In a clumsy attempt to lesson a confrontation with the Congress,
DHS Secretary Chertoff sent a letter (April 1) to Congress claiming
that the DHS narrowed their regulations barring states from setting
stricter security standards. However, the new regulations continue
to claim broad authority to preempt any “state law, regulation or
administrative action” even though NO such authority exists in the
740 word law that their regulations are based upon. “This is a not
very funny April Fool’s to the Congress. The effective preemption
of states is unchanged in the final DHS regulation.”
The temporary federal law also prohibits the DHS from requiring
a chemical plant to take any “particular security measure,” such
the use of safer chemicals. “This is the moral equivalent of
barring a doctor from using penicillin to save a patient. It is
criminal not to use these measures wherever they are feasible,”
said Hind.
A bi-partisan bill reported out of the House Homeland Security
Committee last July (H.R. 5695) would have gone a step beyond the
New Jersey program by requiring the use of safer chemicals as long
as they are cost effective.
According to the EPA just four chemicals account for the
catastrophic risks at 55% of U.S. chemical plants. And one
chemical, chlorine, accounts for the majority of risks at the 100
highest risk chemical plants. All of these chemicals have safer
substitutes already widely used across the U.S. For any chemical
without a safer alternative, the use of smaller storage quantities
is an interim step that will dramatically reduce the magnitude of a
successful terrorist attack.
The DHS regulations are based on a temporary law that will
expire October 2009. “Given the grossly weak and temporary nature
of this statute, President Bush and Secretary Chertoff have been
conspicuously negligent in asking Congress to enact permanent
legislation,” concluded Hind.
Unlike the bi-partisan legislation (H.R. 5695) adopted by the
House Homeland Security Committee in July, 2006 the new DHS
regulations:
— Fail to require safer technologies that can eliminate the
magnitude
of an attack on a chemical plant.
— Fail to protect approximately 3,000 U.S. water treatment
plants
and other chemical facilities explicitly exempted by the
temporary law.
About 100 water treatment plants each put 100,000 or more people
at risk.
— Fail to assure safety of the 4,391 most hazardous
facilities
identified by DHS.
— Fail to set deadlines by when DHS will approve security
plans.
— Fail to require meaningful involvement of plant employees
in
developing vulnerability
assessments and security plans as New Jersey does.
— Fail to include whistleblower protections to enhance
enforcement.
— Fail to ensure the right of ALL states to establish
stronger
security standards, as many laws currently do.
— Fail to enhance enforcement by limiting information
available to the
courts and the public by making previously public information a
secret.
The DHS’s rules are based on a 2007 DHS appropriations bill. It
was enacted with expectation that the next Congress would enact
permanent legislation before it expires in October 2009.
“The President’s FY 2008 DHS budget request of $25 million for
chemical security reveals a lot about his priorities. That budget
is equal to only 108 minutes of U.S. military spending on the Iraq
war. It is also about $14 million LESS than they have budgeted to
protect presidential candidates.”
VVPR info: Contact: Jane Kochersperger, Media Officer, (202) 680-3798
