AN ENVIRONMENTALIST'S PERSPECTIVE ON THE EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW ACT
Jurisdiction | United States |
(Apr 1997)
AN ENVIRONMENTALIST'S PERSPECTIVE ON THE EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW ACT
Land and Water Fund of the Rockies
Boulder, Colorado
The Land and Water Fund of the Rockies ("LAW Fund") is a nonprofit environmental legal aid and advocacy organization that represents citizen groups throughout the Rocky Mountains and Desert Southwest. The LAW Fund seeks to protect the environment by making the legal system work better for those who have historically been left out of the process, and to thereby increase their effectiveness in addressing serious health and environmental problems in their communities.
The LAW Fund is very committed to the law and policies underlying the Emergency Planning and Community Right-to-Know Act ("EPCRA").2 In our view, EPCRA provides an orderly (and appropriate) means for a company to apprise the public and emergency response providers of toxic chemicals managed on site. Serendipitously, EPCRA encourages a company to assess whether it can find cost-effective alternatives to use of toxic chemicals.
An Unhappy Tale
On March 29, 1995, in the mid-afternoon, a rail tank car sitting at a terminal in north central Denver began to leak muriatic acid3 through a hole in the car. Over the next several hours, the leak became a virtual torrent of acid which remained unchecked until 3,300 gallons were released to the ground. The puddled acid volatilized. The resulting vapor cloud began wafting away from the tank car towards the surrounding neighborhoods of Swansea and Elyria. Police officers and fire fighters, who had cordoned off streets around the rail car, began a door-to-door evacuation of residents. Many of the residents spoke little or no English. Few of the police officers and fire fighters spoke Spanish. As a result, many residents were terrified and bewildered as they were directed to leave their homes without understanding why or where they could go.
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As darkness fell, over two hundred residents were evacuated from their homes. Many evacuees were taken to the Denver Coliseum and cared for by the American Red Cross. By around noon the next day, the remaining acid in the defective tank car was transferred to an empty receiving car. The puddled acid on the ground was finally neutralized on March 30 late in the evening.
For the neighboring residents of the facility, the agony and inquiry had only begun. What chemicals had been involved? How much was released? What were the health risks? Had residents inhaled the harmful gas, and, if so, what should they do?
Sadly, the owner of the tank car failed to provide immediate notice to the proper authorities that there was an emergency. Thus, the residents could not answer their questions or take positive steps to prevent additional harm. Further, the owner had poor equipment on site, which slowed the tank car offloading, and inadequate hosing, which slowed the commencement of the clean-up operations. The owner failed to recognize and respond to the public's need for information or to take appropriate steps to plan for the emergency.
It is tales like this one and others that motivate the LAW Fund and our clients to work hard to ensure that companies understand and comply with EPCRA.
EPCRA Background
EPCRA serves two important purposes — mandating planning for emergency situations and requiring companies to inform the public about the toxic materials stored on or released from their premises.4
EPCRA's citizen suit provisions authorize suits for violations of both of these functions: against facilities (including motor vehicles and rolling stock) that fail to submit a followup emergency notification of a hazardous substance spill, and against manufacturing facilities that fail to timely submit reports about their inventory and releases of hazardous chemicals, namely, material safety data sheets ("MSDSs"), Tier I or Tier II inventory reports, and chemical release information on EPA Form Rs. Suits are also authorized (1) against the EPA Administrator for failing to perform certain administrative responsibilities, (2) against the EPA Administrator, the Governor (for the state in which the alleged violation occurred), or State emergency response commission ("SERC") for failing to provide a mechanism for public availability of EPCRA information, and (3) against the Governor (for the state in which the alleged violation occurred) and SERC for not responding to requests for Tier II
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information within 120 days. Other EPCRA requirements may not be enforced through the citizen suit mechanism.
Citizen enforcers must serve a sixty-day notice letter upon the alleged violator, and upon the EPA Administrator, the EPA Regional Administrator, and upon the Governor for the state in which the alleged violation occurred.5 EPA may preempt, or "overfile," the citizen action by commencing and diligently prosecuting an administrative order or civil action before the citizen's complaint is filed. State action, by contrast, does not preempt the citizen's action. The citizen enforcer may intervene in governmental actions as a matter of right, but under more narrowly proscribed circumstances than in most other environmental statutes.
Goals of Citizen Enforcement
Citizen suits are brought to further a number of different goals, some expressed in the statute and some that flow from its purposes.
The foremost reason for bringing such actions is compliance. The environmental and neighborhood groups which form the majority of citizen plaintiffs derive benefits from knowing the type and extent of toxic chemicals used and released by industry. Indeed, the toxic release inventory ("TRI") helped spawn the environmental justice movement, which works to redress the problem of low-income neighborhoods and communities of color facing a disproportionate risk of exposure to toxics from new and existing industrial facilities. Information provided under EPCRA gives the public and officials (such as firemen and other emergency response providers) information that may be critical in the event of an unintended release of hazardous materials. Moreover, citizen enforcement of even a few cases tends, through media reports and word of mouth, to produce a ripple effect that increases the level of statutory compliance throughout the regulated community.
Citizen enforcers also seek to force EPCRA violators to pay penalties for non-compliance. Indeed, EPA takes the position that a significant monetary penalty is always necessary, at least equal to the economic benefit derived by the company from non-compliance. The statute authorizes the payment of up to $25,000 for each day that an EPCRA violation continues, although this amount is significantly diminished under the EPA settlement guidelines, which most citizen enforcers follow.
The settlement guidelines anticipate the use of supplemental environmental projects ("SEPs"). SEPs enable entities other than the U.S. Treasury to obtain a...
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