House committee offers chemical plant safety bill: Qualified pre-emption, no IST

The House Homeland Security Committee yesterday unveiled their chemical security legislation (H.R. 5695). It contains major concessions to the chemical industry, but also allows DHS to intervene in the contentious federal vs. state regulations battle.

The new bill includes language which would make federal chemical plant law superseded (or pre-empt) state laws in most cases — but it would allow DHS to issue waivers to states which want to enact tougher safety regulations.

There is no language in the bill about inherently safer technology, or IST. A similar Senate chemical security bill (S 2145) does not explicitly mandate IST, but some of its clauses appear to allow DHS to mandate chemical conversion in some cases. The House bill does not include any form of IST among the options for possible security fixes.

The House bill would require site security surveys and vulnerability assessments from owner-operators. Higher risk sites would have to make major changes to meet compliance standards. The House bill does include qualified federal pre-emption language — it says that states would be unable to enact laws that “frustrate” the federal regulations — but to balance this “frustration” clause, IST supporters point to the inclusion of a waiver allowing DHS to decide whether a state or local law is pre-emptive. “I would hope the department would be open not only to innovation from industry but from the states,” said state Senator Michael Balboni (R-N.Y.), who spoke on behalf of the bill. “You shouldn’t have a patchwork [of regulations from state to state], but you shouldn’t throw out the good work that’s already been done.” Industry officials naturally prefer language that had strict federal pre-emption.