A New Instrument in National Security: The Legislative Attempt to Combat Terrorism via the Safe Drinking Water Act
Chilakamarri, Varu
INTRODUCTION
In January 2002, the FBI warned water officials that Osama Bin Laden’s al Qaeda terrorist network had considered attacking water distribution systems in the United States.1 Public water systems could be attacked on multiple fronts, ranging from the intentional contamination of a water supply to a physical attack on a treatment plant, distribution system, or water source. Any attack on a public water system could be devastating: A strike on a chlorine disinfectant tank alone, for example, could result in the release of an airborne toxic chlorine cloud which, depending on exposure levels, could prove fatal for a widespread population.2
A 1998 Presidential Decision Directive listed our nation’s water supply as one of twelve areas critical to the functioning of the country that remained vulnerable to non-traditional attacks.3 However, it was not until the September 11, 2001 terrorist attacks on American soil that Congress exhibited a tangible interest in protecting public water systems. To this end, Congress passed the Public Health Security and Bioterrorism Preparedness Response Act of 2002,4 which, among other things, made several amendments to the Safe Drinking Water Act (“SDWA”).5 Known as the “Drinking Water Security and Safety amendments,” these additions transformed the Environmental Protection Agency (“EPA”) into a key player in the development and enforcement of national security policies regarding public water systems.
Despite its noble intentions, Congress has failed to craft an environmental defense plan that will sufficiently protect the nation’s water supply. Specifically, in its rush to make the EPA a new agent in the war on terror, Congress left the agency with such narrow authority and limited enforcement power that the EPA cannot proactively guard against an attack. Part I of this Note provides background on the SDWA and a detailed description of the Drinking Water Security and Safety amendments. Part II addresses the weaknesses in the current SDWA regime that could diminish the EPA’s effectiveness in reaching Congressional security goals. Finally, Part III argues that many of these weaknesses could be ameliorated if the EPA adopted a more expansive view of its authority under the imminent and substantial endangerment provision (section 1431) of the SDWA.6
I. OVERVIEW OF THE SAFE DRINKING WATER ACT
A. THE SDWA BEFORE THE DRINKING WATER SECURITY AND SAFETY AMENDMENTS
The SDWA was enacted in 1974, primarily as a public health statute, “to ensure that every person in this nation, wherever they are, receives clean, safe drinking water every day.”7 The SDWA regulates both underground sources of drinking water8 and public water systems (“PWSs”)9 in order to maintain acceptable drinking water quality standards.10 With regard to underground water sources, the SDWA establishes an Underground Injection Control program11 to regulate injection wells,12 which are used by many industries as a way of disposing cheaply of waste products. The EPA regulates five different classes of injection wells under this program, with varying levels of control over each class depending upon the type of waste and its proximity to an underground source of drinking water.13 With regard to the 168,190 PWSs falling under its jurisdiction, the SDWA requires the EPA to promulgate National Primary Drinking Water Regulations in order to regulate contaminants that may adversely affect public health.14 Consequently, the EPA currently regulates eightyseven contaminants15 by establishing maximum contaminant levels and by requiring water treatment plants to employ certain treatment techniques and monitor and report the results of these techniques.16 The National Primary Drinking Water Regulations apply to a variety of contaminants in water, including microbial, chemical, and radiological pollutants.17
Prior to the Drinking Water Security and Safety amendments, the SDWA contained five major enforcement mechanisms.18 First, SDWA section 1414 gives the EPA general authority to issue administrative orders or pursue injunctive or other civil relief in response to PWS violations of National Primary Drinking Water Regulations.19 This provision enables the EPA to enforce maximum contaminant levels and water treatment methods.20 Second, section 1432 provides for civil and criminal penalties against any individual who tampers with or attempts to tamper with a PWS.21 Third, section 1445 enables the EPA Administrator (the “Administrator”) to require PWSs to maintain records, make reports, conduct monitoring, and provide information to the EPA as is reasonably required to ensure SDWA compliance.22 Fourth, section 1449 permits citizens to sue PWSs that violate the regulations promulgated under the SDWA.23 Finally, section 1431 provides the EPA unique emergency authority to pursue civil actions or issue administrative orders in cases where there may be an imminent and substantial endangerment to public health based on a present or likely contamination of a PWS or underground source of drinking water.24
To exercise authority under section 1431, the EPA must conclude that the relevant state or local authorities have not adequately acted to protect public health and that a contaminant which is present or likely to enter the system may cause an imminent and substantial endangerment to health.25 Once the EPA so concludes, it may use section 1431 to respond to potentially dangerous situations that would otherwise go unaddressed due to gaps in enforcement authority.26 For example, the EPA could use section 1431 to address contamination caused by new industrial pollutants that are not yet subject to regulations but that may still cause health problems in the population.27 Collectively, these five enforcement mechanisms empower the EPA to protect the public water supply from regulated and, in some cases, unregulated contaminants that could threaten public health.
