CITIZENS' GUIDE TO IDENTIFYING CHEMICALS IN THE COMMUNITY
If citizens are not sure if a facility needs to file Tier Two reports, and the LEPC has no information on the facility, there are steps that can be taken to research a facility using other publicly available information and reports required under environmental laws.
LOOKING OVER THE FACILITY--VISUAL INSPECTION
To start with, citizens can look at the facility in question to determine if there are large tanks with chemical labels, fire diamonds, or other markings. Some large tanks may just contain water or other raw materials. Look for barrels of chemicals stored on pallets or metal racks. Black or blue plastic barrels may contain acids or caustics. A 55 gallon barrel of water weighs about 450 pounds. Acids or other chemicals will generally weigh more than water, and a full barrel or two may trigger EPCRA reporting requirements. Sometimes a facility will store gasoline or fuels that are not for resale and only for use at the facility. Be alert for fuel pumping stations. If the facility refrigerates foods, it may have an Ammonia-based refrigeration system, which almost invariably will have more than the 500 pounds of Ammonia that trigger EPCRA reporting requirements. If there are offensive chemical odors detectable in the air, take note.
INFORMATION AVAILABLE USING OTHER ENVIRONMENTAL LAWS AND REGULATIONS
Ask yourself what the facility does and research what types of chemicals are used at similar facilities that DO report under EPCRA in your community. The financial and business section of the library will often have specific information about what a company or facility does. The yellow pages of the phone book can help, also.
Some types of facilities usually have to report under EPCRA. For example, metal plating facilities are common throughout the country. Metal plating processes often use acids that will require EPCRA reporting, as Sulfuric Acid has a 500 pound reporting threshold. Even small metal plating outfits can have large amounts of hazardous (EHS) chemicals on-site. Metal plating is sometimes part of what a larger facility does in a manufacturing process.
Any facility that discharges wastewater into the sewer system usually will have to have an environmental permit. Often, the discharge goes to a municipal sewer system, called a Publicly-Owned Treatment Works (POTW). In this case, the municipality will have a wastewater permit for the facility, and the permit file is public information. In some areas, the county or state will handle the permit. The top or lead state environmental agency will usually know what entity controls the permitting if there are any questions. The Governor's Office should also be able to handle public inquiries and refer the call to the appropriate environmental agency. Reviewing the file of the facility will generally explain what processes go on at the facility, and often will show what chemicals are used and stored at the facility. If you saw black or blue barrels at the facility and see in the facility's wastewater permit file that the facility uses Sulfuric Acid, the facility likely has to report under EPCRA.
A facility that emits pollution into the air will usually have to get an air pollution permit. The county or state agency may be the regulatory agency that issued the permit. Request to see this file, which is also public information. There is often a description or discussion in this file about what a facility does, including the types of chemicals being emitted into the air.
If a facility has Underground Storage Tanks (UST), the Resource Conservation and Recovery Act (RCRA) will require the facility has a permit. This permit includes checking to make sure the tank is not leaking. The state environmental agency likely regulates the facility's USTs, and this file is also available publicly. Usually, what is in the USTs will be listed. Any tank of over 1,600 gallons of new chemicals will likely require EPCRA reporting.
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 in your community, 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.
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. Contacting the SERC is also an option. In some states, like Arizona, these 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
These penalties can be quite steep. Some EPA Regions are vigorous enforcers of the EPCRA, and others, like EPA Region 9, 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 followup 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. To some, this appears to violate the Equal Protection Clause (14th admendment) of the US Constitution. Besides penalties, non-compliance can result in severe losses for firefighters and emergency responders, the business community, and the public, including loss of lives.
If a citizen believes a facility is out of compliance with EPCRA, the citizen should contact the proper authorities which would be the LEPC and/or the SERC and inquire as to who in the state conducts EPCRA enforcement; for EPCRA Section 311, 312 (chemical storage), 304 (emergency notifications), and 313(some chemical usage and release information). Contact the EPA regional office for assistance. Citizens should work with the government to attempt to bring a facility into compliance. If this fails, 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 can be expensive and usually requires an attorney. (LINK here to a draft EPCRA citizen suit notice letter)
Not all states conduct civil enforcement of EPCRA laws. Nor does the
Environmental Protection Agency neccesarily fund a staff person to conduct
EPCRA enforcement in that region, especially section 311 and section 312 of
EPCRA (Chemical storage and emergency planning) despite its importance for a
safe community. Citizen Suit is sometimes a necessity when enforcment 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.
Need to do enforcement in the community?
lepc locator database
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 referered to as the "orange books."
EPA has enforcement powers and oversight of the SERCs and LEPCs. http://www.epa.gov/epaoswer/hotline/contacts.htm 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.