Regulatory Threat to Water and Wastewater Treatment Facilities

Best Best & Krieger LLP

A federal inter-agency Chemical Facility Safety and Security Working Group has called for the elimination of an exemption currently enjoyed by water and wastewater treatment facilities from the Chemical Facility and Anti-Terrorism Standards. Removal of the CFATS exemption could burden these facilities with additional costs and obligations as they would be subject to Department of Homeland Security regulations in addition to current Environmental Protection Agency standards. Best Best & Krieger is working with interested groups to formulate strategies to protect and mitigate against the potential burdens and costs should the exemption be eliminated.

If the exemption is eliminated, facilities with identified security risks could face additional CFATS requirements, such as:

  • Completion of a lengthy and time intensive security vulnerability assessment;
  • Development and implementation of a site security plan requiring preparedness planning and risk identification related to 18 performance standards;
  • Adherence with record keeping, training, security exercise and inspection responsibilities; and
  • Harsh penalties for non-compliance.

In response to recent safety events at chemical facilities, President Obama issued Executive Order 13650, establishing a Chemical Facility Safety and Security Working Group comprised of representatives of the Environmental Protection Agency, the Department of Labor, the Department of Homeland Security, the Department of Justice, the Department of Agriculture and the Department of Transportation. The Working Group issued its Report in May 2014 detailing recommendations with unique impacts for water and wastewater treatment facilities.

On July 8, the House of Representatives approved H.R. 4007, legislation that authorizes the continued funding for CFATS for fiscal years 2015-17. The legislation would also strengthen the current regulatory exemption to CFATS by enacting a statutory exemption. H.R. 4007 has been referred to the Senate Homeland Security and Governmental Affairs Committee, but it is not clear how the Senate will react to H.R. 4007 or the Report. In addition, the threat to the exemption cannot be ignored as the regulatory agency (DHS) that established the current exemption is a co-signer of the Report recommending against it.

The Report also recommended coordination with state drinking water administrators to increase chemical spill prevention and response measures. This effort could lead to increased pressure on facilities to develop water source protection plans that have thus far been voluntary.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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