Thursday, May 16, 2013

Consequences of CFATS Authorization Renewals

I had an interesting communication yesterday with a reader who has a personal connection to the CFATS program (and thus needs to remain anonymous). After reading my post about the draft DHS spending bill that was marked up yesterday this connected reader was struck by the program consequences of this annual (well, ‘randomly periodic’ might be better terminology than ‘annual’) reauthorization. This connected reader had a question and an observation that I think are worth sharing; first the observation and then the question.

Top Screen Submission Failures

Connected notes that “one reason there has been so many places reluctant to submit a top screen (sic) is due to this temporary authorization process through the history of the program”. I think that this may be a classic case of assuming facts not in evidence. We do have a recent history of a very public facility that had not filed a Top Screen, but I have not seen or heard any definitive statement as to why that Top Screen was not filed.

Having said that, I do think that it is safe to assume that there are a number of facilities that have not completed a required Top Screen submission. How many is anyone’s guess, but I would suspect that a realistic range would be somewhere between 1% and 10% of the facilities that are required to submit a Top Screen. I would be surprised (but not amazed) if it were over 10%. I would almost bet money that it was not less than 1%.

The reasons why such a large number of facilities (as many as 4,000 at the upper end) will be as varied as the types of facilities involved. I would bet, however, that the major categories of reasons would include (in no particular order):

• General mistrust of the Federal Government;
• Lack of knowledge of the CFATS program;
• Misunderstanding of the term chemical facility;
• Avoidance of the cost of compliance; and
• Fear of getting involved in a costly compliance regime that is doomed to be canceled.

While we don’t have any firm numbers for any of these categories, I think everyone can agree with Connected that at least some portion of non-compliant facilities wants to avoid getting caught-up in an expensive security program that will inevitably fail to be reauthorized in the not too distant future.

Why the Periodic Reauthorization

Connected asks an interesting question; have any of the other existing chemical safety/security programs “such as MSHA, OSHA, MTSA, or EPA had to endure a litany of successive temporary authorizations before getting their permanent authorizations”? The short answer is ‘No’, but that doesn’t provide any useful information unless we also examine the corollary question; why does CFATS have to undergo this periodic renewal? Again a short answer is ‘Politics; and it requires some explication.

There are two general strains of political thought in the United States that have been with us essentially since the beginning. The first is the belief that government is inherently coercive and thus something to be avoided assiduously. This inherently anarchic belief in the United States is moderated by a grudging admission that there are some things that only a government can do and a less than enthusiastic willingness to accept government regulations in those areas.

The other strain of political thought that has been prevalent throughout our history is based upon the belief that people want and need order imposed upon their lives. This leads to the inevitable conclusion that the government is the only organization that can fulfill that need.

What is probably unique about this country is that a large portion of the population is able to accept both of these concepts as controlling factors in different parts of their personal political lives. This helps to explain, for example, the social conservatives both decrying regulatory involvement in personal lives and the desire for strong laws prohibiting abortion.

This dichotomy is clearly evident in governmental relations with the chemical industry in general and chemical security regulations specifically. Neither side in this debate really believes that there is a terrorist threat against chemical facilities. One side, generally embodied by the Democrats, mistrusts the chemical industry because of a long history of mishandling hazardous chemicals and wants to regulate the industry at every turn. The other side, generally Republicans, believes that bureaucrats are intellectually incapable of understanding chemical processes and thus have no business being involved in the regulation of chemical facilities.

Thus neither side is really willing to listen to the political overtures of the other in this debate, particularly since neither side really believes in the terrorist threat. As long as neither side sees a realistic threat, they will not be able to come together to pass a ‘permanent’ chemical facility security bill; their mistrust of each other’s intentions will continue to prevent them from working together.

I’m afraid that the only thing that would allow the two sides to get together and work out a consensus set of chemical security regulations would be a successful terrorist attack on a chemical facility; and that is something no one wants to see happen.

So, it looks like for at least the near term, one-year reauthorizations in the DHS spending bill is what we have to look forward to.

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