Reducing the Risk of Chemical Accidents: The Post-Bhopal Era

Christian Montgomery

Editors' Summary: The tragic release of deadly methyl isocyanate gas from a Union Carbide facility in Bhopal, India, followed shortly by the release of a toxic gas from Union Carbide's plant in Institute, West Virginia, sharply focused the public's attention on the risk of sudden, accidental releases of hazardous chemicals in this country. Federal, state, and local governments, as well as the chemical industry itself, have responded with various initiatives designed to reduce the risks. The author analyzes these initiatives, along with the statutory mechanisms already in place, to determine whether they provide adequate protection to the people living near chemical facilities. The author observes that an effective program requires both accident prevention and emergency planning mechanisms and concludes that citizen oversight may be the most important element of a national prevention and response strategy.

Mr. Montgomery is a staff attorney with the Environmental Law Institute.

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Modern environmental laws have generally focused on the problems of routine or planned emissions to air, surface water, and groundwater.¹ Nonroutine, unplanned, and accidental releases of toxic and hazardous substances into the atmosphere, which pose serious threats to the health of persons living in the vicinity of the release, have generally not been addressed by statute. However, lawmakers and government officials are increasingly focusing on minimizing the risk of harm from accidental releases of these substances from "fixed facilities" such as chemical manufacturing plants and storage facilities.²

Many of these initiatives for the prevention of and response to chemical accidents have taken place since the tragedy in Bhopal, India, in December 1984. There, a cloud of deadly methyl isocyanate gas was accidentally released from a Union Carbide facility. At least 2,000 people, mostly nearby residents, were killed in the accident, making it the most devastating industrial accident in history.³ It is speculated that a number of factors contributed to the accident, including inadequate warning systems, faulty equipment, and human error. Several lawsuits on behalf of the victims are pending.⁴

The United States has never experienced a chemical accident on the scale of the one at Bhopal.⁵ However, with 12,000 chemical manufacturing plants and 400,000 major chemical storage facilities in the U.S.,⁶ there is some risk of a major chemical accident occurring here. There are only estimates on the number of accidental releases in the U.S.⁷ An Environmental Protection Agency (EPA) study of 6,928 sudden, accidental releases of toxic chemicals revealed that in-plant accidents (i.e. those accidents at a stationary or "fixed" facility) accounted for 75 percent of the total number of releases, with transportation accidents accounting for the other 25 percent. In about 7 percent (468) of all accidents, these events led to 138 deaths and 4,717 injuries ranging in severity from temporary respiratory problems to critical injuries. In-plant accidents accounted for 65 percent of the casualties.⁸ Such statistics indicate that there is a need for a comprehensive nationwide program to minimize the risk of harm to those persons living in proximity to chemical and industrial facilities. An effective program will encompass both prevention of accidents in the first instance and incorporate emergency preparedness planning in the event that an accident does occur. In particular, the following minimum initiatives must be implemented on a nationwide level to ensure that effective accident prevention and emergency response plans are in place:

1) Because voluntary industry initiatives may not go far enough to prevent chemical accidents, facilities that manufacture or use certain toxic chemicals should be required by law to institute accident prevention and emergency response measures. To date, only one state, New Jersey, requires chemical facilities that produce, use, or handle extremely hazardouns substances to formulate plans designed to prevent accidental releases ofthose substances.⁹

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2) Local governments should be required to develop response plans to be implemented in the event of a release of toxic chemicals.

3) A national right-to-know law should be implemented, which will reveal the presence of potentially hazardous substances at facilities and allow the general public, emergency response personnel, and local planners to effectively prevent and response to releases of those chemicals.

4) The general public must be encouraged to participate, to the fullest extent, in all of these programs.