B. THE PUBLIC HEALTH SECURITY AND BIOTERRORISM RESPONSE ACT’S AMENDMENTS TO THE SDWA
On June 13, 2002, in an effort to “improve the ability of the United States to prevent, prepare for, and respond to bioterrorism and other public health emergencies,”28 the President signed the Public Health Security and Bioterrorism Preparedness and Response Act into law. This comprehensive Act has four major components. Title I addresses medical preparedness for bioterrorism, authorizing funds for uses ranging from emergency medical stockpiles to upgrades to the Centers for Disease Control and Prevention.29 Title II restricts access to biological agents and toxins by establishing a mandatory registration system and national database for monitoring the possession of dangerous substances.30 Title III provides for the protection of America’s food and drug supply by authorizing funds for the development of improved food inspection methods and increased restrictions on food and drug imports.31 Finally, Title IV contains the Drinking Water Security and Safety amendments, designed to protect the public water supply from terrorist and other intentionally harmful acts and to provide funding for certain statutory requirements.32
Title IV adds three provisions to the SDWA. The first, section 1433, applies only to the subset of PWSs that serve residential communities.33 These community water systems (“CWSs”) are defined as water systems (1) with at least fifteen service connections that are used by year-round residents, or (2) that regularly serve at least twenty-five year-round residents.34 Section 1433 requires only larger CWSs, those that serve more than 3,300 people, to conduct a one-time assessment of their vulnerability to terrorist and other intentional attacks and to submit and certify their vulnerability assessments to the Administrator.35 Access to these vulnerability assessments is to be highly restricted even within the EPA; accordingly, the Administrator must develop security protocols to protect them from unauthorized disclosure.36 Larger CWSs must also create emergency response plans (or update existing plans), incorporating the results of their vulnerability assessments.37 These CWSs, however, are only required to certify to the Administrator that they have completed their emergency response plans; they do not have to provide the EPA with the details of these plans.38 Additionally, the Administrator must provide “baseline information” to larger CWSs regarding the kinds of terrorist attacks that are likely to substantially disrupt their systems’ ability to provide safe drinking water or to present other public health concerns.39 The Administrator must also offer guidance to smaller CWSs not subject to section 1433 on how to conduct vulnerability assessments, create emergency response plans, and generally address threats to public health and safety.40
Section 1434, the second new provision added to the SDWA, requires the Administrator to focus on preventing, detecting, and responding to the intentional contamination of CWSs and source waters.41 The Administrator must 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 educational programs for CWSs, and reviewing biomedical research on health effects of various contaminants.42
The third new SDWA provision is section 1435. It requires the Administrator to review means by which aggressors could intentionally disrupt or destroy the water supply or its necessary components, including storage and distributional facilities, pipes, and constructed conveyances.43
The Drinking Water Security and Safety amendments also enhance the SDWA’s emergency provision, section 1431, which previously allowed the EPA to protect a water supply only in cases of imminent and substantial endangerment to public health based on present or likely contamination.44 Revised section 1431 now permits the EPA to act when there is a “threatened or potential terrorist attack” that presents an imminent and substantial danger to public health.45 This amendment changes the EPA’s preexisting authority by allowing the EPA to act even when there is no actual “contamination” of a water supply.46 In essence, the EPA now can act to protect both the water supply and its physical infrastructure (such as pipes, distribution facilities, water collection, treatment and storage facilities) from any type of terrorist or other intentional attack, regardless of whether the attack involves a contaminant or not.47
Finally, section 1432 also has been amended. The revisions increase the criminal and civil penalties for tampering with and attempting or threatening to tamper with a PWS.48 Specifically, the amendment increases the maximum criminal penalty for PWS tampering from five to twenty years, and increases the maximum civil penalty from $50,000 to $1,000,000.49
II. WEAKNESSES IN THE CURRENT SAFE DRINKING WATER ACT SECURITY REGIME
Although the Drinking Water Security and Safety amendments are critical to mobilizing the government and refocusing resources to address a growing security concern, two major security weaknesses plague the amended SDWA. First, section 1433 excludes from coverage a significant percentage of community water systems. Second, those systems that are covered are not sufficiently protected by the provisions of the SDWA.
A. SDWA SECTION 1433 EXCLUDES SEVERAL IMPORTANT PUBLIC WATER SYSTEMS
All PWSs (as defined by the SDWA) are regulated by the provisions of the SDWA, which amounts to a coverage of approximately 168,690 PWSs.50 However, section 1433 of the SDWA, which requires CWSs to conduct vulnerability assessments and create emergency response plans, applies only to CWSs that serve over 3,300 people.51 Although approximately 32% of all PWSs qualify as CWSs, fewer than 15% of these serve over 3,300 people and thus are subject to section 1433.52 Ultimately, the amendment covers less than five percent of all PWSs.53
The CWSs covered by section 1433 serve the majority of the nation’s residential populations.54 Consequently, proponents of section 1433’s effectiveness could argue that it is appropriate for the provision to target only this 5% portion of PWSs, as opposed to all PWSs, because the unregulated systems are negligible in size and population coverage, and thus are unlikely targets of terrorism. Accordingly, these systems should be relieved from the burdens of vulnerability assessments and other preparations, especially when it may be economically infeasible for the federal government to provide funds for every PWS to assess its vulnerabilities.
