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 for stronger and more stringent regulations to protect Americans from chemical injuries that could be caused, among other things, by natural disasters. Climate change is increasing decade by decade, and these natural disasters are becoming more frequent. Climate change is a global phenomenon that has frightening environmental consequences. It is primarily caused by human recklessness and destructive activities like burning fossil fuels or 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 hazardous substance storage facilities to have emergency response plans in place in case 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 allow interested parties to provide information and make comments about the RMP rule revisions 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. The EPA should prioritize preventing natural disasters from threatening chemical facilities. These incidents can often lead to hazardous substance leaks that can reach vulnerable communities. Carbon dioxide from human activity is growing 250 times faster after the last ice age than it did from natural resources. Additionally, the most devastating hurricanes are three-times more frequent than 100 year ago. The proportion of major storms has also doubled since 1980.

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How Many Chemical Facilities are at Risk of Being Hit by a Natural Disaster

Right now, there are 872 chemical facilitiesHighly hazardous substances must not be kept within 50 miles from the U.S. Gulf Coast, which is where hurricanes often occur. These chemical facilities are within 1.5 miles of over 4.3 million people and 1,717 schools, as well as 98 medical facilities. There are 10,420 RMP plants across the country. Of these, more than 3,200 are at high risk of releasing hazardous chemicals into the environment as a result of an extreme weather event. These climate-driven events pose a huge threat to these facilities. Hurricanes and flooding can easily result in the release toxic substances to communities nearby.

This is a serious problem that must be addressed immediately. Yet, policy makers are still passive and have not taken any action to improve the current lax rules. The saddest part is that policy makers have failed to learn from past disasters, such as Hurricane Harvey in 2017, which devastated Galveston, Texas.

The aftermath of the toxic flooding was heart-wrenching — 88 victims and thousands of families were left without a home. The flooding put more than 650 Texas chemical facilities at risk of releasing hazardous chemicals. There were also approximately 100 oil and chemical spillages that were reported following the hurricane. The most dangerous chemicals that can be accidentally released from underground or aboveground tanks during a natural catastrophe are poisons and flammable liquids. Other examples include benzene (cadmium dioxide), chloroform and ethylene oxide, lewisite (mercuric acetate), paraquat, tabun, and nitric acid.

Private law currently governs chemical facilities in the United States. Private law is specific to one person or small group, but public law applies to all laws, including those that apply to the entire country. However, existing private law mechanisms like tort liability do not prevent disasters like Hurricane Harvey.

Public law, which enforces regulations and performance standards for chemical storage, and further reforms to close the gaps in management of hazardous chemical storage facilities nationwide, is a viable alternative to private law.

Private Law fails to protect vulnerable communities

Because it is difficult to identify the source of hazardous substance spillages and hold them accountable for negligence, insurance, tort law, and contractual arrangements are not able to adequately address this threat. The existing system dates back to 1970s. It was created at a different time and reflects different priorities. This is why it is no more effective.

Policy makers shouldn’t assume that current weather conditions and the physical infrastructure of chemical plants will not change. Instead, they should build adaptability into emergency planning scenarios. They should not assume chemical facilities that have not had a hazardous substance leakage in the past won’t have to deal with it in the future. Private law may not be able effectively to address the problem caused by toxic exposure due to extreme weather events such as climate change.

The U.S. relies on private law for industrial chemical storage for many decades. There are no requirements for storage tank performance, inspections and record-keeping, nor setback requirements. Chemical storage is not governed by Federal Emergency Management Agency regulations. Private firms can store millions of gallons worth of hazardous substances in areas that are vulnerable to natural disasters, without any regulatory oversight or preparation for extreme weather.

Public Law Could Help Solve the Problem of Chemical Disasters

The government and the private sectors are not taking into consideration the possibility of natural disasters due to climate-driven extreme weather events striking chemical facilities. Trump’s administration obstructed the Chemical Safety Board’s ability to take measures and weakened the few federal regulations regarding chemical disaster prevention. The result is that the chemical industry is failing the superfloods and other hazards as a result.

For policymakers to be able to respond more effectively to natural disasters in the future, they must stop treating them as unrelated events. The U.S. requires public law efforts to prevent disasters. These include regulations and performance standards regarding chemical storage and other reforms to address gaps in toxic-chemical management statutes. The federal government should strengthen its existing chemical regulatory system to reduce vulnerability to communities near chemical plants.

Congress and EPA should address these gaps by requiring higher standards for chemical storage and restrictions on sitting, inspections of vulnerable facilities, and reforms the Emergency Planning and Community Right-to-Know Act. Policy makers and emergency managers need to compile a comprehensive inventory on all 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.

Congress should take two steps in order to create a reliable tool for natural disaster prevention. It should first increase federal funding for local emergency plan committees to ensure that they can carry out their emergency planning duties. These committees are composed of elected officials, fire departments, and police officers. They prepare and implement emergency response plans. Second, Congress should amend Emergency Planning and Community Right-to-Know Act. This Act would impose construction standards, siting and performance standards to store hazardous chemicals above a specified volume threshold.

While climate change is inevitable, and it is getting worse with each decade that passes, there are many feasible and effective policies policy makers can put in place to prevent residents living near chemical plants from being exposed to toxic substances that could escape these buildings. They can work with experts and other authorities to create strong emergency responses that would keep these vulnerable populations safe at all costs.