State pol­lu­tion-per­mit­ting must be re­formed

The Star Democrat - - OPINION - By DAVID FLO­RES For the Bay Jour­nal News Ser­vice

Re­cent ex­treme weather — Hur­ri­canes Har­vey and Florence — caused wide­spread toxic con­tam­i­na­tion of flood­wa­ters af­ter low-ly­ing chem­i­cal plants, coal ash stor­age fa­cil­i­ties and hog waste la­goons were in­un­dated.

Such storm-driven chem­i­cal dis­as­ters demon­strate that state wa­ter pol­lu­tion per­mit­ting pro­grams are over­due for re­forms that ac­count for stronger and more in­tense hur­ri­canes and heavy rain­fall events, sea level rise and ex­treme heat.

As the Ch­e­sa­peake Bay wa­ter­shed states and the Dis­trict of Columbia pre­pare their fi­nal wa­ter­shed im­ple­men­ta­tion plans for clean­ing up the Bay, two im­por­tant lessons should be clear from the re­cent dis­as­ters: First, cli­mate change will greatly com­pli­cate Bay cleanup ef­forts and must there­fore be fac­tored into plan­ning. Sec­ond, the state reg­u­la­tion of pol­lu­tion sources can and should be a crit­i­cal com­po­nent of the plan.

The po­ten­tial pol­lu­tion im­pli­ca­tions of cli­mate change are many and var­ied for the Bay wa­ter­shed:

• Where sunny-day flood­ing now oc­curs on a weekly ba­sis in parts of D.C., Mary­land and Vir­ginia, ac­cel­er­at­ing sea lev­els will cause nui­sance flood­ing on a near-daily ba­sis in the next 20 to 30 years.

• Sea level rise also raises the prospect that sea­wa­ter will in­trude into coastal ground­wa­ter, in­un­dat­ing and de­grad­ing drink­ing wa­ter wells, sep­tic tanks and un­der­ground chem­i­cal or haz­ardous waste stor­age fa­cil­i­ties.

• Sea level rise will also shrink tidal wet­lands, weak­en­ing these nat­u­ral fil­ters’ abil­ity to help cap­ture pol­lu­tion. The most re­cent Bay pol­lu­tion mod­el­ing sug­gests that present-day cli­mate im­pacts, in­clud­ing in­creased rain­fall and more in­tense storms, are re­spon­si­ble for higher lev­els of in­or­ganic ni­tro­gen, as well as warmer wa­ter tem­per­a­tures that ren­der pol­lu­tion re­duc­tions less ef­fec­tive at pre­vent­ing dead zones.

• Pro­longed, ex­treme heat from cli­mate change is prob­lem­atic, too, as heat waves can cause black­outs that dis­rupt pol­lu­tion con­trol prac­tices, and high tem­per­a­tures can de­grade above-ground stor­age tanks.

As Bay ju­ris­dic­tions de­velop plans to in­te­grate cli­mate re­silience into their pol­lu­tion per­mit­ting sys­tems, it’s also im­por­tant that they keep in mind the over­whelm­ing so­cial di­men­sion to this prob­lem: Cli­mate-driven chem­i­cal dis­as­ters and en­vi­ron­men­tal pol­lu­tion may am­plify the harm to the vul­ner­a­ble pop­u­la­tions and com­mu­ni­ties that are al­ready dis­pro­por­tion­ately ex­posed to both in­dus­trial pol­lu­tion and the im­pacts of cli­mate change.

Low-in­come com­mu­ni­ties, sur­rounded by ur­ban in­dus­trial fa­cil­i­ties that emit toxic dust and air pol­lu­tion, or in­dus­trial agri­cul­tural op­er­a­tions that emit toxic am­mo­nia into the air and toxic ni­trate pol­lu­tion into sur­face and ground­wa­ter, are of­ten the same com­mu­ni­ties plagued by flood­ing, storm surge and ex­treme heat.

Vul­ner­a­ble pop­u­la­tions — chil­dren and se­niors among them — are more sus­cep­ti­ble to en­vi­ron­men­tal pol­lu­tion and cli­mate im­pacts, and they are more likely to be im­mo­bile dur­ing dis­as­ter. State pol­i­cy­mak­ers also need to ad­dress dis­as­ter pol­icy to en­sure that when pol­lu­tion or a dis­as­ter does oc­cur, vul­ner­a­ble com­mu­ni­ties will have the means to min­i­mize their ex­po­sure.

