The drinking water security and safety amendments of 2002: is America's drinking water infrastructure safer four years later?
Publication: UCLA Journal of Environmental Law & Policy
Date: Friday, December 22 2006
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. Updating Vulnerability Assessments
and ERPs
B. The SDWA Amendments Must Require
Security Upgrades
1. Vulnerability Assessments and ERP's Do
Not Protect Drinking Water
Infrastructure
2. Voluntary Efforts Are Not Enough
3. The Revised Imminent and Substantial
Endangerment Provision Does Not Provide
Authority to Require Site Security
Measures
C. Gaps in the SDWA Amendments' Regulatory
Coverage
1. Unregulated Drinking Water Systems
2. Wastewater Treatment Plants?
VIII. ARE THE SDWA AMENDMENTS A FAILURE?
A. The New "Culture of Security"
B. Compliance with the SDWA Amendments
C. Increased Research and Development
D. Training, Technical Assistance, and Funding
E. Government Reorganization to Address
Drinking Water Security
CONCLUSION
INTRODUCTION
Since the devastating events of September 11, 2001, addressing the potential vulnerability of our nation's critical drinking water infrastructure to deliberate attack has become a top-priority. (2) This focus on drinking water security stems from renewed concern following September 11th regarding the undeniably severe consequences of damage to or disruption of these critical infrastructure systems. (3) By definition, maintaining the security of these systems is essential to our nation's safety and welfare; both economic and otherwise. (4) Because of how vitally important these systems are to this country's well-being, drinking water infrastructure security is now "a cornerstone of homeland security." (5)
Responding to the "great outcry" that arose after September 11th demanding better protection from terrorism, Congress took action to secure U.S. drinking water systems against future attacks. (6) In June of 2002, the Drinking Water Security and Safety Amendments (hereinafter the "SDWA Amendments") were passed to address the security of community drinking water systems serving over 3,300 people. (7) Under the SDWA Amendments, these drinking water systems must assess their vulnerability to deliberate attempts to disrupt their ability to provide a safe and reliable supply of drinking water. (8) Emergency Response Plans ("ERPs") incorporating the results of the vulnerability assessments must also be developed. (9) In addition, the SDWA Amendments require research into the methods and means that could be used to disrupt the supply of safe drinking water, as well as methods to detect and respond to contamination incidents. (10)
However, over four years after their passage, it is still uncertain whether the SDWA Amendments have made our drinking water demonstrably safer. A key debate remains over which, if any, of the numerous potential threats to drinking water infrastructure are indeed likely. Until this issue is resolved, it cannot be known whether current efforts to bolster drinking water security are properly focused. (11) Indeed, if the likelihood of a successful terrorist attack on drinking water infrastructure is remote, the drinking water industry's significant investment to comply with the SDWA Amendments may have been needless.
Other questions remain regarding whether the SDWA Amendments are a necessary, affordable, or effective measure to improve drinking water infrastructure security. The SDWA Amendments mirror other emergency planning requirements imposed under environmental laws with which cash-strapped drinking water facilities must already comply. It is estimated that complying with just the initial requirements of the SDWA Amendments will cost more than $500 million, and water infrastructure funding is severely limited. (12) This estimate does not include the cost of actually implementing the security measures at drinking water facilities needed to address identified vulnerabilities. Money spent complying with the SDWA Amendments' requirements may therefore be better spent on achieving the goals of existing laws concerning drinking and surface water integrity. (13)
To resolve these key issues, the Environmental Protection Agency (hereinafter EPA) must first fulfill its duty under the SDWA Amendments to develop and provide current "baseline information to community water systems ... regarding which kinds of terrorist attacks or other intentional acts are the probable threats ..." to such systems. (14) Many drinking water security experts believe that EPA failed to provide adequate "baseline information." (15) This rendered drinking water utilities unable to properly assess their vulnerability to relevant threats. Accordingly, EPA must develop and disseminate improved baseline information regarding the probable drinking water threats the SDWA Amendments were intended to address.
In addition, amendments must be made to the SDWA Amendments in order to better achieve the goal of ensuring a safe and reliable supply of drinking water. (16) First, the SDWA Amendments should be amended to require periodic updates of vulnerability assessments and ERPs. Presently, vulnerability assessments and ERPs never need to be updated. As a result, if proper baseline threat information is eventually developed regarding existing threats to drinking water infrastructure, or new threats emerge, drinking water facilities are not required to take such information into account to update their vulnerability assessments or ERPs.
Second, EPA should be granted additional regulatory and enforcement authority under the Safe Drinking Water Act ("SDWA") to require corrective action when unacceptable drinking water infrastructure vulnerabilities are identified. The SDWA Amendments do not provide EPA with "broad general authority to require actions to address security concerns." (17) Only when a "threatened or potential terrorist attack" presents an "imminent and substantial endangerment" to public health may EPA use its narrow "emergency powers" to require drinking water operators to take action to address infrastructure vulnerabilities. (18) However, these emergency powers are untested and uncertain in scope. Without broader general regulatory and enforcement authority, the public cannot be assured that "the necessary security enhancements are being taken" by water utilities to address critical drinking water infrastructure threats. (19)
Finally, the vulnerabilities of drinking water systems not regulated by the SDWA Amendments must be addressed. Drinking water systems serving less than 3,300 people, non-community water systems, new drinking water systems constructed after the SDWA Amendments' effective date, and drinking water systems serving populations that expand beyond 3,300 people are not subject to the SDWA Amendments' requirements. (20) These drinking water systems serve millions of people on a daily basis, yet they are among the most vulnerable to deliberate attack and receive the least funding to address security issues (21) Without a more comprehensive plan to address the security of unregulated drinking water systems, we remain susceptible to many of the same devastating consequences an attack on a larger drinking water system could cause.
Despite these concerns, the SDWA Amendments have helped usher drinking water utilities into "a whole new realm of emergency preparedness." (22) While "[n]o set of legal rules can prevent terrorism.." compliance with the SDWA Amendments has ultimately led to a safer drinking water infrastructure and a more knowledgeable and better prepared drinking water industry. (23) With limited revisions, the SDWA Amendments could ensure that meaningful steps are taken to protect drinking water facilities from the "new normalcy" of terrorist threats confronting this country. (24)
I.
WHAT'S AT STAKE? EVERYBODY DRINKS BOTTLED WATER THESE DAYS ANYHOW
A. The Importance of Water
While opinions vary about the susceptibility of drinking water infrastructure to terrorist attack, there is far less dispute about this country's need for a "reliable, uninterrupted supply of potable water" of sufficient quantity and pressure. (25) Generally speaking, water is essential for the existence of life on this planet. (26) More specifically, each U.S. citizen "requires about 50 quarts of water per day for drinking, bathing, cooking and other basic needs." (27) Largely because of our safe drinking water supply, the United States has one of "the lowest rates of waterborne disease of any nation." (28) Because of how critically important a steady supply of clean drinking water is to maintaining public health and the well-being of the U.S. economy, drinking water infrastructure is an attractive target for terrorists. (29)
A successful terrorist attack on drinking water supplies could cause dramatic public health and safety consequences (30) Approximately 265 million Americans rely upon public water systems regulated under the SDWA to provide a safe, reliable, and affordable source of drinking water everyday. (31) Significant numbers of people could be exposed initially, and perhaps secondarily, before an attack on drinking water supplies involving clandestine biological (or certain chemical) contaminants is even suspected. (32) In addition, destruction of or damage to water infrastructure components could result in catastrophic flooding, loss of life, damage to the natural environment, and less availability of water for consumers and essential services. (33) Both water quality and quantity could be put in serious jeopardy from a terrorist attack on water infrastructure systems. (34) Thus, public health could be severely impacted by contaminating or disrupting this country's flow of drinking water.
Statements made by captured terrorist leaders confirm that they understand it is also possible "to disrupt the American economy" by attacking its critical drinking water infrastructure. (35) Aside from the public's obvious need for drinking water, it may be surprising to know that "most treated drinking water is used for purposes other than consumption." (36) "[C]lean water is essential for certain key industries to produce power, process food, and manufacture essential products." (37) For example, hospitals and other health care facilities, (38) power plants, firefighting, sanitation, and many other industrial processes are all dependent upon a continuous flow of clean water. (39) Future demand is only going to increase. (40) Facilities reliant upon a steady supply of clean water would be unable to function properly in the face of a catastrophic attack on the nation's water supply and distribution network. (41) As a result, the damage caused by an attack on drinking water facilities would be compounded as the cascading effects rippled through other "interdependent" critical infrastructure sectors. (42) This would have crippling economic effects.
Drinking water systems occupy a "... strategic position ... in keeping the wheels of industry turning and in preserving the health and morale of the American populace." (43) Maintaining a reliable supply of clean drinking water is therefore essential to preserving both our public health and our economy. (44) There just isn't enough bottled water to go around.
B. What Are We Trying to Protect?
The nation's water system represents one of our greatest engineering accomplishments of the twentieth century. (45) Because of this system, "America has long enjoyed the safest drinking water in the world ..." (46) Critical water infrastructure components include "surface and ground water sources of untreated water for municipal, industrial, agricultural, and consumer needs; dams, reservoirs, aqueducts, and pipes that contain and transport raw water; treatment facilities that remove raw water contaminants; finished water reservoirs; systems that distribute water to users; and wastewater collection and treatment facilities." (47)
The number of individual assets comprising America's critical drinking water infrastructure is enormous. There are more than 75,000 dams and reservoirs, 160,000 public drinking water systems, 16,000 publicly owned wastewater treatment facilities, tens of thousands of major pumping stations, and over 2 million miles of pipes and aqueducts. (48) These individual assets make up water systems that range from "massive, well-known federal and state irrigation, flood control, and drinking water projects down to part-time single well systems providing water during the tourist season at a campground." (49)
Because of how ubiquitous drinking water system components are throughout the country, terrorists are presented with "... an almost infinite array of potential targets." (50) Each of the thousands of individual assets that make up this expansive infrastructure represents a potential vulnerability. Beyond the sheer numbers, "the realities of the existing infrastructure include unprotected reservoirs, systems with inadequate or no treatment capabilities, minimal real-time quality and pressure monitoring, open distribution systems, aging infrastructure, limited resources ... and significant growth in demand." (51) Put simply, securing this nation's water infrastructure is a monumental task.
