With Updates to EPCRA Reporting Rules, EPA Has Another Opportunity to Better Protect Workers

by Matt Shudtz

August 11, 2011

On Monday, EPA announced its intention to revise the emergency planning rules for industrial facilities. The goal of the revisions is to give state and local emergency planning committees better information that they can use to prepare for chemical spills, explosions, and other disasters at industrial facilities. In the initial proposal released Monday, EPA disregards a request from first responders that the new rules demand more information about the total number of people likely to be on-site during an emergency situation. EPA is proposing that facilities simply report the number of full-time employees, rather than what first responders say would be a more useful estimate of the total number of people likely to be on-site, including contract workers and members of the public.

EPA’s emergency planning rules are based on congressional mandates found in the Emergency Planning and Community Right-to-Know Act (EPCRA). EPCRA requires industrial facilities to report information about extremely hazardous substances that they store or use so that fire fighters and other first responders know what to expect when disaster strikes. EPA has developed simplified forms and a web-based system to facilitate easier compliance with the law and better access to information for response teams and emergency planners. 

The statute’s history is a blue-green success story that underscores the inadequacy of one aspect of Monday’s proposal—a new data-point that would only count the number of full-time employees at a facility. In the late 1970s, unions in the United States undertook a major campaign centered on workers’ right to know about the hazards they faced in the workplace. By the early 1980s, their diverse efforts at individual workplaces and in several states prompted the development of a uniform federal standard, OSHA’s Hazard Communication standard. The key provisions of the “HazCom standard” require employers to provide their workers with Material Safety Data Sheets (MSDS) for chemicals to which they may be exposed and mandate training to help workers use that information. The standard isn’t perfect, but it brought practical implementation of the right-to-know principle to the federal level, setting the stage for EPCRA. Shortly after OSHA instituted the HazCom standard, Congress began working on amendments to the Superfund law. The workers who did the dirty job of Superfund site remediation joined with environmentalists and others to fight for an expansion of the right-to-know principle to the communities surrounding cleanup sites and other industrial facilities. 

For the past twenty-plus years, EPCRA reporting has focused mainly on what hazardous substances exist at industrial facilities and where those substances are located. EPA is right to update the reporting rules so that emergency responders will have a better idea of who might be at risk. But the agency’s proposal, which would only require reporting the number of full-time employees at a facility, does not go far enough.

The number of full-time employees fails to account for the many other people who frequent facilities that use and store hazardous chemicals. As a member of the general public, it’s a bit discomforting to read that EPA is proposing to deny the request from emergency responders “that EPA require facilities such as hotels, colleges, universities, and convention centers to report the total number of people that may occupy a building at any given time, to assist them in emergency planning and response.” 

Only counting full time employees also ignores the consultants, contractors, and other members of the ever-expanding contingent workforce. Maintenance and repair at industrial facilities is often undertaken by contractors, as are other long-term jobs that put non-FTE workers in harm’s way. Just look at the explosion at BP’s Texas City refinery in 2005 for a hint at the potential consequences. The Chemical Safety Board reported (pdf) that all of the 15 workers killed in the explosion were contractors; 52 of the 66 workers who were “seriously injured” were contractors (from 13 different firms); and 79 of the 114 workers who were fortunate enough to only need first aid were contractors (from 14 different firms). In other words, out of 195 people killed or injured in the blast, only 49 were employees whose presence on the site would have been reported by BP under EPA’s proposed rule (perhaps even fewer if some of those 49 were part-time employees).

Contingent workers and members of the public are much less likely than full-time employees to know about the existence of extremely hazardous substances at a facility or what to do in an emergency. They’re precisely the people that state and local planning committees need to account for in their emergency plans. If EPA is going to enhance emergency planning capabilities through new EPCRA reporting standards, the agency must require facilities to report both the total number of workers on site (regardless of their employment relationship with the reporting facility) and the total number of likely occupants. 

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Matthew Shudtz, J.D., is the Executive Director of the Center for Progressive Reform. He joined CPR in 2006 as policy analyst, after graduating law school with a certificate in environmental law.

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