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Instructions to Assist Communty Water Systems in Complying with the Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (issued by U.S. EPA, January 2003)

Freedom of Information Act Handbook

January 10, 2003

Vulnerability assessments
from National AWWA

As you know, with the enactment of the Bioterrorism Act, or H.R.3448, last summer, drinking water utilities must conduct vulnerability assessments to determine where they may be vulnerable to terrorist attack or sabotage. Those are due by certain dates: March 31, 2003, for the largest utilities that did not receive federal grants; Dec. 31, 2002, for systems serving between 50,000 and 100,000; and June 30, 2004, for systems serving 3,300 to 50,000. Utilities serving more than 100,000 and that got federal grants had to turn their assessments in at the end of 2002.

Those assessments must be turned in to the U.S. Environmental Protection Agency in Washington. Six months after that, utilities must certify to EPA that they have updated their emergency response plans to reflect what was learned in the vulnerability assessments.

Fortunately, the information contained in the vulnerability assessments is exempt from disclosure under the federal Freedom of Information Act (FOIA). Unfortunately, the law did not exempt that information from state "sunshine" or FOIA-type laws. Some states have already taken actions to protect the information in the vulnerability assessments from disclosure. However, some have not.

AWWA Sections need to assess their own states' laws and if necessary, undertake a campaign to protect vulnerability assessments and emergency response plans from falling into the wrong hands.

We are encouraging AWWA Sections and member utilities to begin such a public relations and lobbying effort at the state level to correct this. To help with that effort, we are attaching 1) talking points for discussions with state lawmakers; 2) a draft op-ed piece for you to submit to your local newspapers, after personalizing the pieces, of course; and 3) a guidance pamphlet to help you determine how to amend state FOIA-type laws.

Please distribute these materials among all utility members in your Section.

Then, we strongly urge you to begin talking to your state legislators about getting the necessary legislation passed in your state legislatures as soon as possible. You may also contact Mark Grace in Section Services, (303) 347-6193, or Tommy Holmes in Government Affairs, (202) 628-8303, for copies of some bills already passed by other states.

Remember, those deadlines are coming up!

Again, please do not hesitate to contact this office on legislative issues or Catherine Murphy of the Public Affairs staff in Denver, (303) 734-3410, for advice in media campaigns.

Summary of suggested actions:

1. Assess your own state "sunshine" or FOIA-type laws and see if utility vulnerability assessments and emergency response plans are protected from public disclosure.
2. If they are protected, advise your Section's utilities of any procedures that might be required to keep those vulnerability assessments and emergency response plans protected.
3. If they are not protected, use the attached guidebook and advice from your utility attorneys and state legislative consultants to determine the best way to fix the law.
4. Contact your state legislators. Using the attached talking points, inform them of the problem. Offer to work with them in fixing the law.
5. Submit your own version of the attached op-ed piece to local newspapers.
6. Keep up the calls and letters to state legislators until the needed legislation is signed into law.

Summary Talking Points to Make with Legislators

• Our state's homeland security requires a secure water supply. Public health, fire protection, and sanitation depend on it.
• U.S. drinking water facilities are believed to be a potential target of future terrorist attacks. U.S. forces have found plans for drinking water facilities at sites abandoned by terrorists.
• Drinking water utilities have acted since September 11 by tightening perimeter security, limiting access to treatment plants and reservoirs, exercising tighter controls over chemicals, assessing their security needs, undergoing further security training, etc.
• H.R. 3448, the Public Health Security and Bioterrorism Preparedness and Response Act, became law last summer, and it requires drinking water utilities serving more than 3,300 people to conduct vulnerability assessments and amend emergency plans.
• Utilities are required to provide EPA with a copy of their vulnerability assessment. Only certain people at EPA are to be allowed access to these sensitive documents, and they are exempt from disclosure under FOIA.
• Our state's "sunshine" laws do not exempt vulnerability assessments from disclosure under the state statute, and the federal law did not preempt such state laws.
• We need to move quickly to amend our laws or regulations to ensure complete protection of vulnerability assessments.
• We are eager to work with you to develop legislative language to protect our state's drinking water and the water we use for fighting fires.
• We are also eager to join you in publicly advocating protection of sensitive information on our drinking water.

Is State Law Helping Terrorists?

Last summer, President Bush signed into law an important new anti-terror bill that will no doubt go a long way toward helping the nation's public water utilities further protect community water supplies from potential terrorist attacks -- threats that we in the drinking water community have spent a great deal of resources and know-how addressing, particularly since September 11.

But the Public Health Security and Bioterrorism Preparedness and Response Act does leave open the possibility that sensitive information about water utilities' vulnerabilities could end up in the wrong hands, thus undermining the legislation's basic purpose. We in [YOUR COMMUNITY OR CITY] must take special care to ensure that that doesn't happen.

The Act requires water utilities serving populations of more than 3,300 to conduct vulnerability assessments and prepare or revise emergency response plans. The assessments and response plans will cover every aspect of the water treatment and distribution infrastructure, such as pipes and constructed conveyances; physical barriers; water collection, pretreatment, treatment, storage and distribution facilities; electronic, computer or other automated systems; the use, storage, or handling of various chemicals; and the operation and maintenance of a public water system. These plans will do much to improve the safety of our precious drinking water.

The Act also requires public water systems to send a copy of their vulnerability assessments in writing to the U.S. Environmental Protection Agency, which regulates water utilities. Information contained in the vulnerability assessment is exempt from disclosure via federal Freedom of Information Act requests. There are criminal penalties for federal officials who release such information to unauthorized persons.

That's the good news. Giving a wily and determined would-be terrorist information about where a utility is most vulnerable is like holding up a bull's eye and telling him exactly where, when and how to shoot at it.

The bad news is that the Act does not prevent state or local governments from disclosing these documents, nor does it pre-empt state freedom of information-type laws that could require those officials to make these documents public. For example, here in [YOUR STATE] any person ­ even one from another state ­ can request these documents, and state law requires that the utility to provide a copy. It's true that the law contains an exemption that might be claimed by the utility, but it's subject to argument, and the burden of proof is on the utility to prevent disclosure. Given what we learned on September 11, that is unacceptable.

This is a loophole that every state needs to address ­ and quickly. The largest utilities, including [LOCAL CITY], were required to complete their assessments and send a copy to the Environmental Protection Agency by Dec. 31, 2002, if that city received federal assistance in performing the assessment. Other large cities must submit their assessments by the end of March. Every state must be able to assure the confidentiality of this information.

A secure water supply is vital to America's homeland security. That's why the new bioterrorism act is so critical and timely. And it's why we must do everything we can at every level to ensure that sensitive information about water utility vulnerabilities to terrorism remain under lock and key.

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