An examination of the types of water systems that remain unregulated reveals the severe flaw in section 1433. Not only do the nation’s residential water supplies that serve less than 3,300 people continue to be vulnerable, but all non-community, non-residential PWSs that serve more than 3,300 people also remain outside the scope of section 1433.55 Among the PWSs that remain unregulated, 20,229 are non-community water systems.56 These systems include those serving institutions such as the University of Utah, with a population of 18,000, and the University of Montana, with a population of 13,000,57 as well as PWSs serving factories and other locations with fixed populations. In total, these non-transient, non-community water systems serve a fixed population totaling more than 6,000,000 people per day.58
There are also 94,311 transient, non-community water systems that remain unregulated by the new security amendments. These systems serve a continually fluctuating population of almost 17,000,000 per day59 at places such as highway rest stops, restaurants, and many national parks and other tourist attractions such as the Kennedy Space Center and Yellowstone National Park.60 Some of these systems may actually be more probable targets than many residential CWSs because they have a greater symbolic or political value than many regulated CWSs. Furthermore, some uncovered systems that serve only small populations may be crucial to the nation’s operation because they serve federal facilities or other governmental agencies.
Although it may be economically infeasible for every PWS to comply with section 1433, the division in coverage between large CWSs and all other PWSs is an improper one. One possible explanation for this flawed distinction may be the difference between public and private water systems. Most CWSs are public, whereas many non-residential PWSs are privately owned and operated.61 The government may prefer to focus its resources on protecting public goods to minimize oppressive regulation of the private sector.
Yet, even if this is the easiest division to administer, any division between regulated and unregulated PWSs should ideally advance the goals of the Drinking Water Security and Safety amendments. In this case, the primary goal of the amendments is not simply to protect publicly owned water systems, but rather to anticipate and prevent attacks on those water systems that are most vulnerable to terrorism. A bright-line division between regulated and unregulated PWSs may be necessary for the smooth implementation of section 1433. But the ultimate purpose of securing the nation’s water supply would be better served if the Drinking Water Security and Safety amendments expressly reserved to the EPA, FBI, and other appropriate bodies the discretion to regulate other non-residential PWSs based on their likelihood as targets, as well as other national security concerns.
B. THE SDWA DOES NOT PROVIDE THE EPA WITH AUTHORITY TO PROTECT WATER SYSTEMS PROACTIVELY FROM ATTACK
In amending the SDWA, Congress did not explicitly authorize the EPA to take preventative measures to protect CWSs from terrorism. The new sections of the SDWA (sections 1433, 1434, and 1435) do little to ensure that CWS vulnerabilities actually are addressed once they are brought to the EPA’s attention. The new language of section 1431, the SDWA’s emergency provision, remains ambiguous and conflicted, while the preexisting enforcement mechanisms in the SDWA cannot proactively solve for the threat of terrorism.
1. The New SDWA Sections Fail to Mandate Action
Although section 1433’s mandate that certain CWSs conduct vulnerability assessments provides the EPA with some information on the susceptibilities of CWSs, it does not empower the EPA to require any additional study or action by the CWSs to protect their water supplies.62 The legislative history of the amendments indicates that “[n]o community water system is required to use any particular vulnerability assessment tool, to conduct any specific type of analysis, to determine the consequences of any intentional or terrorist acts, analyze the use of any specific chemicals or characterize the risk of any offsite impacts.”63 This statement of congressional intent renders section 1433’s mandate meaningless. If the EPA cannot dictate proper and uniform methods of conducting vulnerability assessments, there are no assurances that CWSs will review their weaknesses effectively. Granting such open-ended discretion to individual CWSs may generate poor and incomplete assessments, and also may lead the EPA to be falsely assured of certain CWSs’ safety. Furthermore, even for those CWSs that conduct thorough assessments, the EPA is given no authority to take the next step and correct the known vulnerabilities by ordering repairs, facility upgrades, enhanced security, personnel training, etc.
Section 1433’s requirement that CWSs revise or update their emergency response plans is similarly toothless because the plans are never sent to the EPA for review.64 The section also lacks any requirement that the CWSs actually implement or be capable of implementing their emergency response plans (by securing the requisite equipment and training) if implementation becomes necessary.65 Furthermore, the EPA only receives a certification from each CWS that the CWS has completed an emergency response plan. Because it will not receive a copy of the actual plan itself, the EPA will not know how the CWS plans to handle its vulnerabilities or what the timeframe for resolving its vulnerabilities will be. This means that the EPA will be ill-prepared to evaluate the CWS’s vulnerability assessment or to assist the CWS in improving its plan. Consequently, although section 1433 requires CWSs to begin evaluating their vulnerabilities, it stops short of ensuring that water systems or the EPA actively implement and enforce security mechanisms to prevent terrorist attacks.
