April 11, 2007 The Pump Handle 0Comment

By David Michaels

The Bush Administration has gone all out to make sure states play no role in setting health and safety standards. This is not surprising, of course, since many states are far more committed to health and safety protection than the folks who currently run the federal government. Yesterday I talked about California’s efforts to protect workers from diacetyl. Today’s example: chemical plant safety.

Some weeks ago, I wrote about how Vice President Cheney’s son-in-law Philip Perry orchestrated a backroom maneuver that cut EPA out of chemical plant safety. Perry made sure responsibility went to the Department of Homeland Security (DHS), which has neither the authority nor the commitment to do it right. An added bonus in the legislation Perry helped push through would allow DHS to pre-empt any state laws stronger than the weak rules DHS was likely to propose.

That wrong may soon be righted, but only if Congress can overcome some powerful opposition.

According to Carol Eisenberg of Newsday

Homeland Security Secretary Michael Chertoff and the chemical industry have mounted an offensive to kill a proposal to permit state governments like those in New York and New Jersey to have tougher chemical plant security rules than the federal government.

The provisions, inserted into emergency spending bills on Iraq, were added by lawmakers attempting to protect existing and in some cases, stronger rules in states like New York and New Jersey. Lawmakers say the federal rules potentially jeopardized the lives of millions of people in those states living near high-risk plants, unless they were interpreted as minimum rather than maximum standards.

Jeffrey H. Birnbaum of the Washington Post reports that President Bush has formally complained to Congress that the bill would allow states to override new federal regulations on securing chemical facilities.

Newsday’s Eisenberg writes that:

Jack Gerard, president of the American Chemistry Council, said that after five years of debate on Capitol Hill, “changing horses midstream is not only inappropriate, but it’s very disruptive to security. We think we need to stay focused . . . and the best way to do that is to move these rules forward.”

But DHS is evidently already in retreat, hoping to salvage the current legislation. According to AP’s Bevery Lumpkin:

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.

“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.

Several states have objected to the new DHS regulation. More importantly, they have kept moving forward, perhaps waiting for the Bush Administration or the chemical industry to call their bluff. Joe Malinconico of the New Jersey Star-Ledger reported that New Jersey has adopted policies that push chemical plants to use ingredients and technologies that are less dangerous to surrounding communities; according to Gary Sondermeyer of the New Jersey Department of Environmental Protection, about 20 chemical plants have made changes under the state program, including discontinuing the use of chlorine.

The House and Senate versions of the spending bill restore states’ ability to have stronger rules for chemical plant security, and Birnbaum notes that it’s shaping up to be a battle not only between Bush and Congress, but between two trade groups:

[The DHS] rules were championed by the American Chemistry Council, the powerful trade association for chemical producers, and its allies, which defend the regs as thorough and exactly what the public needs.

The American Association for Justice, the lobby formerly known as the Association of Trial Lawyers of America, disagrees and is leading its own coalition to upset those rules. It argues that the regulations would prevent states such as Maryland, New Jersey and New York from imposing security procedures that are tougher than the federal government’s. It also wants to use the Iraq bill to get rid of a law that hampers citizens’ ability to sue chemical makers in the case of a terrorist attack.

At the moment there are two versions of the Iraq spending bill — one from the House, the other from the Senate — and both contain provisions that the lawyers like and that the chemical makers, and Bush, hate.

I’ll close this post with the understated words of Michael Balboni, New York’s deputy secretary for public safety (quoted by Eisenberg): “generally speaking, we don’t like pre-emption of laws that we feel protect our citizens.”

David Michaels heads the Project on Scientific Knowledge and Public Policy (SKAPP) and is Professor and Associate Chairman in the Department of Environmental and Occupational Health, the George Washington University School of Public Health and Health Services

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