1. Timothy R Gablehouse (303) 572-0050 (800) 818-0050 tgablehouse@att.net
Lepcs - functions, Responsibilities, Liabilities and Techniques to Measure Success
Timothy R Gablehouse
(303)
(800)

2. THE PLAN FOR THIS PRESENTATION
EPISODE III
Answers the questions of what is EPCRA and why should you care?
EPISODE IV
Avoiding the wrath of people that don’t know what you do.
EPISODE V
Liability – What is it and how do you manage?
A brief detour to the Americans with Disabilities Act
The problem with volunteers.

3. PERSPECTIVE
IN MOST COMMUNITIES A “ROUTINE” ACCIDENT IS THE GREATEST RISK
RESPONDERS, PUBLIC & WORKERS STILL ROUTINELY HURT
TOO MUCH RELIANCE ON STANDARDS, LISTS & THRESHOLDS TO DEFINE RISK
PUBLIC DOES NOT HAVE A SENSE OF RESPONSIBILITY

4. EXPECTATIONS
KNOWING THE PHONE NUMBER FOR “911” IS NOT A PREPAREDNESS PLAN

5. EPISODE III EPCRA - THREE DISTINCT STATUTES WRITTEN LONG AGO
SUBTITLE A
EMERGENCY PLANNING & REPORTING §
SUBTITLE B
COMMUNITY RIGHT-TO-KNOW §
TOXIC RELEASE INVENTORY §313

6. WHAT FITS TOGETHER? How to Adapt to the Modern World
EPCRA – Emergency Planning & Community Right to Know
HAZMAT Transportation – Placards/Routes/ERG
CERCLA – Comprehensive Environmental Response, Compensation and Liability Act
CAA 112r – Clean Air Act’s Risk Management Planning (RMP)

7. EPCRA
Emergency Planning Framework & Emergency Response Planning Sections 301 & 303
Emergency Planning Notification Section 302
Emergency Release Notification Section 304
Chemical Inventory Reporting Sections 311 & 312
Toxic Chemical Inventory Reporting Section 313

8. Establishment of Commissions, Planning Districts & Local Committees (Section 301)
Tribal and State Emergency Response Commissions (TERCs/SERCs)
Local Emergency Planning Committees (TEPCs/LEPCs) for each planning district
Members of include representatives from local government, law enforcement, civil defense, fire fighting, first aid, health, media, community groups, facilities, etc.

9. Emergency Planning Notification (Section 302)
Applicable to any facility that has an Extremely Hazardous Substance (EHS) present at any time at or above its Threshold Planning Quantity (TPQ)
EHSs & their TPQs are codified in 40 CFR part 355
One-time report to SERCs/LEPCs

10. Emergency Release Notification (Section 304)
Reports required when:
There is release of a reportable quantity (RQ) of any extremely hazardous substance (EHS) or CERCLA hazardous substance
Complex – When in Doubt Report!

11. CERCLA Hazardous Substances (≈800 substances + radionuclides)
EPCRA Extremely Hazardous Substances (≈360 substances)
≈200 EHSs are also HSs
By reference in EPCRA 304, all HSs are covered by the requirements in EPCRA 304
Reportable releases of these chemicals must be reported to the NRC, SERC and LEPC.
Reportable releases of these chemicals must be reported to the NRC, SERC, and LEPC
Reportable releases must be reported to the SERC and LEPC only.

12. Notifications and RQs
Definition of RQ: a quantity of a designated substance, the release of which triggers reporting requirements
RQ estimates are to be based on 24 hour timeframes
Doesn’t mean you get to wait 24 hours
“Immediate” notification required
More than 15 minutes has resulted in enforcement
Knowledge can be constructive or actual
Late calls, third party calls can be basis of enforcement actions

13. Hazardous Chemical Inventory Reporting (Tier II) – Section 312
Facilities regulated by OSHA
Hazardous Chemicals as defined by OSHA
Any thing* that exhibits a physical or health hazard
Over 500,000 things are hazardous chemicals
Peak storage amounts are used to determine if reporting needed
Chemicals in the List of Lists have lower TPQ; all others have TPQ of 10,000 pounds
* thing is defined as any chemical, mixture, even solid if potential for exposure to hazard

