The Drinking Water Security and Safety Amendments of 2002: Is America's Drinking Water Infrastructure Safer Four Years Later?

Abstract

INTRODUCTION I. WHAT'S AT STAKE? EVERYBODY DRINKS BOTTLED WATER THESE DAYS ANYHOW A. The Importance of Water B. What Are We Trying to Protect? II. WHAT ARE WE TRYING TO PROTECT OURSELVES FROM? A. Biological Weapons: B. Chemical Weapons: C. Nuclear/Radiological Weapons: D. Cyber Attack: E. Conventional Weapons: F. Other Drinking Water Security Threats: III. IT'S BEEN TRIED BEFORE IV. WAS ANYONE THINKING ABOUT DRINKING WATER SECURITY BEFORE THE SDWA AMENDMENTS? A. Drinking Water Infrastructure Security Before September 11th 1. Presidential Decision Directive 63 2. Other Past Efforts Benefiting Drinking Water Security B. Criticisms of Prior Drinking Water Security Practices V. THE CURRENT LEGAL RESPONSE TO SECURING DRINKING WATER INFRASTRUCTURE: THE DRINKING WATER SECURITY AND SAFETY AMENDMENTS OF THE PUBLIC HEALTH SECURITY AND BIOTERRORISM PREPAREDNESS AND RESPONSE ACT OF 2002 A. SDWA Amendment Provisions 1. Vulnerability Assessments and Emergency Response Plans: a. Vulnerability Assessments b. ERPs 2. EPA's Regulatory and Enforcement Authority Under the SDWA Amendments 3. Research Requirements VI. ARE THE SDWA AMENDMENTS NECESSARY TO PROTECT OUR DRINKING WATER? A. Is Drinking Water Infrastructure Facing a Likely Threat? 1. There are Many Viable Threats to Drinking Water Security a. NBC, Conventional, and Cyber-Based Attacks i. Conventional Weapons ii. Cyber-Based Attacks iii. CBW iv. Radiological Contaminants b. Historical Trends 2. Better Safe Than Sorry a. Nobody Knows What the Likely Threats Are b. Severe Consequences Warrant a Conservative Approach c. Consumers May Not Care About the Actual Likelihood 3. Catastrophic Contamination or Disruption is Unlikely a. Technical Challenges of NBC Weapons i. Radiological and Nuclear Weapons ii. Chemical Weapons iii. Biological Weapons iv. Conventional Weapons b. Drinking Water Infrastructure Vulnerability is Limited i. Distribution Networks ii. Sourcewater and supply iii. Current System Protections 4. We Can Contaminate Our Own Drinking Water, Thank You B. Do Other Environmental Laws Already Adequately Protect Us? 1. Existing Emergency Planning Requirements a. CAA [section] l12(r) b. EPCRA 2. CAA [section] 112(r) and EPCRA Do Not Adequately Protect Drinking Water Infrastructure 3. Contaminating or Disrupting Drinking Water Systems is Already Illegal VII. ARE WE ADDRESSING THE LIKELY THREATS? A. Critical Threat Information Was Not Provided to Drinking Water Utilities 1. The Consequences of Inadequate Baseline Threat Information a. Vulnerability Assessments and ERPs b. Implementation of Security Enhancements c. Response Actions d. Funding Decisions e. Drinking Water Security Program Performance Goals 2. Requiring Updates Under the SDWA Amendments a. Updating Baseline Threat Information b. …