Further compounding these challenges is the lack of integration among the range of entities responsible for operating and maintaining drinking water infrastructure assets. Of the 54,000 community water systems and more than 20,000 non-community water systems, many are municipally owned and operated. (52) However, many private entities and other non-federal units of government are also involved. (53) Not surprisingly, these systems are not well-integrated. (54) Drinking water systems are, "... in fact, many thousands of separate infrastructures across the country, with vastly different histories and needs." (55) Consequently, implementing a coordinated plan to address security among the array of entities responsible for overseeing the nation's water infrastructure is an extraordinary challenge. (56)
Because of the "nearly infinite" number of potential drinking water targets, "... difficult choices about how to allocate resources against those risks that pose the greatest danger to our homeland ..." must be made. (57) Unfortunately, "[i]t is impossible to protect completely all targets all the time." (58) The federal government acknowledges that it "do[es] not have enough legs, eyes, and ears to do the job we need to do to prevent and disrupt terrorism." (59) Ultimately, this country may therefore have to accept some level of risk to its critical drinking water infrastructure "... as a permanent condition." (60)
II.
WHAT ARE WE TRYING TO PROTECT OURSELVES FROM?
The goals of terrorism are simple: to spread panic and cause disruption. (61) By attacking this country's drinking water infrastructure, terrorists could achieve both of these objectives. Since consumers are "highly sensitive" to threats of contamination or disruption, mass panic could be spread even in the absence of an actual attack. "IT]he mere threat of contamination" is sufficient to accomplish this goal ". .if the threat is not properly managed." (62)
Frighteningly, there are a variety of means by which either objective can be carried out. "Drinking water utilities have long been recognized as potentially vulnerable to terrorist attacks of various types, including physical disruption, bioterrorism, chemical contamination, and cyber attack." (63) Furthermore, drinking water systems are vulnerable to radiological contamination, as well as through their dependence upon other critical infrastructure sectors for their proper operation. (64) Terrorists have shown interest in utilizing all of these methods to carry out their insidious goals. (65) Worse yet, "[t]he knowledge, technology, and materials necessary to build weapons of mass destruction are spreading." (66)
Since September 11th, we have also unfortunately come to realize that the terrorist organizations likeliest to attempt such attacks are "more global in [their] range, and more ruthless in [their] ideology than all but [their] most dedicated students could have ever imagined." (67) They are strategic actors who "choose their targets deliberately based on the weaknesses they observe in our defenses and our preparations." (68) Furthermore, many terrorist organizations are extremely well-financed. (69) These resources enable terrorists to pursue their most violent objectives by enticing those with technical expertise to help them gain access to mankind's deadliest weapons. (70)
This section examines various means that could be used to attack drinking water infrastructure systems. The most severe characteristics of these weapons are described. Section VI analyzes whether, despite the 'worst case' consequences, these weapons could realistically be used to threaten drinking water infrastructure security, as well as whether other more common threats to the safety of this country's drinking water supplies should be of greater concern.
A. Biological Weapons:
"Biological weapons are potentially the most dangerous weapons in the world." (71) They "... are composed of agents that are living organisms which infect victims, causing disease, incapacitation, and often death." (72) They also include nonliving toxins extracted from living bacteria, plants, and animals, or synthesized in the laboratory. (73) The threat of bioterrorism has been described as "[a] plague more monstrous than anything we have experienced [that] could spread with all the irrevocability of ink on tissue paper." (74) Because of their covert nature and terrible consequences, a terrorist attack involving biological agents raises "nightmares of primal fear." (75)
While information regarding their stability in treated water must be improved, it appears that at least some of the "veritable smorgasbord" of biological warfare agents could be used to threaten water supplies. (76) These include many substances designated by the Center for Disease Control as "Category A" agents based on their high rates of fatality and person-to-person transmission: (77)
* Anthrax: Often mentioned as "the biological agent of choice," little information is available about the risks of direct contamination of water with anthrax spores. (78) However, anthrax spores appear to be highly resistant to cold, heat, and chemical disinfectants. (79)
* Botulinum Toxin: "Botulinum Toxin is the most poisonous substance known." (80) While it is not contagious, miniscule amounts cause severe health consequences, including death. (81)
* Tularemia: Tularemia "is one of the most infectious pathogenic bacteria known." (82) "Tularemia's epidemic potential became apparent in the 1930s and 1940s when large waterborne outbreaks occurred in Europe and the Soviet Union." (83)
* Ricin: Ricin is a toxin derived from castor beans. It is a stable substance that is not deactivated by extreme conditions such as cold or heat. (84) There is no known treatment for ricin poisoning. (85) Ricin is not contagious; direct contact with the substance is required to be poisoned. (86)
* Smallpox: "The smallpox virus is among the most dangerous organisms that might be used by bioterrorists." (87) An infectious dose of smallpox is very small, and once contracted, it is highly contagious. (88) There is no effective therapy to treat smallpox once it is contracted. (89)
* Plague: Known as the "Black Death" in the Middle Ages, Plague is a highly contagious bacterial disease that leads to respiratory failure and death. (90) It is only slightly less lethal than anthrax. (91) However, if detected early enough, treatment with antibiotics is effective. (92)
* Viral Hemorrhagic Fevers: Viral Hemorrhagic Fevers ("VHF") are a diverse group of organisms, the effects of which (particularly the Ebola virus) provide the inspiration for many of Hollywood's more terrifying portrayals of bioterror incidents. (93) VHF's are generally highly infectious and many are also highly contagious. (94) There are no vaccines to prevent the majority of VHF's. (95) Moreover, very few treatments are effective in for people who already been exposed. (96)
EPA considers other more common biological contaminants as potential threats to drinking water supplies. (97) Given the limited state of knowledge regarding the covert bioweapons programs of certain states, the development of new biological weapons capable of contaminating water supplies cannot be disregarded. (98)
"Bioterrorism presents unique challenges since it differs dramatically from other forms of terrorism and national emergencies." (99) "While explosions or chemical attacks cause immediate and visible casualties, an intentional release of a biological weapon would unfold over the course of days or weeks, culminating potentially in a major epidemic." (100) Initial manifestations of drinking water contaminated with biological agents may simply resemble a naturally-occurring disease outbreak. (101) Until sufficient numbers of people seek medical treatment for symptoms specifically associated with exposure to a biological agent, or the contamination is discovered through monitoring and testing, there may be no indication that a bioterrorist attack has taken place. (102) Because of this time lag, it is particularly difficult to confirm an incident involving biological agents. (103) Existing state, local, and privately owned health care capabilities could be quickly overwhelmed as the effects of a large-scale biological weapons attack spread throughout a community. (104)
Moreover, biological weapons are relatively inexpensive to produce, and the equipment needed to manufacture them "... is easy to obtain and conceal." (105) Thus, although there are significant technical challenges to producing biological weapons, these hurdles are not insurmountable. (106)
B. Chemical Weapons:
Chemical weapons offer terrorists another option for spreading panic and disrupting domestic water systems. "Chemical warfare (CW) agents are man-made, supertoxic chemicals that can be dispersed as a gas, vapor, liquid, aerosol..., or adsorbed ... to create 'dusty agents'." (107) They are widely feared for their ability to kill and injure. "[T]he ability of persistent agents such as mustard or VX to contaminate buildings and people creates [an additional] potential for sowing disruption and chaos." (108) There is mounting evidence that terrorist organizations have chemical weapons in their possession and have been training to conduct attacks with them. (109)
There are several basic classes of chemical agents. (110) Choking agents, such as chlorine, damage lung tissue. (111) Blood agents, such as hydrogen cyanide, interfere with cellular respiration. (112) Blister agents, such as mustard gas, cause severe chemical burns to the skin and lungs. (113) Finally, and perhaps the most feared, nerve agents, such as sarin and VX, "...attack the central nervous system, resulting in seizures, loss of voluntary control, and a gruesome death by respiratory paralysis." (114) Recent research indicates that VX, sarin, and cyanide may be among the most viable chemical threats to water supplies. (115)
New classes of chemical agents, about which little is known, have also apparently been developed. (116) A variety of less exotic substances, such as industrial chemicals, fuels, pesticides, arsenic, and even nicotine are also all considered to be potential chemical agents. (117) In addition, as discussed below, conventional bombs could cause a de facto chemical attack by destroying the chlorine disinfectant storage tanks present at many drinking water facilities. (118)
In addition to their lethality, chemical weapons are also "relatively easy to manufacture, using basic equipment, trained personnel, and precursor materials that often have legitimate dual uses." (119) However, as with biological agents, the effectiveness of using chemical weapons to contaminate drinking water supplies varies considerably. (120) Nevertheless, at least some chemical agents may remain stable in water long enough to create potential public health consequences. (121)
C. Nuclear/Radiological Weapons:
It is possible to contaminate drinking water supplies with radiological dispersal devices. (122) Use of such devices against drinking water infrastructure has the potential to "...cause fear, injury, and possibly lead to levels of contamination requiring costly and time-consuming cleanup efforts." (123) The prospect of rogue nukes in the hands of terrorists make Anthrax, VX, and explosives look like "little more than a murderous tease...." (124) However, radiological threats against drinking water infrastructure involving smaller-scale "suitcase nukes" (125) and "dirty bombs" seem to currently pose the most likely threat. (126) The materials needed to create dirty bombs are widely used, and sometimes poorly safeguarded. (127)
Terrorists have demonstrated consistent interest in using radiological weapons against the United States. "It's been an open secret in the intelligence community that [Osama] bin Laden and his al-Qaeda organization have long lusted after nukes." (128) Moreover, the risk of radioactive material falling into the wrong hands is high: "Russia and the former Soviet Union are leaking like a sieve." (129) U.S. nuclear facility security may not be much better. (130) Consequently, nuclear and radiological weapons pose a credible threat to drinking water supply security.