For­tu­nately, not all the news is bad. Many Bay ju­ris­dic­tions have made progress in broadly ad­dress­ing adap­ta­tion and re­silience to cli­mate change. New York State, for ex­am­ple, has tack­led the threat of cli­mate-driven pol­lu­tion head on. En­vi­ron­men­tal or­ga­ni­za­tions pushed New York to pass the Com­mu­nity Risk and Re­siliency Act in 2014. Among other re­quire­ments, the law re­quires state agen­cies to de­velop reg­u­la­tory stan­dards for sea-level rise pro­jec­tions and re­quires pol­lu­tion per­mit ap­pli­cants and reg­u­la­tors to con­sider present and fu­ture ex­po­sure to sea level rise, storm surges and river flood­ing. These re­quire­ments only took ef­fect less than two years ago, so crit­i­cal ques­tions about their ef­fec­tive­ness are still unan­swered.

There are a num­ber of other steps that ju­ris­dic­tions can un­der­take to­day to help min­i­mize the costs of cli­mate im­pacts on the Bay and pol­lu­tion-per­mit­ting in the fu­ture. They in­clude:

• Bay ju­ris­dic­tions should ex­am­ine op­por­tu­ni­ties to ap­ply ex­ist­ing le­gal au­thor­ity to adapt pol­lu­tion­per­mit­ting to cli­mate im­pacts as part of their com­mit­ment to ad­dress cli­mate change in their up­com­ing wa­ter­shed im­ple­men­ta­tion plans. Merely adapt­ing restora­tion prac­tices will fall far short of what is needed to ac­count for the im­pact of cli­mate change on the Bay cleanup.

• Bay ju­ris­dic­tions can also es­tab­lish a longer-term task force — staffed by reg­u­la­tors, elected of­fi­cials, and com­mu­nity stake­hold­ers — to con­tinue ex­plor­ing op­por­tu­ni­ties for cli­mate re­silience pol­icy re­forms by amend­ing state pol­lu­tion reg­u­la­tions in a man­ner that also aligns with ex­ist­ing com­mis­sions fo­cused on the Ch­e­sa­peake Bay, en­vi­ron­men­tal jus­tice and cli­mate change.

• Bay ju­ris­dic­tions should ded­i­cate re­sources to iden­tify and study cli­mate-vul­ner­a­ble pol­lu­tion per­mit­tees and the com­mu­ni­ties po­ten­tially ex­posed to cli­mat­edriven pol­lu­tion, then com­mit re­sources to as­sess the en­vi­ron­men­tal and so­cial ben­e­fits of any adopted pol­icy re­forms, in­clud- ing state fund­ing de­ci­sions for in­vest­ments in in­fras­truc­ture and growth plan­ning.

• Re­forms in reg­u­la­tory trans­parency will ser ve com­mu­ni­ties ex­posed to po­ten­tial cli­mate-driven chem­i­cal dis­as­ters. State reg­u­la­tors should mean­ing­fully com­ply with ex­ist­ing reg­u­la­tor y frame­works, in­clud­ing the Emer­gency Plan­ning and Com­mu­nity Right-toKnow Act, which re­quires pub­lic dis­clo­sure about neigh­bor­hood chem­i­cal risks. More­over, reg­u­la­tors should use this in­for­ma­tion to tar­get in­spec­tion and en­force­ment re­sources to vul­ner­a­ble com­mu­ni­ties and those with greater ex­po­sure to cli­mate-in­duced pol­lu­tion.

• Pol­i­cy­mak­ers must en­gage in­dus­try and oth­ers in the process of in­ves­ti­gat­ing pol­icy re­forms and dis­crete ac­tions that can be taken at in­dus­trial fa­cil­i­ties to ad­dress vul­ner­a­bil­i­ties to flood­ing and other cli­mate im­pacts and that re­quire suf­fi­cient re­sources for reg­u­la­tors. The Mas­sachusetts Of­fice of Tech­ni­cal As­sis­tance has pro­duced a re­mark­able model for this type of work.

Ad­di­tion­ally, with­out sac­ri­fic­ing am­bi­tious near-term ac­tion, the pub­lic and pri­vate sec­tors need to col­lab­o­rate and de­velop long-term, en­force­able plans to move or mod­ify prob­lem­atic fa­cil­i­ties.

Bil­lions of dol­lars are at stake — mea­sured by the value of our nat­u­ral re­sources and the health of our com­mu­ni­ties, as well as the mag­ni­tude of past and present in­vest­ments in pol­lu­tion con­trol and a clean and healthy Ch­e­sa­peake Bay. We must break away from busi­ness as usual and re­form our pub­lic safe­guards to ac­count for the ac­cel­er­at­ing im­pacts and cas­cad­ing harm of a chang­ing cli­mate.

David Flo­res is a pol­icy an­a­lyst at the Cen­ter for Pro­gres­sive Re­form. His opin­ions do not nec­es­sar­ily re­flect those of the Bay Jour­nal.

PHOTO BY DAVID HARP/CHESAPEAKEPHOTOS.COM

This scene is from aptly named Wa­ter Street, along the Chop­tank River in Cam­bridge. Such flood­ing is oc­cur­ring more of­ten around the wa­ter­shed.

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