“We Don’t Do That Here” – Part 3

“We Don’t Do That Here” – Part 3.

In Part 1, I discussed the Emergency Planning and Community Right to Know Act (EPCRA) and suggest that Oregon has failed to successfully implement this important law.  In Part 2, I discussed in detail how this failure puts people at risk.  In Part 3, I will look at where Oregon is today.

Where are we now?

I attended the Multnomah County LEPC (Local Emergency Planning Committee) meeting on June 13th.  A successful LEPC would have twelve to fifteen people representing the stakeholder groups identified in EPCRA (local elected officials, police, fire and EMS representatives, public health and hospital staff, environmentals groups and members of the media and general public) in attendance.  They would review individual site plans that were due to be renewed or otherwise needed adjustment.  An update from the Outreach Committee would details what efforts had been made over the last quarter to contact and educate people living and working near chemical sites about the risks they face and how to be better prepared.  At this meeting, 10 people came, all of them representatives of industry save one lone soul from the Environmental Protection Agency.  The focus was on how to get more businesses to participate in the LEPC and how to create an emergency plan.  There was no mention of public outreach and no members of the public were there.  This is not a successful LEPC.

There are 10 LEPCs in Oregon, covering 11 counties but leaving 25 without this valuable resource..  Most of these LEPCs are like the one in Multnomah County; barely functional and not focused on sharing information with the public about chemical hazards in the community.  There is still no SERC (State Emergency Response Commission) as intended under the law.  Oregon is still failing to implement EPCRA in 2014, 28 years after passage of the act.

Getting on the right track?

In 2009, the State Fire Marshal’s Office decided that the way the Emergency Planning and Community Right to Know Act (EPCRA) had been implemented in Oregon needed to change.  By late 2010, this change effort was in full swing.  I was the  Deputy for Planning and Preparedness in the Office of Emergency Management for Multnomah County.  My office received a letter in the mail from the  Office of the State Fire Marshal (OSFM) inviting us to a meeting to discuss the formation of  Local Emergency Planning Committee (LEPC) for Multnomah County.  During the few days after that letter arrived, I took a number of phone calls from confused and curious businesses and emergency managers.  They had all kinds of questions: What is a LEPC? Do I have to participate?  What sort of work will this committee do?  Alas, I had very few answers for them.  Although I had eight years of experience working with a LEPC in Michigan, I was as much in the dark as anyone regarding the specific purpose of this meeting.

Several problems were immediately evident to me.  First, the presentation contained inaccurate information about who should serve on a LEPC.  Second, misleading information was presented about the liability protection that is extended to members of the LEPC.  And third, the presentation encouraged the creation of “All-Hazard” plans focused on all disasters at the expense of a focused approach on chemical planning and community outreach.

Problem 1: Who should serve?

The staff from the Office of the State Fire Marshal (OSFM) indicated during the presentation that all users of Extremely Hazardous Substances (EHS) must serve on the LEPC.  This is incorrect.  The language in EPCRA is very clear; representatives of certain groups should serve on the LEPC, not every member of every group listed in the legislation.  Yes, all EHS users must comply with the site plan and chemical reporting provisions of EPCRA, but they don’t need to serve on the LEPC or attend all its meetings.

Problem 2: Liability protection?

Presenters at the meeting indicated that businesses participating in the LEPC would receive some sort of liability protection from the state if they had a chemical leak.  This is wrong.  In most states, individuals that serve on a LEPC have some protection from liability for the plans they create similar to that extended to government planners.  However, in no case would an organization that had an accidental release receive liability protection from the state.  This is a gross misunderstanding of the law.

Problem 3: All-Hazard planning?

When EPCRA was passed in 1986, local emergency planning was not very far advanced.  So in addition to planning for chemical spills, EPCRA has some provisions for doing more comprehensive emergency planning.  Since 1986, local emergency planning has become much more sophisticated.  FEMA has required local emergency management programs to cover a broad spectrum of hazards for many years.  As a result, LEPCs today generally focus on the community outreach and public education aspects of EPCRA because local emergency plans are handled by the local emergency management agency.

