WASHINGTON, D.C. – There are over 100 major chemical facilities scattered about our state of New Jersey.  They are a familiar site—providing jobs, creating products we use on a daily basis and playing a role in New Jersey and the nation’s economy.    

Unfortunately, they could also seem an attractive target for terrorists seeking to cause mass casualties.  If left unprotected, these facilities are potential weapons of mass destruction propositioned in our own backyards.  The ensuing chaos from an attack against a facility with toxic chemicals—such as chlorine gas—in a heavily populated area makes New Jersey vulnerable, if we do not take proper precautions. 

To counter such a threat, our state has wisely and effectively invested considerable time, resources and meticulous effort into setting tough standards to protect this vital infrastructure.  The large number of potential terrorist targets in the most densely populated state in the Union required us to enact and continually update the strict mandates on facility security that are currently in place.  

So, why then does the federal government appear to be moving to tie our hands when it comes to the state’s ability to regulate these potential targets in our own backyards?

Yesterday, the Department of Homeland Security (DHS) finalized their interim regulations governing security at chemical facilities.  These regulations include a provision possibly rendering all the considerable time, money and effort New Jersey put into securing the state’s chemical facilities null and void.

New Jersey was the first state in the nation to implement enforceable plant security practices.  Immediately following the attacks in 2001 and in preparation for “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, these best practices for chemical plant security became mandatory for New Jersey’s facilities.  Beyond this, many of New Jersey’s chemical facilities that handle, use, manufacture, store or have the capability to generate an extraordinarily hazardous substance are also required under state law to explore the feasibility of Inherently Safer Technology (IST) as part of state security and preparedness plans.  Inherently safer technologies would reduce the catastrophic effects of a terrorist attack at a chemical facility—or an accident for that matter—would have on our communities by requiring companies to identify and employ substances and equipment to increase public and environmental safety.

To this day, we continue to improve and enhance current standards and regulations for chemical facility security in New Jersey.  In fact, earlier this month, the state proposed additional measures to more than double the number of facilities required to carry-out IST reviews.

The “common denominator” baseline regulations DHS has released threatens to replace New Jersey’s stronger regulations. 

To prevent this, I have introduced legislation—the “Safe Facilities Act of 2007” (H.R. 1574)—to prohibit the federal government regulations from overriding state chemical facility safety regulations.  My legislation specifically preserves state authority and state’s rights to implement tough security standards at chemical facilities, thereby preventing federal law from preempting state laws. 

This, or a similar legislative fix, must be passed and sent to President Bush to ensure that states have the authority to enact and enforce their own regulations—when more stringent than DHS’s regulations—to ensure safety and security at chemical facilities.

No one is disputing that strong federal regulations for chemical security are necessary.  However, national standards should be looked at as a floor not a ceiling.  They are needed, but only as a baseline where state regulations are weak or non-existent, which certainly is not the case in New Jersey.    

What makes DHS’s attempts to undermine the work of New Jersey and other states even more inexcusable is that Congress never gave the Department the authority to mandate pre-emption.  By requiring states to adopt DHS’s chemical security regulations, the Department’s actions have gone way beyond the intent of Congress and scope of the law.

There should not be a one size fits all approach to chemical facility security—especially when it is weaker standards at that.  Not every state has the amount of chemical facilities that we do in New Jersey.  Certainly, there are not many states that share our combination of chemical facilities and heavily populated communities.  It is for this very reason that we have adopted such rigorous regulations.  We must retain the authority to enhance and enforce them.   

DHS’s final chemical facility security regulations fall well short of the rules and protections we already have in place in New Jersey.  Our state has been ahead of the curve and we should not be put at risk by weaker regulations that DHS and the chemical industry have rushed out at the eleventh hour after years of neglect on the matter.

U.S. Rep. Chris Smith represents the 4^th Congressional District of New Jersey, which includes parts of Monmouth, Ocean, Burlington and Mercer counties.