2018 Vermont Law Top 10 Environmental Watch List

Houston, This is Harvey: Hurricanes are Hazardous

Summary:
In the coming year, lawyers representing interested parties in Houston—including the government agencies at the federal, state and local level, the companies responsible for managing and properly disposing of the chemicals and waste, and the citizen environmental groups advocating for impacted communities—must sort out who is responsible for assessing, monitoring, and cleaning up the toxic waters Harvey created.

Hurricane Harvey’s destructive power demonstrated to Houston and the nation what happens when a highly industrialized area, located in a coastal zone, experiences a hurricane that delivers over 4 feet of rain. In addition to causing untold damage to homes and businesses and disrupting the lives of millions of residents in the process, Hurricane Harvey also provided a clear view of the risks industrialized coastal communities face from the release of toxic chemicals and hazardous wastes during extreme weather events. These risks include the damage to toxic chemicals stored and processed at industrial facilities and the reintroduction of hazardous wastes from sites where we had all hoped they would permanently remain.

Hurricane Harvey

Click on the photo to watch a video with article co-author Mia Schiappi.

In the coming year, lawyers representing interested parties in Houston—including the government agencies at the federal, state and local level, the companies responsible for managing and properly disposing of the chemicals and waste, and the citizen environmental groups advocating for impacted communities—must sort out who is responsible for assessing, monitoring, and cleaning up the toxic waters Harvey created. Further, lawyers for similar stakeholders in other coastal industrial cities should watch carefully as the agencies and courts resolve these questions. Given the well-documented increase in the intensity and frequency of major storms, industrial site owners and operators cannot and should not assume that they will be able to hide behind an “Act of God” defense to avoid liability or responsibility.

The release of toxic substances and hazardous wastes resulting from Hurricane Harvey is not a surprise. We have already seen the impacts that flooding resulting from tropical storms and hurricanes can have in the United States. When Hurricane Katrina hit New Orleans in 2005, officials and citizens worried about the effects that flooded hazardous waste sites would have on community health and the environment. In 2012, Hurricane Sandy devastated New York City and surrounding areas. Once again, flooded hazardous waste disposal sites spread toxins, through floodwaters, into the local communities. Even Vermont, a relatively pastoral and inland state, experienced hazardous waste spills and contamination after Tropical Storm Irene.

Despite these experiences, lawmakers have done little to adopt new laws and policies directed at requiring greater protections against spills and contamination from the growing threat of extreme weather. With the increased frequency of extreme weather events, such as Hurricane Harvey, resulting from global climate disruption, federal and state agencies must take actions regarding flooding. Agencies across the areas of disaster preparedness and response, environmental protection, commerce, housing, agriculture, and energy must take steps toward preventing, mitigating and responding to the release of hazardous and toxic materials resulting from hurricanes, tropical storms and associated flooding in coastal and riverside communities.

Houston, post-Harvey, provides a good case study for examining options for better preparedness and response. Houston is home to 41 listed Superfund (Comprehensive Environmental Response, Compensation, and Liability Act or CERCLA) sites. Hurricane Harvey’s floodwaters impacted 13 of these sites. News reports suggest that the designs of these sites do not take into account the potential intensity of a storm like Harvey. At some of these sites, the floodwaters significantly damaged the remediation systems, allowing the reintroduction of hazardous materials into the surrounding environment.

The San Jacinto River Waste Pits were among the sites damaged. During the storm, floodwaters covered the pits and caused damage to the caps that protected its contents. Although the Environmental Protection Agency (EPA) directed those in charge of the site to test the water and isolate the contaminants, these actions, which occurred after the flood damage had occurred, did not stop hazardous wastes from escaping into the open environment. These polluted waters eventually spread to communities that were not previously polluted by hazardous wastes.

Throughout the storm and its aftermath, floodwaters exposed many people to toxic chemicals in the waters that inundated their homes. The full extent of harm to human health has yet to be fully determined and documented. However, information already available in news reports draws attention to floodwaters contaminated with toxic chemicals and their significant risk to public health.

There are a handful of suggested improvements and updates to policies to reduce the risk of human exposure to toxic substances and hazardous wastes from flooding associated with extreme weather events. These options include stronger requirements for the siting and design of chemical and hazardous waste storage and management facilities and a requirement that all hazardous waste mitigation actions account for the increased risks of flooding from extreme weather events. The EPA should not rely on voluntary actions but instead, require responsible parties to address vulnerabilities that Superfund sites have from flooding and other extreme weather events.

Additionally, the EPA and state environmental agencies need to tackle the question of liability for hazardous waste contamination that spreads beyond industrial areas into residential and commercial zones. Houston, with its lack of zoning and its mish-mash of industrial, commercial, and residential uses, faces a particularly difficult challenge given that industrial chemical wastes are likely to spread far beyond the boundaries of the industrial facilities where they originated. Attempting to hold home and business owners liable for this type of contamination will present significant legal and policy challenges given the obvious unfairness of such an approach. Identifying the source, or sources, of such contamination could prove nearly impossible.

Legal questions may also arise regarding the liability of local, state, or federal agencies for actions that exacerbated the risk of flooding and arguably contributed to the release of hazardous wastes. Some Houston residents have already begun mounting a case against the Army Corps of Engineers in attempts to hold them directly liable for damage to their homes after they released water from two reservoirs, knowing that the releases would cause downstream flooding.

The Conservation Law Foundation (CLF) under the Resource Conservation and Recovery Act (RCRA) suggests one area of potential litigation in this arena. In its lawsuit against ExxonMobil, CLF is seeking declaratory and injunctive relief to require ExxonMobil to remedy violations of RCRA at their petroleum distribution and storage terminal in Everett, Mass. Their complaint states that Exxon violated RCRA’s purpose of “minimiz[ing] the present and future threat to human health and the environment” by not adapting their terminal to account for the effects of climate change. If the CLF is successful, this case will create an obligation for industrial facilities in coastal areas that store or distribute hazardous products or waste, to prepare their sites for the increased sea levels and storm surges associated with global climate disruption.

The coming year will present federal and state officials with the opportunity to take the necessary actions to protect citizens in those coastal communities, like Houston, most at risk of being exposed to hazardous waste and toxic substance releases.