A report released in partnership with:
BlueGreen Alliance California Communities Against Toxics Coalition For A Safe Environment Coming Clean Community In-Power & Development Association Earthjustice Environmental Justice Health Alliance Ohio Valley Environmental Coalition Texas Environmental Justice Advocacy Services Union of Concerned Scientists
Full online report: https://earthjustice.org/ChemicalDisasterRule
UPDATE: On August 17, 2018, the U.S. Court of Appeals for D.C. ruled that the EPA’s delay of the Chemical Disaster Rule was illegal and arbitrary. Learn more.
First came wind and rain lashing off the Gulf of Mexico in the form of Hurricane Harvey, then floods that cut power, until finally—deprived of refrigeration needed to keep it stable—organic peroxides stored at the Arkema chemical plant near Houston began to ignite and explode.1
The fire last August prompted several lawsuits against the company,2 including from first responders who say they fell ill from fumes,3 plus investigations by the U.S. Environmental Protection Agency (EPA),4 Texas Commission on Environmental Quality,5 and the U.S. Chemical Safety Board.6 Arkema reported to the Texas commission that over 62,000 pounds of chemicals and over 17,000 pounds of particulates were released in the flooding and fire.7
On May 24, 2018, the Chemical Safety Board released its Final Investigation Report on the Arkema disaster. As Chairperson Vanessa Allen Sutherland explained in announcing the findings: “Considering that extreme weather events are likely to increase in number and severity, the chemical industry must be prepared for worst case scenarios at their facilities. We cannot stop the storms, but working together, we can mitigate the damage and avoid a future catastrophic incident.” The CSB also released a new video, entitled Caught In the Storm: Extreme Weather Hazards.
The disaster at Arkema was one of many at U.S. chemical facilities that showcase how inadequate safety measures can threaten public health. It’s also the kind of scenario that led the EPA in January 2017 to finalize tighter regulations known as the Chemical Disaster Rule. The Chemical Disaster Rule amends EPA’s decades-old “Risk Management Program,” in response to EPA data showing thousands of fires, explosions, and other chemical releases that the existing framework had failed to prevent.
But these life-saving protections were stuck in limbo after EPA Administrator Scott Pruitt issued a delay of the rule, postponing it until February 2019. Scientists, community groups and health groups represented by Earthjustice, together with workers and concerned states, sued the EPA to get the delay overturned and the rule back on track.
On May 17, 2018 EPA revealed a shocking plan to gut the Chemical Disaster Rule by deleting all accident prevention program provisions at the request of the oil and chemical industry. Administrator Pruitt’s newest move shows the Trump EPA is aiming to weaken safety measures instead of protecting the lives and health of the American people.
Facilities that use or store dangerous chemicals are all over the U.S.,8 and about 12,500 have filed risk management plans with the EPA. They range from oil refineries to paper mills and chemical manufacturing facilities.9
These facilities are in our communities: About 177 million Americans10 live close enough to one of these facilities—and one in three schoolchildren11 attend school near enough—to be potentially affected by a chemical disaster, according to EPA data.
An EPA review of chemical incidents between 2004 and 2013 found that over 2,200 had occurred, killing 59 people while over 17,000 were injured, hospitalized, or sought medical treatment.12 The EPA’s data shows an average of about 150 fires, explosions and other hazardous releases per year.13
Chemical disasters also disrupt lives, forcing sudden evacuations and missed work or school. The EPA found nearly half a million people had to shelter-in-place or evacuate in its 10-year evaluation of U.S. chemical incidents.14
And since chemicals can linger in the air, earth and water, the long-term health, environmental and societal effects of their release can go even further.15
These toxic chemicals16 include, for example,
In addition, preventing fires, explosions and accidental releases at chemical facilities like oil refineries also has the benefit of reducing communities’ exposure to other toxic chemicals that often spike during such events, such as benzene (which can cause leukemia).20
“Both my office and home are located near oil refineries; I can hear the emergency alarms blaring at all hours of the day and night,” says Jesse Marquez, who lives in Wilmington, California, a part of greater Los Angeles. “This has been happening my entire life.”
Mr. Marquez traces his civic activism to push for a cleaner, safer environment to the day four decades ago when deadly explosions at the oil refinery opposite his family’s house knocked them off their feet and sent a fireball overhead. He ran outside and jumped over a fence, and then heard a woman’s voice begging him to stop.
“I turned around and there was a woman with a baby in her hand, about six or seven months old. She was burned, the baby's blanket was burned, and the baby's face was burned. She said, ‘Please save my baby.’ She then threw the baby over the fence like a football for me to catch.”
“In just the last year we have had numerous chemical releases, fires and leaks. On one day, June 26, 2017, we had not one, but two refineries near me malfunction and release dangerous chemicals.
