The House Homeland Security Committee held a hearing this morning on the issue of chemical plant security, discussing a new, bipartisan bill on chemical plant security, H.R. 5695, which looks like it will be the companion bill to the Senate’s chemical security legislation (S. 2145). The prepared testimony by the witnesses at the hearing is available here.
The bill is similar to the Senate’s version of this legislation. As with the Senate bill, it sidesteps the issue of inherently safer technologies (ISTs). It contains a section on federal preemption of state laws, but the language is murky, noting in Sec. 1807 that “a State or local government may not prescribe, issue, or continue in effect a law, regulation, standard or order that may frustrate the purposes of this title or any regulations or standards prescribed under this title.” What does ‘frustrate’ mean here? Depending upon your point of view, it could mean state measures that weaken federal law; or it could mean measures that are stronger and/or complicating to federal law. The testimony from the American Chemistry Council indicates that they are also confused about this section; their representative argues for language that would clearly preclude states from establishing stronger security standards. I still maintain that this would be a bad idea; states should have the right to set stronger standards to protect their citizens, and state laws such as the New Jersey law can fill the breach where federal law does not exist or is poorly enforced. (As an aside, Sen. Voinovich has proposed a compromise in the Senate that grandfathers existing state laws but forbids other states from taking action; but Sen. Inhofe is still maintaining his hold on S. 2145).
The House bill does differ with the Senate legislation in one important respect. It gives DHS the authority to hire third-parties to carry out the validation of chemical plants’ compliance – an idea that Sec. Chertoff had promoted in March.
Overall, this seems like a reasonable bill. Hopefully the House will ignore the absolutists on both extremes of this issue (cf. this press release) and move forward expeditiously on the bill. As I’ve said repeatedly, it would be an act of profound neglect for the Congress not to pass meaningful chemical security legislation in the 109th.