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DEMOCRATS’ FALSE CLAIMS ON CHEMICAL SECURITY AND PRE-EMPTION
March 29, 2007

Congressional Democrats and their liberal allies in the press claim that the Bush Administration is putting Americans at risk by issuing regulations to “pre-empt” State and local plant rules. One Democrat on the EPW Committee stated at a recent field hearing that the Bush administration “has proposed a federal regulation that would wipe out New Jersey’s chemical security protections.”

FACT:  Nothing in the Department of Homeland Security’s (DHS) proposal would automatically preempt State law. It simply reserves the Secretary’s ability to preempt if a request is made and the Secretary finds that a state law, administrative order or Court order would make compliance with both the State law and DHS requirements not possible or if the state law would present an obstacle to or frustrate the purposes of the final DHS rule.  It does not give the Secretary carte blanche authority to preempt any and all state security statutes. 

Last year’s chemical security law would for the first time impose security standards on chemical facilities and would require them to conduct vulnerability assessments and site security plans.  These plans would be subject to the Secretary’s approval.   Current law provides full protection to these sensitive security documents.

Those seeking to roll back last year’s chemical security bill are really looking to help the environmental extremists fulfill one of their goals, the rewrite the Toxic Substances Control Act (TSCA) which is entirely unrelated to national security but is impacting national security decisions.

The EPW Committee has jurisdiction over TSCA, which is the primary federal statute governing the manufacture of chemicals.  It preempts state law with few exceptions. TSCA (15 U.S C. 2617) states:

"...no state or political subdivision of a State may....establish or continue in effect any requirement which is applicable to such substance or mixture, or an article containing such substance or mixture, and which is designed to protect against such risk unless such requirement...is adopted under the authority of the Clean Air Act or any other Federal law...."

Therefore, if the Democrat provision, mandating IST,  becomes law then states could use their authority under that statute to regulate the manufacture and sale of chemicals arguing that Congress gave them the authority to do so through the chemical security law.

Now consider the debate over Inherently Safer Technologies (IST).

IST is an environmental concept that dates back more than a decade when the extremist environmental community was seeking bans on chlorine. After 9/11, they decided to manipulate the fears of the American public and repackage IST has the solution to all of our security concerns. Therefore it should not be surprising that those arguing most vehemently for IST in security legislation are NOT security experts, but rather, environmental groups. This only underscores the fact that IST is not a security measure; it is a backdoor attempt at increasing the regulation of chemicals operating under the guise of security.  

Clearly Congressional Democrats whose language in the House supplemental would allow terrorists to access sensitive information through the courts are taking their marching orders on national security issue from non-security related liberal special interest groups.

Additional Information

Inhofe Opening Statement: Hearing: Subcommittee Field Hearing to examine the importance of state and local authorities in ensuring chemical plant security.

EPW Fact of the Day: Democrat Rollback On Chemical Security

Inhofe Press Release: Senators Send Letter Opposing Democrat’s Attempt To Rollback Chemical Security Regulations

Inhofe Press Release: Inhofe-Collins Letter Rejects House Chemical Security Language

In Case You Missed It… BAD CHEMISTRY (Editorial, The Wall Street Journal, March 28, 2007)

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