D. Cyber Attack:
It is no longer news that "...the lives and physical security of citizens are becoming increasingly dependent upon mission-critical computer systems, such as those that operate ... water supplies." (131) However, this dependence has exposed "...more numerous and diverse vulnerabilities to terrorists and criminals." (132) Terrorists can now carry out cyber-attacks that "manipulate and exploit a computer system, alter or steal data, or force the computer to perform a function for which it was not meant." (133) Indeed, the use of cyberspace for terrorist purposes stems from military use of technology to wage "Information Warfare" in which "...traditional military goals, such as destroying enemy infrastructure targets" are accomplished without a shot being fired. (134) This potential to wreak havoc makes cyberspace an "essential tool" for terrorists. (135) "Although it lacks the doomsday shadow of bio-chemical terrorism or the cataclysmic roar of nuclear terrorism ... [t]he destruction or temporary denial of computer system control over ... essential services[, such as drinking water systems,] would have tragic effects..." (136)
Drinking water utilities' increasing reliance upon computerized Supervisory Command and Data Acquisition ("SCADA") systems for managing key facility operations is consequently another prominent vulnerability. (137) "SCADA systems allow utility companies and municipalities to monitor and direct equipment at unmanned facilities from a central location." (138) Dedicated communications channels provide control centers with electronic access to hundreds of 'remote terminal units' that control such diverse operations as water pumping and storage, water treatment operations, and water transmission. (139) A hacker breaking into a SCADA system could therefore hypothetically modify water quality detection systems, steal sensitive information, and prevent or disrupt water deliveries. (140) "Although [the automated] operations are backed up by manual controls, "great damage could be done if the control of these systems was lost for a period of time due to cyber attack." (141)
SCADA systems have been recognized for some time as "...highly vulnerable to cyber attack." (142) Unfortunately, according to the FBI, terrorists have sought information about SCADA networks for drinking water facilities. (143) A primary reason for their vulnerability is that drinking water SCADA systems were "generally ... designed and installed with little attention to security." (144) Existing drinking water facilities were commonly designed with "[p]hysical and electronic single points of failure [that] can easily lead to complete disabling of a SCADA system." (145) Oftentimes, even "...new systems are not designed with security in mind." (146) "As a result, many of these networks may be susceptible to attacks and misuses..." (147)
As the trend toward downsizing and automation of drinking water facilities accelerates, "...SCADA systems will increasingly be exposed to cyber threats." (148) Because the internet is being used more frequently as the means to control SCADA systems, "...water systems are more likely to encounter denial of service attacks, viruses, and other malicious programs, which could severely disrupt the operation of these systems." (149) Consequently, the threat of cyber attacks on drinking water infrastructure SCADA systems is a top security concern. (150)
E. Conventional Weapons:
Water supply infrastructure has "long been recognized as being potentially vulnerable to terrorist attack ... including [by] physical disruption." (151) A well-placed bomb could destroy key water infrastructure components causing severe flooding, loss of life, property damage, and environmental damage. (152) For example, explosives can destroy pumps, cause large leaks in reservoirs or dam failures, interrupt the electric power supply to facilities, and generally disrupt parts of the water delivery system. (153) This vulnerability is magnified by the fact that "[w]ater system components are extensively interconnected, so destruction of one component may cause a cascading effect." (154)
Furthermore, conventional attacks targeting the storage tanks that house chemicals used to treat and disinfect drinking water supplies, such as chlorine, have the potential to cause deadly consequences. As explained:
Physical attacks could include the destruction or release of chlorine and other hazardous chemicals used for water treatment. The release of chlorine gas could be deadly within the immediate area of the treatment facility, but the interruption or alteration in the supply of chemicals to the treatment plant preventing disinfection might have more widespread impacts. (155)
Consequently, the most traditional weapons still present a significant threat to drinking water infrastructure security. (156)
F. Other Drinking Water Security Threats:
Drinking water facilities depend upon other critical infrastructure sectors, such as the electrical power industry, to operate. (157) Drinking water security may therefore be indirectly threatened by interfering with these other "interconnected" or "interdependent" critical infrastructure elements. (158) As explained:
[n]ational security and the quality of life in the United States rely on the continuous reliable operation of a complex set of critical infrastructures: electric power, oil and gas, transportation, water, communications ... and others. Today, these systems depend heavily on one another; that interdependency is increasing. Disruptions in any one of them could jeopardize the continued operation of the entire infrastructure system. (159)
Because of this increasing interdependence, "[w]hat previously might have been an isolated failure could cascade into a widespread, crippling, multi-infrastructure disruption today." (160) The blackout that struck the northeastern United States during August of 2003 vividly demonstrated how the effects of a power outage can cascade to effectively cripple drinking water facilities. (161) Thus, at present, drinking water systems are only as reliable as the rest of the critical infrastructure network on which they depend.
III.
IT'S BEEN TRIED BEFORE
"Intentional threats against water supplies have been recorded since the earliest archeological and biblical reports of well poisonings." (162) For thousands of years, infecting or poisoning water supplies has been a commonly used military tactic. (163) Dating back as far as 2400 B.C., evidence indicates that ancient Sumerians, Assyrians, Greeks, and Romans all attempted to divert or poison the water supplies of their enemies. (164) Contaminants such as rye ergot, hellebore (skunk cabbage), and cherry laurel trees (which contain cyanide) were used. (165) This practice continued through the Middle Ages. (166) In 1346, the Tartar Army catapulted plague infested corpses over the walls of a besieged city and reportedly infected the water supplies. (167)
More recently, American armies have both used and been subjected to such practices. During the Civil War, confederate soldiers attempted to poison ponds used by the Union army as drinking water sources by dumping the carcasses of dead animals into them. (168) Conversely, during the Vietnam War, "the Vietcong used fecally contaminated water to sicken American troops." (169)
During the latter portion of the twentieth century, attempts to contaminate water supplies became less of a military tactic and more of a focus for terrorist organizations. These groups continued to use CBW agents in their plots:
* In 1965, Yasir Arafat's Fatah organization attacked the Israeli national water carrier project that transports water from the Jordan River to southern Israel. (170)
* In 1970, "the Weathermen, a group opposed to American imperialism and the Vietnam War, [allegedly] attempted to obtain biological agents to contaminate the water supply systems of US urban centers." (171)
* In 1972, a group called R.I.S.E., led by two college-aged students at a community college, plotted to contaminate the drinking water supplies of Chicago and other Midwestern cities using typhoid and other biological agents. (172) The group managed to prepare significant amounts of bacteria by exploiting one of the group leader's position as a microbiology research assistant at a local hospital. (173)
* In 1982, a plot to contaminate the water supply of Los Angeles with a biological agent was foiled by police and the FBI. (174)
* In 1984, the Rajneesee cult, attempted to contaminate water supplies in Oregon with raw sewage and dead rodents. (175)
* In 1986, a white supremacist group known as "The Covenant, the Sword, and the Arm of the Lord" sought to contaminate urban water supplies with 30 gallons of potassium cyanide they had acquired. (176)
* In 1987, 19 new recruits to the Philippine Army died when an unknown terrorist group contaminated a drinking water source with pesticide. (177)
* In 1998, a water treatment plant in Neenah, Wisconsin was the target of attempted vandalism. A group of teenagers planned on contaminating filters and igniting enough firecrackers to equal ten sticks of dynamite. (178) This "prank" would have extensively damaged the facility and could have potentially released chlorine or ammonia gas into the surrounding area. (179)
* Finally, in 1999, "a bomb blast in Lusaka, Zambia, destroyed the main water pipeline, cutting off water for the city of Lusaka...." (180)
Attacks on water supplies have continued into the twenty-first century. The now infamous Taliban regime is reported to have placed dead animals in the drinking water wells of villages unwilling to accept its rule. (181) In 2001, an Australian man demonstrated the vulnerability of SCADA systems by hacking into a computerized waste management system and causing "... millions of litres of raw sewage to spill out into local parks, rivers and even the grounds of a Hyatt Regency hotel." (182) In 2002, suspects were arrested in Rome attempting to use tunnels under the U.S. embassy to access its water supplies and contaminate them with cyanide. (183) Also in 2002, "federal officials arrested two al-Qaeda suspects in the U.S. who apparently were holding documents detailing how to poison water supplies." (184)
Recent history therefore reveals a systematic pattern indicating terrorists' ability to acquire CBW and their continuing intentions to use such agents to attack water supplies. (185) These incidents are not "science fiction," and they will likely continue. (186)
IV.
WAS ANYONE THINKING ABOUT DRINKING WATER SECURITY BEFORE THE SDWA AMENDMENTS?
