Thursday, August 28, 2008

Adversarial versus Cooperative Inspections

I would like to continue to examine a theme started in yesterday’s blog (see: “Chemical Facility Inspection Team Philosophy”) and look more closely at why I believe that adversarial inspections are an inappropriate method of implementing the CFATS inspection process. The inspiration for these entries continues to come from a series of emails that I have exchanged with Brandon Williams. On this subject, Brandon made this comment:


  • “This effort will not be successful in a true sense if it is boiled down to a checklist drill executed in a strict, regulatory fashion.  It must be cooperative, flexible and joint with mutual understanding and information-sharing.”

Criminal Non-Compliance


I know that there are a large number of people (and at least a few of my readers) that will honestly and even vehemently disagree with the concept of cooperative inspections. They believe (and can certainly point toany number of contemporary and historical examples to support that belief) that American industry must be dragged, kicking and screaming into compliancewith federal rules and statutes.


The continuing enforcement history of the OSHA safety and the EPA environmental rules certainly shows that there are a number of criminal companies that will ignore and even flaunt those rules unless hammered with fines and criminal sanctions. There is every reason to think that that will also happen with the CFATS regulations.


Given that, how can I say that an adversarial inspection process will not work? It’s easy, all I need to do is to point to the same examples. In most cases, criminal negligence and criminal non-compliance has not been caught by routine, and inherently adversarial, compliance inspections. They have come to light when the non-compliance has resulted in off-site impacts or on-site deaths and injuries that could not be covered up by a criminal enterprise. Only then were detailed, comprehensive inspections done of those facilities


Fortunately, CFATS has the tools necessary to deal with facilities that willfully and criminally fail to comply with the regulations. While there are no specific criminal provisions (which should be corrected in future legislation) there are provisions for levying fines. More importantly the Secretary is given the authority to shut down facilities. This is an important tool to be used to deal with those individuals and companies that refuse to comply or are for some reason incapable of complying with the standards set forth in the regulations.


Site Security Plan Inspections


The CFATS regulations call for a two-step approval process for Site Security Plans (SSPs, the next step in the process after SVAs). They will first be reviewed administratively for completeness. That review will include insuring that all of the vulnerabilities addressed in the SVA are addressed and that all of the appropriate risk-based performance-standards are addressed. Once this review is successfully passed, a Letter of Authorization will be issued by DHS.


The second step of the process is the on-site inspection. Up until this time, most facilities will never have seen or possibly even talked to a DHS representative. Almost all interactions with the Department will have been done through the Chemical Security Assessment Tool (CSAT), the online tool used to submit information to DHS for review. The behavior and attitude of inspectors at this point will likely color all future interactions with the Department.


It is not expected that the SSP will be completely implemented at this point; capital improvements may take some significant time to plan and put into place. A facility is unlikely to spend large amounts of dollars on a major installation without knowing if DHS will consider it to be appropriate and adequate. The facility should be prepared to explain and discuss any such plans with the inspector.


Once this SSP site inspection process is successfully completed, DHS will issue the facility a Letter of Approval. Subsequent site inspections will be used by DHS to gauge the adequacy of the facility’s implementation plan and maintenance of the SSP. These inspections may be used to verify completion of major projects or to document that appropriate maintenance is being completed.


Hands-on Inspections


The typical check-list inspection is completely inappropriate for this SSP site inspection process. The first phase of the SSP approval process already ‘checked’ off the ‘required’ portions of the SSP before the inspector was even dispatched to the facility. This inspection needs to be a detailed, hands-on, get your shoes dirty, review of the facility’ implementation of the SSP.


For example, if the Site Security Plan includes a perimeter fence, the entire fence line should be physically checked. The inspector would be looking at the quality of installation and maintenance of the fence. Special areas of concern would be where the fence crosses creeks or gullies to ensure that there were no areas where an intruder could easily get under the fence. Questions would be asked of the maintenance department about the reliability of the contractor that provides fence repairs and the response times for fixing damaged sections of fence.


Video surveillance systems should be checked for dead spots. This can be best done by walking the area under surveillance and watching the camera. If the camera cannot be seen it is unlikely that the system can see that spot. The facility should know about such spots and have a plan for dealing with them. Video records should be checked to see how well the system adapts to changing lighting conditions at dawn and dusk. Video records may also be used to audit gate guard performance in day-to-day operations.


And we could go on, and on, and on….


This type of inspection takes time and requires the pro-active involvement of the facility security management team. That type of involvement cannot be demanded or coerced. It has to be freely given. The only way to receive that commitment is for the inspector to convince, by word and action, that he really is there to help the facility. 


Local Assistance


There is a way to ease the inspector’s problem of convincing the facility that the phrase “I’m from the government, I’m here to help” is not a joke, but the actual truth. That would be to bring in local assistance on the inspection. There are a number of local agencies that have a very large stake in the security of high-risk chemical facilities. They include local law enforcement, hazmat responders from the local fire department and the local emergency management agency.


DHS would do well to consider adding representatives from one or more of these local agencies in their initial inspection programs for high-risk chemical facilities. First it would provide extra sets of eyes to look at the problem and provide different perspectives. Secondly, it would insure that these local agencies are brought into the planning process for preventing and/or responding to a terrorist attack on the facility.


One last benefit that should not be ignored or minimized; bringing a concerned and knowledgeable outsider with contacts in the local community into the process would go a long way to providing DHS with political cover on what is, of necessity, a somewhat secretive process. That secrecy has provided extensive fodder for the groups that have various reasons to distrust the federal government and the chemical industry. Brining local ‘outsiders’ into the process would help to minimize those complaints.


These outsiders would have to be cleared and vetted for CVI, but their positions should make that relatively easy to do. They would probably have to undergo that process in any case, since they (or their co-workers) should be working with the facility in any case on the emergency response plan that should support the facility security program.

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