Tomorrow, the House Appropriations subcommittee for Homeland Security will delve into the problems surrounding the Chemical Facility Anti-Terrorism Standards (CFATS) program. The program has been beset by difficulties: a lack of transparency, confusing standards, and the Department of Homeland Security’s (DHS) failure to finalize security plans. Though widely considered a model for regulation, the implementation of CFATS has failed to live up to its reputation and should be reexamined.
Designed in 2007, CFATS prescribes regulations for facilities that produce or deal with high-risk chemicals. The program was meant to assign risk designations to facilities based on the amount and type of chemicals stored on site and the existing security procedures. Those at highest risk were given a “Tier 1” designation, while those at lower risk levels were given a “Tier 4” designation. By increasing security and lowering risk, facilities could drop to lower tiers or completely out of the program.
The methods for assessing risk are complex, however, and the basis for the tier ranking decisions is not available to facilities owners. Additionally, vague performance standards have left facilities uncertain about what should be done to improve security. The lack of capable inspectors has only made the situation worse. These and other failures discourage security innovation and have facilities scrambling to figure out what exactly DHS wants.
Perhaps most glaringly, DHS has failed to approve any finalized security plans until very recently, and has approved only one. Chemical facilities have done their best to comply with confusing standards and navigate the process of lowering their security risks, but even after all that, DHS has not been able to finalize these plans.
Despite these issues, some have proposed adding even more regulation. Some have called for an Inherently Safer Technology mandate, forcing facilities to switch to supposedly safer chemicals, even if it requires substantial changes to chemical processes, inputs, or products. Others have called for Environmental Protection Agency (EPA) regulation of chemical security, as the EPA already oversees environmental regulation of the chemical industry. These approaches go in the wrong direction, as they will add additional costs and only inhibit chemical security.
Instead of more regulations from DHS or the EPA, Congress should insist on market-oriented security reforms. While high-risk chemical facilities should be subject to some degree of government oversight, DHS needs to leave more room for the private sector to encourage cost-effective and innovative solutions. Additionally, DHS should pursue greater cooperation and transparency so that the private sector can be more effective in securing chemical facilities.
As Congress considers funding and reauthorizing CFATS, it should take a hard look at the current program and its challenges, and begin the move to a more cost-effective, transparent, and market-based solution.