“Torrance Refining had three events that led to serious flaring and an unrelated oil leak all within 24 hours. These malfunctions, power outages and other problems have been causing repeated flaring incidents for months which are releasing toxic chemicals into the neighboring community, and also illustrate serious problems at the refineries that they can and should end to prevent a catastrophic release. For example, this refinery, then owned by ExxonMobil, had a dangerous explosion in 2015 that narrowly missed a tank containing hydrofluoric acid, which would have killed thousands of people if it had been hit and released in an explosion.i
“Less than nine miles away at the Tesoro Refinery, a hydrogen sulfide release prompted workers to set up barricades to isolate the area and take air quality samples. The dangers of exposure to hydrogen sulfide range from nausea, headaches and dizziness to death.
“My activism comes from a near-death experience. Forty years ago, when I was only 16, the Fletcher Oil Refinery across the street from my family home exploded, knocking me and my family off our feet.
“It was just like you see on TV and war movies when they show an atomic bomb going off, there was chaos all over.
“A second explosion sent a huge fireball across our house, dropping a giant metal storage tank in the middle of the street. The explosion killed five and injured 154. I remember running down the street, jumping over a fence, and hearing the cries of a woman from behind.
“After I lifted my brothers and sister over the fence and as I jumped over, I heard a voice calling me. She said, “Boy, boy, please turn around.” I turned around and there was a woman with a baby in her hand, about six or seven months old. She was burned, the baby's blanket was burned, and the baby's face was burned. She said, “Please save my baby.” She then threw the baby over the fence like a football for me to catch.
“That's the day that made me what I am today, a person working in my hometown to try to strengthen protections for all of us, before the next chemical disaster strikes.”
i“CSB Releases Final Report into 2015 Explosion at ExxonMobil Refinery in Torrance, California.” U.S. Chemical Safety Board. May 3, 2017. That release has led the South Coast Air Quality Management District to propose banning and phasing out any use of the toxic chemical hydrofluoric acid, but that ban has not yet been finalized; Green, Nick, “AQMD proposes ban on toxic hydrofluoric acid at South Bay refineries.” Daily Breeze. January 17, 2017; Green, Nick, “Manhattan Beach joins chorus pushing for ban of toxic chemical used at Torrance refinery.” March 21, 2018.
Communities of color are disproportionally exposed to and hurt by these disasters, according to a national report by the Environmental Justice Health Alliance for Chemical Policy Reform, and EPA data.
The percentage of African Americans living in “fenceline” zones closest to hazardous facilities is 75 percent greater than for the U.S. as a whole,21 and the percentage of Latinos is 60 percent greater.22 The poverty rate in these high-danger areas is 50 percent higher than the national average.23 As the EPA found in issuing the Chemical Disaster Rule, “[b]ased on analysis of RMP data and other studies, EPA concludes that there is evidence that risks from RMP facilities fall on minority and low-income populations, to a significantly greater degree than those risks affect other populations.”24
“No one should have to live like this,” says Pam Nixon, who lived for years in Institute, West Virginia, and now lives in nearby South Charleston—a part of the state long known as “Chemical Valley,” historically home to one of the largest concentrations of chemical plants in the U.S.
“My neighbors and I live daily under the threat of serious injury and death because these plants handle such dangerous substances,” Nixon says “I’m in my 60s, and throughout my life, I’ve had to tape up my windows, shelter in place and try to hide from contamination.”
Dangerous chemical facilities are disproportionately located near heavily African-American communities like Nixon’s neighborhood in Institute. In 2008, an explosion in the pesticide manufacturing unit at Bayer CropScience in Charleston killed two workers and injured eight.
“The metal shrapnel from the fireball in 2008 could have damaged a nearby tank of highly toxic methyl isocyanate, which would have sent deadly gas into the surrounding neighborhood. The community had expressed safety concerns about the danger of this toxic gas for years. This same substance killed thousands in Bhopal, India, in 1984.i The 2008 disaster was so bad it finally caused Bayer CropScience to cease using methyl isocyanate, though they still operate in the area and manage other dangerous chemicals.
“In 1985, more than 100 residents were treated after a toxic cloud of deadly chemicals was released at the Union Carbide Plant in Charleston.
“This area of West Virginia, where I live, has been called ‘Chemical Valley’ because of the industries handling dangerous and cancer-causing chemicals.
“My neighbors and I live daily under the threat of serious injury and death because these plants handle such dangerous substances. I’m in my 60s, and throughout my life, I’ve had to tape up my windows, shelter in place and try to hide from contamination. No one should have to live like this.
“And instead of working to protect people around the nation that face the same threat, what did Trump and Pruitt do? Put higher corporate profits above the need to save our lives. The EPA delayed the Chemical Disaster Rule, even though the EPA had already spent years assessing the danger and found a strong need to issue the new safety measures in that rule to keep us safe.