A. Drinking Water Infrastructure Security Before September 11th
"It is a mistake to treat security as a completely new and unfamiliar mission for drinking water systems ..." (187) Some states and larger individual drinking water facilities have had established programs for over twenty years to address their physical security against intentional acts designed to disrupt their operations. (188) For example, Texas has been "very proactive ... in adopting state rules to help protect the security of the State's public drinking water." (189) New York City's largest drinking water systems also "have historically focused" on preventing the intentional disruption of water supplies and "have implemented strong programs to prevent and respond" to such incidents. (190) These "strong programs" are due in part to the fact that vulnerability assessments have been a "required component of water supply emergency plans in New York State since 1990." (191)
Federal agencies also began considering the potential threats to drinking water infrastructure long before September 11th. The FBI has been concerned with the consequences of an attack on our nation's drinking water infrastructure for over fifty years. (192) In addition, EPA's Office of Inspector General began specifically researching the vulnerabilities of SCADA systems in the late 1990's after surveys of water utilities indicated that greater efforts were needed to secure their computer networks. (193)
1. Presidential Decision Directive 63
Critical infrastructure protection became of such national concern in the late 1990's that a comprehensive policy was developed to address these security needs. (194) Issued in May 1998, Presidential Decision Directive 63 ("PDD-63") made it the goal of the United States to take "all necessary measures to swiftly eliminate any significant vulnerability to both physical and cyber attacks on our critical infrastructures ..." (195) PDD-63 designated individual "lead agencies" to coordinate security efforts and act as a liaison to private entities within specific infrastructure sectors. (196) EPA was designated the lead agency for water infrastructure protection. (197)
"Private-public partnerships," such as that between EPA and the drinking water industry, were the primary mechanism for fulfilling PDD-63's directives. (198) A crucial responsibility of these partnerships was to develop sector specific infrastructure protection plans. (199) These individual plans, compiled as part of an overall "National Infrastructure Assurance Plan," included vulnerability assessments of the sector as a whole, strategies for eliminating significant vulnerabilities, and remedial plans to recover from terrorist attacks. (200)
PDD-63 also recognized the rapidly changing universe of critical infrastructure threats, as well as the need for "robustly adaptive" responses to such threats. (201) Consequently, unlike the SDWA Amendments, PDD-63 required periodic updates of the vulnerability assessments based upon emerging threat information so that they would remain current. (202) In order to provide the current threat information needed to facilitate salient vulnerability assessments updates, PDD-63 included information-gathering requirements. (203) The intelligence community was directed to develop and implement a plan for "enhancing collection and analysis of the foreign threat to our national infrastructure...." (204) PDD-63 also "strongly encourage[d]" the establishment of Information Sharing and Analysis Centers ("ISACs") to "serve as the mechanism for gathering, analyzing, appropriately sanitizing and disseminating private sector information to both industry and the [FBI]." (205) Accordingly, PDD-63 emphasized the need for incorporating up-to-date threat intelligence into infrastructure security planning.
Ultimately, PDD-63 did not reach its full potential because its original intent of addressing a broad range of infrastructure threats was never fulfilled. (206) In 2003, President Bush partially superseded PDD-63 by issuing Homeland Security Presidential Directive 7 ("HSPD-7"). (207) Nevertheless, HSPD-7 maintains EPA's role as the lead agency in change of drinking water infrastructure security, as well as many of the same infrastructure security goals established by PDD-63. (208) Thus, despite its shortcomings, PDD-63 serves as a blueprint for current infrastructure protection requirements. (209)
2. Other Past Efforts Benefiting Drinking Water Security
Drinking water infrastructure security also has benefited indirectly from the steadily increasing attention given to understanding and preparing for terrorist threats, especially bioterrorism. (210) Many initiatives started in the 1990's helped develop responses still relevant to addressing the consequences of bioterror attacks on various targets, including drinking water facilities. (211) Prior international and domestic legislative efforts also were taken to stop the proliferation of biological and chemical weapons. (212) Such legislation has helped prevent biological and chemical weapons from becoming available to would-be attackers. However, these prior efforts at planning for domestic terrorism were criticized for the "absence of strong leadership and a failure to achieve a crosscutting, coordinated program with identified resources in the federal budget." (213) Consequently, even before September 11th, some had called for a comprehensive bioterrorism statute with strikingly similarities to the Public Health Security and Bioterrorism Preparedness and Response Act of 2002. (214)
B. Criticisms of Prior Drinking Water Security Practices
Prior efforts to protect the nation's drinking water infrastructure have been criticized as inadequate given the renewed concern over modern post-September 11th terrorist threats. (215) Critics argue that "until the 1990's emergency planning at drinking water facilities generally focused on responding to natural disasters, and in some cases, domestic threats such as vandalism." (216) Terrorism involving the intentional contamination of water and wastewater systems did not receive much attention by facility operators as a viable national security threat before September 11th. (217) While isolated examples to the contrary exist, most drinking water facilities therefore did not consider such terrorist threats in their prior vulnerability assessments and emergency planning programs. Thus, critics of historical drinking water security efforts claim that they are insufficient to address today's "serious terrorist threats." (218)
The prior lack of concern regarding terrorist threats to drinking water infrastructure security is often manifested in facilities' historical design and use. Drinking water facilities constructed "prior to World War II were built to be visible and accessible...." (219) They were "public building[s], usually built close to the center of town" and oftentimes used as a visitor's center. (220) The security measures used by such facilities since the late 1940s, such as perimeter fencing, intrusion detection devices, closed-circuit television, and personnel-entry control, were not intended to prevent post-September 11th type threats. (221)
However, these criticisms may be unwarranted. By the 1990's, both government and industry officials "broadened the process" of evaluating drinking water infrastructure security "to account for terrorist threats." (222) Furthermore, "the types and extent of contamination and the health effects resulting from physical acts of terrorism are often--but not always--similar to the consequences of traditional system contamination that concern water system managers every day." (223) Consequently, while some aspects of the threats currently facing drinking water systems are new, "the framework in which they should be considered is familiar to water system managers and operators as well as state regulatory agencies and the U.S. EPA." (224)
While September 11th "served as a springboard for radical and far-reaching legislation intended to enable countries to better detect, prevent, prosecute, and ultimately, put an end to terrorism," it is not this country's starting point for addressing drinking water infrastructure security. (225) However, it is undeniable that regardless of how effective the first steps were, "[e]fforts to better protect drinking water infrastructure were accelerated dramatically after the September 11 attacks." (226) "Unfortunately, it took the scare our Nation felt ... [on September 11th] before Congress took action to fill in the legal gaps that prevented real preparedness from occurring." (227)
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
On June 12, 2002, new security requirements for all community water systems serving more than 3,300 people were mandated when President Bush signed into law the SDWA Amendments. (228) These approximately 8,000 utilities serve over 240 million people, or about 90 percent of the nation's population served by community water systems. (229) The SDWA Amendments' requirements focus on preventing terrorist and other intentional acts intended to "substantially disrupt the ability of [drinking water systems] to provide a safe and reliable supply of drinking water." (230) This focus on terrorist or other intentional acts was intended to "[stand] apart" from the common historical infrastructure security concerns of drinking water facilities, such as natural disasters and vandalism. (231)
A. SDWA Amendment Provisions
Under the SDWA Amendments, drinking water facilities are required to:
* Conduct a vulnerability assessment of their major system components; (232)
* Certify that the vulnerability assessment complies with the requirements of SDWA [section] 300i-2(a)(1) and submit a copy of it to EPA by the statutory deadlines; (233)
* Prepare or revise an emergency response plan that incorporates the results of the vulnerability assessment and identifies the resources and means necessary to address the identified security issues; and (234)
* Certify to EPA, within 6 months of completing the vulnerability assessment, that the drinking water system has completed or updated their emergency response plan. (235)
The SDWA Amendments also authorize grant money to assist community water systems in meeting the SDWA Amendments' requirements, direct that research be conducted regarding potential drinking water threats and methods to address them, and increase the penalties for intentionally contaminating or threatening to contaminate regulated community water supplies.
1. Vulnerability Assessments and Emergency Response Plans:
Vulnerability assessments and emergency response plans are the cornerstone requirements of the SDWA Amendments. (236) These documents are integral planning tools for addressing drinking water security issues both at individual facilities and across the entire infrastructure sector. (237) Together, they help achieve the SDWA Amendments' goals of safeguarding public health and reducing the potential for disruption of the country's supply of safe drinking water. (238)
a. Vulnerability Assessments
Vulnerability assessments serve multiple critical purposes. A vulnerability assessment is a "systematic analysis" of a drinking water facility's components that evaluates their susceptibility to potential threats. (239) Such analyses help drinking water facility operators "... identify key locations that are vulnerable to intentional contamination ..." (240) Community water systems have the flexibility "to utilize any methodology or tool" for conducting vulnerability assessments as long as all of the following system components and operations are reviewed:
1) Pipes and constructed conveyances;
2) Physical barriers;
3) Collection; pretreatment; and treatment, storage, and distribution systems;
4) Electronic, computer, or automated systems;
5) Use, storage, and handling of chemicals;
6) System operation and maintenance. (241)
EPA was explicitly "not given any rulemaking or other authority" to establish further requirements for what is or is not an acceptable vulnerability assessments. (242) Nevertheless, EPA has issued guidance regarding factors drinking water facilities should consider in evaluating these components as they prepare their vulnerability assessments. (243)
Awareness and understanding of a drinking water facility's vulnerabilities is critically important because it "...provide[s] a basis for improving physical security against intentional contamination and preparing for the evaluation of contamination threats." (244) In other words, "[t]he more we know about our vulnerability, the better able we are to protect ourselves." (245) Effective vulnerability assessments serve "as a guide to the water utility by providing a prioritized plan for security upgrades, modifications of operational procedures, and/or policy changes to mitigate the risks and vulnerabilities to the utility's critical assets." (246) Furthermore, by identifying potential security concerns, vulnerability assessments provide a framework for prioritizing the "long-term investment of effort and resources" in developing such "risk reduction options." (247) Aggregated information derived from vulnerability assessments may also be used as a basis for making broader sector-wide funding allocation decisions. (248)
Vulnerability assessments are not only useful as planning tools. They also provide the foundation for emergency response actions. (249) Vulnerability assessments are a "potential source of information to consider" when evaluating the credibility of threatened or actual contamination events and in deciding whether response actions are warranted. (250) The information contained in vulnerability assessments allows drinking water facility operators to evaluate whether a contamination event is likely to affect locations that are high-value targets of contamination or particularly vulnerable to the intentional introduction of contaminants. (251) This information helps drinking water facility operators determine whether the need for response actions, such as shutting down the outflow of affected water, public notification of potential contamination, and providing alternate water supplies, has been triggered. Accordingly, vulnerability assessments are invaluable tools, both from risk management and response perspectives.
