Final chemical security rules impose limits on state laws

The Homeland Security Department on Monday issued long-anticipated final rules for regulating security at chemical facilities, including one barring state and local governments from enacting chemical security laws that conflict with the federal regulations.

Public interest groups, environmental organizations and some lawmakers objected to the department's assertion that it can pre-empt state laws when draft rules were issued in December -- and there was no rush to applaud the rules Monday.

The department admitted the draft rules were too broad on the issue of pre-emption, and in Monday's final rules, it tried to specify when state laws will be overridden.

"Some states have existing laws for regulating chemical facilities," the department said in a statement. "Only state laws and requirements that conflict or interfere with these regulations, or the purpose for the regulations, will be pre-empted. Currently, the department has no reason to conclude that any existing state laws are applied in a way that would impede the federal rule."

The department also maintains the authority to pre-empt state health, safety or environmental protections, according to the rules.

Lawmakers and their staffs were still reviewing the final rules at presstime. Some reaction to the pre-emption language, however, was emerging.

"The administration's position is unacceptable," said a spokesman for Sen. Frank Lautenberg, D-N.J. "The Bush administration's rule prevents New Jersey from moving any further with its strong chemical plant security program."

Lautenberg was responsible for inserting language into the Senate's fiscal 2007 war supplemental spending bill that says state and local governments can pass chemical security laws that are stronger than the federal regulations. The Lautenberg language would allow the federal government to pre-empt state and local laws, but only when a clearly defined conflict exists.

A Lautenberg aide said the department's final rules are still too broad.

"Congress will still need to pass our legislation to prohibit the federal government from interfering with the right of states to protect their communities from a chemical attack," Lautenberg's spokesman added.

House Homeland Security ranking member Peter King, R-N.Y., had sent Homeland Security Secretary Michael Chertoff two letters last month expressing concern about the department's position on pre-emption. Chertoff replied with a letter Sunday, essentially explaining what language is in the final rules.

"It seems to be a very reasonable compromise, or interpretation, of the rules," King said Monday. "As I read the letter, this is much better off than we were a couple weeks ago."

The House also included language in its supplemental appropriations bill giving state and local governments the power to pass their own laws. The two chambers still have to agree on the final version during conference negotiations.

The White House has threatened to veto any legislation, however, that places timetables for U.S. troops to leave Iraq. The chemical industry and several key Republicans hope to strip the chemical security language from the legislation after it is vetoed and comes back to Congress.