“This safety issue particularly threatens African-American neighborhoods like Institute, who are more likely to have dangerous chemical facilities placed in our communities.”
iBroughton, Edward, "The Bhopal Disaster and Its Aftermath: A Review," Environmental Health 4, no. 1 (2005). doi:10.1186/1476-069x-4-6.
In addition to the far-too-frequent toxic releases, fires and explosions that occur under normal operating conditions at many chemical facilities, major storms increase the threat at facilities that have failed to take steps to prevent or reduce chemical releases. Chemical facilities are clustered thickly along the U.S. coast of the Gulf of Mexico, for instance, where seasonal hurricanes regularly show a strong need for more effective prevention and preparation to avoid piling the extra burden of chemical incidents onto residents.25
In the week spanning Hurricane Harvey’s approach and landfall in 2017, at least 40 facilities in Texas reportedly declared that a total of about 5 million pounds of emissions exceeding state limits had gone into the air.26 The Chemical Safety Board has warned about the need for better preparation for these foreseeable problems, and, during 2017, it issued a safety alert calling for particular precautions during the startup of oil and chemical facilities after shutdowns, due to the increased hazards to workers and communities during these processes.27
“I was dealing with a couple of crises at once after Harvey,” says Hilton Kelley, who lives near a refinery in Port Arthur, Texas, a majority black and Latino community. “The restaurant my wife and I own was flooded and severely damaged, and my father-in-law’s house was also damaged and flooded. While trying to help my family and neighbors get back on their feet, we were also being subjected to toxic and hazardous substances with virtually no protection.”
Last September, shortly after the hurricane struck, fire broke out at the refinery near Kelley’s home as workers were trying to get it running again. He and other local residents were ordered to stay inside shelter, he says.
“I take my granddaughter to the park twice a week but I can’t really enjoy my time with her because I’m worried about her being harmed by toxic substances,” he says.
“I live within miles of the Valero Premcor Refinery, along with the Motiva Enterprises Refinery and the Total Port Arthur Refinery. Also nearby is the Huntsman Petrochemical plant and plants operated by Chevron Phillips, Great Lakes Carbon Corporation, Flint Hills and BASF.
“In mid-September, following the hurricane, the Valero refinery became engulfed in flames as the plant's workers were bringing production back online, leading to a shelter-in-place order for residents.
“Earlier that month I smelled the sour odor of sulfur and learned that the level of benzene, a known carcinogen, at an industrial zone in Port Arthur measured 76 parts per billion—a level nearly 10 times what the state of California considers protective of public health.
“I was dealing with a couple of crises at once after Harvey. The restaurant me and my wife own was flooded and severely damaged, and my father-in-law’s house was also damaged and flooded. While trying to help my family and neighbors get back on their feet, we were also being subjected to toxic and hazardous substances with virtually no protection.
“Some 30 percent of my neighbors live below the poverty line and are particularly vulnerable.
“When malfunctions happen and there are chemical releases, no one usually tells us what we’re being exposed to.
“It is essential that we have information about what harmful substances we’re being exposed to, so that I can recognize symptoms and protect my family and neighbors. We need audible alerting systems so that we know when an emergency has occurred and evacuation is necessary.
“Fires and explosions worry all of us. But I’ve learned that what we don’t see or smell can cause grave harm.
“I take my granddaughter to the park twice a week, but I can’t really enjoy my time with her because I’m worried about her being harmed by toxic substances.
“We need the protections the new EPA rule offers. We must know if safer technologies and substances could be utilized to improve our safety and protect us from harmful fires and explosions. We need greater analysis of what causes incidents. And we need better emergency alert systems and coordination with first responders to help us reduce exposure when incidents happen.
“If the EPA under Trump and Pruitt is allowed to weaken the rule, they’re telling my community and communities around the country that our lives don’t matter. And that’s unacceptable. Our lives are precious to us.”
The Chemical Disaster Rule updates regulations in the EPA’s Risk Management Program (RMP) after years of study and public input showed a need to modernize and improve the program to reduce deaths and injuries that have occurred even with the existing regulations in place.28 The overall aim is for facilities to be better equipped to prevent disasters, and if they occur, to contain them and reduce harm they cause, as well as to learn from them to implement better prevention measures for the future. It would strengthen safety practices at chemical facilities in three key areas:29
The rule would oblige chemical facilities to engage in a range of preventative analyses and evaluations, including, for example:
In addition, for the three industry sectors EPA found “have been responsible for a relatively large number of accidents, deaths, injuries, and property damage and have significant higher accident rates compared to other sectors,” i.e., oil refineries, pulp and paper mills, and chemical manufacturers, the rules require facilities to evaluate the use and practicability of implementing inherently safer technologies, chemicals or practices (“IST”) that would lead to fewer deaths, injuries and other harm in the event of a release and report on their implementation.