b. ERPs
The SDWA Amendments also require that drinking water facilities prepare or revise an Emergency Response Plan ("ERP") "that incorporates the results" of their vulnerability assessment. (252) ERPs serve as "... a guide for water utilities upon which actions and decisions can be based to govern the immediate response to an emergency." (253) ERPs are required to include "... plans, procedures, and identification of equipment that can be implemented or utilized in the event of a terrorist or other intentional attack on the public water system." (254) They are intended "... to identify certain responsibilities delegated to various teams and employees, present details of the notification procedures, and describe alternate measures and response actions." (255) In addition to the facility employees, "[t]he community's public health and law enforcement officials, emergency responders, laboratories, and technical assistance providers and all their roles in emergency response are identified in the ERP." (256) As with vulnerability assessments, ERPs are required to focus on terrorist or other intentional acts. (257)
However, drinking water facilities are not required to submit the actual ERP to EPA. Utilities need only certify to EPA that they have completed the ERP within six months of completing their vulnerability assessment. (258)
2. EPA's Regulatory and Enforcement Authority Under the SDWA Amendments
Several SDWA provisions authorize EPA to enforce the requirements of the SDWA Amendments and take action against incidents involving the intentional contamination of drinking water facilities. (259) First, SDWA [section] 300g-3 "gives the EPA general authority to issue administrative orders or pursue injunctive or other civil relief" for violating "applicable requirements" under the SDWA Amendments, such as the certification requirements under section 1433(a)(2) and 1433(b). (260) Drinking water facilities face significant penalties under this provision for failing to submit vulnerability assessments or ERPs certifications before the statutory deadlines, or for submitting false information in vulnerability assessments and ERPs certifications. (261) Offenses involving the submission of false or misleading information may also lead to criminal penalties under other statutes. (262)
The SDWA Amendments also substantially increased criminal and civil penalties under SDWA [section] 300i-1 for "tampering offenses." (263) Tampering offenses are defined as the actual, attempted, or threatened introduction of "a contaminant into a public water system with the intention of harming persons" or "otherwise interfer[ing] with the operation of a public water system with the intention of harming persons." (264) The increased penalties for these offenses were intended to provide a strong deterrent against would-be attacks on public drinking water supplies.
Lastly, SDWA [section] 300i provides EPA with emergency powers to pursue administrative or civil actions for monetary and injunctive relief "in cases where there may be an imminent and substantial endangerment to public health" due to the actual or threatened contamination of a community water system. (265) The SDWA Amendments expanded the type of incidents constituting an "imminent and substantial endangerment to health" to include "a threatened or potential terrorist attack (or other intentional act designed to disrupt the provision of safe drinking water or to impact adversely the safety of drinking water supplied to communities and individuals) ..." (266) EPA's expanded authority under this provision allows it to act even when there is only a threatened incident and "no actual 'contamination' of a water supply." (267)
The SDWA's existing enforcement framework was largely unchanged by the SDWA Amendments. Penalties for existing tampering offenses were simply increased and EPA's ability to bring imminent and substantial endangerment actions based on threatened or actual terrorist attacks was only narrowly augmented. (268) Most importantly, EPA was explicitly not granted any authority to impose or enforce additional regulatory requirements upon drinking water facilities beyond those specified in the SDWA Amendments. (269) Consequently, whether EPA was granted sufficient regulatory and enforcement authority to ensure that drinking water facilities effectively address known security vulnerabilities and achieve the SDWA Amendments' overarching goal is greatly disputed among Congress, the regulated community, and EPA itself. (270)
3. Research Requirements
The SDWA Amendments also require EPA to collaborate with other appropriate governmental entities in reviewing the state of knowledge regarding various threats to drinking water infrastructure security, as well as the methods for addressing such threats. Section 1435 of the SDWA Amendments requires EPA to review methods by which drinking water systems "... and all its parts could be intentionally disrupted or rendered ineffective or unsafe, including methods to interrupt the physical infrastructure, the computer infrastructure, and the treatment process." (271) Section 1434 of the SDWA Amendments requires EPA to review "current and future methods to prevent, detect, and respond" to the intentional contamination of community water systems and their source waters. (272) EPA is specifically directed to
... review methods for detecting contamination levels, preventing the flow of contaminated water to the public, negating or mitigating the health effects of contamination, providing notice to CWS users and operators if contamination occurs, developing education programs for CWSs, and reviewing biomedical research on health effect of various contaminants. (273)
Research into early warning notification and real-time monitoring systems, as well as innovative drinking water treatment methods, are priorities under these provisions. (274)
EPA is directed to disseminate the information it develops under these sections, as deemed appropriate, through the Information Sharing and Analysis Center ("ISAC") or other appropriate means. (275) However, there is no requirement under the SDWA Amendments that either vulnerability assessments or ERPs ever be updated to reflect this new information as it becomes available.
VI.
ARE THE SDWA AMENDMENTS NECESSARY TO PROTECT OUR DRINKING WATER?
The SDWA Amendments' relevance to protecting public health depends primarily upon the likelihood a potential attacker could successfully contaminate or disrupt drinking water infrastructure systems. (276) The SDWA Amendments' value also depends upon whether other existing environmental laws already impose similar security requirements for drinking water facilities. Given the drinking water industry's "virtually unprecedented" mobilization of effort and resources to comply with the SDWA Amendments, it is important to ensure that the new requirements will yield meaningful and distinct improvements to drinking water infrastructure security. (277) Otherwise, the SDWA Amendments' requirements add nothing more than an expensive duplicate layer of regulation that can actually be counterproductive to the SDWA Amendments' goals. (278) This section examines both the likelihood of the threats facing drinking water infrastructure, as well as the similarity of competing security requirements under other existing environmental laws.
A. Is Drinking Water Infrastructure Facing a Likely Threat?
There is widespread consensus that "[a]ll drinking water plants are, to some degree, vulnerable to intentional contamination incidents" and disruption of service attacks. (279) It is simply "... unreasonable to expect that every part of the infrastructure can be completely protected." (280) However, policy choices and legislative action cannot be based solely upon the virtually infinite vulnerability of our critical drinking water infrastructure and the potential consequences of a successful attack. (281) Bluntly stating that "[w]e're under attack; that's the way it is" is insufficient. (282) The actual likelihood of the threat facing drinking water infrastructure must first be carefully assessed. (283)
If the threat of attack on drinking water supplies is generally implausible, the "nearly infinite" vulnerability and potentially catastrophic consequences become increasingly irrelevant. (284) For example, we may all be highly vulnerable to an asteroid colliding with the Earth, and the consequences of such an event could destroy the planet. However, the actual likelihood of such a threat is considered remote. Consequently, massive efforts to address such an unlikely threat are generally considered unnecessary.
Similarly, requiring drinking water facilities to implement billions of dollars in security measures to prevent unlikely threats is unnecessary and wasteful. (285) Limited resources are further squandered when drinking water facilities' response action protocols are repeatedly triggered by unlikely threats. Because of the public's sensitivity to even the "mere threat" of contaminated drinking water, such "false alarms" could "... result in undue panic and stress on the public," and may severely impact citizens' day-to-day life by making otherwise safe water unavailable. (286) Thus, overemphasizing unlikely drinking water threats risks diluting the focus of security efforts away from likely threats, and erodes the underlying purpose of the SDWA Amendments--assuring the public of a "safe and reliable supply of drinking water." (287) Accordingly, the competing views on whether drinking water infrastructure faces a likely threat from terrorist attack must be examined.
1. There are many viable threats to drinking water security
a. NBC, Conventional, and Cyber-Based Attacks
The prevailing view among experts is that conventional, as well as radiological, biological, and chemical ("NBC") weapons all represent viable threats to drinking water infrastructure security. (288) "... [I]t is possible to contaminate a portion of a drinking water system, resulting in adverse public health consequences." (289) In addition, the threat posed to drinking water infrastructure components from cyber-based attacks is a top concern. Despite the various technical challenges involved in successfully using such weapons to attack drinking water supplies, they continue to be the key threats that all "[a]ctive and effective security programs should consider ..." (290) Accordingly, the SDWA Amendments' goal of securing drinking water facilities against these threats is well-founded.
i. Conventional Weapons
Conventional explosives are perhaps the likeliest threat to drinking water infrastructure. (291) A well-placed bomb at a major treatment facility, pumping station, or water intake could deprive large areas of a city of drinking water for months. (292) Materials for making explosives are readily available. (293) Unlike biological, chemical, or radiological weapons, there are far fewer technical hurdles to manufacturing explosives, and their use has a "relatively high chance for successful execution." (294) Accordingly, explosives are still the weapon of choice for terrorist organizations across the world. Sadly, there are virtually daily demonstrations of this preference. (295) Conventional weapons therefore pose a likely threat to critical drinking water infrastructure. (296)
ii. Cyber-Based Attacks
Cyber-based attacks on SCADA systems are another likely threat to drinking water infrastructure security. (297) "[I]t is possible to covertly and easily take over control of ... [SCADA] systems and cause disruptions with significant consequences." (298) While some believe that hacking into a SCADA system "... would be a lot harder than learning to fly an airplane ...," terrorists have demonstrated their dedication to achieving their violent objectives. (299) Terrorists are known to be both well-versed in computers and "internet savvy." (300)
Using cyberspace to carry out attacks on drinking water infrastructure offers terrorists many of the advantages of using conventional weapons; "[a]ccess to cyberspace is even easier to obtain than conventional explosives." (301) "A terrorist mounting a cyberterror attack runs no risk of contamination by chemical, biological or radiological agents and no risk that an explosive device will detonate prematurely." (302) Carrying out such an attack is also comparatively inexpensive. (303)
In addition, "[c]yberspace is an attractive delivery method for terrorists." (304) "In cyberspace, a single act can inflict damage in multiple locations simultaneously without the attacker ever having physically entered the United States." (305) Consequently, "a terrorist can mount a cyberterror attack from a remote location with little, if any, fear of apprehension." (306) Given the "permeability of cyberspace," tracking down cyber-terrorists is very difficult. (307) Accordingly, cyber-threats to SCADA systems are also likely threats to drinking water security.
