Thirty years after it was first forced to do so, the U.S. Environmental Protection Agency (EPA) has finally proposed a rule to fill part of a gaping hole in regulations meant to protect waters from our country from chemical spills. As the saying goes, better late than never – except in this case, the EPA’s delay had serious consequences.
Thousands of facilities that store hazardous chemicals are located in communities near waterways and in flood-prone areas, yet none are required by federal regulations to have plans to prevent and respond. worst-case scenarios of spills of these substances into waterways. . As a result, dangerous chemicals flow into waters providing drinking water and essential habitat for wildlife year after year. For example, Hurricane Harvey, which hit Houston’s dense floodplain area storing hazardous substances, caused the release of many harmful chemicals, harming first responders, the surrounding community, and the environment. A few years earlier, a leak at a chemical storage facility along the Elk River in West Virginia left 300,000 people without drinking water for days.
These types of disasters highlight two pressing environmental crises: climate change and environmental injustice. Disasters will become more frequent as climate change increases the frequency and severity of severe weather events. And as with so much other environmental damage, the burden of exposure to toxic chemicals resulting from these disasters is borne primarily by low-income communities of color, who are almost twice as likely as white populations to live in less than a mile from a hazardous chemical facility.
It didn’t have to be like this. Since 1972, the Clean Water Act has required the EPA to issue regulations requiring industrial facilities that store toxic chemicals near bodies of water to take steps to prevent chemical spills. After decades of inaction by the EPA, the NRDC, the Environmental Justice Health Alliance for Chemical Policy Reform (EJHA), and People Concerned About Chemical Safety have filed a lawsuit. Although the EPA agreed to publish the required regulations, it illegally abdicated its responsibility. Our coalition continued the fight, focusing on the provisions of the 1990 amendments to the Clean Water Act directing the EPA to issue regulations requiring robust hazardous substance spill response planning for the largest chemical facilities. dangerous – which, due to their proximity to water, pose a serious problem. threat to human health and the environment. As with spill prevention regulations, the EPA had sat idly by for decades and failed to issue these “worst case spill” regulations. In the face of this inaction, the NRDC, EJHA, and Clean Water Action again filed suit against the EPA, this time for its failure to require a spill response plan. And on March 12, 2020, the parties entered into a consent decree that resolved the lawsuit and required the EPA to issue rule proposals for worst-case hazardous substance spills by March 2022 and finalize those rules. within the next 2.5 years.
Last month, the EPA finally released the proposed worst-case spill rule. The proposal is a crucial first step in ensuring chemical facilities are able to prevent and respond to the worst-case spills. But our coalition will push the EPA to strengthen the final rule so that it covers good facilities, fully addresses climate change risks, and provides maximum protection for environmental justice communities.
Since the proposal is for ‘worst case’ spills, it only covers facilities capable of storing a threshold quantity of hazardous substances and which are also within half a mile of a waterway protected by the Clean Water Act. If the worst case scenario of a spill from any of these facilities would cause significant harm to wildlife, public drinking water systems and/or recreational areas, the facility must prepare a response plan for the ‘facility. These plans, which will be submitted to EPA, will contain critical information to ensure facilities can prevent and respond to the worst-case scenario of a spill.
The proposed rule takes important steps to address long-standing concerns. The facilities it covers will have to develop plans to respond to worst-case spills that take into account “impacts on communities with environmental justice concerns” and “impacts of climate change.” The rule also includes important provisions to help ensure that facilities that pose risks to environmental justice communities will be covered: The EPA retains broad authority to require response plans for facilities located near environmental justice communities. environmental justice, and stakeholders can ask the EPA to cover facilities that should be subject to the rule’s requirements.
But the proposal has shortcomings and should be stronger. Some of the most significant shortcomings include the fact that the proposal would only cover facilities that store a very large amount of a single hazardous substance. By the EPA’s own estimate, setting the amount so high means more than 100,000 facilities that store hazardous amounts of hazardous substances will not be covered. The proposal would also ignore the total amount of different chemicals stored by a facility, so a facility storing a smaller amount of multiple hazardous chemicals may not be covered even though overall it may be storing a amount of hazardous chemicals. And the proposal’s requirement that facilities will only be covered if they are within half a mile of a waterway does not reflect the realities of expanding floodplains in a changing climate.
While the proposal commits to making some information public, the final rule should commit to fuller transparency and consultation so that those who may be affected by spills – particularly environmental justice communities and public systems water supply – have the information they need to protect themselves. Finally, the proposal does not address other loopholes in the regulations designed to protect our waters: it only applies to facilities storing hazardous substances under the Clean Water Act, an outdated list of around 300 chemicals that do not does not include thousands of other toxic substances (including those released during the Elk River disaster), and it fails to overturn the EPA’s illegal decision not to publish regulations that prevent dangerous spills in the first place.
The NRDC and our partners will file comments on these and other issues at the end of May, and we will also offer those concerned about toxic spills the opportunity to weigh in. Although the EPA’s proposed rule is long overdue and does not go far enough to protect our waterways and the environmental justice communities that depend on them, the proposal is an essential first step in protecting our waters in a changing climate.