Wednesday, April 10, 2013

Heritage Foundation’s Unhelpful CFATS Comments

Yesterday the Heritage Foundation’s Jessica Zuckerman has another article about the problems with the CFATS program that is almost as helpful as her earlier article that I reviewed at some length. This time she builds on excerpts from the most recent GAO report to continue her campaign to making “CFATS a truly risk-based and cost effective program”. Unfortunately her campaign is long on criticism and short on creative suggestions.

CFATS Problems

The folks at ISCD certainly have their problems that they have been and continue to deal with in the administration of the CFATS program. I have discussed shortcomings in great deal over the last couple of years and I like to think that I have been proactive in suggesting ways in which the problems could be dealt with. But, everyone needs to take a step back and really look at what the program has accomplished:

• Regulations were written, published, commented upon and re-written in just over six months; a remarkable accomplishment from an organization that had never regulated the area before.
• An innovative and efficient method of data collection was developed, tested in real world environments, modified and publicly deployed in less than a year.
• Data was collected from over 40,000 chemical facilities (chemical in the broadest sense of the term), analyzed and evaluated to winnow the number of regulated facilities down to less than 4,000 facilities currently covered under the program.
• An inspection force was started from scratch in a field that had never been regulated with people that for the most part had never worked in or around the regulated industry.

Now there have been some administrative problems and those appear to have been addressed, at least in part. The problems with the risk assessment used to assign facilities to tiers has been identified, clarified and work has been started on fixing the situation. It will take time to do properly, time the Department was never given in the first place.

SSP Authorizations
The problem that Ms. Zuckerman hits on the hardest (as have most other critics) is the slow pace of the site security plan approval process. What the Department has not been at all proficient in explaining is that while there have been (and certainly may continue to be) inefficiencies in the procedures that they use to process the site security plan documentation, the evaluation process must be slow. That is due to the fact that the Department is prohibited from requiring any specific security measure to be in place to approve a site security plan. This means that a series of subject matter experts must look at not only the details of the plan, but also how all of those details mesh together in totality to determine if there is an adequate level of security at the facility.

To significantly speed up the process ISCD really only has limited number of unacceptable solutions. The simplest it to give the facility every benefit of the doubt and approve all submitted plans. If that is the option to be taken, ISCD could just close its doors because there would be no need to have any regulators in place. Of course we would soon be back at the days immediately after the 9/11 attacks when chemical security was an inadequate hodge-podge of activities undertaken in the name, but not the practice of security.

The next simplest measure would be to ignore the larger picture and just look at the details of the plan and reject all plans where the details do not meet some definition of ‘secure’. This would be contrary to the letter and spirit of the CFATS authorization language. And facility owner would be raising all sorts of Cain because of the government interference in their operations.

There are all sorts of varying degrees of these two extremes that would speed up the SSP authorization process, but they would all be contrary to the intent of the law as written and not really contribute much (if anything) to securing these potentially dangerous chemicals in our communities.

Personnel Surety Program

Ms. Zuckerman is correct that the lack of a terrorist links screening tool for CFATS is leading to provisional approvals of site security plans; exactly the type of flexibility that she asks the Department to build into the program. The previous leadership at ISCD certainly did attempt to overstep their authority in expanding the intent of the PSP. Again, that problem is being corrected and there have been some interesting modifications that appear to be moving towards the program objectives in a fairly effective manner.

Risk-Based Approach

In both of her CFATS discourses Ms. Zuckerman has called for returning CFATS to a ‘truly risk-based approach’. I’m more than a little confused because the SSP requirements outlined in the Risk-Based Performance Standards guidance document certainly seem to me to be risk-based. It would be helpful if she were to provide some concrete example of what types of changes she would like to see made to the program instead of her vague generalities.

Generalities are easy; concrete proposals though are what policy discussions are really all about. For example two years ago, I published a detailed proposal for re-writing the CFATS program into law. Pros and cons of the details can be debated and improved upon. Light weight intellectual sniping accomplishes nothing but obstructing the conversation.

The really interesting thing about the Zuckerman complaints is that they are coming from an academic with no apparent connection to the regulated industry. If she did understand or even talk with the chemical industry she would find that there is general support for the current CFATS program; support with a healthy dose of constructive criticism.

Fortunately, ISCD appears to be paying more attention to the regulated community than they do the isolated academics like Ms. Zuckerman.

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