Similarly, not only do sections 1434 and 1435 require no action on the part of CWSs, but they also fail to vest the Administrator with authority to engage in proactive enforcement of CWS security precautions.66 Instead, these provisions merely require that the Administrator begin studying the general problem of potential terrorist threats and intentional attacks on the nation’s water supply.67 While analysis and study undoubtedly is needed to anticipate and react effectively to terrorism, information without implementation will do no real good. sections 1434 and 1435 do not require or allow the Administrator to put to use what may be learned from additional studies.
2. Section 1431 is Ambiguous and Conflicted
Prior to the Drinking Water Security and Safety amendments, section 1431 equipped the EPA to react to imminent and substantial endangerment of public health based on a present or likely contamination of a water supply.68 The amendments added to this authority the power to protect the public against imminent and substantial endangerment from a “threatened or potential terrorist attack” on a water supply, including physical attacks.69 But just how much this change has expanded the EPA’s authority is a matter of continuing uncertainty.
It is clear that the new language in section 1431 authorizes the EPA to issue orders or seek judicial action if it receives credible and specific information about a threatened or potential attack.70 It is not clear, however, whether or not the EPA may proactively protect the public by correcting vulnerabilities at PWSs without having any specific knowledge of an actual threat or attack upon the system. Although the new amendments give the EPA the authority to react to threats,71 they contain no explicit language addressing whether the EPA can proactively take measures to safeguard PWSs against terrorism. The language of section 1431 now provides that:
Notwithstanding any other provision of this sub-chapter the Administrator, upon receipt of information that a contaminant which is present in or is likely to enter a public water system or an underground source of drinking water or that there is 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), which may present an imminent and substantial endangerment to the health of persons, and that appropriate State and local authorities have not acted to protect the health of such persons, may take such actions as he may deem necessary in order to protect the health of such persons.72
In analyzing when the EPA may exercise its discretion under section 1431, the language “upon receipt of information that . . . there is a threatened or potential terrorist attack” becomes crucial. The legislative history of the Drinking Water Security and Safety amendments includes the statement of one Congressman that “[t]he term ‘potential terrorist attack’ should be interpreted in the context of the President’s announcements that the United States is engaged in a war against terrorism and faces ‘continuing and immediate threats of further attacks.'”73 This definition implies that if the President announces that the country is under a high security alert, the EPA can satisfy its section 1431 burden by showing “receipt of information that there is a threatened or potential terrorist attack.”74
However, such alerts may be too generalized to warrant the EPA in taking economically burdensome proactive steps, such as ordering specific PWSs to correct all possible vulnerabilities. Instead, section 1431 may require that the EPA receive specific information that a particular PWS is vulnerable before it can order the PWS to take action to correct its vulnerabilities. If the EPA must first receive information suggesting a particular PWS faces the threat of attack, then its authority remains reactive in nature. Vulnerability assessments will more likely present evidence of gaping holes in security, rather than the requisite precondition that an attack is imminent. Therefore, the term “potential terrorist attack,” if interpreted narrowly, remains ambiguous-and this ambiguity hinders any meaningful attempt by the EPA to respond before attacks become imminent.
Further examination of the legislative history of the amendment to section 1431 does little to clarify the meaning of “potential terrorist attack.” In fact, the legislative history reveals contradictory views regarding whether the EPA can use its emergency powers under section 1431 to correct PWS vulnerabilities. In hopes of guaranteeing the EPA a more proactive role, certain members of the House of Representatives have taken the position that the EPA should seek out and correct weaknesses in water systems before an attack is even envisioned. Toward this end, one representative asserted that the new amendments would enable the EPA “to use the [vulnerability] assessments for a number of critical purposes,” including “ensurfing] that vulnerabilities are being adequately assessed,” “ensuring] that federal grants are awarded appropriately . . . to address significant vulnerabilities under section 1431 of the Safe Drinking Water Act,” and “shar[ing] [information about these vulnerabilities] with law enforcement and intelligence agencies.”75 Another representative has similarly argued that SDWA section 1431 would be an adequate tool in addressing the vulnerabilities of public water supplies: “[The] EPA will have the necessary information to determine whether action needs to be taken using the authority of section 1431 or other relevant authorities to ensure that significant vulnerabilities are addressed to protect the public.”76 Thus, at least some members of Congress intended for the EPA to assume a proactive role in securing the nation’s water supply against terrorism.