14. EPCRA 313 or TRI (Toxic Release Inventory)
Provides information on the:
Presence,
Annual releases to the environment, and
Waste management activities for EPCRA Section 313 toxic chemicals in the community

15. Miscellaneous EPCRA Considerations
Trade Secret Exemption
EPCRA Information Available To The Public
Location Information on Tier II
Process for Requests
Enforcement
Criminal and civil provisions - fines start at $25,000
Citizen suit provisions
TEPC/LEPC can file suit in Federal Court
311/312 and 303(d)(3)

16. EPISODE IV HOW DO YOU KNOW IF YOU ARE DOING A GOOD JOB?
HAVE AN EMPHASIS ON:
VISION
PROJECTS THAT ADVANCE THE VISION
DEFENSE OF YOUR PREPAREDNESS PROGRAMS

17. WHAT GETS IN THE WAY? THE PROBLEM WITH 20/20 HINDSIGHT
LEGAL DUTIES AND LIABILITIES

18. EDITORIAL ABOUT WEST tX
“Local officials cannot adequately prepare … without conducting regular worst-case assessments and practicing When officials don’t involve residents in the planning, the public’s exposure to death, injury and severe property loss grows exponentially. It’s time for … communities to reassess their vulnerabilities and initiate full public discussions …. Federal law already requires it, but a lot of communities don’t take these procedures seriously.” “LEPCs are one program correctly designed to save our lives.”

19. HOW WILL YOU BE EVALUATED?
TEPCs/LEPCs ARE NOT RESPONDERS
RESPONSE IS NEVER PERFECT – DOES THAT MEAN THAT PLANS WERE FLAWED?
PREPAREDNESS IS MORE THAN RESPONSE – BUT WHAT DOES THAT MEAN?
HOW MANY ACCIDENTS HAVE YOU PREVENTED?
EXPECTATIONS & AWARENESS ADDRESS 20/20 HINDSIGHT

20. FEMA guidance – CPG 101
“When threatened by … emergencies or disasters, people expect elected or appointed leaders to take immediate action...
They expect the government to marshal its resources… and solicit assistance from outside the jurisdiction if necessary.
The elected leaders in each jurisdiction are legally responsible for ensuring that … actions are taken to protect people and property...”
Realistically must use mutual aid agreements and involve the private sector

21. INTEGRATED PLANNING - CPG 101
“Each jurisdiction … should develop plans that define the scope of necessary activities for preparedness, emergency management, and incident response for that jurisdiction.”
“… jurisdictions should also develop scenario-specific plans or annexes derived from their threat assessment.”
“These plans should describe organizational structures, roles and responsibilities, policies, and protocols … should be flexible … should be comprehensive enough to meet the wide variety of public needs that may arise.”
“IDENTIFY AND FILL CAPABILITY GAPS”

22. LEGAL DUTY FOR EMERGENCY PLANNING
As A Legal/Practical Proposition Tribes And Other Governments Have The Same Duties
“As sovereign governments, tribes have the same responsibilities for the public safety and security of their communities as do state and local governments.”
National Congress of American Indians

23. What is the TEPC/lepc role?
WHAT IS UNIQUE ABOUT TEPCS/LEPCS?
WHAT ARE THE LEGAL AUTHORITIES?
COMMUNITY-BASED ASSESSMENT OF RISKS AND CAPABILITIES
FORUM FOR DISCUSSION AND COMMUNICATION

24. GOLDEN RULES Know the hazards in your community.
Where there are hazardous substances?
What are the natural hazards?
What are the capabilities?
What are the public capabilities?
Educate public and business
What can happen to you?
What are their obligations?
Create participation and cooperation
public, authorities & industry
have high expectations

25. A JOB FOR everyone INITIALLY IT IS AN EDUCATION PROBLEM
WHAT ARE THE RISKS IN THE COMMUNITY?
WHAT ARE THE CAPABILITIES IN THE COMMUNITY TO RESPOND TO THESE RISKS?
REALISTIC & HONEST APPRAISAL OF THESE CRITERIA IS THE CHALLENGE AND IT’S A BIG CHALLENGE
INSTITUTIONAL AND HUMAN BIAS TO OVERESTIMATE CAPABILITIES AND TO UNDERESTIMATE RISK
NEEDS AN HONEST ANSWER TO THE QUESTION OF “WHAT CAN’T WE HANDLE?”

