As the House of Representatives prepares to take action this week on an emergency spending bill that includes a provision to protect New Jersey’s strict chemical facility anti-terrorism regulations, U.S. Rep. Chris Smith (R-NJ) said Congress should immediately take up legislation he introduced last night to promote and protect increased safety measures at chemical security plants because the issue must be resolved before the Department of Homeland Security (DHS) releases their final regulations in two weeks.

    “The debate over the supplemental appropriations bill remains very contentious and the future of that legislation is uncertain. Congress should immediately move to take up the ‘Safe Facilities Act of 2007’ to ensure that New Jersey—or any other state for that manner—can continue to enforce and implement standards that are more rigorous before DHS issues their final regulations,” Smith said noting that DHS intends to issue their final regulations on April 4, 2007.

    Smith’s bill, the “Safe Facilities Act of 2007” (H.R. 1574), would amend current federal law to preserve state authority to ensure the security of chemical facilities, thereby preventing federal law from preempting state laws.

    “With well over 100 major chemical facilities in New Jersey, our state has invested considerable time and meticulous effort into carefully crafting standards to protect this vital infrastructure from a terrorist attack. The large number of potential terrorist targets in the most densely populated state in the Union requires the strict mandates on facility security that are in place. Any weaker federal regulations should not be allowed to preempt the laws already on New Jersey’s books,” said Smith.

    Last fall, Congress passed the “Homeland Security Appropriations Act of 2007” (P.L. 109-295) which granted the Department of Homeland Security (DHS) the authority to draft “interim final regulations” regarding plant security. While these standards are a necessary baseline for state regulations, they were not intended to undermine existing state statutes—which in cases like New Jersey are very robust regulations.

    “The baseline national standards are a floor not a ceiling. It was never Congress’s intention to undercut the work of states like New Jersey who have already proactively and aggressively moved to protect citizens from terror attacks against any of the chemical facilities in the state. It is particularly difficult to find merit in DHS’s plan to preempt state standards since the authorizing statute was silent on this issue,” Smith said.

    Immediately following the attacks in 2001 and in preparation for the ‘worst case scenarios’ in the event of another terrorist attack, New Jersey established the Domestic Security Preparedness Task Force to develop the best security practices and encourage each chemical facility in the state to evaluate security threats and plant vulnerabilities as well as the consequences of a chemical release. In 2005, the best practices became mandatory for New Jersey’s facilities.

    All of New Jersey’s facilities are now required to prepare a site-specific, risk and vulnerability assessment, emergency incident prevention and response plan and require worker participation in their security assessments. In addition, 43 chemical facilities subject to the Toxic Catastrophe Prevention Act (TCPA) state program are also required to explore the feasibility of inherently safer technologies as part of state security and preparedness plans.

    “New Jersey was the first state in the nation to implement plant security practices and continues to research and develop strategies to improve and enhance current standards and regulations. Our efforts should be looked at as a model for the rest of the nation and should not be watered down by weaker federal rules,” Smith said.

    Earlier this year, Smith wrote to the Chief Program Analyst at DHS’s Chemical Security Regulatory Task Force to express his “extreme disagreement” with their assumption of preemption regarding regulations on chemical facility security.