October 25, 2019

Becoming a master of disasters: Environmental issues associated with disaster planning and response

Jeff Civins and Michael Scanlon

This article is derived from a paper by the authors that was presented at the June 11, 2019, ABA Section of Environment, Energy, and Resources conference in Atlanta on Key Environmental Issues in U.S. Environmental Protection Agency Region 4. The full paper (available here) includes a more detailed discussion and references to source materials.

Environmental compliance is always a challenge—and even more so when a disaster strikes. Using the recent explosion of overheated chemicals at the flooded plant of Arkema, Inc. as a jumping-off point, this paper identifies the elements of a disaster, describes the role of environmental law in disaster preparation and response, and makes recommendations for minimizing regulatory risks associated with disaster-related releases.

The Arkema incident

The highly volatile organic peroxides that Arkema manufactured at its Crosby, Texas, plant would explode if not kept cool. As Hurricane Harvey bore down on the Houston area in August 2017, Arkema realized that its plant could lose its ability to cool those peroxides because its main power transformers, backup generators, and liquid nitrogen cooling system were likely to flood in the forecasted record rainfall. So Arkema loaded the organic peroxides into refrigerated trailers and scrambled to move them to higher ground. Some trailers did not make it; they lost power and exploded, leading to a weeklong evacuation of over 200 residents and the need for 21 people to seek medical treatment for smoke and chemical exposure. Unsurprisingly, Arkema became the target of civil suits, criminal charges, and federal and state administrative investigations. The lesson of Arkema is simple: worse can come to worst, so be prepared.

Elements of a disaster

There are numerous ways to define a disaster, but common elements include: (1) a sudden or non-sudden, calamitous event (2) that results in (a) a serious disruption of government and community functions, or (b) severe human, economic, or environmental losses that exceed a community’s ability to cope using its own resources, and (3) is caused by (a) nature, (b) technology, or (c) human action. In the case of Arkema, a failure to have and to implement a contingency plan adequate to address a natural disaster resulted in a significant chemical release.

The role of environmental laws

Environmental laws regulate activities impacting the environment or human health. Most pollution programs are prescriptive and regulate not only routine releases into the environment, but also accidental ones. These programs play a role before, during, and after a disaster occurs.

Before

Some federal regulatory programs focus on “before” and impose planning and coordination requirements. Examples include: (1) sections 301–303 of the Emergency Planning and Community Right-to-Know Act (EPCRA), which require certain facilities to communicate with state and local emergency response commissions; (2) section 311 of the Clean Water Act, which requires the preparation of plans to prevent and respond to oil and hazardous substance spills; (3) section 112(r) of the Clean Air Act, which imposes a general duty to prevent accidental releases and which mandates hazard assessments, chemical accident prevention programs, and emergency response plans; (4) section 3004 of the Resource Conservation and Resource Recovery Act, which requires owners and operators of hazardous waste treatment, storage, and disposal facilities to maintain their facilities and develop contingency plans to minimize the possibility of, and to be able to respond to, an emergency; and (5) the Chemical Facility Anti-Terrorism Standards of the Homeland Security Act, which require preparation of vulnerability assessments and security plans. The National Oil and Hazardous Substances Pollution Contingency Plan, mandated by the Clean Water Act and Superfund, establishes a blueprint for coordinating the responses of governments and regulated industries to releases of oil and hazardous substances.

During

Some federal regulatory programs focus on “during” and contain release reporting and response requirements. Examples include: (1) section 304 of EPCRA, which requires notice of environmental releases of extremely hazardous substances, (2) section 103(a) of Superfund, which requires notice of releases of reportable quantities of hazardous substances, (3) section 311(b) of the Clean Water Act, which requires notice of unpermitted releases of oil and hazardous substances, and (4) section 112(r)(1) of the Clean Air Act, which imposes a duty to minimize the consequences from accidental releases of extremely hazardous substances.

After

Recognizing that not all releases are preventable, some environmental statutes provide limited exemptions or defenses for accidental releases. Statutes specify, for instance, exemptions for emergency and public health and for national security and defenses for acts of God, Good Samaritans, and response action contractors. The common law provides a defense for government contractors. These defenses are grounded in policies that encourage the regulated community to respond to disasters using the best means possible.

Recommendations

A business cannot afford to put off thinking about disaster planning until news breaks of an impending hurricane or other calamity. As Ben Franklin purportedly observed, if you fail to prepare, you are preparing to fail.

Regulated industries should identify all regulatory requirements pertinent not only to routine operations, but also to operations before, during, and after a disaster. Below are some specific recommendations:

  • Review all pertinent federal and state statutes and regulations, local ordinances, and permits and orders, and identify environmental release requirements associated with routine and nonroutine operations.
  • Develop a comprehensive approach for maintaining compliance before, during, and after a disaster strikes, which includes:
    • preparing site-specific plans for disaster preparation and response that identify worst-case contingencies and mitigation measures, including redundancies, and that are periodically reviewed and updated
    • identifying persons responsible, including backups, for each aspect of the plan
    • developing and implementing training for the persons assigned a disaster preparation and response task
    • developing and implementing procedures to ensure required records are kept and timely notices are given to appropriate agencies
    • identifying roles played by federal, state, and local governments in disaster preparedness and response
    • coordinating with local governments and nearby residents
  •  Keep abreast of regulatory changes and evolving issues, including, for example, those related to climate change and emerging contaminants such as per- and polyfluoroalkyl substances (PFAS).
  • Consider retaining a consultant to assist in preparing or updating a comprehensive plan, peer review, training, and/or environmental audits.

Conclusion

The task of environmental compliance is particularly daunting when a natural disaster strikes and pressure to act quickly and decisively mounts. To assure compliance, regulated industries should identify pertinent regulatory requirements and develop and implement plans for compliance, including those related to disaster preparation and response.

Jeff Civins and Michael Scanlon

Jeff Civins is an environmental lawyer in the Austin office of Haynes and Boone and an adjunct professor at the University of Texas School of Law. He is co-chair of the Disaster Planning and Response Task Force of the American College of Environmental Lawyers. Michael Scanlon is a litigator in the Washington, D.C., office of Haynes and Boone who handles environmental, insurance coverage, and international trade matters.