Although the legislative history demonstrates that some members of Congress expected that the EPA would be properly equipped to handle its new role as a protector of national security, other members have taken a more restrictive view of the EPA’s authority, stating that in exercising its discretion under section 1431:
[T]he EPA should only rely upon substantial credible information. EPA should not interpret ‘potential terrorist attack’ to mean that there is merely some possibility or statistical probability of a terrorist attack. Neither should EPA interpret a general warning, general announcement or general condition to be sufficient information of a threatened or potential terrorist attack. Specific, credible information is required, and all other elements of section 1431 must be met . . . . The authority granted to EPA in section 1431 is a limited, case-by-case, contingent emergency power.77One representative actually stated:
No new authorities were transferred to the Agency beyond the passive receipt of vulnerability assessments under [s]ection 1433 . . . EPA has no power to promulgate regulations or guidance to define what is an ‘acceptable’ vulnerability assessment; there is only a one-time duty to provide information to community water systems by August 1, 2002.78
These statements reflect a more narrow vision of the EPA’s authority and would prevent the EPA from proactively addressing security concerns unless it has definitive information regarding an impending attack, not merely the knowledge that such an attack is possible or perhaps even probable. In view of the conflicting legislative history, and its own textual ambiguity, the amended section 1431 does little to encourage or permit necessary proactive steps by the EPA.
3. Preexisting Enforcement Mechanisms Do Not Go Far Enough
Finally, the preexisting enforcement mechanisms in the SDWA do not provide the EPA with the necessary authority to implement security measures at vulnerable CWSs proactively. First, SDWA section 1414 only provides the EPA with enforcement authority over SDWA violators.79 It does not provide the EPA with the power proactively to protect water systems when no statutory violation has occurred.80 Because many PWSs are not covered by the requirements for new security assessments in section 1433, and because section 1433 stops short of implementing security measures at vulnerable CWSs, the EPA will have no statutory basis for using section 1414 to address worrisome gaps in coverage. Second, section 1449 suffers the same weakness as section 1433 because citizen suits can only be initiated when actual violations of the SDWA or its regulations have occurred.81 Third, although section 1432 can be used to charge individuals who try to attack a water system with a criminal offense,82 the provision does not empower the EPA to implement any preventative security measures beyond arresting individuals who have already been caught tampering, attempting to tamper, or threatening to tamper with a water system.83 Thus, before SDWA section 1432 can be used, specific plans to attack a system must already be underway. Fourth, SDWA section 1445 authorizes the Administrator to request such information from PWSs as is reasonable to assist the Administrator in determining whether a water supply is complying with existing regulations.84 But because non-CWSs are not required to undergo vulnerability assessments, and no water system is required to implement any specific security measure, section 1445’s information request authority is largely unhelpful in procuring proactive enforcement authority for the EPA.85 As a result, these provisions, even when considered collectively, fail to afford the EPA sufficient authority to combat terrorism.
III. AN EXPANSIVE VIEW OF THE EPA’s EMERGENCY AUTHORITY UNDER SDWA SECTION 1431 Is CRUCIAL TO EFFECTUATING THE DRINKING WATER SECURITY AND SAFETY AMENDMENTS AND PROTECTING THE OVERALL SAFETY OF PUBLIC WATER SYSTEMS
A. THE EPA MUST ADOPT AN EXPANSIVE TWO-FOLD INTERPRETATION OF BOTH THE AMENDED AND PREEXISTING LANGUAGE IN SECTION 1431
Although section 1431 offers a potential solution to the weaknesses in the SDWA security regime, such a solution is only possible if the EPA takes an expansive view of both its new and preexisting authority under SDWA section 1431. For section 1431 to function adequately as the EPA’s only means of proactively securing the nation’s water supply against terrorism, the EPA must adopt a two-fold interpretation. First, the EPA must interpret the term “potential terrorist attack” broadly, so that PWS vulnerabilities alone satisfy section 1431’s requirement that the Administrator has “receipt of information . . . that there is a threatened or potential terrorist attack.”86 Second, once the EPA establishes its authority to act in a preemptive fashion, it must realize the full scope of remedial powers available to it under historical SDWA jurisprudence, so that it may order potential targets to take specific preventative steps to secure their water systems. This two-fold inteipretation would enable the EPA to compensate for legislative weaknesses in the new amendments, as well as heighten the security of the nation’s most important natural resource.
1. The EPA Must Interpret the Term “Potential Terrorist Attack” Broadly
Under the original language of SDWA section 1431, the EPA did not have to prove that a contaminant was presently injuring someone before it could take protective action. Instead, the EPA only had to show that a sufficient risk existed that the contaminant would harm someone in the foreseeable future.87 Thus, the EPA was subject to a very low standard for proving that the contamination caused an injury, and it was able to take action more liberally to prevent harm from occurring.88 Section 1431 has been amended so that it covers not just contamination but also intentional or terrorist attacks. For the amendments to serve as an effective means of preventing health threats, the idea of a low threshold of proof should be extended to cover terrorist attacks. In order to extend the understanding of section 1431 as it applies to contamination, the term “potential terrorist attack” must be interpreted to include mere susceptibility to attacks.