So like the person that wakes up from a coma after 20 years, OSFM went around the state encouraging the creation of local LEPCs and suggesting that they focus on broad ‘all-hazard’ emergency plans as if it was still 1986.  Local emergency managers, who in most states lead the LEPC and are its biggest advocates, were angry that they had not been contacted before OSFM started holding these meetings.  Why would the LEPC do general emergency planning?  Isn’t that what the local emergency manager does?  As a local emergency manager, I felt alienated by the way these meetings were designed and rolled out.

Moving Forward

Despite my misgivings about the process, I worked hard to help the individuals from Multnomah County who wanted to form a LEPC.  In the end, I wasn’t able to do much good.  The committee moved ahead under the flawed guidance issued from the OSFM.  I stopped attending the meetings, delegating that job to another person in my office.  Because I felt like the core requirements of EPCRA were not going to be met, it was hard for me to recommend to others that they attend.  And today the Multnomah County LEPC is floundering.

A new beginning? Unlikely…

Right now, the OSFM has convened a work group to recommend changes to how EPCRA will be implemented in Oregon.  Unfortunately, the work group does not include representatives from all stakeholder groups identified in EPCRA  and does not include experts with experience working with LEPCs.  This work group is unlikely to be successful given these challenges. The track record of failure since they assumed responsibility for EPCRA in 2005 leads me to believe that OSFM does not have either the credibility or the capability to successfully manage this change process.  Until EPCRA is successfully implemented, Oregonians are more likely to be injured or killed in the event a chemical disaster.

Comments, thoughts, or have information to share?  joe.partridge@genevieve-consulting.com

 

“We Don’t Do That Here” – Part 2

Part 2 in a series about the challenges of implementing the Emergency Planning and Community Right to Know Act in Oregon

In Part 1, I reviewed the basics of EPCRA (Emergency Planning and Community Right to Know Act of 1986) and suggested that significant parts of the legislation were not implemented in Oregon.

So what?

A key part of EPCRA is designating local planning districts.  Instead of creating local planning districts at the county or regional level as was done in nearly every other state, Oregon designated the entire state as *one* planning district.

 Yes, you read that right; instead of a LEPC (Local Emergency Planning Committee) for each city or county, there was only one LEPC that covered the entire state.

In fact, the SERC basically served as the LEPC, cutting out an entire level of review and oversight.

 One LEPC for the entire state is hardly local.  But does that even matter?  Well, yes.

This lack of local planning and local citizen involvement are the most critical shortcoming of EPCRA implementation in Oregon. Around the country, elected officials, first responders, medical professionals, environmental groups, media, and industry are are specifically required under EPCRA to be represented on a LEPC.  Bringing all these groups together to share information and create plans is innovative and creates real value.

How did this happen?

When EPCRA was passed in 1986, many states chose to add responsibilities outlined in the law to an existing group rather than create an entirely new commission.  Oregon took this route, assigning the existing Interagency Hazard Communication Council (IHCC) to act as the SERC (State Emergency Response Commission) for Oregon.

From there, things went wrong almost immediately.  A key responsibility of the SERC is to designate planning districts.  As noted above, instead of creating local planning districts at the county or regional level as was done in every other state, the SERC designated the entire state as *one* planning district.  Also, the SERC basically acted as a LEPC for the entire state as well, removing one layer of checks and balances from the plan review process.

And then things get worse. In 2005, the state legislature disbanded the IHCC, and all it’s duties were transferred to the State Fire Marshall.  Instead of creating a new, representative board to carry out the responsibilities of the SERC, the Fire Marshall chose to act as the SERC.

Again, you are reading that right; one person took on all of the responsibilities outlined for an entire committee that, under the law, should contain a very diverse membership.

That means by 2005 Oregon had one person assigned to do the work envisioned under EPCRA for dozens of committees and hundreds of people without any of the local input that makes the work effective.

