The Department of Homeland Security will allow states to keep existing chemical security standards, augmenting pre-emption rules in a draft that received strong congressional opposition.

Homeland Security Secretary Michael Chertoff unveiled the final version of chemical security regulations on Monday, and said only state rules that conflict or interfere with federal provisions would be pre-empted. He also said no current state laws were viewed in conflict.

“We’re comfortable that at least as currently configured, existing state regulations will be complementary and mutually supportive of what we are doing,” he said.

But Chertoff would not speculate whether proposed stricter standards, including rules in New Jersey to require chemical sites to convert to safer chemicals, would be allowed to move forward.

“When New Jersey decides what it wants to do . . . they can present it to us,” he said. “If there’s a particular regulation . . . that a state passes mandating something, this department and ultimately a judge is going to have to evaluate it concretely in order to make a determination about whether it frustrates the rule.”

The language change was welcomed by industry groups and a bipartisan group of lawmakers that had been critical of draft regulations, released in December, which suggested a broader pre-emption standard.

But environmentalists and advocates for the states said the DHS definition of pre-emption continues to tie their hands.

“This is unacceptable,” said Sen. Frank R. Lautenberg, D-N.J. “It prevents New Jersey and other states from continuing to pursue stronger chemical security laws.”

Under the new regulations, which will take effect in about two months, about 7,000 chemical sites would be required to provide DHS with vulnerability assessments and security plans.

Sites that hold certain quantities of specific chemicals would complete an online evaluation process, determining their vulnerabilities and consequences of a terrorist attack or internal sabotage. The rules include a new eight-page list of chemicals and the perceived dangerous quantity.

Facilities viewed high risk would then be tiered into one of four categories. In a change from the draft, most facilities would be unable to resubmit documents they had created for state government or industry groups’ security programs.

“We do need to make sure we’re operating with the same sheet of music,” Chertoff said.

He estimates the top tier, an estimated 300 to 400 facilities, would receive the closest scrutiny.

While Chertoff said the department will work to help facilities, DHS can assess a fine of up to $25,000 per day or shut down non-compliant sites.

The White House has asked for $25 million to fund the project in fiscal 2008, and DHS officials said about 70 staff members will either be hired or transferred to audit facilities. In addition, chemical sites may be assessed fees for their submissions.

“No reports will be taken on face value,” said Robert Stephan, assistant secretary for Infrastructure Protection.

Chertoff also said the plan allows for confidential information to be shared with state and local officials charged with providing security for those around the plants.

DHS’ new position on the most controversial issue in the regulations came after several weeks of opposition from Congress. Lawmakers from both parties added language giving states the right to enact stricter regulations to the Iraq war supplemental spending bills (HR 1591) in both the House and Senate.

Chertoff sent a letter Sunday to the ranking Republicans in each chamber’s lead Homeland Security Committee — Sen. Susan Collins of Maine and New York Rep. Peter T. King — outlining his view that the federal regulations are not “field pre-emption,” which would completely displace any state chemical security provisions.

Most said they supported the new administration position.

Rep. Shelia Jackson-Lee, D-Texas, who introduced a stand-alone bill (HR 1530) for state chemical security rights, said she believed DHS considered the comments it received.

“I applaud DHS for listening to Congress in taking the long overdue step to bolster the security of our chemical facilities,” she said. But a spokesman said Jackson-Lee had no plans to withdraw her bill.

Collins said she was pleased with the regulations, but suggested DHS may be “overreaching” in its pre-emption decision.

“Despite my belief that the Department should have mirrored the law by not dealing with the pre-emption issue, I am pleased that DHS has made clear that it does not intend to attempt to pre-empt New Jersey’s chemical security law,” she said.

New Jersey officials had the strongest reaction against the rules. Gov. Jon Corzine, D-N.J., would like more facilities to review the potential of conversions to less toxic chemicals, known as “inherently safer” technology (IST).

“We don’t understand how it’s a step in the right direction,” said Rick Engler, director of the New Jersey Work Environment Council. “It’s clear they are reserving the authority to preempt whenever and wherever they want.”

Industry officials have complained that IST provisions tie their hands, preventing facilities from determining what is the best way to reduce the security threat.

The American Chemistry Council called Monday’s announcement “a major step forward.”

“For the first time, a federal agency is authorized to enforce national risk-based performance standards to ensure that chemical facilities assess security vulnerabilities and implement security plans to address them,” the organization said in a statement. “Equally important, DHS has clear authority to inspect these facilities and apply strong penalties, including facility shutdowns, for those that fail to act.”

ACC spokesman Scott Jensen said the group was still reviewing some of the new burdens on industry in the final rules, including application fees and requiring new vulnerability assessments.

Patrick Yoest contributed to this story.

Matthew E. Berger can be reached at mberger@cq.com.

First posted April 2, 2007 1:05 p.m.