A broad interpretation of “potential terrorist attack” would allow the EPA to act upon vulnerability assessments to ensure that particularly exposed water systems correct their problems before an attack occurs, rather than waiting for the attack and then resorting to extreme and insufficient measures like population evacuations or the closure of water supplies. If the EPA had reason to believe that particular systems not covered by section 1433 are potential targets, a broad interpretation of its authority under section 1431 would enable it to gain information about the system’s vulnerabilities because section 1431 allows the EPA to take any action necessary to abate the injury.89
The ambiguous wording of section 1431 and the dispute in the legislative history suggest that the EPA has discretion to interpret “potential terrorist attack” broadly. The validity of an agency’s interpretation of a statute that it administers is subject to the standard set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council.90 Applying the Chevron test, a court would first determine whether the statutory provision has a plain meaning.91 In this case, the court would examine section 1431 in light of the Drinking Water Security and Safety amendments, congressional intent, and other tools of statutory interpretation. Given the sufficiently and arguably contradictory legislative history, the court should continue to the second prong of Chevron, which requires deferral to an agency’s reasonable interpretation of a statute when the statute lacks a plain meaning.92 A broad interpretation of SDWA section 1431 satisfies Chevron’s reasonableness requirement because, without proactive enforcement authority, the EPA cannot effectuate the stated goals of the Drinking Water Security and Safety amendments to “improve the ability of the United States to prevent, prepare for, and respond to bioterrorism.”93 Without proactive enforcement authority, the EPA would be left to engage in bureaucratic exercises, consisting of collecting information about security risks without being able to take action to correct them.
Additionally, as with all formal agency actions implementing a statute, should the EPA take specific steps to apply this broad interpretation of section 1431, it must provide a rational explanation of its actions in relation to the facts of the case, which would be evaluated under the “arbitrary and capricious” standard of review.94 Although it might once have seemed arbitrary and capricious for the EPA to order a heavily used PWS to make costly corrections to its facility because of the possibility of a terrorist attack, such action would no longer be scrutinized in the same manner. The threat of a terrorist attack on American soil is no longer an abstract consideration for U.S. policymakers; it is now a reality that must be addressed.95 The arbitrary and capricious standard must be applied accordingly. Because of this dramatic shift in societal and political expectations, the EPA should be afforded increased judicial deference on national security matters.
2. SDWA Jurisprudence Offers the EPA Broad Remedial Authority under Section 1431
The second step in compensating for the weaknesses in the Drinking Water Security and Safety amendments is for the EPA to make full use of the remedial powers available to it under SDWA jurisprudence, so that it can order vulnerable water systems to take necessary preventative measures. The historical connection between environmental protection and common law nuisance regimes justifies interpreting the language of section 1431 as giving the EPA the power to choose whatever remedies it deems appropriate once it characterizes a situation as one of imminent and substantial endangerment.
Prior to the enactment of modern environmental statutes, the common law of nuisance was often used by the courts to address public health and environmental problems, ranging from disease-spreading animals and malarial ponds, to air and stream pollution, to contamination of water supplies by metal residues.96 To remedy such nuisances today, courts often order equitable relief and abatement, and, in some cases, injunctions are used to restrain a defendant even before he acts.97 The abatement of a nuisance involves eliminating the cause of the nuisance through a variety of methods including removal, blockage, or destruction of the cause of damage.98
The legislative history of the Resource Conservation and Recovery Act (“RCRA”) makes clear that SDWA section 1431 and the similar imminent and substantial endangerment provisions in other environmental statutes were “essentially a codification of common law public nuisance remedies.”99 The history further states that the endangerment provisions in several environmental statutes incorporate the legal theories used for centuries to determine appropriate remedies for public nuisances.100 In assessing the breadth of the remedies available to the EPA under section 1431, courts have consulted the RCRA’s legislative history, concluding that, under traditional equitable doctrines, courts have “the power to fashion any remedy deemed necessary and appropriate to do justice in the particular case . . .”101 Consequently, the EPA’s remedial authority under section 1431, underpinned as it is by the common law of nuisance, offers broad measures that can be manipulated to fit the specifics of each case of endangerment. These measures could be invoked either through EPA-issued administrative orders or EPA-initiated civil actions seeking appropriate relief.102
The EPA also has broad authority under section 1431 to issue administrative orders against states and innocent third parties, subject to the “arbitrary and capricious” standard of review.103 This authority becomes relevant because terrorism differs from the problems that the EPA has previously addressed using section 1431. It is doubtful that the EPA would be able to hold a terrorist financially responsible for damages, as it would a typical respondent, such as an industrial facility that leaked pollutants near a groundwater source. Because it would be difficult to hold terrorists accountable, it is crucial that the EPA has the authority to reach beyond those parties that are or would be directly responsible for a public health hazard, and to order other parties, such as the PWS, to act when necessary. The EPA is not required under section 1431 to demonstrate that the respondent caused or contributed to an endangerment before issuing an order or taking other action against the respondent.104 In the past, the EPA has issued administrative orders to parties mandating that they take initial steps to abate an environmental danger, such as gathering data, conducting studies, monitoring pollutants, and modifying their behavior, even before their contribution to the contamination was firmly established.105
The EPA may even use its authority over third parties to order state entities to act to protect the public health. Tenth Amendment jurisprudence provides controlling authority for analyzing “whether the method by which Congress has chosen to regulate [pursuant to its Article I powers] invades the province of state sovereignty.”106 Although the Tenth Amendment has generally been read as protecting state sovereignty,107 the courts have made clear that states are subject to federal laws and regulations of general applicability, much like private individuals.108 Therefore, section 1431 would apply to states when states act in a way that renders them a part of the regulated community.109 Under the Supreme Court’s Tenth Amendment jurisprudence, however, the federal government is constitutionally prevented from “commandeer[ing] the legislative processes of the states by directly compelling them to enact and enforce a federal regulatory program.”110 The distinction between legitimate regulation and commandeering lies in the nature of the coerced action. If the state is forced to exercise its governing authority over its citizens, then the state’s sovereignty has been compromised.111
Consequently, when issuing a section 1431 emergency order, the EPA could regulate the state in the state’s capacity as a PWS, a pollutant discharging entity, or in any other relevant capacity other than as a governmental entity. The EPA, for example, could order a state agency to clean and remove materials the state leaked into an aquifer112 or require a state-operated PWS to construct a more secure treatment facility. However, the EPA could not order a state to prosecute its citizens for violating the SDWA or force a state to create its own set of laws for environmental problems.113 Under section 1431, then, the EPA has expansive authority to take remedial measures similar to those found in the common law, and to take action against third parties when the protection of public health so requires. This broad authority should be embraced as a valuable mechanism for protecting PWSs from attack.
