Floodwater Contamination Threatens Communities Living Near Chemical Installations – Can Private Law Protect Them?


Climate change is a global phenomenon whose terrifying environmental implications are intensifying before our eyes. Irresponsible human activities such as the burning of fossil fuels cause more frequent natural disasters such as hurricanes and floods. When such extreme weather events hit vulnerable chemical facilities, such as those in low-lying coastal areas, they can lead to contamination of flood waters if hazardous substances leak. Exposure to toxic floodwaters can have life-threatening health effects for people living near the affected chemical plant. Some private law mechanisms have been put in place to prevent such incidents and protect those at risk. But how effective are they?

Climate change is real and indisputable. Global sea levels have risen about 8 inches over the past century, and the planet’s average surface temperature has risen 2° Fahrenheit (1.1°C) above pre-industrial levels. And in recent decades, increasingly tragic natural disasters have struck the United States, leading to contamination of floodwaters.

In August 2017, Hurricane Harvey hit Texas and Louisiana, killing 68 direct, 39 indirect, 21 injured, and forced 200 people within 1.5 miles of Arkema’s chemical plant in Crosby, Utah. Texas, to leave the area. The reason for their evacuation was that more than three feet of flooding disabled the refrigeration system of the plant, leading to the spontaneous combustion of organic peroxides. In addition, floods transported over 2,200 pounds of chromium and 1,433 pounds of nickel sites around Houston in nearby Galveston Bay.

More 3,200 of the 10,420 PGR establishments across the United States, including hundreds of chemical facilities, risk spreading hazardous chemicals into the environment and among communities residing nearby if natural disasters triggered by climate change strike. There are currently 872 chemical facilities within 50 miles of the Gulf Coast, a hurricane-prone area. Nearly 4.4 million people live within 2.5 km of these chemical plants, as well as 1,717 schools and 98 medical facilities.

How prepared are vulnerable chemical facilities to respond to a natural disaster?

The RMP rule requires facilities that use or store hazardous substances to develop plans that identify the potential consequences of a chemical accident, propose effective preventive measures and consider appropriate emergency responses. Although RMP facilities are tasked with looking at all possible causes of an emergency, a Government Accountability Office report found that risks stemming from climate change were not considered, leaving these facilities with little information and guidance on how to manage threats such as hurricanes and sea level rise. The report found that more than 150 facilities are located in areas likely to experience at least a foot (0.3 meter) of sea ​​level rise.

After a large explosion at a fertilizer plant in Texas in 2013, which occurred in part due to a lack of federal regulations on how certain dangerous chemicals should be stored, former US President Barack Obama asked the Environmental Protection Agency (EPA) to review risk management planning regulations. and decide if they should be expanded. Eventually, the EPA released a major update to these rules that would require tens of thousands of industrial facilities to assess their potential chemical spill effects and develop plans to prevent such incidents. However, when Donald Trump took office in 2017, the proposed regulatory changes were dropped.

Now, current President Joe Biden is considering reissuing a new rule to regulate chemical facilities at risk of hazardous substance leaks due to extreme weather caused by climate change. Since 2017, several chemical plant explosions in the Houston area have occurred during the Trump presidency, but the former president chose to side with industry lobbyists and ignored established safety rules to protect vulnerable chemical plants across the United States. Therefore, at present, chemical facilities at risk of being affected by a natural disaster are far from prepared to deal with the consequences of a natural disaster.

There is no doubt that the EPA, policy makers and other authorities should become more involved in this issue, but we must also ask ourselves: is the current private law governing the chemical industry sufficient?

Why private law is not effective in preventing exposure to toxic floodwaters and never has been

Each year, between 500 and 800 “Natech” events take place across the United States. Natech refers to natural hazards triggering technological accidents, natural disasters such as hurricanes and floods that can trigger events that call into question the safety of hazardous installations. The difference between private law and public law is that the former relates to a particular individual or small group, including certain industries, while the latter relates to rules of general application, such as those governing a nation.

As we have seen, existing private law mechanisms such as tort, insurance and contractual arrangements do nothing to prevent disasters such as those caused by Hurricane Harvey. Indeed, it is very difficult to find out which companies are responsible for chemical spills and to hold them accountable. Moreover, the current regime is more than five decades old. Since it was developed for a different era, it reflects different priorities.

The United States has relied on private law for decades, but there are no mandatory standards for storage tank performance, record keeping, or inspections. This lack of regulation encourages private companies to store millions of gallons of hazardous substances in areas prone to natural disasters caused by climate change without regulatory oversight of their practices or preparation for extreme weather events. Consequently, the private law mechanisms are obsolete and have repeatedly failed.

Public law as a much more viable and effective alternative

First, policymakers and emergency managers should compile a comprehensive inventory of vulnerable chemical plants in the United States. They must have a solid understanding of the hazardous substances stored at each facility and its vulnerability to exposure to natural disasters. One of the most troubling gaps in existing regulations for chemical facilities is the lack of regulatory standards for above ground storage of hazardous substances other than petroleum.

There are no federal regulations that require chemicals to be kept in proper, flood-proof storage tanks, and no federal regulations that require inspection of chemical tanks, detection of leaks or corrosion prevention. The EPA could manage the risk of floodwater contamination itself, for example, by setting performance, construction, and leak detection requirements for chemical storage tanks and by requiring chemical plants store hazardous substances above a certain volume to prevent spills.

The US Congress should also get involved in developing natural disaster prevention strategies. This could increase federal funding for local emergency planning committees to fulfill their role. Committees bring together elected officials, police and fire departments to prepare and implement emergency response plans. Policy makers need to stop viewing natural disasters as unrelated events and learn from natural disaster management to better respond to such tragedies in the future.

Finally, decision makers should not assume that current weather conditions or chemical plant infrastructure will remain the same. They need to build adaptability into emergency planning scenarios instead of assuming that chemical facilities that have not experienced a hazardous substance leak will not face one in the future. As the effects of climate change worsen with each passing year, the least authorities can do is protect vulnerable communities from toxic exposure.

This article is written by Jonathan Sharp, CFO of Environmental Litigation Group, PC Based in Birmingham, Alabama, the law firm‘s primary practice area is toxic exposure. Lawyers help individuals and communities harmed by dangerous agents obtain compensation from responsible companies.

Learn more about floodwater contamination: What causes water pollution?

Image courtesy of: SC National Guard/Flickr

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