessment from an 

24 owner or operator of a high-consequence water 

25 facility under subsection (b)(3)(A), shall issue 


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1 an order requiring the high-consequence water 

2 facility to eliminate the use of 1 or more sub3 stances of concern and adopt 1 or more inher4 ently safer technologies; and 

5 ‘‘(C) may seek enforcement of an order 

6 issued under paragraph (2) in the appropriate 

7 United States district court. 

8 ‘‘(2) DE MINIMIS USE.—Nothing in this section 

9 prohibits the de minimis use of a substance of con10 cern as a residual disinfectant. 

11 ‘‘(d) GRANTS.— 

12 ‘‘(1) IN GENERAL.—In accordance with the 

13 tiers and priority system established under sub14 section (b)(2)(B), the Administrator shall provide 

15 grants to high-consequence facilities (including high16 consequence facilities subject to an order issued 

17 under subsection (c)(1)(C) and water facilities de18 scribed in paragraph (6)) for use in paying capital 

19 expenditures directly required to complete the transi20 tion of the high-consequence water facility to the use 

21 of 1 or more inherently safer technologies. 

22 ‘‘(2) APPLICATION.—A high-consequence water 

23 facility that seeks to receive a grant under this sub24 section shall submit to the Administrator an applica25 tion by such date, in such form, and containing such 


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1 information as the Administrator shall require, in2 cluding information relating to the transfer to inher3 ently safer technologies, and the proposed date of 

4 such a transfer, described in subsection (b)(3)(B). 

5 ‘‘(3) DEADLINE FOR TRANSITION.—An owner 

6 or operator of a high-consequence water facility that 

7 is subject to an order under subsection (c)(1)(C) and 

8 that receives a grant under this subsection shall 

9 begin the transition to inherently safer technologies 

10 described in paragraph (1) not later than 90 days 

11 after the date of issuance of the order under sub12 section (c)(1)(C). 

13 ‘‘(4) FACILITY UPGRADES.—An owner or oper14 ator of a high-consequence water facility— 

15 ‘‘(A) may complete the transition to inher16 ently safer technologies described in paragraph 

17 (1) within the scope of a greater facility up18 grade; but 

19 ‘‘(B) shall use amounts from a grant re20 ceived under this subsection only for the capital 

21 expenditures directly relating to the transition 

22 to inherently safer technologies. 

23 ‘‘(5) OPERATIONAL COSTS.—An owner or oper24 ator of a high-consequence water facility that re25 ceives a grant under this subsection may not use 


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1 funds from the grant to pay or offset any ongoing 

2 operational cost of the high-consequence water facil3 ity. 

4 ‘‘(6) OTHER REQUIREMENTS.—As a condition 

5 of receiving a grant under this subsection, the owner 

6 or operator of a high-consequence water facility 

7 shall— 

8 ‘‘(A) upon receipt of a grant, track all cost 

9 savings resulting from the transition to inher10 ently safer technologies, including those savings 

11 identified in subsection (b)(4)(B)(iii); and 

12 ‘‘(B) for each fiscal year for which grant 

13 funds are received, return an amount to the Ad14 ministrator equal to 50 percent of the savings 

15 achieved by the high-consequence water facility 

16 (but not to exceed the amount of grant funds 

17 received for the fiscal year) for use by the Ad18 ministrator in facilitating the future transition 

19 of other high-consequence water facilities to the 

20 use of inherently safer technologies. 

21 ‘‘(7) INTERIM TRANSITIONS.—A water facility 

22 that transitioned to the use of 1 or more inherently 

23 safer technologies after September 11, 2001, but be24 fore the date of enactment of this section, and that 

25 qualifies as a high-consequence facility under subVerDate Aug 31 2005 00:03 May 23, 2006 Jkt 049200 PO 00000 Frm 00016 Fmt 6652 Sfmt 6201 E:\BILLS\S2855.IS S2855

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1 section (b)(2), in accordance with any previous re2 port submitted by the water facility under section 

3 112(r) of the Clean Air Act (42 U.S.C. 7412(r)) and 

4 as determined by the Administrator, shall be eligible 

5 to receive a grant under this subsection. 

6 ‘‘(e) AUTHORIZATION OF APPROPRIATIONS.—There 

7 is authorized to be appropriated to carry out this section 

8 $125,000,000 for each of fiscal years 2007 through 

9 2011.’’. 

Æ 


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