Since the Bhopal accident, the federal government, as well as state and local governments and private industry, are acting to reduce the risk of harm from accidental releases of hazardous materials.¹⁰ These initiatives include: the issuance by EPA of the "Chemical Emergency Preparedness Program," which includes guidance for planning community responses to chemical accidents along with an "acute hazards list" of over 400 chemicals that if released into the environment could produce adverse health risks to persons; planning for accidental releases of hazardous materials, at all levels of government; and passage by state and local governments of right-to-know laws designed to enhance the ability of community planners and the general public to learn about the nature of chemicals manufactured, stored, or used in their communities.¹¹ The reauthorization of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) will likely impact all of these areas.¹² Also, the U.S. chemical industry, while pointing to its record of safety,¹³ has responded to criticism of its safety practices by initiating voluntary community relations, accident prevention, and emergency response programs.¹⁴

This article examines these initiatives to determine whether they are effective to minimize the risk of harm to those persons living in proximity to chemical and industrial facilities.

Chemical Emergency Preparedness Program

Since the accident in Bhopal, pressure has mounted on the federal government to take action to prevent a similar catastrophe in the United States. Such action is needed on two fronts, accident prevention and emergency response planning. The federal government has taken no direct action in the accident prevention area, and neither EPA nor any other federal agency has authority to require facilities to implement process changes or other steps to prevent sudden, accidental releases of hazardous substances.

The federal government has instead concentrated on emergency response planning. Emergency response plans are designed to minimize adverse health effects in emergency situations, and usually delineate the duties of police and fire departments and other emergency response agencies, provide for community warning systems, and designate routes of evacuation. The federal government, through the Federal Emergency Management Agency (FEMA), has planned responses to disasters in other contexts for years. Planning for chemical accidents has developed as a variation of established procedures.¹⁵

The major federal response to date is EPA's "Chemical Emergency Preparedness Program" (CEPP).¹⁶ CEPP is designed to help communities establish chemical emergency response plans. CEPP was developed to assist state and local governments, community groups, and industry in the development of plans for response to accidental releases of toxic chemicals. The program was announced in June 1985 by EPA as one facet of its new overall strategy to reduce the risks posed by hazardous air pollutants. That strategy relies on state and local government implementation.¹⁷ The cornerstone of CEPP is the "Acute Hazards List" of 403 "acutely hazardous chemicals" manufactured or stored in the U.S. which, if accidentally released into the environment, could cause death or serious injury to persons.¹⁸ In conjunction with the Acute Hazards List, EPA published chemical profiles for each of the substances, which presents pertinent scientific data for each of the substances, including physical and chemical properties, toxicity characteristics, health effects, and safety precautions.

EPA also developed, as part of CEPP, guidance for use [16 ELR 10302] by state and local officials on preparing response plans in the event of an accidental release of toxic chemicals. The guidance is designed to encourage community members to plan for emergency response by supplying them with basic information needed to assess the potential for an accident in the community. The guidance contains information on organizing the community;¹⁹ information-gathering;²⁰ developing and analyzing emergency response plans;²¹ and identifying toxic and hazardous chemicals.²² The guidance and list of chemicals allow communities to focus their efforts on a relatively small number of extremely toxic substances.

The federal government's emphasis on response planning at the local leve is a recognition that local governments must implement the crucial first steps after a release of toxic chemicals. Since the extent of harm associated with a chemical release depends on such factors as the nature and physical state of the chemical involved, how it is stored and handled on site, weather conditions, and the population density around a site, it is clear that response plans must be tailored to specific, local conditions. Thus, emergency response plans are most effectively made on the local level with federal training and assistance.

Some communities are using the CEPP guidance to prepare emergency response plans,²³ although community participation in CEPP is entirely voluntary. EPA will provide training and technical assistance to communities developing response plans, but it provides no financial assistance to those communities.

Although CEPP may help to increase community awareness of chemical hazards and encourage communities to develop adequate response plans, unless federal or state legislation makes such planning mandatory, it is unlikely that CEPP will have a significant impact on reducing the risk of accidental releases.²⁴ Furthermore, simply having an established plan, without also acting to prevent chemical accidents, may not be enough to reduce the risks posed by accidental releases of toxic chemicals. Chemical accidents vary in magnitude, and in some cases even the best response plans may not be adequate in an actual emergency.

