This is the third blog in a series taking a critical look at the recent Heritage Foundation report on the problems with the CFATS program. While the report authored by Jessica Zuckerman is not up to the usual editorial standards of the Heritage Foundation it does raise some interesting issues. The earlier blog posts can be found here:
In this posting I will look at the “Calls for Further Regulations” section of the Heritage Foundation report. Generally Ms. Zuckerman gets the cart before the horse in this section and jumps to early conclusions as has been her writing style throughout the report.
She opens her discussion by stating:
“In spite of the critical issues that have ensued after the implementation of the CFATS program, there have been many calls for further regulation of the chemical sector. While generally misguided, many of these measures have received a good deal of attention in Congress.” (pgs 7-8)
Because she is a late comer to the chemical facility security issue she just doesn’t realize that all of these calls for additional regulation pre-date the formation of CFATS and form the basis for the political wrangling that delayed chemical security legislation for so long and caused the poorly conceived interim congressional authorization for the current program.
Regulation of Exempted Facilities
In this portion of the report Zuckerman identifies the five categories of facilities exempted from CFATS coverage. She ignores the current DHS efforts to harmonize chemical security coverage at two of these categories (MTSA and NRC regulated facilities) and singles out water related facilities for her examples of the errors of expanding the CFATS coverage.
She starts off her argument by stating that:
“These facilities currently fall under the regulatory authority of the Environmental Protection Agency (EPA) and are already subject to risk management and emergency planning requirements under the Safe Drinking Water and Clean Water Acts.” (pg 8)
There are two problems with this tired argument. First the majority of the CFATS covered facilities also come under risk management and emergency planning requirements under a variety of EPA and OSHA regulations. Of course none of these cover prevention of terrorist attacks; that is why chemical security regulations were deemed necessary.
Secondly, the weak and unenforceable (even if EPA did have security inspectors) water security regulations only require larger water facilities (with more than 3500 customers) to conduct a security vulnerability assessment of threats to water quality. There are no security standards set with which these facilities must comply and certainly no EPA effort to regulate the security of toxic chemicals (principally chlorine gas, but a number of other toxic release hazards as well) at these facilities.
She concludes with the tired argument that “any shutdown due to regulatory non-compliance would likely have large effects on public health and well-being” (pg 8). The suggestion that DHS would shut down non-compliant water treatment facilities is a non-argument that has been specifically addressed in every legislative effort to add water treatment facilities to the CFATS program.
Finally, Ms. Zuckerman ignores the most powerful argument against adding the water treatment industry to the CFATS program. Such coverage would more than double the number of facilities covered under the program with the vast majority of those facilities falling under Tier 1 or Tier 2 coverage. This would certainly exacerbate the current work-load problems ISCD is experiencing.
Of course, DHS is well aware of this problem and have included in all of their latest suggestions for CFATS coverage of water facilities that EPA actually take charge of the security at those facilities using the CSAT tools for the administration of that program. Unfortunately, DHS and EPA can begin working out the details of such a program but it would take specific congressional authorization to implement as EPA has even less authority to require security measures than does DHS.
Inherently Safer Technology Mandate
Zuckerman reports the rhetoric of the IST debate fairly well. Unfortunately no effort was made to examine any of the actual legislative proposals that have been submitted in either the House or the Senate over the years. The political proponents of mandating the consideration of IST implementation have been careful to moderate their proposals by having the implementation requirements to be based upon the assessment of potential methods done by facility management. Industry and its political supporters have generally been unwilling to discuss how such proposals could be modified into a workable proposal.
The report does briefly address the fact that a number of facilities have already availed themselves of IST implementation measures to remove themselves from the CFATS regulatory regime; noting that:
“In fact, more than 2,000 chemical facilities are no longer deemed high-risk and are no longer subject to CFATS, due to voluntary risk-reduction measures.” (pg 8)
She doesn’t address, however, the problem that ISCD doesn’t have a formal mechanism for reviewing those changes to determine how those ‘risk reductions’ were achieved. Many methods of risk reduction at a facility are really nothing more than risk transfer; moving the risk to other manufacturing facilities, storage facilities or transportation nodes. Other risk reduction moves are little more than gaming the system like the industry change of a standard 20% aqueous ammonia concentration to 19% to avoid the material being covered under CFATS.
The issue of IST as a security measure is more complex than the discussion provided in this report. It deserves a more detailed review that provides both sides with a clearer understanding of the positions of the two sides so that a compromise might be achieved in this area where there is legitimate potential for gains in absolute security for many chemical facilities.
EPA Authority Under the Clean Air Act
This final heading under the section concerning potential legislation provides Ms. Zuckerman another chance to provide a superficial examination of the rhetoric of the situation rather than address the actual issues involved. She focuses on the fact that this suggested regulation is an alternative method of enforcing IST requirements that are being politically stalled in Congress, but fails to address the precarious legal justification being used (see my more detailed discussion in my blog post on HR 6345) to forward this proposal. She also fails to mention that the proponents of this idea have gone beyond addressing a letter to the President; there are reports that a formal petition has been filed with the EPA requesting enforcement under the General Duty Clause.
The superficial discussion of the issues involved allows Ms. Zuckerman to jump to another conclusion based upon facts not addressed in the report. She closes this section by stating that:
“But, not only would the Clean Air Act proposal undermine one of the few things CFATS gets right—the restriction on the federal government from proscribing specific security measures—it would also likely impose overlapping and confusing requirements and additional cost burdens [emphasis added] on facilities already regulated by CFATS.” (pg 9)
While almost anyone in industry would agree with this statement by Ms. Zuckerman there is nothing in the preceding paragraphs that addresses these issues. A political commentator might be able to get away with such a leap in a blog post or editorial, it is considered ill form in a purported background information report.
Almost to the End
Well there is just one more section of this Heritage Foundation report left to look at and I’ll cover it in a later blog.