iii. CBW
Various biological and chemical contaminants also pose viable threats to drinking water security. A limited number of contaminants
have the potential to produce widespread death or disease. These contaminants include concentrated pathogens, biotoxins, and a few highly toxic chemicals that remain stable in water long enough to adversely impact public health. A larger group of contaminants could produce localized death or disease in a segment of a population, including several dozen toxic chemicals. Hundreds of contaminants could potentially disrupt service or undermine consumer confidence but would not result in death or disease in the population. (308)
Of the more infamous biological agents, anthrax, plague, and tularemia all remain stable in water. (309) Furthermore, many nonbacterial pathogens are resistant to commonly-used treatment and disinfection methods, such as chlorination. (310) The danger posed by these substances is compounded by the fact that "[t]he common indicators of water quality are of little value in [detecting such contaminants]." (311) Awareness of contamination involving these substances may therefore come long after "... affected individuals begin showing signs of adverse health effects." (312)
Successfully weaponizing biological and chemical agents and using them to contaminate drinking water systems "... is far from a trivial undertaking ..." (313) Other methods of disseminating such weapons, such as by air dispersal, offer much greater chances of successfully causing harm. However, manufacturing and using such weapons against drinking water supplies "... it is not so difficult that terrorists ..." cannot do it. (314) Despite the various technical obstacles preventing terrorists from successfully developing and utilizing NBC weapons, some believe they are capable of overcoming such challenges. (315) CBW are already "... within the technical reach of [some] sophisticated terrorist organizations." (316) Accordingly, biological and chemical weapons also threaten drinking water security.
iv. Radiological Contaminants
Lastly, "[c]ontamination of a water supply by radioactivity is possible ..." (317) Even "[n]atural sources of radioactivity can...threaten a supply." (318) However, for various reasons discussed below, "it is increasingly recognized that [other] weapons represent far more credible threats in the hands of terrorists than do nuclear ones." (319) Nevertheless, radiological weapons pose a threat to drinking water infrastructure.
b. Historical Trends
The increasing frequency of terrorist incidents, especially those specifically targeting drinking water infrastructure, further evidences that likely risks to drinking water security exist. As discussed in Section III, terrorists have consistently attempted to attack drinking water supplies using many of the means described above. (320) Incidents involving CBW, such as the October 2001 anthrax attacks, have generally been on the rise since 1995. (321) One of the deadliest terrorist attacks involving CBW 0ccurred relatively recently and involved the intentional contamination of drinking water supplies. (322) Although drinking water infrastructure is not always targeted, these incidents nevertheless demonstrate that successful CBW attacks are possible and that terrorists constantly pursue new means to fulfill their goals. (323) "If the trend continues the number of terrorist incidents is likely to keep climbing," and drinking water facilities will increasingly be the target. (324)
The "confluence of two trends" suggests why the threat of CBW terrorism is on the rise: "the growing accessibility of mass-casualty weapons and the emergence of new and more ruthless forms of religious and ideological fanaticism." (325) The "new breed" of terrorist spawned by such fanaticism is not reluctant to use NBC weapons. (326) Such terrorists "pose a real threat of toxic terror," because they have the "... motivation to acquire and use chemical or biological weapons ..." and actively seek out the capability to do so. (327) Unfortunately, this type of terrorist group with "no inhibitions" and "no rules," such as al-Qaeda, is becoming increasingly prevalent. (328) Despite periodic exaggerations by politicians or the media regarding current threats of terrorism, these trends "... make it both politically and substantively imprudent
..." to disregard the threat of terrorism against drinking water infrastructure. (329) Thus, the SDWA Amendments' requirement that drinking water facilities assess their vulnerabilities against such threats is a prudent course of action.
2. Better Safe Than Sorry
Regardless of what we do understand about how drinking water infrastructure security can be threatened, what we do not understand may be an equally compelling justification for the SDWA Amendments.
a. Nobody Knows What the Likely Threats Are
When it comes to water infrastructure security, "[i]n every conceivable dimension, uncertainty reigns." (330) This uncertainty is itself an overarching vulnerability, as well as cause for concern and caution. (331) Definitive information is lacking regarding such diverse issues as drinking water threat identification and assessment, (332) monitoring and detection capabilities, (333) SCADA systems, (334) hydraulic modeling, (335) and treatment and decontamination technologies. (336) Some insist that the state of our knowledge is so limited, determining whether the risk of a particular drinking water threat is significant "... would verge on pure speculation ..." (337)
In addition to the limits of our current comprehension, "... threats to water infrastructure are dynamic ..." and will likely change. (338) "... [T]he potential use of chemical and biological agents is an emerging threat and ... novel agents may be used in the future that have not been considered in past threat assessments." (339) Because of the novel and ever-changing nature of these threats, "... it is difficult to extrapolate the probability of such events in the future or to predict their potential impacts." (340) Thus, the SDWA Amendments' cautious and proactive approach to maintaining drinking water infrastructure security is well-founded.
b. Severe Consequences Warrant a Conservative Approach
The potentially devastating consequences of a successful attack on our drinking water infrastructure also dictate that we cannot afford to overlook even unlikely threats. (341) "If there is one lesson to be learned from September 11 ... it is that even the most unlikely events can occur with devastating results." (342) Accordingly, "... we should be doing everything we can both to prevent such an action and to prepare for its consequences." (343)
Although it is unlikely that an intentional attack on a drinking water supply could be cause widespread contamination, as discussed above in Section I, the human health consequences of a successful attack "... are potentially severe." (344) Furthermore, current environmental and public health monitoring capabilities are likely too slow to evaluate whether a potential threat warrants a response action before significant harm occurs. (345) Therefore, it is appropriate to make conservative assumptions regarding our need for enhanced drinking water infrastructure security measures. (346) The potentially catastrophic consequences of successfully attacking a drinking water system, even if highly unlikely, factor into the need to protect against that possibility.
c. Consumers May Not Care About the Actual Likelihood
Because even "[t]he mere thought that drinking water was tampered with could send a community into a tailspin," a mechanism is needed to assure the public that their drinking water is safe. (347) Public confidence in the safety of their drinking water has little to do with terrorists' actual technical capabilities to contaminate drinking water with CBW. Even the "mere threat of contamination" or simply introducing taste or odor causing substances is enough to cause fear and anxiety. (348) Threats and hoaxes regarding contamination of water supplies "are much more likely" than actual incidents. (349) Consequently, terrorists could fulfill one of their main goals--"... instill[ing] fear in the population ..." regardless of the actual likelihood of the threat. (350)
Accordingly, the SDWA Amendments provide a beneficial mechanism for reassuring the public that its drinking water is safe. The information gained through completing vulnerability assessments and ERPs can help utility operators expeditiously identify whether a particular threat or hoax is credible, and quickly relate that information to the public, if necessary, to ease concern. Because the SDWA Amendments require the gathering of this vital information, they are a sound legal response.
3. Catastrophic Contamination or Disruption is Unlikely
Although plausible threats to drinking water security exist, the risk of a successful large-scale terrorist attack on America through the water is small. (351) Despite the much-hyped potential "worst-case" consequences, the likeliest threats to drinking water infrastructure actually involve smaller-scale, localized disruptions or contamination incidents. (352) It is "highly unlikely" that such smaller-scale incidents "... could ever completely undermine the national security, much less threaten the survival of the United States as a nation." (353)
This conclusion is based upon both the challenges of acquiring and using NBC weapons, as well as their limited ability to cause widespread contamination of drinking water infrastructure. (354) These hurdles deter most would-be terrorists from attempting to use NBC weapons. Similar factors limit the potential for conventional or cyberspace-based attacks to cause catastrophic harm. Moreover, this country's drinking water facilities and regulations are already structured to prevent pathogenic and radiological drinking water contaminants from reaching consumers. (355) Thus, just because contaminants such as chemical and biological agents "... are often described as 'weapons of mass destruction' does not mean that the ability to inflict mass casualties is an inherent property." (356)
a. Technical Challenges of NBC Weapons
i. Radiological and Nuclear Weapons
It is "very difficult" for terrorists to acquire and refine the fissile material necessary to develop a nuclear or radiological weapon. (357) In addition, although there are noted exceptions, few terrorists or people willing to assist terrorists have the "... very high degree of technical capability" needed to manufacture a workable nuclear or radiological weapon. (358) Because of these challenges, radiological and nuclear weapons have never before been used to attack drinking water supplies and remain only "... mere possibilities in the arsenal of 'physical world' delivery methods." (359)
ii. Chemical Weapons
Chemical agents are ineffective at producing the mass-casualties or widespread destruction that fanatical terrorists often seek to accomplish. (360) Terrorists seeking to use chemical weapons "... have to overcome significant technical hurdles and ... run major safety risks ..." (361) Producing chemical weapons "... is not as easy as is often suggested in media accounts." (362) The synthesis of nerve agents such as sarin and VX requires the use of highly reactive and corrosive ingredients that may be difficult to acquire and are dangerous to handle." (363) Because "... the production of chemical agents runs the risk of killing the producers," it is a natural deterrent to their use. (364)
The challenges of acquiring and producing chemical agents are compounded by the fact that "... it takes massive amounts of chemical agent to produce military casualties with any reliability, and maximizing their ... dissemination is no easy task." (365) This is especially true for drinking water given the effect of dilution in large drinking water reservoirs'. Although standard industrial tanks can be used for storage, producing and maintaining sufficient quantities of chemical agents increases the likelihood that the terrorist enterprise will be discovered and stopped.
Moreover, exposure to water or chemical neutralization processes renders certain chemical weapons, such as nerve agents, ineffectual. (366) Volatile chemical agents, such as sarin, are also vulnerable to evaporation from sun and heat. (367) Chlorination appears to destroy other chemical weapons, such as mustard agents. (368) These factors explain why chemical agents "... injure far more than they kill" and why they "have been used so rarely even in war." (369) Accordingly, while it is possible to contaminate a portion of a drinking water supply with chemical agents, it is very difficult and the consequences would likely be limited. (370)
iii. Biological Weapons
"The technical challenges of terrorists using traditional biological agents to produce massive fatalities [via drinking water] are no less daunting." (371) It is actually "... much harder to develop a biological weapon than a chemical weapon, and much, much harder than using computers for terrorist action." (372) As with the raw materials for producing chemical weapons, obtaining the necessary strains of pathological agents to manufacture a biological weapon is not easy. (373) Terrorists cultivating such infectious agents always run the risk of infecting themselves, a suicidal drawback. (374) In addition, "[t]he difficulty in producing enough of the agent to create a weapon may present an important limitation to terrorism...." (375)
As with chemical agents, the effects of dilution, exposure to various environmental factors, and the routine treatment processes that drinking water undergoes will also likely destroy the pathological effect of most biological agents. (376) Moreover, even if a drinking water supply is successfully contaminated with a biological agent, most biological agents "... are neither uniformly fatal nor directly communicable: if most victims got effective medical care ... most would survive." (377) Of course, it is cold comfort to consumers that their contaminated drinking water will only injure and not kill them.
