Issue Date: April 9, 2007
Chemical Plant Security
On April 2, more than five years after the terrorist attacks of 2001, the Department of Homeland Security announced "a risk-based regulatory framework" for securing high-risk chemical facilities. Industry groups generally support the final regulations, but lawmakers and environmental groups remain highly critical.
The broad-based regulations cover "previously unregulated high-risk chemical facilities" and do much to reduce "vulnerability at high-consequence chemical facilities," DHS Secretary Michael Chertoff said at a press briefing. The regulations set up a four-tiered structure for those facilities, with the most dangerous plants covered by the tightest requirements.
Under the regulations, all chemical facilities are required to complete an online assessment on a secure DHS website. From these submissions, DHS will determine which facilities are high risk and will slot them into risk tiers according to the amount and type of chemicals they use or store and to their proximity to populated areas. All high-risk facilities will have to submit vulnerability assessments and site security plans.
According to American Chemistry Council spokesman Scott Jensen, DHS's regulations are "a major step forward for chemical security." He says ACC is particularly "pleased with the comprehensive approach DHS has taken," and especially that DHS "has adopted a risk-based performance standard for the regulations."
The Synthetic Organic Chemical Manufacturers Association also generally applauds the rules. SOCMA President Joe Acker says, "SOCMA wants to commend DHS for its hard work in promulgating these regulations." SOCMA supports "the phased-in approach to the rules, but would like to have seen more time given for companies to perform their security vulnerability assessment, especially small companies with limited resources."
DHS estimates that about 7,000 of the nation's 15,000 chemical facilities might be deemed high risk. Of these, only about 400 facilities would fall into the top two riskiest tiers, requiring the highest levels of security.
The regulations, which set no timetable for compliance, go into effect in 60 days. Because they are performance-based, industry will have wide latitude in how to meet them. That's the carrot. The stick is that, for the first time, DHS has the authority to conduct on-site inspections and audits to ensure compliance. Those facilities out of compliance could be fined up to $25,000 per day and be shuttered if warranted. DHS expects to have a staff of 70 and a budget of $25 million to oversee compliance.
Several proposed security regulations issued last December raised concerns, but none more than federal preemption of state programs. According to the final rules, only those state programs that conflict with or hinder the federal rules would be overridden.
"DHS has clarified a position on federal preemption that we at ACC feel comfortable with," Jensen says. However, he also says "ACC is trying to get deleted" provisions in House- and Senate-passed war supplemental bills that ban federal preemption. "We think those provisions will only confuse the matter because they don't provide the clarity we need on our obligations when there is a conflict between federal and state regulations," he says.
DHS says existing state programs do not currently conflict with its final regulations. But Rick Engler, director of the New Jersey Work Environment Council, warned in a statement that DHS retained the right to invalidate state programs in the future.
The final rules do not clearly establish that states can develop programs stronger than the federal program, and this prompted Sen. Frank Lautenberg (D-N.J.) to call the new regulations "unacceptable." New Jersey and other states are prevented "from continuing to pursue stronger chemical security laws," he said in a statement.
Rep. Steve Rothman (D-N.J.) calls the final rules "outrageous." He inserted language in the House-passed war supplemental bill that would prevent DHS from preempting state law. That bill has to be reconciled with the Senate supplemental bill, which contains similar language. President Bush has threatened to veto any bill that calls for troop withdrawal from Iraq.
Whatever the fate of the supplemental bills, DHS's regulations, by law, expire in three years.
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