B. AN EXPANSIVE TWO-FOLD INTERPRETATION OF SECTION 1431’S SCOPE AND REMEDIAL AUTHORITY WILL SOLVE THE WEAKNESSES IN THE SDWA SECURITY REGIME
For the EPA to compensate for the security flaws in the amended SDWA, it must first interpret expansively section 1431’s requirement that, the Administrator receive information that there is a threatened or potential terrorist attack before acting. Under an expansive interpretation, this requirement could be satisfied by the mere lack of security at PWSs-without a specific threat from terrorists, or a warning by the President. If the EPA adopted this broad interpretation of section 1431, it could invoke section 1431 authority at its discretion, whenever it became aware of an actual terrorist threat, a significant susceptibility to such an attack generally, or a threat against a specific PWS. If the EPA were to find it necessary to invoke section 1431 authority, it could then rely on the broad range of remedies that have always been available to it under the SDWA, applying them to this new problem of national security to require that particular measures be taken at PWSs to contain their vulnerabilities. This two-fold interpretation would enable the EPA, as the guardian of the country’s water supply, to behave both proactively and reactively to terrorist and other intentional threats.
The EPA’s past use of its section 1431 authority demonstrates that it could require a party to assess the susceptibility of its water supply to contamination and study ways to correct harmful situations. For example, under its preexisting remedial authority, the EPA once issued an administrative order to the Upper Lake Pomo Water Association that required the PWS to identify and correct sanitary hazards in its water system after bacterial contamination was found in its water system.114 Similarly, in light of its new responsibility for securing water systems from terrorism, if the EPA had information that certain PWSs were vulnerable to an attack, it could order them to undergo extensive assessments of their systems’ security and to develop a plan to address harmful scenarios.115 In essence, under an expansive view of section 1431 authority, the EPA would have discretion under some circumstances to order non-community PWSs and small CWSs to create vulnerability assessments and emergency response plans, just as section 1433 requires of larger CWSs.
Although the new amendments only require CWSs to certify that they have completed their emergency response plans, the EPA, using its expansive authority under section 1431, also could require the submission of these plans.116 More importantly, the EPA could then order any PWS to take the necessary measures, including those listed in their emergency response plans, proactively to protect the water supply from terrorism. The EPA has in the past taken actions similar to those necessary to help prevent terrorist attacks. For example, the EPA ordered AK Steel Corporation to sample and analyze treatment plant water and well-water.117 The EPA also ordered the Perry Phillips Mobile Home Park to take monthly samples for volatile organic chemicals at particular wellheads.118 One court-approved agreement required Hooker Chemical Corporation to implement a massive containment program and construct a new intake system for an endangered public water supply.119 Just as the EPA has previously ordered PWSs and other parties to implement certain remedial measures, the EPA could, under an expansive view of its section 1431 authority, order particular PWSs that are vulnerable to terrorist attack to take specific measures to secure their water supplies.