Attacks involving aerosolized biological weapons represent more of a threat to public health than ingestion of contaminated drinking water. (378) However, showering in water contaminated with CBW may have precisely this effect. (379) Thus, the technical challenges associated with using biological weapons to contaminate drinking water supplies are not a license for drinking water facilities to ignore this threat.
Nevertheless, CBW attacks on water systems are most likely not capable of inflicting "... the mass-death predicted by the most alarmist scenarios." (380) Despite the "waves of concern" generated by the media, the potential for terrorists to contaminate drinking water supplies with CBW agents is "not something for ordinary Americans to get excited about." (381) "... [T]he difficulties of acquiring and deploying chemical and biological agents and their poor past performance as compared to high explosives would weigh heavily against their initial selection" by a terrorist group. (382) The basic technology for developing chemical and biological weapons "has been available in the open literature for more than half a century." (383) So, if such attacks have not happened yet, "... there must be reasons." (384) These reasons suggest that "... our water supply is safe ..." from large-scale attacks involving NBC weapons. (385)
iv. Conventional Weapons
Conventional explosives represent the most significant concern to drinking water facility managers. (386) Nevertheless, there are still inherent limits to terrorists' ability to threaten drinking water infrastructure with these weapons. To cause maximum effect, a conventional attack would have to target a centralized facility, such as a major treatment plant or pumping station. (387) Since the effectiveness of explosives "... depends on their proximity to the physical target, conventional explosives have to be deployed in an area that is relatively near the target, an endeavor that can attract unwanted attention or otherwise raise the risk of apprehension, failure or death." (388) Security can be focused around these key points or "critical nodes" to maximize the chances that an attempted terrorist attack will be thwarted. (389)
The destruction of satellite drinking water infrastructure components, such as major intake pipes or pumping stations, could seriously affect drinking water availability. However, as drinking water infrastructure elements reach into increasingly more localized service areas, such as neighborhood water mains, the consequences of damage to or destruction of these components also become more limited and easily repaired. (390) These smaller infrastructure components and facilities are therefore less attractive targets. (391) Consequently, while conventional weapons pose the likeliest threat to drinking water infrastructure, there are factors that hinder terrorists' ability to successfully execute such attacks.
b. Drinking Water Infrastructure Vulnerability is Limited
In addition to the intrinsic limitations of various weapons' ability to threaten drinking water security, only certain drinking water infrastructure components are realistically vulnerable to attack. (392) These components include post-treatment storage reservoirs, distribution reservoirs, and water mains. (393) Moreover, drinking water facilities are already designed to protect public health by preventing contaminated drinking water from reaching consumers. These factors further diminish the ability of terrorists to successfully cause catastrophic contamination or disruption to drinking water systems.
i. Distribution Networks
Distribution networks are perhaps the most vulnerable drinking water infrastructure system component. (394) These systems could potentially be exploited to "... spread highly concentrated amounts of poison to a few thousand homes or businesses." (395) This is in part due to their extreme complexity and magnitude. (396) Distribution systems can be comprised of networks of thousands of miles of pipes, pumps, and storage tanks that carry drinking water 'downstream' from reservoirs and treatment centers and deliver it on demand to homes, commercial establishments, and industries. (397) Once distributed to a home or business, contaminated water from the distribution network could potentially reach and affect point-of-use/point-of-entry devices, such as washing machines, dishwashers or water heaters. (398)
Because of their multiple access points, preventing the introduction of contaminants into distribution networks is difficult. (399) Furthermore, because water in the distribution system has already been treated and is on its way to the consumer, the protective effects of dilution and treatment are diminished. (400) The proximity of water in the distribution network to consumers would render contamination "... virtually undetectable until it was too late to prevent harm." (401) Consequently, "[o]ne wacko who understands hydraulics and (has) access to a drum of toxic chemicals could inflict serious damage to a water supply in a neighborhood or pressure zone without detection pretty quickly in most communities." (402)
The vulnerability of distribution networks is cause for concern and appropriate legislative responses, such as the SDWA Amendments. However, it is not cause for panic. Despite the ongoing need for "real-time" monitoring, water in the distribution system is routinely monitored to ensure its safety. (403) In addition, maintaining a chlorine residual in the distribution network, and increasing it in times of perceived threats, may still be sufficient to inactivate many chemical and biological agents. (404)
Furthermore, contamination or disruption of local distribution system components will, by nature, affect increasingly confined areas. These localized impacts are easier to isolate and address. (405) Distribution systems may also have structural features that enable further isolation of the contaminated area. (406) Thus, as long as drinking water networks are designed to have redundant distribution routes, the disruption and harm caused by such an attack can be minimized. (407) This is, again, cold comfort to those in affected buildings or neighborhoods. However, it once again illustrates that certain factors limit terrorists' ability to completely incapacitate our drinking water infrastructure, even by attacking its most vulnerable components.
ii. Sourcewater and Supply
It is unlikely that a sufficient quantity of contaminant could be intentionally introduced into a source waterbody so as to cause great harm. The effects of dilution and normal treatment processes for "... chemical, biological, or radiological contaminants in source waters will, in many cases, reduce the concentration to below levels of concern ..." for all but "truck-load quantities" of contaminants. (408) Source waterbodies often involve such large volumes of water that it can take days or even weeks to reach consumers. (409) Normal treatment processes, "... such as chlorination and filtration are designed to kill pathogens ... and probably would be equally effective against a deliberately released agent." (410) Consequently, targeting a source waterbody "... is not a very effective way to contaminate drinking water." (411)
While the risk of successfully threatening public health by intentionally contaminating a source waterbody is extremely low, drinking water sources and reservoirs remain tantalizing terrorist targets. Consequently, "government cannot afford to be complacent about the potential for high-casualty chemical and biological attacks." (412) Watersheds and drinking water reservoirs cover vast areas making it "difficult to maintain security." (413) Pilots have been quoted as saying that "... it's easy to glide over a reservoir and dump hundreds of pounds of hazardous chemicals ..." into it. (414)
In addition, "... some infectious agents and a few biotoxins are unaffected by chlorination." (415) Relatively recent outbreaks of waterborne illness demonstrate that our treatment systems are not flawless. (416) Furthermore, unlike more common biological pathogens that "... can be easily detected within minutes ..." at high doses, such as cholera or typhoid, current monitoring and detection capabilities for CBW are much less certain. (417) Intentional contamination incidents will also most likely have no telltale precursor events, such as large rainfalls or natural disasters, that facility operators sometimes use to predict the increased presence of common pathogens in water supplies. Thus, despite the challenges associated with successfully contaminating a source waterbody, "... complacency over the microbiological safety of U.S. drinking water may be imprudent." (418)
iii. Current System Protections
The fundamental mission of drinking water system operators is to protect public health by preventing contaminated water from reaching consumers. This is also the basic goal of existing drinking water regulatory standards that have been put in place for dozens of organic, inorganic, pathogens, and radiological contaminants. (419) These efforts have ensured that U.S. drinking water is among the safest in the world. "[T]he types and extent of contamination and the health effects resulting from physical acts of terrorism are often--but not always--similar to the consequences of traditional system contamination that concern water system managers every day." (420) Thus, while some aspects of the threats currently facing drinking water systems are new, drinking water facilities are already designed to "... [accommodate] the kinds of analysis, planning, and response necessary to counter a deliberate attack." (421)
"Traditionally, water systems have protected public health and ensured safe water by implementing a 'multiple barrier' approach to preventing contamination." (422) "In this approach systems place as many 'barriers' as reasonably possible between the risks ... and the consumer." (423) Thus, public health protection is "... not dependent on one process but several in a train that provide backup protection." (424) Barriers are physical, such as source water protection measures, fencing and restricted access to other key infrastructure components, as well as adequate treatment processes. (425) Barriers also include institutional measures, such as proper "... operation, maintenance, and management by committed and well-trained staff." (426) The "key" to providing safe drinking water and protecting public health lies in the ability of drinking water systems to maintain this multiple barrier system. (427)
However, the effectiveness of the multiple barrier paradigm is limited by "single points of failure" and the potential for "endruns." (428) First, "[m]any drinking water systems are 'linear'--that is, they have single transmission lines leading into the treatment facility and single pumping stations along the system, and often use a single computer operating system." (429) Thus, although each of the components together might comprise of system of multiple barriers, problems at any of these "single points of failure" could render a system inoperable. (430) Second, there are practical limits to how far along the supply and distribution chain multiple barriers can be put in place. At some point, such as in the distribution network, water will be beyond one or more of the multiple layers of protection. (431) Introducing contaminants at a point past these barriers, therefore, nullifies their protective potential. Accordingly, as confirmed by recent outbreaks of waterborne illness, the multiple barrier system is not impenetrable. (432)
4. We Can Contaminate Our Own Drinking Water, Thank You
From a relative risk standpoint, debating the likelihood and consequences of terrorist threats to drinking water infrastructure may seem like a misguided exercise. The risk terrorism poses to drinking water safety almost indisputably pales in comparison to the threats drinking water supplies face everyday from pollution, overuse, and lack of adequate funding for infrastructure maintenance. The unfortunate truth is that plenty of bad stuff gets into our drinking water already.