26. How do TEPCS/LEPCs get information?
Tier II Reports
§303(d)(3) Requests
Risk Management Plans (RMP)
Form R (TRI)

27. LEPC legal authority Sec. 11046 . Civil actions
(B) Any State emergency response commission or local emergency planning committee may commence a civil action against an owner or operator of a facility for failure to provide information under section (d) of this title or for failure to submit tier II information under section (e)(1) of this title.

28. EPCRA §303
EPCRA § 303(d)(3) states, “ Upon request from the emergency planning committee, the owner or operator of the facility shall promptly provide information to [the LEPC] necessary for developing and implementing the emergency plan.”
If the facility fails to provide the information requested under §303(d)(3), an LEPC may sue for failure to provide the information.

29. Tier II “information”
EPCRA § 312(e)(1) requires the facility to provide tier II information to an LEPC upon request.
Tier II information includes:
Chemical name
An estimate of the maximum amount present
An estimate of the average daily amount
A description of the manner of storage
The location at the facility
NOT JUST THE FORM

30. Use facility Tier II reports
There are good options:
You can download and use Tier II Submit
You can download and use CAMEO
The Google Earth interface is very useful

31. Who gets the Tier II data? Who should get Tier II data?
TERC/SERC, TEPC/LEPC, and Fire Department
FEDERAL AGENCIES DO NOT
COMMUNITY RIGHT-TO-KNOW
Data Is Important For All Community Planning
SHARE IT !
Official users vs general public
Comply with EPCRA

32. INTERMISSION

33. EPISODE V HOW DO YOU GET PEOPLE INVOLVED? YOU NEED THEM
GIVE THEM A MISSION THEY BELIEVE IN

34. Create a “vision of success”
To truly close the gap everyone needs to be on the same page.
The development of a “vision of success” is based upon the strategic plan to fill the gaps between risks and capabilities.
Lots of value judgments in this process.
Everyone is a participant in the process.
It becomes a shared process based upon consensus.

35. PRAGMATIC VIEW OF COMMUNITY PREPAREDNESS
ORDINARY SKILLS CAN BE APPLIED TO EXTRAORDINARY SITUATIONS
YOU DON’T NEED EXPENSIVE STUFF
YOU DON’T NEED HOURS AND HOURS OF TRAINING
YOU NEED PLANNING AND FORESIGHT
THINK OUT SCENARIOS IN ADVANCE
WORST CASE AND OTHERS
THE MESSAGE MUST BE THAT YOU ARE RESPONSIBLE FOR YOUR OWN PREPAREDNESS

36. Important implications
The community has a stake in facility and transportation accident prevention efforts
They get to review, comment and expect improvement
Facilities have a duty to prevent off-site consequences
The community has a stake in agency plans and priorities
They get to review, comment and expect to be able to challenge assumptions and priorities
Community members get to participate in the strategic plan to fill the gaps between risks and capabilities
Everyone has to “own” the value judgments involved

37. A BRIEF DETOUR TO THE AMERICANS WITH DISABILITIES ACT
THE PRINCIPLES OF THIS ACT REFLECT WHAT WE SHOULD BE DOING IF WE INTEND TO SERVE ALL SEGMENTS OF THE COMMUNITY WITH GOOD PLANNING
REGARDLESS OF WHETHER YOU THINK YOU CAN BE SUED, THESE PRINCIPLES PROBABLY REFLECT COMMUNITY EXPECTATIONS

38. Civil rights & ADA LAWSUITS
CIVIL RIGHTS CLAIMS BASED UPON FAILURE OF PLANNING
“FAILURE TO WARN”
LIMITED GOVERNMENTAL RESPONSE CAPABILITIES
RISKS OF RESPONSE FAILURE
FAILURE TO FOLLOW CPG-101
NO BROAD PUBLIC PARTICIPATION
EASILY COUPLED WITH ADA CLAIMS

39. ADA POLICY - DOJ
The ADA was enacted to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities,” “including, specifically, “segregation” and actions that prevent persons with disabilities from “fully participat[ing] in all aspects of society.”