State and Local Right-to-Know Laws

The Bhopal accident brought to the forefront the fact that most people who live near chemical plants in the United States are unaware of the nature of the chemicals that are manufactured, used, or stored in their neighborhoods. Because this type of information is often regarded by facilities as proprietary information, some state and local governments have enacted community right to know" laws. Such laws generally require industrial and chemical facilities to provide notice to the general public that hazardous and toxic chemicals are manufactured or used at the facilities. They initially were designed to protect workers who came into regular contact with hazardous substances. These worker right-to-know laws were seen as a way to reduce the likelihood of occupational illness or injury by ensuring that workers understood the risks of handling certain substances, and first appeared at the state level in the late 1970s.²⁵ More recently, community right-to-know laws have been enacted at both the state and local level. Currently, about 23 states have enacted community right-to-know laws.²⁶ Some states have no worker or community right-to-know law at the state level although municipalities within the state administer local right-to-know ordinances.²⁷

Community right-to-know laws generally provide that facilities that use, store, or manufacture hazardous substances must disclose the presence of such substances as well as relevant health and safety information regarding the substances to state and local authorities, emergency officials, and health professionals. Information so submitted is made available to the public.²⁸

Right-to-know laws can be used for a variety of purposes. Communities can use information obtained through right-to-know laws to formulate emergency response plans and to monitor industry's implementation of accident response and prevention measures.²⁹ However, industry has claimed that such information is propriety, so most right-to-know laws have provisions that allow facilities to claim [16 ELR 10303] limited trade secret exemptions and withhold the chemical identity of a substance.³⁰

The U.S. Occupational Safety and Health Administration (OSHA) has promulgated a type of national right-to-know law for some workers.³¹ Because right-to-know requirements in many states are more rigorous than the federal standard, the scope of preemption has been challenged in several federal courts. The courts have uniformly held, however, that the community right-to-know provisions of these laws, as opposed to the worker provisions, are not preempted by the Hazard Communication Standard. In New Jersey State Chamber of Commerce v. Hughey,³² the Third Circuit Court of Appeals held that the New Jersey Worker and Community Right to Know Act³³ was expressly preempted only insofar as it applied to the protection of workers in the manufacturing sector. Those requirements of the New Jersey law that apply to workers outside the manufacturing sector, as well as those community right-to-know provisions concerned with the health and safety of the general public were not preempted. A federal district court³⁴ relied on Hughey to find that Pennsylvania's Worker and Community Right to Know Act was similarly only partially preempted by the Standard. However, another district court³⁵ later found a municipal right-to-know ordinance to be wholly unpreempted by the Standard. The court found that Congress did not intend to expressly or implicitly preempt the laws of municipalities, as opposed to laws of states.

National Right to Know and Emergency Planning

In the wake of the accidents at Bhopal and Institute, West Virginia, both the House and the Senate have passed versions of a national community right-to-know law and mandated emergency response planning in their respective CERCLA reauthorization bills.³⁶ The bills also call for increased reporting by facilities about chemicals they handle, and require state and local governments to establish emergency response plans. At this writing, the House-Senate conference committee has apparently reached agreement on the right-to-know and emergency planning provisions, and has created a separate CERCLA title for these issues. What follows is a brief summary of the provisions in the original bills with their apparent resolution by the conference committee.³⁷

The proposed CERCLA reauthorization language will help to ensure that those communities at risk of a release from a fixed facility formulate and implement adequate response plans. The federal right-to-know provisions are a recognition that adequate response plans cannot be formulated unless the implementing officials know the types and locations of chemicals present in the community.

CERCLA Reauthorization

[] Chemical inventory: The reauthorization bill will reportedly require facilities that produce, use, or store hazardous chemicals to submit material safety data sheets for each chemical to local emergency response committees, along with information regarding the amounts of hazardous substances present at the facility and the location of such substances.³⁸ Facilities will additionally be required to provide more detailed information to emergency response personnel, state officials, and the local planning committees upon request of these parties.

