Emergency Planning and Community Right-to-Know Act (1986)

The Emergency Planning and Community Right-to-Know Act (EPCRA), also known as Title III, is a statute enacted by Congress in 1986 as a part of the Superfund Amendments and Reauthorization Act (SARA). It was enacted in response to public concerns raised by the accidental release of poisonous gas from a Union Carbide plant in Bhopal, India which killed over 2,000 people.

EPCRA has two distinct yet complementary sets of provisions. First, it requires communities to establish plans for dealing with emergencies created by chemical leaks or spills and defines the general structure these plans must assume. Second, it extends to communities the same kind of right-to-know provisions which were guaranteed to employees earlier in the 1980s. Overall, EPCRA is an important step away from crisis-by-crisis environmental enforcement toward a proactive or preventative approach. This proactive approach depends on government monitoring of potential environmental hazards, which is being accomplished by using computerized files of data submitted by businesses.

Under the provisions of EPCRA, the governors of every state were required to establish a State Emergency Response Commission by 1988. Each state commission was required in turn to establish various emergency planning districts and to appoint a local emergency planning committee for each. Each committee was required to prepare plans for potential chemical emergencies in their communities, which includes the identities of facilities, the procedures to be followed in the event of a chemical release, and the identities of community emergency coordinators as well as a facility coordinator from each business subject to EPCRA.

A facility is subject to EPCRA if it has a substance in a quantity equal to or greater than the threshold planning quantity specified on a list of about 400 extremely hazardous substances published by the Environmental Protection Agency . Also, after public notice and comment either the state governor or the State Emergency Response Commission may designate facilities to be covered outside of these guidelines. Each covered facility is required to provide facility notification information to the state commission and to designate a facility coordinator to work with the local planning committee.

EPCRA requires these facilities to report immediately any accidental releases of hazardous material to the Community Coordinator of its local emergency committee. There are two classifications for such hazardous substances. The substance must be either on the EPA's extremely hazardous substance list, or defined under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA). In addition to the initial emergency notice, followup notices and information are required.

EPCRA's second major set of provisions is designed to establish and implement a community right-to-know program. Information about the presence of chemicals at facilities within the community is collected from businesses and made available to public officials and the general public. Businesses must submit two sets of annual reports: the Hazardous Chemical Inventory and Toxic Chemicals Release Inventories (TRIs), also known as Chemical Release Forms.

For the Hazardous Chemical Inventory, each facility in the community must prepare or obtain a Material Safety Data Sheet for each chemical on its premises meeting the threshold quantity. This information is then submitted to the Local Emergency Planning Committee, the local fire department, and the State Emergency Response Commission. These data sheets are identical to those required under the Occupational Safety and Health Act's worker right-to-know provisions. For each chemical reported in the Hazardous Chemical Inventory, a Chemical Inventory Report must be filed each year.

The second set of annual reports required as a part of the community right-to-know program is the Toxic Release Inventory (TRI), which must be filed annually. Releases reported on this form include even those made legally with permits issued by the EPA and its state counterparts. Releases made by the facility into air, land, and water during the preceding twelve months are summarized in this inventory. The form must be filed by companies having ten or more employees if that company manufactures, stores, imports, or otherwise uses designated toxic chemicals at or above threshold levels.

The information submitted pursuant to both the emergency planning and the right-to-know provisions of EPCRA is available to the general public through the Local Emergency Planning Committees. In addition, health professionals may obtain access to specific chemical identities even if that information is claimed by the business to be a trade secret in order to treat exposed individuals or protect potentially exposed individuals.

During the late 1980s, the EPA and its state counterparts emphasized public awareness and education about the requirements of EPCRA, rather than enforcement. But Congress has provided stiff penalties for noncompliance, and these agencies have now begun to implement their enforcement tools. Civil penalties of up to $25,000 per day for a first violation and up to $75,000 per day for a second may be assessed against a business failing to comply with reporting requirements, and citizens have the right to sue companies that fail to report. Further, enforcement by the government may include criminal prosecution and imprisonment.

In June of 1996, in response to community pressure, the U.S. Congress took up its first major vote on Community Right to Know since 1986. In the 1996 vote, the House of Representatives removed provisions from an EPA budget appropriation which would have made substantial cuts in funds allocated to compiling of Toxics Release Inventories (TRI). In addition, Congress passed an EPA proposal that added seven additional industries to the number of industries which must report under TRI, thus bringing the total number of industries required to report to twenty-seven. Those twenty-seven include more than 31,000 facilities across the United States. These Congressional votes are viewed by environmentalists as victories for right to know. Looking ahead, EPCRA may be further strengthened through provisions included in The Children's Environmental Protection and Right to Know Act of 1997 which was introduced to Congress in May of 1997 by Rep. Henry Waxman (D) and Rep. Jim Saxtan (Republican).

Studies have revealed that EPCRA has had far-reaching effects on companies and that industrial practices and attitudes toward chemical risk management are changing. Some firms have implemented new waste reduction programs or adapted previous programs. Others have reduced the potential for accidental releases of hazardous chemicals by developing safety audit procedures, reducing their chemical inventories, and using less hazardous chemicals in their operations.

As information included in reports such as the annual Toxics Release Inventory has been disseminated throughout the community, businesses have found they must be concerned with risk communication. Various industry groups throughout the United States have begun making the information required by EPCRA readily available and helping citizens to interpret that information. For example, the Chemical Manufacturers Association has conducted workshops for its members on communicating EPCRA information to the community and on how to communicate about risk in general. Similar seminars are now made available to businesses and their employees through trade associations, universities, and other providers of continuing education.

[Paulette L. Stenzel ]