40. WHAT DOES THIS MEAN?
One of the primary responsibilities of state and local governments is preparing for, responding to, and recovering from emergencies and disasters.
ADA applies to these programs, services, and activities whether provided directly or through third parties.
Open question on whether Title III of the ADA applies to Tribes. My guess, is “yes”.

41. REGULATION Department of Justice www.ada.gov
Regulations relevant to emergency management adopted in 2010 and effective in 2011

42. WHICH PROGRAMS? Planning for emergencies and disasters; Exercises;
Notification & Communication;
Community Evacuation and Transportation;
Emergency Shelter Programs;
Temporary Lodging and Housing;
Emergency or Disaster-Related Benefit Programs;
Emergency Medical Care and Services;
Relocation Programs, Activities, and Services;
Transition and Transportation Back to the Community;
Emergency and Disaster Recovery Programs; and
Remediation of Damage

43. HOW TO RESPOND Practice whole-of-community planning
FEMA Office of Disability Integration and Coordination (ODIC)
Seek and use input from people with disabilities
Seek and use input from organizations with expertise on disability issues
Seek assistance from private sector and not-for-profits

44. LIABILITY AND VOLUNTEERS
WORKERS VS MANAGERS
CHAIRS & BOARD MEMBERS OF VOLUNTEER GROUPS
DURING A DISASTER VS PLANNING, TRAINING, EXERCISES, MEETINGS AND BAKE SALES

45. LIABILITY OF VOLUNTEERS TO OTHERS
LIABILITY FOR INJURIES TO OTHERS
(THE GENERAL RULE IS THAT YOU ARE ALWAYS RESPONSIBLE FOR YOUR OWN ACTS.)
NEGLIGENCE
ASSAULT
PROPERTY DAMAGE
FAILURE TO WARN
CRIMES

46. MANAGERS VS VOLUNTEERS
NO DOUBT A HIGHER DUTY
TO THE VOLUNTEER
TO THE PEOPLE IMPACTED BY THE VOLUNTEER
VICARIOUS LIABILITY FOR MANAGERS AND ORGANIZATIONS
CAN HAVE LIABILITY EVEN IF THE VOLUNTEER DOES NOT

47. FEDERAL VOLUNTEER PROTECTION ACT
Who is protected?
Individual volunteers working without compensation
within their area of responsibility
for a governmental entity or nonprofit organization.
It does not protect:
Volunteers for businesses of any type,
including nonprofit or governmental organizations that use volunteers, or
the organization’s paid employees who may train or supervise volunteers.

48. VPA does not protect for:
Acts that exceed ordinary negligence, such as gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of others.
The operation of a motor or other vehicle for which the state requires an operator’s license or insurance.
Acts for which the volunteer was not appropriately licensed, if a license was required.
Violent acts, hate crimes, sexual offenses, civil rights violations, or any act committed by the volunteer under the influence of alcohol or a drug.

49. DEFENSIVE EFFORTS & BEST PRACTICES
USE YOUR LEPCs
AUTOMATICALLY GIVES YOU BROAD REPRESENTATION - HOPEFULLY
ROUTINE AND REPEATED OUTREACH
VARIOUS COMMUNITY SEGMENTS
OFFER MULTIPLE WAYS TO PARTICIPATE
PUBLIC & BUSINESSES PARTICIPATION IN EXERCISES

50. QUESTIONS TIM GABLEHOUSE tgablehouse@att.net
(303) or (800)