INSIGHT: US site security law now in jeopardy

23 March 2007 14:49  [Source: ICIS news]

By Joe Kamalick

 

WASHINGTON (ICIS news)--The escalating conflict between the federal government and the State of New Jersey could well overturn the carefully crafted chemical plant security law passed late last year and leave US chemical manufacturers facing that most dreaded state of regulatory law - uncertainty.

 

The chemical plant site security legislation enacted as part of the Department of Homeland Security’s spending bill last year was approved by what was then a Republican-majority House and Senate. 

 

It was a measure largely welcomed by the country’s chemicals industry because it laid out a risk-based and performance-based approach that gave the department authority to set antiterrorism security standards for high-risk chemical sites but allowed plant owners to select protective measures to meet federal standards.

 

However, in proposed regulations issued in late December last year, the department appeared to broaden one key element of the statute approved by Congress: the question of federal pre-emption of state law.

 

The statutory language approved by Congress did not specify whether the federal law should take precedence over - that is, pre-empt - any chemical site security legislation enacted by any of the states. The department’s draft regulations nonetheless stated that those rules would pre-empt state law in this area.

 

That drew immediate fire from officials in New Jersey, which has had its own chemical site security regulations for two years, regulations seen as tougher than the new federal law. 

 

When the newly elected Democrat majority regained control of Congress in January, those opposed to the federal pre-emption rule took steps to remedy what they saw as departmental over-reaching.

 

New Jersey Governor Jon Corzine earlier this week threatened to file suit to block the department from implementing the final site security rules that are expected by 4 April if those regulations still pre-empt state law. 

 

New Jersey’s two senators and some of its representatives joined others among Democrats in Congress to introduce new chemical site security legislation designed to toughen the Republican-championed law passed last year.

 

The pending legislation would expressly allow individual states to follow New Jersey’s lead in enacting their own site security rules, and it would give the department authority to dictate security measures to plant operators. 

 

The latter authority also could mean that the department could impose inherently safer technology measures - requirements for less toxic feedstocks or less volatile processes - on chemical producers.

 

The new legislation also would allow private citizens to file suit in federal court if they felt that plant operators were not living up to the federal security mandate. That private right of action was not included in the law passed last year.

 

Congress could conceivably rush that new site security legislation through in a matter of weeks, but the most likely near-term threat to the existing law would be a lawsuit by New Jersey. 

 

The state could - and has indicated it will - seek a federal court injunction to bar enforcement of the department’s final regulations if they include federal pre-emption.

 

According to department officials, the final rules expected as early as next week will indeed pre-empt state law.

 

Department spokesman William Knocke said that while state and local governments play an important role in keeping communities safe and contributing to security, “the fact remains that the American public and Congress place a higher degree of accountability on the federal government when it comes to national security”.

 

Consequently, said Knocke, “if state laws were to somehow usurp federal authorities, it could frustrate federal efforts”.

 

Knocke also said, however, that “I suspect that officials who have expressed concern about the issue of pre-emption will be satisfied when they see the final rule”.

 

New Jersey officials may take a decidedly different view. A spokesman for Governor Corzine said the state would do whatever is necessary to ensure that it is the state’s own site security provisions that dictate antiterrorism precautions at resident chemical plants.

 

If New Jersey does file suit, the effect would be to put the new federal enforcement rules in limbo, perhaps for years, as the case works its way through multiple court levels. Congress might act to amend and toughen the law - to specifically allow state regulation among other things - long before the lawsuit could be resolved.

 

For the near term, however, it appears that what the industry thought was a done deal is now very much uncertain. The only sure thing is that the regulatory environment that chemical producers thought they would have for site security is going to be different.

By: Joe Kamalick
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