Democrats look to include language on chemical plants in bill on security

Over persistent objections from the chemical industry, House Democrats were expected to add language yesterday to the Department of Homeland Security (DHS) authorization bill to prevent federal chemical plant security rules from overriding state regulations.

Congress added similar language to the Iraq war supplemental. Given the uncertainty surrounding the war spending measure, Rep. Steve Rothman, a New Jersey Democrat, wanted to clarify state and federal roles in the homeland security bill as well, his spokeswoman, Kimberly Allen, said.

The worry was that the security language would be dropped from the supplemental as part of a compromise between the White House and congressional Democrats, although a timetable for withdrawing troops from Iraq has been the predominant sticking point.

The amendment had not been voted on by press time.

Congress has struggled with the issue of securing the country’s chemical plants since the attacks of Sept. 11, 2001. Following five years of debate, lawmakers last year gave DHS powers to regulate the plants, thought to be among the most high-risk terrorist targets.

To environmental groups and Democrats, Congress did not go far enough. Industry welcomed the compromise, but chemical companies did not get the federal preemption of state rules they had sought.
Homeland Security since has drafted federal security regulations that empower the department to override state rules when there is a conflict between the two.

Homeland Security Secretary Michael Chertoff has tried to reassure Congress, as have industry lobbyists, that states such as New Jersey, which is home to a number of chemical plants surrounded by large populations, still can adopt stronger rules than the federal regulations.

Democrats are not so sure, and want their original intentions clarified in law. New Jersey members have led the fight to direct the DHS.

Chemical plants and trade groups like the American Chemistry Council (ACC) have lobbied against the amendment, and yesterday urged members to call their congressional representatives to express opposition.
An ACC spokesman, Scott Jensen, said the group learned of the amendment Tuesday night. Today, a fact sheet was ready for distribution.

“The amendment is based on a false premise that Congress must act to preserve existing state chemical security programs,” the fact sheet reads.

“It has become quite clear [federal regulations] will not invalidate existing chemical security state programs or prevent a state from improving their program,” ACC President and Chief Executive Jack Gerard said in a statement.

As it lobbies for federal preemption, the industry notes that chemical plants voluntarily have spent $3.5 billion to beef up security.

In an effort to appease critics, the DHS final rule includes language in its preamble that says federal law will not upend tougher state regulations.

But supporters of the Rothman amendment see potential conflict with the final DHS rule.

New Jersey, for example, is in the process of adding to its list of regulated plants. Currently, rules set standards for 42 chemical plants. State officials want to increase the number to 94 plants, a figure that would include water treatment facilities that will not be covered by federal standards, Allen said.

If federal rules won’t be used to block tougher state regulations, “then why are [chemical companies] opposing this?” Allen asked.

The final rule as crafted by DHS identifies plants as high-risk depending on the type and quantity of chemicals used at the facility. High-risk plants would require tighter security.

Underpinning the debate is the issue of inherently safer technologies (IST), which is a system that would require that chemical companies replace their most hazardous chemicals with safer ones.

Much of the delay in Congress over plant security rules was over this issue, which industry vocally opposed. The plant security bill as passed by Congress was silent on inherently safer technologies.

New Jersey’s program does not address that particular standard, but the state is currently reviewing chemicals used there, which could lead to an IST program.

In their federal chemical plant security rule, administration officials are asking Congress to “take their word for what they do in the future,” said Andy Igrejas, a plant security expert at the National Environment Trust, which supports the Rothman amendment. “Which is a mistake, I think.”