Chemical facility operators would have to meet at least yearly with local emergency responders to share information relevant to chemical incidents at each facility, and to ensure there is an effective plan to protect workers and communities during an incident. In addition, the most hazardous facilities would have to carry out periodic drills and exercises to better prepare for a potential incident.
Facilities would have to make some safety-related information that is currently difficult to obtain (though available in a limited number of locations) more accessible to people who live near particular facilities. Communities would be able to request such information directly from the facilities instead of having to file a public records request or visit a federal reading room.
There is strong evidence showing that these rules would make a difference in saving lives and reducing injuries. For example, the safety benefits of IST have been demonstrated in several reports of the Chemical Safety Board and by findings of the state of New Jersey. These measures can both prevent incidents and reduce harm if a release occurs.30 The requirements respond to other Chemical Safety Board investigations and recommendations as well, where the CSB has found “workers, emergency responders, and members of the community have been killed, injured, or at risk of physical harm because of insufficient pre-emergency planning and coordination.”31 Overall, the EPA concluded that the new measures would reduce deaths, injuries, hazardous exposures, and many other types of serious harm, catastrophic threats to human health and safety, and property damage, from incidents involving covered chemicals as well as incidents at covered facilities involving other toxic chemicals.32
Take the Arkema plant near Houston, for example. State and federal investigations—plus court cases—surrounding the flooding and fire last year are still in progress. But in a November press conference, the Chemical Safety Board’s Chairperson Vanessa Allen Sutherland highlighted how that incident shows the need for the core concepts in the Chemical Disaster Rule—including “better preparation and planning and communication with communities and emergency responders about risk and possible consequences.”33 In addition, according to a white paper by the Union of Concerned Scientists (UCS), both this incident and the plant’s history illustrate why measures in the rule would have been helpful, would likely have begun protecting community members if in effect, and are long overdue.
The plant suffered a fire in 2006 that was reportedly triggered by improperly stored organic peroxides, the study says—the same kind of chemical that ignited in the wake of Hurricane Harvey. Had the Chemical Disaster Rule existed back then, Arkema would have been forced to study how that fire broke out. It would also have been steered toward preparing better for hurricanes and power losses, and putting technology and safety measures in place that might have headed off last year’s conflagration.34 In addition, for the most recent 2017 explosions, Arkema would have been required to fulfill the new rule’s incident investigation team and report requirements, because it was a “near miss” of Risk Management Program chemicals.35 Although Arkema would not yet have been required to have fully completed the coordination requirements with emergency responders, it would have been required to do so, and to implement lessons learned from the 2017 explosions, at least before the 2018 hurricane season begins.36
But in March 2017, the EPA’s new director, Scott Pruitt, ordered a three-month delay to the rule just days before it was to go into effect. His reason? Petitions by oil, chemical and other companies. Three months later, Pruitt ordered a further 20-month delay until February 2019, saying the agency may eventually modify the rule but offering no evidence or conclusions showing a need to revoke the rule’s protections for such a long period of time.
More than 121 community, worker, health, scientist, and safety organizations including the International Association of Fire Fighters, the United Steelworkers, Earthjustice, the Environmental Data & Governance Initiative, BlueGreen Alliance, the Environmental Justice Health Alliance for Chemical Policy Reform, Union of Concerned Scientists, and the Coalition to Prevent Chemical Disasters—plus former generals, and more than 40,000 individuals—urged the EPA37 to let the rule take full force. These protections are too important to be delayed.
A coalition of groups represented by Earthjustice (listed below), and joined by the United Steelworkers Union as an intervenor in support, immediately filed a motion seeking emergency relief from the D.C. Circuit Court to stop EPA from delaying these protections. The United Steelworkers Union represents the workers often hurt first and worst in industrial disasters. In July, eleven states also sued the EPA.
Meanwhile, incidents continue to occur at facilities covered by the Risk Management Program. These facilities would have been required to prepare for or implement safety updates under the Chemical Disaster Rule had it not been delayed. EPA and covered facilities make very little information available to the public currently, so there is no comprehensive list of incidents or their impacts. For example, EPA has not released any information about the total deaths, injuries, or shelter-in-place or evacuation orders resulting from these or other incidents over the past year.
