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Recent reports from Iraq confirm attacks with chlorine bombs. By combining chlorine with conventional explosives, those perpetrating such attacks not only kill but also cause psychological trauma that lingers long after the poisonous dust settles. While these reports renew anxiety that a similar strike might occur here, the concern is hardly new. In 1995, the Japanese cult Aum Shinrikyo released sarin � a nerve agent more toxic than cyanide � aboard subway trains at the height of Tokyo’s morning rush hour. The attack left 12 dead and injured countless more. Yet the prospect of a spectacular attack against a chemical facility is among the worst-case scenarios for homeland security officials. Effective on June 8, Department of Homeland Security (DHS) chemical-facility security regulations are intended to prevent such an attack in the first place. Recent federal law gives DHS the authority to regulate security at chemical facilities, though the legislative history does not begin there. Previous attempts to regulate security at chemical facilities all failed because various groups could not agree on key provisions or other events usurped congressional attention. When Congress finally passed the measures late last year as part of the Department of Homeland Security Appropriations Act of 2007, the section addressing chemical-facility security was a mere two pages � a far cry from the comparatively lengthy standalone bills that had been considered earlier. Congress directed DHS to develop implementing chemical-facility security regulations by early April but left many of the details to DHS discretion. Consistent with its statutory mandate and following a brief public comment period, DHS published the Chemical Facility Anti-Terrorism Standards on April 9 in the Federal Register. Unlike regulations that are wholly prescriptive, Congress directed DHS to develop regulations that incorporate “risk-based performance standards.” Risk-based performance standards mandate a particular level of security but do not mandate the precise manner to achieve it. In other words, the regulations require the nation’s most at-risk chemical facilities to identify and remediate security weaknesses; however, the facility is free to select the specific technology or process to correct the problem to achieve the required security outcome. Whether a facility installs a chain link fence or builds a concrete wall to stop intruders is immaterial. To ensure compliance, DHS will inspect regulated facilities and may issue fines. In extreme cases, DHS may close a facility until security deficiencies are corrected and the appropriate risk-based performance standard is satisfied. The success of these regulations will be in the details. And one of the most important details remains contested: pre-emption. The current regulations pre-empt state or local law that conflicts with, or frustrates the purpose of, the federal regulatory regime. Some states, led by New Jersey, do not want federal regulations to pre-empt state chemical-security laws, which they perceive may be more stringent or mandate additional protection. Bill took anti-pre-emption view Whether federal regulations represent the security floor or the security ceiling has spurred debate. Although Congress originally was silent on pre-emption when it authorized DHS to draft the regulations in the first place, lawmakers have now made their position known. The recently passed emergency supplemental appropriations bill � the same proposal that set timetables for American forces to leave Iraq � also contained a provision addressing chemical facility security and pre-emption. In it, Congress took a states’ rights position and permitted state and local governments to enact more stringent chemical security measures. President Bush has vetoed the appropriations bill, leaving the issue of pre-emption an open question that likely will be resolved in the courts. All parties may not agree on pre-emption, but the significance of the regulations is beyond dispute. Developments in the chemical sector suggest government homeland security regulation has entered a new phase. Although many industries have significantly and meaningfully improved security since Sept. 11, 2001, protecting the nation’s vast critical infrastructures increasingly will be subject to regulatory oversight. It is hardly a coincidence that other government agencies have put forth their own mandates, even in the absence of specific statutes directing them to do so. The Transportation Security Administration and the Pipeline and Hazardous Materials Safety Administration recently proposed regulations. Due out later this year, these regulations will require additional security measures for railroads and hazardous materials transportation, respectively. More are likely to follow. Steven E. Roberts, an NLJ columnist, is an associate at Atlanta-based Alston & Bird specializing in homeland security issues.

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