27 December 2007 13:40 [Source: ICIS news]
By Joe Kamalick?xml:namespace>
In an eleventh-hour move during the last week of business for the US Congress this year, Senator Frank Lautenberg (Democrat-New Jersey) plugged a paragraph into a catch-all budget appropriations bill that both the Senate and House had to pass or see federal government operations grind to a halt.
Enacted into law when President George Bush signed the omnibus appropriations measure, the language all but eliminates the federal pre-emption clause that was written into the Department of Homeland Security’s new chemical facility antiterrorism regulations, issued earlier in 2007.
Those regulations, known formally as the Chemical Facility Anti-Terrorism Standards (CFATS), provide that federal authority over security at high-risk chemical sites takes precedence or pre-empts any existing or future state requirements that “conflict with or frustrate” the federal law.
That federal pre-emption provision angered some Democrats in Congress because the underlying bipartisan legislation passed in late 2006 to authorise CFATS was silent on the matter of federal pre-emption - neither establishing nor prohibiting it.
Some Democrats, including Lautenberg, felt that the department had overstepped its authority and created a federal pre-emption role that Congress pointedly had not authorised.
Lautenberg, whose home state of
Section 550 of the Department of Homeland Security Appropriations Act, 2007 (6 U.S.C. 121 note) is amended by adding at the end the following: `(h) 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 section and the law of that State.'.
The CFATS regulations issued by the department essentially left it to Homeland Security to decide whether a state requirement “conflicts with or frustrates” the federal law.
The Lautenberg amendment, however, appears to put a burden of proof on the department to demonstrate - perhaps in a court of law - that a state’s own antiterrorism chemical facility security requirements present “an actual conflict” with the federal regulations.
For practical reasons, this means that CFATS no longer has a federal pre-emption provision and that state governments - and even “political subdivisions” such as city or county governments - are free to enact and impose their own chemical facility security requirements.
This is bad news for a wide range of chemical companies that are just now taking steps to effect compliance with the Homeland Security Department’s facility regulations.
“It creates a challenge because it sets up the possibility of having a number of inconsistent regulations that companies would have to comply with as opposed to having a single, clear standard applicable across the country,” said Bill Holbrook, spokesman for the National Petrochemical & Refiners Association (NPRA).
Officials at the Synthetic Organic Chemical Manufacturers Association (SOCMA) see the Lautenberg amendment as meaning “more paperwork for an already overloaded EHS&S [environmental, health and safety and security] manager to prove to a state that a company is already taking certain actions.”
The lack of federal pre-emption, said SOCMA spokesman Greg Minchak, “could mean duplication of effort and another set of regulations to keep track of.”
“The creation of a patchwork of different regulations in different states could lead to confusion for companies with facilities in multiple states,” he said, adding that those additional state requirements “will do nothing to actually deter or delay a terrorist attack”.
The American Chemistry Council (ACC) sees the Lautenberg amendment in a somewhat more positive light.
The Lautenberg language, said ACC spokesman Scott Jensen, “confirms that state programs can be pre-empted where there is an ‘actual conflict’ with the federal programme”.
Indeed, but, as noted, the burden of proving an actual conflict now falls to the department and could precipitate a variety of court cases, perhaps delaying implementation of both federal and state antiterrorism security requirements.
While the ACC is more sanguine about the impact of the Lautenberg language, Jensen also noted that the council soon will “begin exploring possible future revisions” to the site security regulations, suggesting that a more definitive statement on state authority is needed from Congress.
At the very least, uncertainty about the federal versus state roles in chemical plant security could accelerate consideration of a new federal statute to replace the 2006 chemical facility antiterrorism security provisions.
The existing law is set to expire at the end of 2009 anyway, and the House Homeland Security Committee is already working on legislation to replace the existing statute at the end of that year. Although the chemical industry would rather see the current law run its course, mounting confusion over conflicting federal and state roles may argue for an earlier revision to the statute.
In addition to uncertainty and potential delays in security improvements, the federal pre-emption turnabout could actually increase the risk of exposure to terrorist attack on a chemical facility, according to top federal regulators.
Robert Stephan, the assistant secretary at the Department of Homeland Security who is responsible for implementing and enforcing CFATS, warned earlier that congressional insistence on state rights to enact site security legislation more stringent than the new federal programme could make US chemical plants more vulnerable to potential terrorist attacks.
“We find that language very disturbing,” Stephan said in reference to an earlier but similar congressional effort to eliminate the federal pre-emption provision in CFATS.
“It is not helpful or productive, and it could unravel the important security work that is already being done at US chemical facilities, and it might only make our chemical plants more vulnerable,” Stephan told a June 2007 security conference.
For example, Stephan said that if a state were to impose uniform security requirements on its resident chemical facilities, knowledge of those rules could make attack planning easier for potential terrorists.
“If a state were to take a cookie-cutter approach, for example, and mandate that chemical facilities do 20 specific things, with fences so high and a specific number of guards and so on, knowledge of those uniform provisions would simplify matters for Al Qaeda,” Stephan said.
He said that if Congress acts to bar federal pre-emption in chemical plant security law, “they will be driving a wedge between the federal government and state governments in this” and create conflicts and infighting among state and federal regulators.
That wedge now appears to be in place.
“Infighting in this situation would serve only one master: Osama bin Laden,” Stephan warned.
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