In short,of the three key elements of EPCRA (chemical inventory and release reporting, accidental chemical release planning, and public education and outreach) two were simply not being done in Oregon at all.  As a result, people are living, working and going to school near places where extremely hazardous substances were being used and stored.  Outreach is not being conducted to let people know about the existence of these materials.  Plans are not made to deal with releases at specific sites. Local people are not engaged in a process to plan for an accidental chemical release.  As a result people near these facilities are at greater risk.

In 2009, something changed.  The State Fire Marshal’s office started to encourage counties to form LEPCs.  However, the way that decision was made and how it was carried out did not have the best outcome.  Come back next week for Part 3 when I will look at what went wrong and why Oregon is still struggling to implement EPCRA today.

“We don’t do that here.” The Challenge of implementing EPCRA in Oregon

Oregon.  To many people, it is synonymous with environmental activism.  Spotted owls, anyone? And yet, Oregon has failed to fully implement a federal law, The Emergency Preparedness and Community Right To Know Act of 1986, designed to protect people from toxic chemicals.  And this failure has put people around the state at risk.

It was March of 2010, and I had just been hired by Multnomah County as the Deputy for Planning and Preparedness in the Office of Emergency Management.  I asked a coworker where in the office we kept the LEPC (Local Emergency Planning Committee) plans.  “We don’t do that here,” he said.  I had to ask him a second time, assuming he hadn’t understood the question.  He replied, “Nope.  We don’t have a LEPC in Multnomah County.  We don’t have them in Oregon.”  I was stunned. How could that be?  Compliance with EPCRA (Emergency Planning and Community Right to Know Act of 1986, a federal law) isn’t optional.

But he was right.  Oregon really doesn’t comply with several provisions of EPCRA.

What is EPCRA?

On the night of December 2, 1984 over 2200 people were killed and many thousands more injured in a massive industrial chemical release from a Union Carbide plant in Bhopal, India.  On August 11, 1985 another release at a similar plant in West Virginia brought the risk closer to home.  These incidents pointed out the fact that there were many places where hazardous substances were being used, stored or transported close to where people live and work.  The people living and working in these areas were almost entirely unaware that there were coexisting with these substances.  And none had any idea about what the response plans for a release of these substances might look like.  This lead to the passage of the Emergency Preparedness and Community Right to Know Act of 1986 (EPCRA).

In short, EPCRA requires companies that use, store or transport certain quantities of specific chemicals must notify state and local public safety agencies about what chemicals they are using. They must also report any accidental release of these chemicals. The law also requires communities to have a plan that specifies what they will do if there is a leak. Finally, all this information must be made available the public. The intent is that local first-responders and the public will know where toxic chemicals are stored and what to do if they are accidentally released.

In addition, EPCRA specifies two committees to oversee this process.  The first is a state-level body called the SERC; the State Emergency Response Commission.  The SERC is appointed by the governor and includes a specific set of state agency representatives, statewide advocacy groups and industry representatives.  The job of the SERC is to coordinate the work of Local Emergency Planning Committees.  Local Emergency Planning Committees (LEPC) are the second body created by EPCRA.  This committee is usually formed at the city or county level and has membership that is similar to the SERC but more local.  The intent is that information be shared at the most-local level with the professionals and residents that need to know.

You can learn more about EPCRA here: http://www2.epa.gov/epcra/what-epcra

Around the country this system has worked.  It’s not fancy, and many LEPC’s are sort of lackluster and only do the minimum required to comply with the law.  But information gets out to people and they have the opportunity to do something with it.

But not in Oregon.  Here, the SERC is a ‘committee’ of one person, the State Fire Marshall.  Instead of a LEPC in every city or county, there is one LEPC the for the entire state, or there was until 2008.  Today there are 11 counties in Oregon with a LEPC in place.  Some of them are fairly robust; most don’t include representatives from all of the groups identified in EPCRA.

Come back next week when I explore how this state of affairs came to be and why this situation puts people at risk.