It is not in anyone's interest for facilities to be out of compliance with EPCRA. Take the time to review the EPCRA compliance status of facilities during the fire inspection, and make sure the regional emergency plan meets the conditions and requirements of EPCRA.
What to do if the facility does not report?
Any SERC or LEPC may bring civil suit against an owner or operator of a facility for failure to provide Tier Two information or for failure to provide emergency planning information needed for regional emergency plans. EPCRA provides local governments an avenue to bring civil suit also. State law may provide provisions for enforcement of EPCRA.
If there is a facility that looks like it might need to report but doesn't, ask the LEPC to contact the facility about the matter. The fire department can ask for a facility to file a Tier Two report, for a facility to provide a specific MSDS, and/or request to inspect the facility.
Contacting the SERC is also an option. In some states, like Arizona, the LEPCs and SERCs are politically constrained against enforcement, and contacting the regional EPA office is advised. The EPA region numbers can be found at http://www.epa.gov/epaoswer/hotline/contacts.htm, which is the web address that will tell you your regional EPA contact numbers and addresses. You can also determine which EPA region you are in.
The Environmental Protection Agency has published its penalty policy on EPCRA violations. http://es.epa.gov/oeca/osre/900613.html
These penalties can be quite steep. Some EPA Regions are vigorous enforcers of the EPCRA, and others have only recently established EPCRA 312 enforcement programs. The enforcement of this law by EPA presents some unusual obstacles because the EPCRA information, i.e. Tier Two Reports, facility and regional emergency plans, the written follow-up notice, is not directly reported to EPA.
Enforcement is both a political and a resource decision. Enforcement efforts can vary considerably from one region to another, or from one state to another. Besides penalties, non-compliance can result in severe losses for firefighters and emergency responders, the business community, and the public, including loss of lives.
There is a citizen suit provision of EPCRA that allows an affected citizen to bring a civil action to enforce EPCRA. Citizens have the right by federal law to bring a civil lawsuit against a company that refuses to come into compliance with EPCRA law. A citizen who lives, recreates, or travels near a facility that is out of compliance with EPCRA can send the facility a 60-day notice of intent to sue letter.
The company then has 60 days to comply with the law. If the company does not come into compliance, the citizen can file a legal complaint in court and force the facility to comply and pay penalties. This process can be expensive and usually requires an attorney.
Not all states conduct civil enforcement of EPCRA laws. Some state laws implementing EPCRA have not given enforcement powers to their SERC or LEPCs. Nor does the Environmental Protection Agency necessarily fund a staff person to conduct EPCRA enforcement in that region, especially Sections 311 and 312 of EPCRA (Chemical inventory and emergency planning), despite its importance to firefighters. The IAFF asked the Environmental Protection Agency to conduct EPCRA 312 enforcement due to the particular increased hazards to firefighters by facilities not complying with the law. There has been some effort by EPA to focus on this issue now, but enforcement is not occurring in all regions.
Citizen Suit is sometimes a necessity when enforcement is lacking or political forces have rendered enforcement ineffective. If speeding laws were not enforced by radar police, would speeding increase? Of course it would. Laws are only as good as they are enforced.
The EPA is represented on a national committee named the National Response Team (NRT). The NRT is an information gathering body and does not actually "respond." The NRT has prepared documents about emergency response and emergency planning, sometimes referred to as the "orange books."
EPA has enforcement powers and oversight of the SERCs and LEPCs.