Emergency Planning and Community Right-to-Know Act (EPCRA)

By Claudia C. Damon and Krista Canty

The U.S. Environmental Protection Agency ("EPA") has sharpened its focus on hazardous waste issues. Many facilities, including comparatively small manufacturers, are affected by EPCRA and are frequently surprised to learn that they have compliance obligations. For example, storage of fuel on site or substances that require a Material Safety Data Sheet ("MSDS") sheet (if such storage exceeds EPCRA's threshold planning quantities) could trigger EPCRA obligations. Routine environmental auditing can help identify and correct any instances of non-compliance.

The EPA recently took significant enforcement action against 13 companies in 11 states (in Regions 1, 3, 4, 5, 6, 9, 10) for violating EPCRA and Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA") notice provisions. The total penalties amounted to approximately $765,000 for failure to give the immediate notice required under EPCRA (to state and local entities) and for failure to notify the National Response Center as required by CERCLA.

EPA filed administrative complaints for notification violations in situations where there was no unlawful release of a chemical as well as in situations where there was a reporting violation along with an unlawful release. One company was cited for giving no notice of accidental releases. Others were cited for waiting from 21 hours to 4 hours after the release to report the incident to state and local emergency authorities.

EPCRA is a federal statute enacted in 1986 to give citizens the right to know which toxic chemicals are used or found in their communities. Its other basic goal is to encourage States and communities to prepare for and respond to environmental emergencies. EPCRA requires timely reporting of routine and accidental releases of toxic chemicals, reporting of listed chemicals used at a plant, and reporting of the amount of chemicals contained in wastes transferred off-site. With such reporting, actual or potential harm to human health and environment can be prevented or mitigated following release of a hazardous chemical. CERCLA requires notification of toxic chemical releases to be given to the National Response Center. EPCRA imposes civil, criminal, and administrative penalties for violations of the reporting requirements. Enforcement actions may be brought by the EPA, the States, concerned citizens, and other emergency planning and response entities.

In some cases, EPA has negotiated reductions in the penalties it assessed in return for the companies undertaking supplemental environmental projects (SEPs) that accomplished a significant reduction of chemical emissions, or that provided funding to purchase emergency response equipment for local responders. In negotiating reductions, EPA accounted for a variety of factors such as redesign of storage tank and containment areas, elimination of toxic chemical(s) from processes or inventory, improving piping, installing flow meters, installing a waste separation tank, improving toxic chemical handling process, and providing more training to employees in the areas of risk management and reporting requirements. In the case of one company, some releases occurred which the company commendably reacted to by completing $1,700,000 worth of projects to prevent future releases and to install vacuum and containment systems at seven of its facilities. The EPA then initiated an EPCRA enforcement action against one of the seven facilities, seeking a penalty of $168,000. It is unusual for EPA to give credit for projects undertaken before its initiating an enforcement action. Ultimately the enforcement action settled for $8,424.

The best way to avoid non-compliance with EPCRA's provisions is to be proactive, to identify potential environmental compliance issues and fix them before they become substantial problems. Environmental compliance audits, conducted by a qualified engineer working together with an experienced environmental lawyer, are the quickest, most cost-effective way to identify and address these issues.