Tommy Denton

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President Bush's Homeland Security Department has gone to such excess in a spasm of generosity to the nation's chemical industry that the American public should demand a huge "regift" to the new Congress.

Since Sept. 11, 2001, lawmakers had been going dutifully through the parliamentary motions of debating the extreme need to secure the nation's 15,000 chemical plants from terrorist sabotage. Alas, chastened by firm industry resistance and eager to slip out of town for the September recess to campaign back in their home districts, members concluded what had been an earnest, five-year debate with a weak-kneed, capitulating whimper.

Instead of following the advice of homeland security committees in both the House and Senate to tighten chemical security regulations, the congressional leadership opted instead to pass the buck through a modest, two-page rider on the federal agency's appropriation bill. The rider required the Bush administration to promulgate rules governing the highest-risk facilities.

On the Friday afternoon before Christmas, while not a creature was stirring or paying close attention, Homeland Security officials quietly released the proposed regulations and standards that would guide them when they were scheduled to become effective April 4.

As reported by The Associated Press on Dec. 22, "The orders closely follow the recommendations of the chemical industry. Companies will be required to assess their own vulnerabilities and provide the government with their plans for fixing them, under the proposed new rules released Friday for public comment. Industry representatives welcomed their arrival."

No kidding?

Both congressional committees with jurisdiction over Homeland Security advanced far more comprehensive -- and thus effective, if more expensive -- proposals for securing chemical plants, so the industry's relief is understandable.

For instance, the Senate chemical security measure specifically urged the "use, storage and handling of substances of concern" among its criteria for assessing plant vulnerabilities, according to a report in The New York Times.

The House version went further, offering a bipartisan compromise requiring high-risk plants to adopt inherently safer technologies, including safer chemicals, which would mitigate the consequences even of a successful terrorist attack.

After all, Congress itself benefited from such a precaution when, after Sept. 11 and the still-unsolved anthrax attacks in Washington, the district's Blue Plains wastewater treatment facility -- within the vapor distance of Capitol Hill -- decided as a matter of chemical safety to stop using chlorine and replaced it with the less-volatile sodium hypochlorite bleach.

But Homeland Security, with the White House's blessing, has seen to it that its rules not only pre-empt stricter state or local regulations without the permission of the agency secretary, but Congress unfathomably exempted wastewater and drinking water plants from complying with either state or federal standards.

In addition, the proposal gives the agency wide discretion to approve the industry's voluntary programs rather than enforce federal regulations. As noted by the environment watchdog National Environmental Trust, "There are no standards for these alternative measures; we just need to trust the DHS assistant secretary for infrastructure protection that they're protective enough."

Among the most troubling aspects of the proposals is the celebration of secrecy. As NET pointed out, "Vulnerable communities are not even allowed to know whether a local plant is in compliance with security standards" -- a usurpation of congressional intent.

U.S. Sen. Susan Collins, R-Maine, expressed concern about the rules, which she said "appear to go beyond what Congress authorized" by the agency's assigning to itself the authority to pre-empt the legal standing of states and courts, thus shielding it "from legitimate judicial scrutiny of its own actions."

With the Bush White House so prone to protect, defend and insulate through secrecy its administration/industry axis, no one should be surprised at this latest example of special-interest coddling.

Probably no other administration in U.S. history exhibited a crasser disinclination to "oppress" its corporate benefactors through the public accountability of regulatory oversight. Yet the 109th Congress -- which from more than sufficient experience knew better -- simply wimped out by effectively authorizing a hostile administration to issue yet another certificate of accountability avoidance.

On Thursday, the 110th Congress convenes at noon. Members will have much mischief to undo. Retrieving responsibility for imposing a discipline to achieve genuine national chemical security should be among its most pressing priorities.

Denton's column appears in the Sunday and Tuesday editions of The Roanoke Times.