Private law did not hold chemical facilities liable during disasters

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

They urged the agency to issue tougher and stricter regulations to protect Americans from chemical accidents that can be caused by natural disasters, among other factors. These natural disasters are increasingly the result of climate change, which is getting worse every decade. As a global phenomenon with frightening environmental implications unfolding before our eyes, climate change is primarily the consequence of destructive and reckless human activities such as the burning of fossil fuels and the cutting down of forests.

On February 2, Kathleen Salyer, director of EPA’s Office of Emergency Management, responded to the experts’ letter, stating that “EPA will review the points raised” and that “EPA is considering improving the rule to better deal with the impacts of climate change”. changing facility safety and protecting communities from chemical accidents, especially vulnerable and overburdened communities living nearby [risk management plan (RMP)] facilities.”

The RMP rule requires facilities that store hazardous substances to put in place emergency measures 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 provide interested persons with the opportunity to present information and provide feedback regarding revisions to the RMP Rule since 2017.

“These listening sessions are a first step in considering improvements to the RMP rule, so that the 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 hitting chemical facilities should be a priority for the EPA, because often these incidents result in the release of hazardous substances that reach vulnerable nearby communities. Due to climate change, carbon dioxide from human activity is increasing 250 times faster than it did from natural sources after the last Ice Age. Moreover, 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 hit by a natural disaster?

Currently, 872 chemical facilities store highly hazardous substances within 50 miles of the US Gulf Coast, where hurricanes occur quite frequently. More than 4.3 million people, along with 1,717 schools and 98 medical facilities, are within 1.5 miles of these chemical facilities. However, across the country there are 10,420 RMP facilities, of 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 events. These events fueled by climate change pose a huge danger to these facilities, as hurricanes and floods can easily lead to the release of toxic substances among communities living nearby.

While this should be seen as a very serious and acute problem, policymakers remain passive and have taken no action to enforce the lax rules that currently govern these facilities. Perhaps saddest is that they failed to learn from past tragedies, such as Hurricane Harvey, which hit Galveston and Houston, two cities in Texas, in 2017.

The aftermath of the toxic flood was heartbreaking – 88 victims and thousands of families were left homeless. More than 650 chemical facilities in Texas were at risk of releasing hazardous substances due to flooding, and about 100 chemical and oil leaks were reported in the aftermath of the hurricane. Some of the most dangerous chemical facilities can accidentally release, from aboveground or underground tanks, during a natural disaster, including 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.

Currently, private law governs chemical facilities in the United States. Private law relates to a particular individual or small group, including certain industries, while public law refers to rules of general application, such as those applied for the nation as a whole. Nevertheless, existing private law mechanisms such as tort do nothing to prevent disasters such as Hurricane Harvey.

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

Private law does not protect vulnerable communities

Insurance, tort law and contractual agreements cannot adequately address the sinister threat of hazardous substance leaks because it is very difficult to identify the companies that are causing these spills and hold the companies liable for negligence. Moreover, the existing system dates from the 1970s. It was designed for a different era and reflects different priorities, which is why it is no longer effective.

Policy makers should not assume that current weather conditions or the physical infrastructure of chemical facilities will remain the same, so they should build adaptability and resilience into contingency planning scenarios. Likewise, they should not assume that chemical facilities that have not experienced a release of hazardous substances in the past will not have to deal with them in the future. Since chemical facilities may not be held liable for damages they cause, private law is highly unlikely to effectively address the problem of toxic exposure resulting from extreme weather events caused by climate change.

For many decades, the United States has relied on private law governing the storage of industrial chemicals. Yet there are no mandatory standards for storage tank performance, inspections, record keeping, or removal requirements. There are also no Federal Emergency Management Agency regulations governing the storage of chemicals. This lack of regulation leads private companies to store millions of gallons of hazardous substances in areas prone to natural disasters without regulatory oversight of their storage practices or preparation for extreme weather conditions.

Public law would help solve the problem of chemical disasters

Government and the private sector overlook the danger of natural disasters caused by climate-fueled extreme weather events that strike chemical facilities. The Trump administration blocked the Chemical Safety Board from taking action and weakened the few federal regulations regarding the prevention of chemical disasters. As a result, the chemical industry is failing to protect hazardous materials from superfloods, which will occur more often as the planet warms.

Policy makers need to stop viewing natural disasters as independent events and learn valuable lessons from dealing with extreme weather events to better respond to such crises in the future. Since the failure of private law, the United States needs public law efforts to prevent disasters, such as regulations and performance standards for chemical storage and other reforms to close the gaps in the outdated laws on the management of toxic chemicals. 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 events related to climate change.

Congress and the EPA should address these shortcomings by requiring improved standards for chemical storage, restrictions on location, inspections of vulnerable facilities, and reforms to emergency planning law and the right to knowledge of the community. As a first step, policymakers and emergency managers should draw up a comprehensive inventory of vulnerable chemical plants. They must also have a full understanding of the hazardous substances stored in each and the facility’s degree of exposure to natural disasters.

To have an infallible tool for preventing natural disasters, Congress should take two steps. First, it should increase federal funding for local emergency planning committees so that these committees can carry out their emergency planning duties. These committees bring together elected officials, police and fire departments to develop and implement emergency response plans. Second, Congress should amend the Emergency Planning and Community Right-to-Know Act to mandate construction, siting, and performance standards for storing hazardous chemicals above a certain threshold. of volume.

Although climate change is inevitable and worsens over decades, there are many feasible and effective measures that policy makers can take to avoid exposing residents living near chemical facilities to toxic substances that could escape from these plants. By collaborating with experts and various authorities, they can develop robust emergency responses that would keep these vulnerable communities safe at all times.


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