Hazardous material technicians were called in after an electrical motor failure resulted in a fire in a building storing large quantities of chemicals. [Source]
More than 300 gallons of a corrosive chemical (peracetic acid) spilled and four employees were taken to the local hospital. [Source]
A fire occurred, leading to the evacuation of about 300 workers from the plant. [Source]
A set of explosions ripped through the refinery, developing into a giant fire and spreading noxious black smoke for miles. The fire burned for more than 8 hours. 17 people went to the hospital for treatment. Local officials ordered the evacuation of more than 70 square miles around the facility, including three schools and a hospital. No deaths were reported. [Source] (The Chemical Safety Board has opened an investigation.)
An explosion and fire occurred, resulting in injuries to four contractors, a shelter in place order for nearby residents, and the release of several hazardous contaminants including particulate matter, carbon monoxide, hydrogen sulfide, oxides of nitrogen, and sulfur dioxide. [Source]
Fire. Locals urged to stay indoors while firefighters respond. [Source] This follows a vapor cloud explosion in 2012 at the Chevron, Richmond refinery, which endangered the lives of 19 workers, led nearly 15,000 people to seek medical treatment, and forced thousands of people in nearby cities to shelter in place for hours.
For longtime Baton Rouge resident William Fontenot, the plumes of smoke that rose as the city’s ExxonMobil refinery burned on November 1, 2017, were nothing new. The 75-year-old remembers the fire that sent four plant workers to the hospital in 2016, and the chemical leak that sickened local residents in 2012. He worries that incidents like these could trigger a bigger disaster, like the one he witnessed in 1989.
“My wife often asks me if we ought to move, even though we don’t want to because our life is here,” Fontenot says. “It is only a matter of time before something big happens again, unless something changes.”
“On the morning of November 1, 2017, at the ExxonMobil refinery in Baton Rouge, Louisiana, a fire broke out and large plumes of smoke were released into the air. For me, this incident is nothing new. I am 75 years old and I live with my wife in Baton Rouge. I’ve lived at the same address since July 1975, and in Louisiana nearly my whole life. Every day when I leave my home to walk my dog, I worry about what is going on at the industrial facilities near me, and what kinds of malfunctions or accidents might occur that day.
“The refinery is about three miles as the crow flies from my home, and has had numerous safety problems. Just about every year there is some kind of chemical release, fire, explosion or other issue at the plant. For instance, in 2016, a fire sent four plant workers to the hospital in critical condition. In 2013, a major chemical leak released hazardous substances in the air that caused several people, including children, to fall ill from exposure.
“I worry that these types of incidents could trigger a bigger disaster. I will never forget the explosion at the plant that took place on a very cold morning in 1989. It was Christmas Eve and I was home. Suddenly I heard an enormous “boom!” and my whole house shook. Then there was another, even louder sound. When I ran outside to check it out, I saw my neighbor point to the north, and that’s when I saw a giant dark mushroom cloud above the refinery.
“Two workers died from the blast. The explosion damaged homes and businesses within a mile of the refinery on both sides of the Mississippi River. The fire door at the governor’s mansion blew open. According to the news, windows up to six miles away shattered from the blast.
“I am concerned I could be injured or my home could be damaged as a result of incidents like these. My wife often asks me if we ought to move, even though we don’t want to because our life is here. It is only a matter of time before something big happens again, unless something changes. Baton Rouge would be a safer, more enjoyable place if the refineries and other nearby industrial facilities improved their chemical safety procedures and did a better job coordinating with first responders and local emergency planning agencies.”
The lawsuit filed by Earthjustice argues that Pruitt overstepped his authority by delaying the rule in full for such an extraordinary time period. Pruitt’s refusal to follow the Clean Air Act, and his foot-dragging on needed safety measures based only on his speculation that some part of the rule might one day be changed, run afoul of the law.38 Courts have made clear that suspending a rule, just like enacting it, requires actual reasons supported by facts and evidence. Speculation doesn’t cut it, especially when the record before an agency shows such a strong need for measures to be in place to save lives.
Earthjustice is representing the Union of Concerned Scientists, Environmental Integrity Project, Sierra Club, Coalition For A Safe Environment (Wilmington, California), Del Amo Action Committee (Torrance, California), California Communities Against Toxics, Louisiana Bucket Brigade, Air Alliance Houston, Community In-Power & Development Association (Port Arthur, Texas), Texas Environmental Justice Advocacy Services, Clean Air Council (Philadelphia, Pennsylvania), Utah Physicians for a Healthy Environment, and Ohio Valley Environmental Coalition (West Virginia).39
The United Steelworkers Union has joined as a petitioner-intervenor, represented by Santarella & Eckert, LLC. The states of New York, Illinois, Iowa, Maine, Maryland, Massachusetts, New Mexico, Oregon, Rhode Island, Vermont, and Washington have also filed suit against the EPA.
In addition, former regulatory officials, represented by Public Citizen, filed an amicus (or “Friend of the Court”) brief, in support of ending the delay. The Institute for Policy Integrity at NYU School of Law also filed an amicus brief in support of the challenge. Both provided perspective on why the EPA’s Chemical Disaster Rule needs to be in full force to protect fenceline community members, workers and first responders from chemical accidents.
