Private Law Has Failed to Hold Chemical Facilities Accountable During Disasters

Recently, a group of national security and environmental experts, including former Environmental Protection Agency Administrator Christine Todd Whitman, former Occupational Safety and Health Administration head David Michaels, and retired United States Army Generals Russel Honoré and Randy Manner, wrote to EPA Administrator Michael Regan.

They urged the agency to issue stronger and stricter regulations to protect Americans from chemical accidents that may be caused by natural disasters, among other factors. These natural disasters are more and more frequently the result of climate change, which is escalating decade by decade. As a global phenomenon with frightening environmental implications happening right before our very eyes, climate change is primarily the consequence of destructive, reckless human activity such as burning fossil fuels and cutting down forests.

On February 2, Kathleen Salyer, director of EPA’s Office of Emergency Management, responded to the experts’ letter, saying the “EPA will consider the points made” and that “the EPA is considering improvements to the rule to better address the impacts of climate change on facility safety and protect communities from chemical accidents, especially vulnerable and overburdened communities living near [risk management plan (RMP)] facilities.”

The RMP rule requires facilities that store hazardous substances to have emergency responses in place in the event of a chemical accident. On May 26, the EPA announced that two virtual public listening sessions will be held on the agency’s RMP rule. These sessions will offer interested people the opportunity to present information and provide comments with regard to the revisions made to the RMP rule since 2017.

“These listening sessions are a first step in considering improvements to the RMP rule, so EPA can better address the impacts of climate change on facility safety and protect communities from chemical accidents, especially vulnerable and overburdened communities living near RMP facilities,” said Carlton Waterhouse, who is the EPA deputy assistant administrator for the Office of Land and Emergency Management. Preventing natural disasters from striking chemical facilities should be a priority for the EPA, as oftentimes, these incidents lead to hazardous substance leaks that reach the vulnerable nearby communities. As a consequence of climate change, carbon dioxide from human activity is increasing 250 times faster than it did from natural sources after the last ice age. Furthermore, the most catastrophic hurricanes are three times more frequent than 100 years ago, and the proportion of major hurricanes has doubled since 1980.

How Many Chemical Facilities Are at Risk of Being Struck by a Natural Disaster?

Right now, there are 872 chemical facilities storing highly hazardous substances within 50 miles of the U.S. Gulf Coast, where hurricanes occur quite frequently. Over 4.3 million people, as well as 1,717 schools and 98 medical facilities, are located within 1.5 miles of these chemical facilities. However, across the country, there are 10,420 RMP facilities, from which more than 3,200 are at risk of releasing hazardous substances into the environment in the event of a chemical accident triggered by extreme weather phenomena. These climate change-fueled events pose a tremendous danger to these facilities, as hurricanes and flooding can easily lead to the release of toxic substances among communities living nearby.

While this should be seen as a very serious, acute issue, policy makers remain passive and have failed to take action to strengthen the lax rules that currently govern these facilities. What is perhaps the saddest thing is that they have failed to learn from past tragedies, such as Hurricane Harvey, which struck Galveston and Houston, two cities in Texas, in 2017.

The aftermath of the toxic flooding was heart-wrenching — 88 victims and thousands of families were left without a home. More than 650 chemical facilities in Texas were at risk of releasing hazardous substances due to the flooding, and approximately 100 chemical and oil leaks were reported following the hurricane. Some of the most dangerous chemicals facilities can accidentally release, either from aboveground or underground tanks, during a natural disaster include poisons, flammable liquids, dioxins, corrosives, heavy metals and oxidizers. More specific examples include benzene, cadmium oxide, chloroform, ethylene oxide, lewisite, mercuric acetate, nitric acid, paraquat and tabun.

At the moment, private law governs chemical facilities across the U.S. Private law concerns a particular individual or small group, including certain industries, whereas public law refers to rules for general application, such as those enforced for the nation as a whole. Nevertheless, existing private law mechanisms such as tort liability do nothing to prevent catastrophes such as Hurricane Harvey.

A viable alternative to private law is public law, which would enforce regulations and performance standards for chemical storage and additional reforms to close the gaps in the management of facilities that store hazardous chemicals nationwide.

Private Law Fails to Protect Vulnerable Communities

Insurance, tort law and contractual arrangements cannot properly address the sinister threat of hazardous substance leaks because it is very difficult to identify the firms that are the sources of these spills and hold the companies accountable for negligence. Moreover, the existing regime dates back to the 1970s. It was developed for a different time, and it reflects different priorities, which is why it is no longer effective.

Policy makers should not assume that present weather conditions or the physical infrastructure of chemical facilities will remain the same, so they must build adaptability and resilience into emergency planning scenarios. Similarly, they should not assume that chemical facilities that have not experienced a hazardous substance leak in the past will not have to deal with one in the future. Because chemical facilities may not face liability for the harm they cause, private law is very unlikely to effectively manage the problem of toxic exposure stemming from extreme weather events caused by climate change.

For many decades, the U.S. has relied on private law governing industrial chemical storage. Still, there are no mandatory standards for storage tank performance, inspections, record-keeping or setback requirements. There are no Federal Emergency Management Agency regulations governing chemical storage either. This lack of regulations causes private firms to store millions of gallons of hazardous substances in areas prone to natural disasters without regulatory oversight of their storage practices or extreme weather preparedness.

Public Law Would Help Solve the Issue of Chemical Disasters

The government and private sector are neglecting the danger of natural disasters caused by climate-fueled extreme weather events striking chemical facilities. The Trump administration prevented the Chemical Safety Board from taking measures and weakened the few federal regulations concerning chemical disaster prevention. As a result, the chemical industry is failing to secure hazardous materials against superfloods, which will occur more and more often as the planet warms.

Policy makers should cease seeing natural disasters as unrelated events and learn valuable lessons from extreme weather phenomena management to respond better to such crises in the future. Since private law failed, the U.S. needs public law efforts to prevent disasters, such as regulations and performance standards for chemical storage and other reforms to close the gaps in outdated toxic-chemical management statutes. Authorities should reduce the vulnerability of communities living near chemical plants, and the federal government should strengthen the existing chemical regulatory regime to become more responsive to climate change events.

Congress and the EPA should close these gaps by requiring improved standards for chemical storage, restrictions on siting, inspections of vulnerable facilities, and reforms to the Emergency Planning and Community Right-to-Know Act. As a first step, policy makers and emergency managers should make a comprehensive inventory of vulnerable chemical plants. They should also have a full understanding of the hazardous substances stored in each and the facility’s degree of exposure to natural disasters.

To have a foolproof tool for natural disaster prevention, Congress should take two steps. First, it should increase federal funding for local emergency planning committees so that these committees can fulfill their emergency planning tasks. These committees bring together elected officials, police and fire departments to prepare and implement emergency response plans. Secondly, Congress should amend the Emergency Planning and Community Right-to-Know Act to impose construction, siting and performance standards for the storage of hazardous chemicals above a certain volume threshold.

Although climate change is inevitable and worsening with each passing decade, there are numerous feasible and effective measures policy makers can enforce to prevent exposing residents living near chemical facilities to toxic substances that could escape these plants. By collaborating with experts and various authorities, they can develop strong emergency responses that would keep these vulnerable communities safe at all times.

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