November 15, 2018

Climate Change Adaptation, by Any Other Name

Mary Ellen Ternes

On May 24, the U.S. Chemical Safety and Hazard Investigation Board (CSB) released its final report regarding Arkema’s facility in Crosby, Texas. Final Report, Arkema Inc. Chemical Plant Fire, Completed Investigations of the United States Chemical Safety and Hazardous Investigation Board (C.S.B.), May 24, 2018, (CSB Arkema Report). Specifically, the CSB Arkema Report addressed the sequence of events experienced by the Arkema facility during Hurricane Harvey in August 2017, including loss of power; flooding of emergency generators; loss of emergency generator power; loss of refrigeration (required to keep Arkema’s organic peroxides from decomposing); self-accelerating decomposition of organic peroxide due to loss of refrigeration, resulting fumes, and then fire; closed roads; evacuations; and persons seeking medical attention. As a former chemical engineer, U.S. Environmental Protection Agency (EPA) on-scene coordinator in emergency response, and chemical plant compliance manager, I do feel we dodged a bullet, or at least a direct hit—this event was not the worst that could have happened during Hurricane Harvey in the heavily industrial areas around Houston. But as a Clean Air Act (CAA) attorney focusing on climate change and chemical plants subject to the chemical accident prevention regulations pursuant to CAA § 112(r) Risk Management Plan (RMP) (setting regulatory revisions aside for now), I find that the CSB final report is a great illustration of climate change adaptation concepts for chemical process plants, particularly post-Harvey. Also, within the context of EPA’s enforcement initiatives, inspection history, and implementation of the RMP, the report puts similarly situated facilities on notice regarding possible litigation risk, including citizen suit potential.

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