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DHS Rolls Out New Chemical Plant Regulations

The rules, mandated by language in section 550 of last year's Department of Homeland Security appropriations law, represent the first mandatory national security standards for the nation's 15,000 chemical plants and the culmination of an at times bitterly fought five-year legislative process.
by Shaun Waterman
UPI Homeland and National Security Editor
Washington (UPI) April 03, 2007
The U.S. Department of Homeland Security rolled out new rules governing security at chemical plants Monday, saying they would not pre-empt existing stricter state laws as it had earlier planned.

The regulations require owners of plants that use larger-than-specified quantities of certain particularly dangerous chemicals to conduct a "preliminary screening assessment" via a secure online portal to measure "the level of risk associated with the facility," the department said in a statement.

Plants that assess themselves as "high risk" will have to "prepare and submit a security vulnerability assessment and site security plan," according to the statement. Plans "will be validated through audits and site inspections," and the department will provide "technical assistance to facility owners and operators as needed."

The rules, mandated by language in section 550 of last year's Department of Homeland Security appropriations law, represent the first mandatory national security standards for the nation's 15,000 chemical plants and the culmination of an at times bitterly fought five-year legislative process.

Fuelled by fears of a Sept. 11-style attack on chemical plants in the midst of a large conurbation -- creating a Bhopal-like disaster -- some lawmakers fought to impose tough regulations on the industry, including the use of the controversial inherently safer technologies, the industry's bÍte noire.

Industry executives say IST allows regulators to decide which chemicals ought to be used for which processes.

While Congress wrangled, several states, including New York and New Jersey, passed laws of their own -- in the case of Trenton, mandating IST reviews.

Draft regulations issued by the department last year would have pre-empted any stricter state laws, but the final regulations issued Monday will not, unless the state rules "conflict with, interfere with, hinder, or frustrate the purpose of (the department's) regulations," Homeland Security Secretary Michael Chertoff wrote to lawmakers at the weekend.

"Currently, the department has no reason to conclude that any existing state laws are applied in a way that would impede the federal rule," added Monday's departmental statement.

But the regulations still give the department authority to pre-empt state laws if officials decide they are at cross-purposes with the federal rules. And New Jersey environmental advocates pointed out that the IST rules were only proposed at the moment and were not covered by the department's commitment that existing laws would be grandfathered in.

"There is virtually no change in today's rule from the proposed rule issued in December," said Rick Engler, the director of the New Jersey Work Environment Council, an alliance of labor, environmental, and community organizations that advocates for tough state security measures on chemical plants.

Anthony Coley, a spokesman for New Jersey Democratic Gov. John Corzine, told United Press International that state officials were still reviewing the regulations but were "concerned they appear to undermine states' ability to tailor important policies to their unique security situation."

And Sen. Frank Lautenberg, D-N.J., called the regulations "unacceptable."

Language proposed for inclusion in the appropriations law would have specifically mandated the federal regulations to pre-empt state laws, a key selling point in quashing industry opposition to the measure, according to a former Capitol Hill staffer.

But that language was stripped out by the Senate, leaving the law silent on the issue, and the department's continuing claim to the authority clearly raised hackles there Monday, even among Republicans.

The senior-most GOP member of the Senate Homeland Security and Governmental Affairs Committee, Susan Collins of Maine, said in a statement she was disappointed with the pre-emption provision.

While welcoming the department's pledge not to override New Jersey's law, Collins called the rule "overreaching," saying Congress's intent was for the department to remain silent on the pre-emption issue and let the courts decide if federal regulations were at odds with state ones.

But that would create the kind of long, drawn-out uncertainty that would be the worst result possible for the industry.

American Chemistry Council spokesman Scott Jensen told UPI that "consistency and certainty" were the two things his members needed most. "We want a national standard," he said. "If there's an instance where state regulations conflict with federal ones, we want it to be clear what happens."

Overall, Jensen was cautiously welcoming of the rules, adding, "I'd say we're comfortable with it."

The chairman of the Senate Homeland Security and Governmental Affairs Committee, Joseph Lieberman, I-Conn., called for the enactment of language in the emergency supplemental appropriations bill that would strip the right of pre-emption from Homeland Security.

"A strong anti pre-emption statement by Congress ... would help resolve this issue," he said.

Source: United Press International

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