Thousands of illnesses and hundreds of deaths occur each year, not as the result of terrorist efforts, but because of commonly-found waterborne contaminants. (433) Microbial hazards are present in our drinking water due to noncompliance with drinking water regulations, natural events, such as floods and toxic algal blooms, and unintentional catastrophic events, such as untreated sewage overflows. (434) Various non-biological waterborne contaminants also are present in our drinking water such as lead, (435) arsenic, (436) perchlorate, (437) as well as the gasoline additive, methyl tertiary butyl ether ("MTBE"). (438) Amazingly, even "[c]hemicals intentionally introduced for water disinfection historically have posed more of a health threat than acts of chemical or biological sabotage." (439)
These problems may not be surprising given that the condition of our existing drinking water infrastructure is "... barely passing ..." (440) Aside from complex distribution networks or open reservoirs, our antiquated drinking water infrastructure is a key vulnerability. (441) "... [M]any components of our water systems are aging and need repairs, replacements, or upgrades ..." (442) Accordingly, the issues facing our drinking water infrastructure on a daily basis pose "... a bigger threat to the American population" than terrorist attacks. (443)
Addressing all of these issues could cost billions, and there is stiff competition for limited funding. (444) Thus, there is a danger that unwarranted homeland security spending will reduce the resources available for addressing truly pressing public health concerns. (445) In some instances, "... the investment in homeland security will result in public safety benefits; water testing to detect chemical or biological agents, for example, will improve overall water quality." (446) However, investing in solutions to these more common drinking water threats could also significantly improve drinking water security. (447) Consequently, appropriations decisions must consider whether the cost-benefits of addressing existing threats to drinking water safety outweigh those posed by terrorism. (448)
A successful catastrophic attack on our nation's critical drinking water infrastructure is unlikely and other common threats pose much greater risks of harm. However, we cannot afford to be complacent about drinking infrastructure security. Certain weapons can threaten drinking water safety, certain infrastructure components are vulnerable to these threats, and the consequences of even a successful small-scale attack could be devastating.
Furthermore, terrorism poses an ever-changing threat. Consequently, our past experience will not necessarily help us predict future attacks. (449) Terrorists are morbidly creative and "... highly prone to imitation, so that an innovation ... typically spawns a string of 'copycat' incidents." (450) One enterprising terrorist could overcome the technical obstacles of contaminating or disrupting drinking water supplies and "open the door" for others. (451) As a result, the SDWA Amendments' requirements are warranted to ensure that drinking water infrastructure security is not jeopardized by the threats of terrorism.
B. Do Other Environmental Laws Already Adequately Protect Us?
Although viable threats to drinking water infrastructure exist, "a new mechanism" to deal with them may not have been necessary. (452) We may have "... simply need[ed] to build on what we have." (453) Many drinking water treatment facilities are already subject to emergency planning requirements under existing laws, such as the Clean Air Act ("CAA") and Emergency Planning and Community Right-to-Know Act ("EPCRA"). (454) These emergency planning requirements resemble those now imposed by the SDWA Amendments. Furthermore, a variety of provisions under other existing laws could be used to prosecute the attempted contamination or disruption of drinking water systems. (455) The SDWA Amendments may therefore have simply added an expensive and unnecessary regulatory burden upon drinking water facilities.
Concern over potentially superfluous requirements is not solely based on economics. Additional layers of regulation can hinder compliance with existing requirements. Thus, duplicative regulatory requirements may inadvertently frustrate efforts to successfully address drinking water infrastructure security threats. (456) Accordingly, the similarities between the focus and requirements of the SDWA Amendments and existing environmental laws must be examined.
1. Existing Emergency Planning Requirements
Under CAA [section] 112(r) and EPCRA, many drinking water treatment facilities are already required to prepare emergency response plans for releases of hazardous substances and implement programs to prevent such releases. (457) The SDWA Amendments overlap these emergency planning requirements for one of the likelier consequences of a drinking water infrastructure attack--the release of hazardous chemicals often stored at drinking water treatment facilities. (458) Although EPCRA and CAA [section] 112(r) focus upon accidental releases of hazardous substances, response planning considerations for such intentional releases are virtually identical. (459) Consequently, the SDWA Amendments' emergency planning provisions are redundant to existing response requirements, at least with respect to this specific threat. Nevertheless, despite this overlap, CAA[section] 112(r) and EPCRA are insufficient to independently address the unique vulnerabilities of drinking water infrastructure components and the range of threats posed to them by terrorism. (460)
a. CAA [section] 112(r)
CAA [section] 112(r) "... created the first significant federal program to focus on the prevention of accidental catastrophic environmental releases of hazardous pollutants." (461) There are three major elements of Section 112(r)'s program: (1) identifying hazards that may result from releases of extremely hazardous substances; (2) designing and maintaining a safe facility, free from accidental releases; and (3) minimizing the consequences of accidental releases that nevertheless occur. (462) Facilities regulated under the CAA as stationary sources of air pollutants are subject to Section 112(r) if certain hazardous substances are present at the facility in an amount greater than established threshold quantities. (463) Chlorine and ammonia, substances frequently present at or used by drinking water treatment facilities, are both specifically regulated pursuant to Section 112(r)(3). (464) Consequently, many drinking water facilities are regulated under CAA [section] 112(r). (465)
Owners or operators of facilities regulated under CAA [section] 112(r) must prepare a "risk management plan" ("RMP") addressing the hazards identified for each listed substance present at the facility. (466) RMP's are designed to detect and prevent or minimize accidental releases of listed substances. (467) Similar to the SDWA Amendments' ERPs, CAA RMPs also are required to dictate steps for a prompt emergency response to such releases. (468) RMPs must include: "... an estimate of potential release quantities, downwind effects (known as an "offsite consequence analysis"), [and] population exposure ..." (469) The SDWA Amendments' legislative history indicates that the RMPs' focus on accident prevention goes beyond the SDWA Amendments and EPCRA's strictly response-oriented emergency plans. (470) Furthermore, unlike SDWA Amendment ERPs, RMPs must be updated every five years, anytime an additional regulated substance is present at the facility in an amount above the threshold quantity, or if EPA regulates a new substance. (471)
b. EPCRA
EPCRA's emergency planning provisions "... are designed to promote the discovery and mitigation of risks associated with chemical use in the community." (472) As EPCRA's requirements apply to more facilities than just stationary sources of air pollutants, its coverage is broader than CAA [section] 112(r). However, similar to CAA [section] 112(r), EPCRA's requirements are triggered if a listed extremely hazardous substance ("EHS") is present at a facility in an amount exceeding its threshold planning quantity ("TPQ"). (473) Because EPCRA's TPQs for chlorine and ammonia are relatively low, many drinking water facilities are subject to EPCRA's emergency planning requirements in addition to those under CAA [section] 112(r). (474)
EPCRA requires local emergency planning committees ("LEPCs") to create comprehensive emergency response plans for any regulated facility within their emergency planning district. (475) Similar to SDWA Amendment ERPs, EPCRA emergency response plans include, among other information, procedures to be followed by emergency personnel and facility owners in the event a listed EHS is released into the environment. (476) Furthermore, "[i]n developing and updating emergency plans, LEPCs utilize a 'hazards analysis'--a three step decisionmaking process which identifies the potential hazards facing a community with respect to accidental releases of EHSs and other hazardous chemicals." (477) Both vulnerability and risk analyses are steps of this decisionmaking process. (478)
EPCRA and CAA [section] 112(r)'s emergency planning requirements mirror those of the SDWA Amendments with respect to how releases of hazardous substances are addressed. The similarities are well-recognized. The SDWA Amendments' legislative history discusses the possibility that its new requirements could lead to a "... duplication of effort ..." under EPCRA. (479) To minimize this potential, drinking water facilities are required to certify that they have coordinated, to the extent possible, with LEPCs under EPCRA when preparing or revising their ERPs. (480) Apparently recognizing a relationship between CAA [section] 112(r) RMPs and EPCRA ERPs, EPA also encourages LEPCs to incorporate RMPs into EPCRA ERPs. (481)
2. CAA [section] 112(r) and EPCRA Do Not Adequately Protect Drinking Water Infrastructure
Despite certain overlapping requirements, EPCRA and CAA [section] 112(r) are not sufficiently tailored to drinking water systems to independently address emergency situations at such facilities. Indeed, EPCRA and CAA [section] 112(r)'s emergency planning requirements have existed for years, yet the use of chlorine and other hazardous substances at water treatment facilities still poses a risk to millions of people. (482) There are several reasons why EPCRA and CAA [section] 112(r) are insufficient to address drinking water infrastructure security threats.
EPRCA and CAA [section] 112(r)'s focus on releases of individual hazardous chemicals is simply too narrow to provide the kind of comprehensive system-wide risk assessment and response planning needed to secure drinking water infrastructure networks from terrorist attack. First and foremost, scenarios involving intentional contamination, disruption, and most certainly, cyber attacks on drinking water infrastructure components are beyond the scope of EPCRA and the CAA [section] 112(r). These events simply are not contemplated within EPCRA and the CAA [section] 112(r)'s focus on addressing accidental releases of hazardous chemicals.
Second, the drinking water contaminants likeliest to be used in an intentional attack are not "present" at drinking water facilities. Consequently, they do not trigger EPCRA or CAA [section] 112(r)'s requirements, and their release into drinking water supplies, intentional or otherwise, is left unaddressed.
The most vulnerable drinking water infrastructure components, storage and distribution systems, are not covered by the EPCRA or CAA [section] 112(r) emergency plans for similar reasons. Because EPCRA and CAA [section] 112(r) only address facilities at which sufficient quantities of regulated chemicals are stored, only main drinking water treatment plants will receive consideration in the emergency plans. Other infrastructure components where chemicals are not "present" will not be covered.
Lastly, unlike the SDWA Amendments' requirements, drinking water facilities can escape regulation under EPCRA and CAA [section] 112(r). (483) By simply switching to an unregulated alternative substance or reducing the amount of chlorine present below threshold planning quantities, drinking water facilities can avoid CAA [section] 112(r) and EPCRA's emergency planning requirements. Other types of facilities have dodge