From Surviving to Thriving: Disaster in Disaster: The Emergency Planning and Community Right-to-Know Act Must Be Enforced

Sarah Lamdan, Professor of Law at CUNY Law School, co-authored this post, which is part of CPR's From Surviving to Thriving: Equity in Disaster Planning and Recovery report.

This chapter is excerpted from a law review article that is forthcoming in U. Arkansas Law Review, titled "Taking a Page from FDA’s Prescription Medicine Information Rules: Reimagining Environmental Information for Climate Change."

What Happened?

In August 2017, Hurricanes Harvey and Irma hit the southern United States in rapid succession. These massive hurricanes wrought widespread devastation — destroying buildings, flooding neighborhoods, and taking lives. Harvey shattered the national rainfall record for a single storm, dropping more than 50 inches of rain in a 36-hour period. Thousands of stranded Houstonians waded through chest-deep floodwaters. Unbeknownst to them, those residents were wading through more than just water. Many storm victims were in fact wading through a toxic stew. The same floodwaters that filled the streets had also inundated scores of industrial facilities and at least 13 of Houston’s 41 Superfund sites. According to the Houston Chronicle, “In all, reporters cataloged more than 100 Harvey-related toxic releases — on land, in water and air. Most were never publicized.”

Hurricane floodwaters notoriously carry all manner of contaminants, from pesticides and landfill waste to the contents of inundated chemical waste storage containers. The problem is particularly bad in industry-heavy cities like Houston, where floodwaters travel from industrial stockyards and production plants through the bayous, channels, and temporary waterways to residential areas, leaving toxic water and chemicals behind.

Disasters can also affect the containment of industrial byproducts and processes. Texan first responders dispatched to the Arkema chemical plant in Crosby, Texas, found this out first-hand. After the rains from Harvey abated, the plant, which manufactures organic peroxides used in plastics and rubbers, was inundated under six feet of water. Water had flooded the plant’s backup generators, cutting off power to the refrigeration system that kept the plant’s chemicals at a safe, non-flammable temperature. Without refrigeration, the chemicals exploded, sending 40-foot plumes of toxic chemicals into the air and floodwaters. First responders collapsed after inhaling the thick fumes. Police officers and medical personnel were “doubled over vomiting, unable to breathe.”

Deliberate choices to hide chemical hazard data sent these first responders into harm’s way unprepared. In 2014, then-Texas Attorney General Greg Abbott (now the governor) restricted access to Arkema’s chemical records citing potential “terroristic activities.” Abbott’s decision made the records detailing the toxic chemicals stored and used in the Arkema plant almost impossible to access. As a result, the Arkema first responders faced dangerous chemical fires without critical knowledge about the hazards involved. Politically motivated choices made critical information inaccessible and placed first responders in needless jeopardy. 

The Arkema disaster and exposure to all sorts of unknown contaminants highlight the importance of access to chemical data when disasters strike. Lack of information put first responders in jeopardy and leaves the general public without any warnings about possible health impacts of chemical spills.

In addition to the Arkema example, hazardous chemical releases have injured thousands of people across the country. An explosion at the Bayer CropScience plant in Institute, West Virginia, killed two employees and injured eight others, and a pipe failure at a Chevron Refinery in Richmond, California, sent 15,000 people to the hospital. We don’t know how many Harvey casualties can be attributed to toxic exposure. Overall, the U.S. Chemical Safety Board, which investigates chemical accidents to protect workers, has responded to over 800 chemical release incidents since 1998.

As climate change-supercharged disasters threaten industrial infrastructure with high winds, flood waters, intense heat, wildfires, and mudslides, chemical disasters are far more likely to occur. The standard safety mechanisms we rely upon to avoid chemical explosions and releases, including temperature control and pressure devices, as well as structural retaining walls and containers, are at increased risk of failure in the face of extraordinary disaster conditions that the mechanisms were not designed to withstand.

One clear lesson that emerged from the post-mortem analysis of emergency response during Hurricane Katrina was that arming the public and first responders with adequate risk information is imperative for effective emergency preparation and response. Indeed, information access is a cornerstone of effective chemical disaster preparation.  

When hurricanes, mudslides, and wildfires rip through cities and towns, information about the chemical hazards lurking in inundated storage facilities, broken refrigeration units, and plants with crippled infrastructure becomes critical to protecting human health and safety. The more people know about the risks at hand, the more efficiently localities and individuals can react to chemical hazards.

