Security Rules Affect Court Case

There was an interesting physical security related court case reported on MLive.com last week. A judge threw out a felony trespassing charge because a required 100% fenced perimeter did not exist at the local power plant. The felony trespassing charge had been sought because the power plant was considered to be a ‘key facility’ by DHS. The Michigan law under which the charge was filed required that key facilities be completely enclosed by a physical barrier and an investigation showed a 15-foot gap between the perimeter fence and wet lands that apparently constituted part of the facility barrier. Setting the Standards There is nothing in the article that indicates that there was any actual suspicion that the defendant in the case was a terrorist. What is apparent is that the prosecutor, possibly at the behest of DHS and FBI personnel, wanted to make a point that key facilities are protected above what is normally expected of the run of the mill industrial facility, that even simple trespassing was treated as a major offense. Unfortunately, the inadequate security infrastructure belies that stance. The facility operator and the state regulators (there are no federal rules about physical security at power plants, apparently), obviously do not take physical security seriously. The 15-foot gap is inexcusable and even relying on wetlands as part of a personnel barrier is questionable. Prosecution Backfired The notoriety associated with this failed prosecution (though as of the date of the article the decision to appeal the judge’s ruling had not yet been made) actually decreases the security of this and similar facilities. First it points out a glaring security failure at this particular facility. Fortunately, that can be corrected fairly easily, and (hopefully) is being done as I write this blog. More importantly it points out a systemic problem with security generally. There are many security rules and guidelines in place throughout this country as a result of the increased awareness of potential terrorist attacks. What is lacking a systematic enforcement effort. Simply legislating standards does not ensure that they are followed. There must be an education and enforcement effort to make sure that the legislated standards are actually adhered to. Lesson to Learn There are a couple of reasons that OSHA and EPA have done so poorly in preventing industrial and environmental accidents. First is that they do not have enough people on the ground checking on how well facilities have implemented the rules currently on the books. Second they have done a poor job of training their covered facilities in what is actually required. Both of these failures can be traced back to lack of Congressional funding for an adequate workforce. Unfortunately, it seems that Congress is duplicating these problems with security legislation. TSA is proud of their 100 railroad security inspectors, but really, what can 100 inspectors accomplish? How often will they get to each rail safe area to ensure that there are adequate physical security measures to protect the hazmat rail cars from attack or even vandalism? How many hand-offs of hazmat rail cars will they observe to ensure that the railroads follow the appropriate security procedures? Not nearly enough by anyone’s measure. How many inspectors will DHS have to inspect/assist the 7,000 high-risk chemical facilities currently identified under the CFATS rules? Each facility is going to require at least two visits just to get the Site Security Plan approval process complete, and that is if everything is done correctly the first time. I’ll bet that the number of inspectors will be well short of what is required.