Thursday, June 19, 2008

CFATA Delays

There is an interesting article by Samuel Loewenberg on blaming the chemical industry and DHS for the congressional delays in taking up the Chemical Facility Anti-Terrorism Act of 2008 (HR 5577). Unfortunately the article fails to explain how the failure of the House Committee on Energy and Commerce to take any action on a critical bill assigned to that committee for just over 3 months is the fault of anyone but Chairman Dingell and Congresswoman Solis, the acting chair of the Subcommittee on Environment and Hazardous Materials. Further culpability can be assigned to the Democratic Leadership of the House that allowed the committee two extensions on its time limit for taking up the bill.

Expressing Opposition Is Not Stalling

I do not understand why Mr. Loewenberg equates expressing concerns about a major change in regulatory requirements with a conspiracy to stall the passage of this legislation. The chemical companies are the ones that are going to have to deal with the consequences of the legislation, they deserve a chance to make their opinions known, right-up to the day the final vote is taken on the legislation. Proponents of the bill are certainly not being shy about expressing their views.

Inherently Safer Technology

Organizations like Greenpeace and the Center for American Progress do not make it any easier for industry to support this bill. Their rhetoric calls for the most radical implementation of inherently safer technology, something that management would have a legal obligation to oppose. Surrendering total control over economic decisions about their operations would be a violation of their fiduciary responsibilities to their stock holders.

Fortunately, the IST provisions crafted by the Homeland Security Committee in HR 5577 are a realistic balance between security and economics. They require industry to conduct and document a realistic evaluation of their ability to implement various IST projects to reduce the consequences of a terrorist attack (or accident). The Secretary can only then require the implementation of measures that are found to be technically and economically feasible.

Hopefully, industry will come to realize that some form of IST is going to be included in future chemical facility security rules. They have the choice of accepting the fairly realistic requirements of the current legislation or having a more radical version forced down their collective throats next year.

DHS Opposition to HR 5577

Since I have not seen the contents of the Secretary’s letter to Chairman Thompson, I cannot comment on the details of the opposition that Secretary Chertoff expressed. Anyone that has been following the implementation of the CFATS regulations should be able to craft arguments about why these new regulations might "delay of compliance with current regulations".

First we must remember that Congress abdicated its legislative responsibility in October 2006 when it required DHS to convert a few paragraphs in Section 550 into a comprehensive set of chemical facility security regulations. At the same time DHS was required to develop tools to assess and quantify comparative risk levels at a very wide variety of industrial, agricultural, and educational facilities. Finally it had to assemble a regulatory enforcement team to oversee the implementation of those regulations. It is no wonder that DHS is still hammering out the details.

On top of this, while they are just now starting into the most time, manpower, and resource intensive portion of that implementation, Congress is finally stepping up to their task of defining all of the things that the legislature thinks the security measures should address. If HR 5577 is passed in anywhere near its current form, DHS will have to undertake a serious re-write of the regulations that it is still ironing out. The resources used to conduct this re-write will come out of the limited manpower available to implement CFATS.

Industry Opposition to HR 5577

Almost regardless of the actual provisions of any new chemical facility security regulations, industry is going to be wary of any significant revisions of the current CFAT regulations at this time. Industry is in the middle of trying to implement the requirements of a new regulation in a previously unregulated environment. While many facilities have made significant improvements to the security arrangements almost all high-risk facilities are going to have to put into place additional, expensive security measures to meet the CFAT requirements.

In the middle of this planning, implementing, and revising process Congress comes along and re-writes the rules. While the new rules will not go into effect, for the most part, until after the current requirements are put into place, industry will have to be worrying about the changes that will be required by the new rules. Is it any wonder that they are resisting the changes?

Move Forward on HR 5577

In words from my old infantry days, DHS and the chemical industry need to ‘suck it up and drive on’. The current CFAT regulations have too many holes in them resulting from the needless restrictions imposed on DHS by Congress in the Section 550 authorization. These are holes large enough to drive any number terrorist attacks through. They need to be closed quickly and definitively.

HR 5577 is not perfect, by any means. It is, however, reasonable legislation. It is well crafted and balanced enough to have a chance of passage. Industry needs to realize that their chance of getting a better bill next year are slim to none; worse if a terrorist attack happens at a chemical facility in the interim. The House Leadership needs to get this bill moving before the American public realizes who is holding up consideration of this legislation, and it certainly is not industry or DHS.

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