The EPA could also order a PWS to issue notices to its users if it had reason to believe that a water supply could be at risk. In the past, the EPA has often required PWSs to provide public notification of endangerments, and of particular treatments that users of a system can implement themselves, such as boiling water before consumption to destroy biological agents.120 On July 30, 2002, for example, federal officials arrested two al Qaeda terror suspects in the U.S. who apparently were holding documents detailing how to poison water supplies.121 Under an expansive interpretation of section 1431 authority, the EPA could have ordered the affected PWSs to issue public notifications, so that users of a potentially targeted system would know to boil their water until its safety was affirmed through testing. The EPA could also use more conventional methods for short-term remediation, such as ordering PWSs or other parties to supply their communities with alternative water sources until a threat is subdued.122
C. NEWFOUND AUTHORITY UNDER SECTION 1431 COULD SERVE THE DUAL PURPOSES OF PROTECTING THE WATER SUPPLY FROM TERRORISM AND BOLSTERING TRADITIONAL ENVIRONMENTAL PROTECTIONS OF THE WATER SUPPLY
Where national security and environmental goals coincide, section 1431’s emergency powers could be used to enhance public health protections. Many of the actions the EPA could take to protect water supplies from terrorism would inherently protect the water supply from more standard types of contamination as well. For example, several water systems currently store their treated water supply in uncovered finished water reservoirs.123 These reservoirs hold the water immediately before direct distribution to the public.124 But as their name indicates, they are uncovered and open to the atmosphere.125 Precautionary measures, such as requiring PWSs to cover their finished water reservoirs or to construct secure storage tanks, will not only protect these water supplies from terrorist attacks, but also will protect the water supply from more common contaminants, such as airborne chemicals, precipitation, insects, and other organic matter. The EPA may not have been previously justified in using its emergency authority to take such action because of the difficulty of proving that an imminent and substantial endangerment would likely result from standard atmospheric contamination. In today’s circumstances, however, uncovered finished water reservoirs present an even greater risk because they are readily accessible to intentional contamination. The EPA could therefore look to the remedies it has sought in previous cases as a comparative model in addressing these new situations. For example, the EPA ordered AK Steel Corporation to install water treatment plant equipment because the current water system was either contaminated or likely to be contaminated.126 The EPA could now order PWSs with uncovered finished water reservoirs to take similar remedial measures, by installing closed-storage tanks.
The EPA would also be more justified in stringently enforcing water treatment technique requirements. Instead of relying solely on standard enforcement methods,127 the EPA could now use its expansive emergency authority under section 1431 to order more prompt compliance with the requirements of the SDWA. Disinfection techniques, for example, become extremely important because they are crucial for cleansing a water supply of contaminants, potentially including intentionally-introduced biological agents. The EPA would accordingly be justified in using section 1431 to order PWSs to maintain proper disinfectant levels in their water supplies, just as it has in the past ordered respondents to treat water systems with means such as chlorination.128
The EPA could even find an opportunity to pursue better water treatment technologies using broad authority under section 1431, while simultaneously creating safer PWSs. For example, chlorine tanks present a large risk to surrounding populations because of the toxic gas they contain.129 In some situations, the EPA may thus be justified in mandating the use of different disinfectants.130 The EPA could use the same type of injunctive authority as when it ordered a company to cease injection of fluids from automotive service drains and create a proper method for waste disposal.131 Similarly, the EPA could order PWSs to cease their use of aboveground chlorine tanks because of the threat they pose to surrounding populations.
The new language of section 1431 thus presents the EPA with the opportunity to enlarge its authority under the SDWA. If it seizes this opportunity and adopts the necessarily expansive interpretation of the new language to section 1431, the EPA can truly function as a new partner in national security, while continuing to address long-standing environmental and public health concerns.
CONCLUSION
As bioterrorism and other means of unconventional warfare become a reality, Congress has found it necessary to broaden the government’s authority to counter clandestine threats. In assigning the EPA the mission of securing the public water supply from terrorism, however, Congress left the amended SDWA regime with several flaws that could ultimately render the whole effort futile.
The problem with the current SDWA security regime is that the EPA has very little actual authority to eliminate vulnerabilities in water systems, and what authority it does have applies only to a small subset of water systems. Congress provided the EPA with new authority to collect and receive information about the vulnerabilities of only residential water supplies, leaving all other types of water systems uncovered. It also directed the EPA to study the broad problem of potential terrorist attacks on the nation’s water supply and to examine methods to detect, prevent, and respond to such attacks. Nowhere in the amended SDWA, however, did Congress explicitly give the EPA the ability to protect public water supplies proactively from terrorism.
If the EPA is to succeed in its new role, the agency must use its administrative authority to overcome these shortcomings. The best tool for doing so is the imminent and substantial endangerment provision of SDWA section 1431, used to protect public water systems from actual, as well as threatened, contamination that could adversely affect human health. Although Congress is itself conflicted over the scope of this provision, the EPA should adopt an expansive interpretation of section 1431, enabling the EPA to protect water systems not only reactively when there is a perceived terrorist threat, but also proactively in cases where there is merely a visible vulnerability in our water systems. An expansive view of the EPA’s authority under SDWA section 1431 is vital to the success of protecting the nation’s water supply from terrorism. Furthermore, many proactive security measures could double as stringent environmental protections, serving the more traditional goals of the Safe Drinking Water Act.
The Drinking Water Security and Safety amendments place the EPA at an historical crossroads. The agency has a choice between merely carrying out incoherent directives, or truly transforming the way in which the nation’s water systems function. The EPA could be the appropriate agency for this task, if it would only seize the authority to do so.
VARU CHILAKAMARRI*
* J.D. Candidate, Georgetown University Law Center, 2004; B.S., Environmental Science, B.A., Political Science, The Ohio State University, 2001.
Copyright Georgetown University Law Center Apr 2003
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