On March 16, 2018, fenceline communities, workers, scientists and 11 states, led by New York, had their day in court to oppose the EPA’s delay of the safety measures in the Chemical Disaster Rule. The D.C. Circuit pressed attorneys on both sides with questions about EPA’s action in a court hearing that lasted for over two hours.
On August 17, 2018, the U.S. Court of Appeals for D.C. ruled that the EPA’s delay of the Chemical Disaster Rule was illegal and arbitrary — ending EPA’s postponement of these life-saving protections. The Chemical Disaster Rule will now need to be implemented by industry, to prevent and reduce deaths, injuries and hazardous exposures from chemical incidents for communities across the country.
To join the fight, please complete the action alert to tell the EPA that we can’t afford to further weaken the Chemical Disaster Rule.
If you have experienced a chemical incident in your own community, you should contact the following EPA hotlines:
You may also reach out to any of the organizations listed below.
The EPA provides resources at the Report Environmental Violations webpage to provide tips on possible environmental violations that require investigation.
To track recent incidents (including some at Risk Management Plan-covered facilities), please see the Coalition to Prevent Chemical Disaster, U.S. Chemical Safety Board and the United States Coast Guard National Response Center.
This report was made possible by BlueGreen Alliance, California Communities Against Toxics, Coalition For A Safe Environment, Coming Clean, Community In-Power & Development Association, Earthjustice, Environmental Justice Health Alliance, Ohio Valley Environmental Coalition, Texas Environmental Justice Advocacy Services, and Union of Concerned Scientists.
Gold, Russell and Erin Ailworth, “Chemicals Catch Fire at Plant Flooded by Harvey.” The Wall Street Journal. August 31, 2017. https://www.wsj.com/articles/explosions-reported-at-arkema-chemical-plant-1504173125 ↩
In addition to the lawsuit brought by seven first responders, these include a lawsuit by local residents in October 2017, a lawsuit brought by Harris County, TX, in November 2017, and one brought by Liberty County, TX, in March 2018. ↩
Graves et al v. Arkema, Inc. et al, page 6. 333rd Judicial District of Harris County, Texas. September 20, 2017. https://www.wsj.com/articles/explosions-reported-at-arkema-chemical-plant-1504173125 ↩
Flitter, Emily, “U.S. Regulator probes Arkema’s safety practices after fires.” Reuters. September 11, 2017. https://www.reuters.com/article/us-storm-harvey-arkema-probe/u-s-regulator-probes-arkemas-safety-practices-after-texas-fires-idUSKCN1BM2SB ↩
"Statement on Arkema Investigation." Texas Commission on Environmental Quality. September 6, 2017. https://www.tceq.texas.gov/news/statement/statement-on-arkema-investigation ↩
“Arkema Inc. Chemical Plant Fire.” U.S. Chemical Safety Board. August 31, 2017. http://www.csb.gov/arkema-inc-chemical-plant-fire-/ ↩
Hersher, Rebecca, “After Chemical Fires, Texans Worry about Toxic Effects.” National Public Radio. November 2, 2017. https://www.npr.org/sections/health-shots/2017/11/02/558313744/in-the-wake-of-chemical-fires-texans-worry-about-toxic-effects (See also: TCEQ Air Emissions Reports) ↩
For a partial view, see a map produced by Earthjustice based on EPA data on chemical accidents between 2004 and 2013: https://earthjustice.carto.com/builder/a48c37a6-934c-11e7-a507-0ee462b5436c/embed. The relevant EPA data is found in: “Risk Management Plan (RMP) Facility Accident Data 2004 – 2013.” EPA. February 2016. ↩
“Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act.” EPA. Federal Register, Vol. 82(9) page 4,596. January 13, 2017.↩
“Kids in Danger Zones,” page 1. Center for Effective Government. September 2014. https://www.foreffectivegov.org/sites/default/files/kids-in-danger-zones-report.pdf ↩
“EPA Activities Under EO 13650: Risk Management Program (RMP) Final Rule Questions & Answers,” page 1. EPA. August 2017. https://www.epa.gov/sites/production/files/2017-08/documents/rmp_final_rule_qs_and_as_8-02-17.pdf; “Regulatory Impact Analysis: Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act,” Section 112(r)(7) at 87 Exhibit 6-5: Average Impacts per Year and Accident. EPA. December 16, 2016. https://www.regulations.gov/document?D=EPA-HQ-OEM-2015-0725-0734 (showing 10-year total includes 59 fatalities, including 58 on-site and 1 offsite, as well as injuries in the total of 17,099, including: 2,103 on-site injuries, 189 off-site hospitalizations, and 14,807 sought medical treatment); “Risk Management Plan (RMP) Facility Accident Data 2004 – 2013.” EPA. February 2016. https://www.regulations.gov/document?D=EPA-HQ-OEM-2015-0725-0002 ↩
