US Congress set to grant state rule on security

WASHINGTON (ICIS news)--The US Congress was poised on Tuesday to authorise state-level regulation and control of chemical facility security measures, an action industry officials warned will raise costs and competitive issues for producers.

Congress is considering a massive budget appropriations bill that includes language inserted by Senator Frank Lautenberg (Democrat-New Jersey) that would allow state governments to enact and enforce chemical site security regulations that are more stringent than but do not conflict with the federal antiterrorism infrastructure regulations now being implemented.

The Lautenberg provision is designed to allow states, such as Lautenberg’s own New Jersey, to implement tougher requirements for chemical plant security without being pre-empted by the newly installed federal regulations.

The language states that:

"This section shall not preclude or deny any right of any State or political subdivision thereof to adopt or enforce any regulation, requirement, or standard of performance with respect to chemical facility security that is more stringent than a regulation, requirement, or standard of performance issued under this section, or otherwise impair any right or jurisdiction of any State with respect to chemical facilities within that State, unless there is an actual conflict between this [federal law] and the law of that State."

“My provision is essential to all states, especially New Jersey, which has the strongest chemical security laws in the nation,” Lautenberg said.

US chemical industry officials have lobbied for a single federal standard for enforcing site security at the nation’s chemical facilities. A federal pre-emption measure is part of the new chemical facility security regulations now being rolled out by the Department of Homeland Security. If approved by the House and Senate, Lautenberg's provision essentially would reverse the new rules' standing on pre-emption.

“The lack of federal pre-emption makes things difficult for American producers because it opens the potential for us having to deal with 50 sets of regulation instead of just one, and it is just not a good thing for business,” said Joe Acker, president of the Synthetic Organic Chemical Manufacturers Association (SOCMA).

Acker said a lack of federal pre-emption for chemical site security also poses a competitive issue because regulation in this area by multiple states and jurisdiction will raise operational costs for producers and make them less competitive in the global marketplace.

Maurice McBride, associate counsel at the National Petrochemical & Refiners Association (NPRA), said the Lautenberg language “causes concern because chemical companies are sinking a lot of money into site security, and this means they may have to make changes in those investments because of local jurisdiction”.

“It is very problematic,” McBride said.

The giant appropriations bill, which chiefly authorises spending for almost all US government operations other than the military, was approved by the House late on Monday.  The Senate is expected to approve the measure today or on Wednesday, and President George Bush is likely to sign it.  If the Senate does not approve the spending bill, it would force a shutdown in federal government operations.

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