TrendAdministration to allow state to set chemical safety rules

In a move which is not going to please the chemical industry, DHS will allow states to adopt chemical plant safety standards which are more stringent than the standards the department itself would consider sufficient. The chemical industry thought it had a deal: It would no longer object to the federal government stipulating safety standards in chemical plants if, in return, these federal standards would pre-empt — or supercede — more stringent standrads required by states such as New Jersey and New York. The industry had a point: Since its own “voluntary, industry-developed” safety standards were regarded by all as not much more than window dressing, than the next best thing would be a uniform, nation-wide security regulatory climate which would standardize safety rules while, at the same time, weaken the tougher and more onerous chemical safety rules of states such as New Jersey. A chemical plant safety bill now before Congress incorporates this understadning.

WSJ Robert Block reports that Today, however, DHS is set to release its final rules governing chemical plant safety, and this final version gives states more lattitude in setting their own safety thresholds. Allowing states to set more demanding safety standards is no small thing. New Jersey, for example, requires chemical plants to study whether “inherently safer technology” (IST) is available to replace the more toxic and volatile chemicals currently in use at the plant.

Security experts argue that short of a direct nuclear attack on an American city, the greatest danger of a mass-casualty catastrophe is posed by a terrorist attack on or an accident in one of the hundreds of chemical plants situatued near population centers. The Bush administration and leading Republicans in Congress, however, have for five years fought against any federal regulation of chemical plant safety. The incongruity between vigorosuly fighting a war on terrorism while doing nothing to safeguard the most attractive targets for terrorists at home, grew to a point where late last year the administration relented and agreed to go along with a congressional initiative which would allow DHS a role in monitoring the safety practices of individual chemical plants.

The preliminary rules drafted by DHS last December, however, allowed for a federal preemption of more demanding state chemical safety regulations, leading to charges that DHS, in effect, was weakening the ability of states to defend themselves against terrorist attacks. Two weeks ago, members of the New Jersey delegation added language to the Iraq war supplemental funding bill which would do away with federal preemeption of states’ safety regulations.

The initial reaction of the administration was to try an kill the congressional proposal. During the past two weeks, however, the tune has changed. DHS officials now say that while they would not surrender the principle of federal preemption of state laws when it comes to national security, they have concluded that the efforts by states to secure chemical facilities which produce, store, or use any of a dozen toxic chemicals likely to be targeted by terrorists were complementary to, rather than contradictory of, DHS’s goal of protecting the country. Accordingly, Secretary Michael Chertoff will today signal that DHS would from now on prefer a “collaborative” federal-state approach to chemical plant safety, declaring that state efforts taken to date do not conflict with DHS rules.

DHS spokesman Russ Knocke refused to comment on the specifics of the final rules before their release later today, but said this: “It is our belief that those officials in Congress and at the state level who have expressed concern with preemption will be satisfied with what they see in the final regs.”