Loyola University Chicago School of Law, J.D. 2019
In the wake of Hurricane Harvey’s severe flooding, the Arkema chemical plant in Crosby, Texas has made quite the media splash. Rising waters left the plant without power, forcing workers to transfer volatile organic peroxides into large refrigerated trucks with independent generators. In up to six feet of water, several of the trucks’ refrigeration systems failed, resulting in combustion of the hydrogen peroxide, a hazardous material under the Occupational Safety and Health Administration (OSHA) standards. This is not the first example of chemical plants having issues with natural disasters; there were significant hazardous material concerns after Hurricane Katrina in 2005 and more recently the Fukushima nuclear plant in 2011. With no indication that these problems will be resolved, it is important to once again look at regulations placed on chemical plants in response to emergency.
Occupational Safety and Health Administration (OSHA)
As part of the Superfund Amendments Reauthorization Act of 1996, OSHA established Hazardous Waste Operations and Emergency Response, or HAZWOPER, standards. 29 C.F.R § 1910.120 deals specifically with hazardous materials in industry and is a comprehensive set of standards for any kind of exposure—including emergency response and cleanup operations. Various resources are available as guides to compliance. OSHA even has several pages on preparedness in the face of natural disasters, including hurricanes.
Prior to starting operations with hazardous materials, a facility must make either an Emergency Response Plan, under HAZWOPER, or an Emergency Action Plan available to employees and the government. An Emergency Response Plan created by an employer must contain pre-emergency planning, training in emergency prevention, general security measures, and a process for decontamination, treatment, and follow-up. If the facility will evacuate their employees instead of having an organized response, an Emergency Action Plan is required. This only requires that an employer train every employee in the current methods of reporting, evacuating, and other associated procedures.
Environmental Protection Agency (EPA)
Besides providing support through its emergency response program, the EPA is responsible for keeping track of Risk Management Plans or RMPs. RMPs are required under the 1990 Clean Air Act amendments. If a facility has more than a threshold amount of specified hazardous material, it is required to submit a RMP to the EPA every five years. This report must assess the potential damages associated with a leak of the regulated chemicals, the prevention plans implemented by the facility, and the emergency response plan should the prevention plans fail. The EPA even provides a 17-page chapter on emergency response programs under OSHA as part of their RMP guidelines.
U.S. Chemical Safety and Hazard Investigation Board (CSB)
The CSB is a federal agency tasked with investigating chemical accidents. While CSB is not actually responsible for forming any industry regulations it does use its investigations to produce recommendations. Regulatory agencies like OSHA and the EPA, or even chemical plants themselves, may incorporate these recommendations, which include both regulatory guidance and suggestions for additional regulation, into their policies. On August 27th, the CSB issued a Safety Alert to oil and chemical facilities in the aftermath of Hurricane Harvey. The alert functions as a sort of checklist for possible issues that could result in an accident during the restarting of plants. The CSB released a nearly identical bulletin in response to Katrina.
With the situation at the Arkema plant contained and crews finishing clean-up and repairs, attention has turned to the adequacy of emergency regulations. Arkema President and CEO, Rich Rowe, claimed that they were prepared for a worst case scenario, but six feet of water was unprecedented. While no one was severely injured and the 1.5 mile evacuation zone was lifted after four days, are unprecedented levels of water a sufficient excuse?
Arkema has an established compliance committee and may have followed the policies it put in place to comply with federal regulations, but it appears that there was room for improvement. Arkema’s most recent RMP from 2014 suggests that the worst-case scenario could affect one million people spread around a 23-mile radius. Thankfully the worst-case scenario deals with much more hazardous chemicals than the organic peroxides Arkema struggled with. However, the listed hazard analysis report mentions flooding and hurricanes as concerns to be corrected by 2015. It is unclear if Arkema addressed these concerns. Current regulations may not place enough pressure on companies to move beyond the minimum federal standards and implement individualized policies.
While all hurricanes or other emergency situations do not necessarily bring quite as much destruction as Harvey, many are by no means unexpected. Developing new procedures and spreading awareness can be costly but it is hard to deny the inevitability of its implementation. It is time for all chemical plants to take full responsibility for the hazards of their industry.
Does the Solution Already Exist?
In January 2017, the EPA, under Obama, passed the Chemical Disaster Rule which strengthened requirements on the accident prevention, emergency response, and availability of information. Both Arkema and the American Chemistry Council filed comments claiming the changes would be overly burdensome. The Trump administration has postponed these regulations until February 2019. Earth Justice has filed suit, USCA Case #17-1155, against the EPA for the delay representing “a coalition of workers, scientists and community members near oil refineries and chemical facilities,” including Air Alliance Huston.