New federal chemical rules will not override tougher state rules

WASHINGTON -- New federal rules giving the Bush administration authority for the first time to regulate and even shut down chemical plants will not overrule stricter state rules already in place, according to a letter sent Sunday to lawmakers by Homeland Security Secretary Michael Chertoff.

The letter was provided to The Associated Press by a congressional official on condition of anonymity because it had not yet been made public.

Draft regulations issued last December had provoked concern among activists and lawmakers -- Republicans as well as Democrats -- because they would have allowed the federal rules to override state rules even when the latter were more stringent.

The issue was of particular concern in New Jersey, which is the most densely populated state and has a high concentration of chemical facilities.

In recent days both chambers of Congress, responding to efforts by New Jersey Democratic Rep. Steve Rothman and Sen. Frank Lautenberg, had enacted measures allowing states to enforce their own rules if they chose. The administration opposed those measures.

Homeland Security spokesman Russ Knocke on Sunday made clear the department had been listening to the complaints about the proposed rules and would be making adjustments.

'Grandfathered in'

"Those officials who have expressed concern about pre-emption will be satisfied with what they see in the final regs," he told The Associated Press.

Knocke refused to be more specific, but officials on Capitol Hill who declined to be identified because they were not permitted to speak publicly on the matter said rules for New Jersey or any other state that are tougher than the federal ones will be "grandfathered in" -- that is, will not be overridden, according to Chertoff's letter.

"If a state measure to regulate security at high-risk facilities does not conflict with, interfere with, hinder, or frustrate the purpose of DHS's regulations, it would not be pre-empted," Chertoff wrote.

Lautenberg was not mollified.

"Rather than let New Jersey and other states move forward defending our communities from attacks on our chemical facilities, the Bush administration is trying to freeze us in our tracks," said Scott Mulhauser, a spokesman for Lautenberg.

The rules allow Homeland Security to set performance standards for the nation's 15,000 chemical facilities but give plant operators flexibility in their choice of measures to reach those standards.

The performance standards include securing the perimeter of the plant and any potential targets within, controlling access to the facility, deterring theft and preventing sabotage.

Introductory remarks in the rules state that although many companies have taken voluntary steps and invested in significant upgrades, "the Secretary of Homeland Security has concluded that voluntary efforts alone will not provide sufficient security for the nation."

Under the rules, chemical plants meeting certain criteria are required to complete a secure online risk assessment. Those determined to be high-risk facilities then must complete a vulnerability assessment, along with a security plan to address those vulnerabilities.

The teeth in the rules come from the department for the first time having the authority to conduct audits and site inspections to ensure plants are complying.

If the plant passes, a letter of approval would be issued, but the plant would have to periodically update its vulnerability assessment and security plan.

Knocke said the vast majority of facilities are eager to cooperate. But for those who are not, the department for the first time has two big hammers: civil penalties of up to $25,000 per day and, in the most egregious cases of noncompliance, an order to cease operations.

The department began in 2005 asking Congress for regulatory authority, and it was granted in legislation passed last October. Before that time, the department had no authority to regulate the security of most chemical facilities.

Other federal departments, notably the Environmental Protection Agency and the Occupational Safety and Health Administration, could address safety issues, but not security.