Hollowed Out Government Protection

Since the Bhopal disaster in the 1980s, the United States has had laws on the books designed to deal with many of the problems exposed by Hurricane Harvey. The Emergency Planning and Community Right-to-Know Act (EPCRA) (and the Clean Air Act’s Risk Management Program (RMP)) require emergency planning and information access — provisions designed to prepare first responders and their communities for chemical catastrophes. Congress enacted EPCRA and the RMP to respond to the need for accurate, timely information about chemical risks. Both statutes included sweeping public information access provisions. The resulting statutory and regulatory schemes provided for information disclosure to make public the chemical hazard data needed to improve awareness, planning, and preparation for potential disasters.

Yet U.S. federal, state, and local governments too often fail to ensure that first responders, localities, and individuals have the information they need to prepare for chemical disasters.  Not enough resources are provided to ensure adequate enforcement. EPCRA and RMP-mandated programs are typically low priorities, thinly staffed with small budgets. Violations often go unchecked, and fines for noncompliance are light and sparsely enforced.

Moreover, information access is curbed by policies designed to protect information from unintended use. Ever since September 11, 2001, information about chemical hazards in the United States has been increasingly difficult to access. Government protection and enforcement against chemical disasters has been hollowed out, and the information access systems established under federal law have not been properly maintained and enforced. Under the guise of keeping dangerous information out of the hands of terrorists, key information access requirements enshrined in EPCRA and the RMP have been bypassed. While terrorism may change how such information should be generated and shared, it cannot be an excuse for avoiding vital recordkeeping and reporting at potentially dangerous plants.

What Should Be Done?

EPCRA mandates the public availability of two major types of information: 1) emergency plans and 2) information about toxic releases. While that sweep might be broad, the law’s focus is actually fairly narrow. EPCRA mandates access to information that is likely to help reduce acute health effects from short-term exposure to chemical releases. In other words, EPCRA covers precisely the type of information that is key to ensuring the safety of civilians and first responders facing hurricanes, wildfires, flooding, and other disasters. The problem has been the lack of enforcement, as well as the information-limiting policies that many states imposed post 9/11.

First, enforce the law

More than anything, EPCRA requirements must be taken seriously, and state and federal governments must provide adequate resources to fund enforcement. While budgetary decisions are ultimately legislative, implementing agencies should also lead the way in reminding legislators of the importance of the requirements.

Use waivers sparingly

Concerns about making hazard information public can be genuine, but it is important that the basic EPCRA disclosures are made, at least in some manner. We propose that the focus be shifted to disclosing key information vital for disaster preparation and public safety.

Effective disaster preparation and reaction usually requires quick thinking and streamlined processes. People must know three basic things: 1) whether there is danger, 2) what the danger is, and 3) how best to prepare for it. Is there a chance that a nearby plant will release a toxic plume into the air? Is the plume going to be filled with chemicals that will hurt people’s throats or eyes? Is there a danger that the emission may ignite or cause an explosion? These types of information should be clearly and efficiently communicated to people at risk.

One way to fulfill EPCRA mandates is to adopt the model the FDA has used successfully to communicate drug risks. This FDA risk-communication system is built around plain language circulars and direct-to-consumer messages about medication risks.

FDA labelling and packaging provides just enough information to help people make sound choices. Labelling laws require package inserts, direction circulars, and package circulars that list potential risks and side effects. They provide relevant warnings, specifying what could occur when using the medication and what to do when a negative side effect occurs. These labelling requirements are designed not only for consumers, but to help health care practitioners easily find, read, and convey information important for the safe and effective use of prescription drugs. The end result is useful, easy-to-understand information for both consumers and professionals. This model offers a simple, accessible way to reach the public, and it preserves the balance of providing information access while safeguarding information from unintended uses.

The disclosures necessary for effective natural disaster safety are not in-depth or technical. They need not reveal information at the heart of the unintended use concerns; people do not need to know precise, trade secret chemical “recipes,” nor do they need precise address or location descriptors directing people to the chemicals themselves. Rather, citizens simply need to know what the risks are and whether they are in a location that is at risk. Streamlined, plain-language communication would help people prepare for chemical disasters. In fact, EPCRA already requires that facilities generate workplace-related safety data sheets. These documents are akin to FDA circulars — they provide key data on the health and physical hazards of chemicals and list protective measures. Adopting an FDA model for disseminating these data sheets could help ensure that critical information reaches the public in an efficient, easy-to-access manner.