“EPA Activities Under EO 13650: Risk Management Program (RMP) Final Rule Questions & Answers,” page 1. EPA. August 2017. https://www.epa.gov/sites/production/files/2017-08/documents/rmp_final_rule_qs_and_as_8-02-17.pdf; “Regulatory Impact Analysis: Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act,” Section 112(r)(7) at 87 Exhibit 6-5: Average Impacts per Year and Accident. EPA. December 16, 2016. https://www.regulations.gov/document?D=EPA-HQ-OEM-2015-0725-0734 (showing 10-year total of 451,665 people forced to shelter-in-place and 38,589 evacuations, a total of 490,254 people)↩
For example, in addition to immediate death and other serious physical and health and safety harm, chemical incidents can also cause delayed health effects, like cancer, birth defects, genetic harm, and lasting trauma or mental health impacts. Additional harm is also likely, such as economic impacts due to disruption of agriculture, loss of jobs, long-term evacuation of the area, costs for health care, litigation, rehabilitation, and lasting environmental damage. See WHO, Manual for the Public Health Management of Chemical Incidents at 3 (2009), http://apps.who.int/iris/bitstream/10665/44127/1/9789241598149_eng.pdf. This is shown too well by the ongoing harm decades after the 1984 chemical gas tragedy at the Union Carbide (now owned by Dow Chemical) facility in Bhopal, India. See Comments of Air Alliance Houston et al. Comments submitted in response to Federal Register Notice: “Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act; Further Delay of Effective Date,” pages 12-13. May 19, 2017. https://www.regulations.gov/document?D=EPA-HQ-OEM-2015-0725-0861 ↩
“A Risk Too Great: Hydrofluoric Acid in U.S. Refineries.” United Steelworkers Union. April 2013. http://assets.usw.org/resources/hse/pdf/A-Risk-Too-Great.pdf ↩
“The Hidden Cost of our Nation’s Oil Refineries.” Earthjustice. https://earthjustice.org/features/infographic-refineries; Austin, Harland, Elizabeth Delzell and Phillip Cole, “Benzene and Leukemia: A Review of the Literature and a Risk Assessment.” American Journal of Epidemiology Vol. 127(3). March 1, 1988. https://academic.oup.com/aje/article-abstract/127/3/419/63384?redirectedFrom=fulltext; “Regulatory Impact Analysis: Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act,” Section 112(r)(7), pages 10-11. EPA. December 16, 2016. https://www.regulations.gov/document?D=EPA-HQ-OEM-2015-0725-0734 (describing one of the “social benefits” of the Chemical Disaster Rule as “prevention and mitigation of future non-RMP accidents at RMP facilities,” i.e., reduction in incidents at a covered facility that release a toxic chemical that is not directly regulated under the Risk Management Program). ↩
Environmental and Justice and Health Alliance for Chemical Policy Reform, “Who’s in Danger? Race, Poverty, and Chemical Disasters,” May 2014, pp. 1, 3. http://comingcleaninc.org/assets/media/images/Reports/Who's%20in%20Danger%20Report%20FINAL.pdf ↩
“Regulatory Impact Analysis: Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act,” Section 112(r)(7), pages 122-25. EPA. December 16, 2016. https://www.regulations.gov/document?D=EPA-HQ-OEM-2015-0725-0734 ↩
Tabuchi, Hiroko et al, “Floods Are Getting Worse, and 2,500 Chemical Sites Lie in the Water’s Path.” New York Times. February 6, 2018. https://www.nytimes.com/interactive/2018/02/06/climate/flood-toxic-chemicals.html ↩
Wallace, Gregory, “Industrial pollution spikes in Harvey’s wake.” CNN. September 5, 2017. https://www.cnn.com/2017/09/05/politics/industrial-pollution-harvey/index.html ↩
“After Harvey: Precautions needed During Oil and Chemical Facility Startup.” U.S. Chemical Safety Board. 2017. http://www.csb.gov/assets/1/7/CSB_Harvey2017_05.pdf ↩
As EPA explained in issuing the Chemical Disaster Rule: “EPA identified specific incidents that demonstrated failures and difficulties in accident prevention, emergency response, and information availability despite the general effectiveness of Part 68. We have applied lessons learned from those incidents in developing the amendments adopted in the final rule. Several of the amendments respond to CSB’s suggested rule changes based on their review of specific incidents. [T]he history of implementation of the RMP rule has given EPA sufficient experience to support modernizing and improving the underlying RMP rule.” “EPA Response to Comments on the 2016 Proposed Rule Amending EPA’s Risk Management Program Regulations,” page 246. EPA. December 19, 2016. https://www.regulations.gov/document?D=EPA-HQ-OEM-2015-0725-0729 ↩
“Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act.” EPA. Federal Register, Vol. 82(9), pages 4,594-4,596. January 13, 2017. https://www.gpo.gov/fdsys/pkg/FR-2017-01-13/pdf/2016-31426.pdf ↩
“CSB’s Response to EPA’s Request for Information,” pages 28-29. U.S. Chemical Safety Board. October 29, 2014. https://www.regulations.gov/document?D=EPA-HQ-OEM-2014-0328-0689; “Regulatory Report: Chevron Richmond Refinery Pipe Rupture and Fire.” U.S. Chemical Safety Board. August 6, 2012. http://www.csb.gov/assets/1/19/CSB_Chevron_Richmond_Refinery_Regulatory_Report.pdf; “Investigation Report: Catastrophic Rupture of Heat Exchanger (Seven Fatalities).” U.S. Chemical Safety Board. April 2, 2010. http://www.csb.gov/assets/1/7/Tesoro_Anacortes_2014-May-01.pdf ↩
CSB’s Response to EPA’s Request for Information,” pages 28–29. U.S. Chemical Safety Board. October 29, 2014. https://www.regulations.gov/document?D=EPA-HQ-OEM-2014-0328-0689; Deans, John et al, “Petition to the EPA to Exercise its Authority Under Section 112(r) of the Clean Air Act to Prevent Chemical Facility Disasters Through the Use of Safer Chemical Processes.” Greenpeace. July 25, 2012. https://www.documentcloud.org/documents/404584-petition-to-epa-to-prevent-chem-disasters-filed.html. ↩
“Regulatory Impact Analysis: Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act, Section 112(r)(7),” pages 10-11, 17-18 , 69, 73-76, 89-94, 125. EPA. December 26, 2016. https://www.regulations.gov/document?D=EPA-HQ-OEM-2015-0725-0734 (showing 10-year total includes 59 fatalities, including 58 on-site and 1 offsite, as well as injuries in the total of 17,099, including: 2,103 on-site injuries, 189 off-site hospitalizations, and 14,807 sought medical treatment); “EPA Activities Under EO 13650: Risk Management Program (RMP) Final Rule Questions & Answers,” page 1. EPA. August 2017. https://www.epa.gov/sites/production/files/2017-08/documents/rmp_final_rule_qs_and_as_8-02-17.pdf. (“EPA’s changes to the RMP rule will help protect local first responders, community members and employees from death or injury due to chemical facility accidents.”). ↩
“Inside EPA, CSB Backs Parts of Obama EPA RMP Rule to Address Facility Flood Risks.” U.S. Chemical Safety Board. CSB Live Stream of the CSB’s News Conference on Ongoing Arkema Investigation. November 15, 2017. https://www.facebook.com/chemsafetyboard/videos/vb.236364469761886/1597080177023635/?type=2&theater; (see also Accident Description: Arkema Inc. Chemical Plant Fire. U.S. Chemical Safety Board. http://www.csb.gov/arkema-inc-chemical-plant-fire-/) ↩
“Community Impact: Chemical Safety, Harvey, and Delay of the EPA Chemical Disaster Rule,” pages 4-5. Union of Concerned Scientists. October 2017. https://s3.amazonaws.com/ucs-documents/science-and-democracy/harvey-rmp-community-impact-ucs-2017.pdf ↩
See, e.g., 40 C.F.R. § 68.81(a) (adding requirement to investigate each “near miss”), 68.81(d) (adding significant requirements to incident investigation including the requirement to include a “knowledgeable” person, and to complete the report within 12 months, and include many additional details in the report); § 68.67 (requiring the process hazard analysis to include “all incident investigations required under § 68.81, as well as any other potential failure scenarios”). ↩
40 C.F.R. § 68.93 (requiring coordination to “occur at least annually, and more frequently if necessary;” requiring provision of information “relevant to local emergency response planning”). ↩
Air Alliance Houston et al v. Environmental Protection Agency et al, Opening Brief, Court of Appeals for the District of Columbia Circuit, pages 20–22. January 31, 2018. https://earthjustice.org/sites/default/files/files/80_Cmty.%20%26%20USW_Final%20Opening%20Brief_01-31-2018.pdf. ↩
Air Alliance Houston et al v. Environmental Protection Agency et al, Opening Brief, Court of Appeals for the District of Columbia Circuit, pages iii-iv. January 31, 2018. https://earthjustice.org/sites/default/files/files/80_Cmty.%20%26%20USW_Final%20Opening%20Brief_01-31-2018.pdf. ↩