- The Washington Times - Tuesday, April 3, 2007

The U.S. Department of Homeland Security rolled out new rules governing safeguards at chemical plants yesterday, saying they would not pre-empt stricter state laws as the agency had planned.

The regulations require owners of plants that use large quantities of 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.

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.

While Congress wrangled, several states, including New York and New Jersey, passed laws of their own in the case of Trenton, employing the industry’s so-called inherently safer technologies, or IST. Industry executives say IST allows regulators to decide which chemicals ought to be used for which processes.

Draft regulations issued by the department last year would have pre-empted any stricter state laws, but the final regulations issued yesterday, will not, unless the state rules “conflict with, interfere with, hinder, or frustrate the purpose of regulations,” Homeland Security Secretary Michael Chertoff wrote to lawmakers over 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 yesterday’s departmental statement.

But the regulations still give the department authority to pre-empt state laws if they are at what officials decide is 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.

Industry representatives were cautiously welcoming. “I’d say we’re comfortable with it,” American Chemistry Council spokesman Scott Jensen told United Press International.

Mr. Jensen said “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 be clear what happens.”

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