[] Community right-to-know: Under the conference bill, material safety data sheets and other information submitted by facilities must be made available to the public by the local planning committees. The emissions inventory and chemical inventory must be made available to the public by the local planning committees during normal working hours.

[] Emergency response planning: The conference bill will require states to set up local emergency response committees, to be composed of those persons who would be expected to play a major role in the event of a release, in communities with facilities that handle substances on EPA's Acute Hazards List. The local response committees will prepare emergency response plans designed to minimize injuries from hazardous substances emergencies. Owners and operators of facilities that handle two pounds or more of the chemicals must assist the local committees in planning.

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[] Emissions inventory: Both the House and Senate bills required certain facilities to make an accounting of the amounts of extremely hazardous substances that are routinely emitted from the facility via waste streams. The conference bill will require manufacturers or processors of 311 designated chemicals to make a report to EPA and the states on annual routine emissions to specific environmental media. Reporting thresholds are set at 75,000 pounds for 1988, 50,000 pounds in 1989, and 25,000 pounds for 1990 and thereafter.³⁹ Covered facilities may use readily available data, including information collected under other environmental laws in compiling the inventories, or may make estimates; facilities are not required to monitor or measure quantities beyond that required under other authorities.

[] Emergency notification: The conference bill will require responsible parties to immediately notify state and local officials after an accidental release of any of the Acute Hazards List chemicals or any of the 700 chemicals to be listed as hazardous substances under CERCLA.

[] Trade secrets: Trade secrets, always a contentious issue in right-to-know laws, can be claimed only for a chemical identity under the conference agreement. However, EPA, state and local officials, and emergency responders will be able to get the chemical identity. The public can also request this information; EPA must review the trade secret claim under a specific time frame. The provision also makes chemical identities available to health professionals and doctors. The chemical identity cannot be withheld in the event of an accidental release.

[] Preemption: The federal law will not limit the ability of any state or locality to require submission or distribution of information related to hazardous substances, thus preserving community right-to-know laws already being implemented at the state and local level.

Other Federal Programs

While no existing federal environmental statute directly requires that chemical facilities take steps to prevent accidental releases of toxic materials or formulate plans to respond to such releases, some statutes address these issues in specific contexts or can be read broadly to support federal intervention in these areas. These statutes, in effect prior to the accident at Bhopal, are summarized below.⁴⁰

TSCA

The Toxic Substances Control Act (TSCA)⁴¹ gives authority to EPA to regulate chemical substances as products both before and after their introduction into the marketplace.⁴² EPA can mandate a series of tests for a particular chemical if it believes that tests are necessary to determinate the safety of the chemical, and has authority to limit or prohibit the manufacture of chemicals that may present an unreasonable risk of harm to human health or the environment. TSCA has potential to be used as an accident prevention tool, and its information-gathering authorities generally could provide a data base for an accident prevention and emergency response program.⁴³

While EPA has never used TSCA to prevent accidental releases of highly toxic substances, some authority to do so is apparent from a reading of the statute. Section 6(a)⁴⁴ authorizes EPA to select from a broad range of regulatory options to abate unreasonable risks of injury to health and the environment caused by the manufacture, processing, or distribution of the substance. This section could potentially be used to prohibit the manufacture of chemicals whose toxicity is so great that their mere handling, storage, or manufacture poses an unreasonable risk of injury to health and the environment because of the severe health effects that would ensue in the event of an accidental release. Rules adopted under this section may be limited to geographical areas and might be used where population and geographical factors dictate the greatest risk from chemical hazards. However, EPA has only rarely used § 6(a) authority⁴⁵ and there is no indication that TSCA would be an effective mechanism to prevent chemical accidents in general.⁴⁶

RCRA

The Resource Conservation and Recovery Act (RCRA),⁴⁷ which established a cradle-to-grave system whereby hazardous waste is regulated from generation through treatment and disposal, also addresses accident prevention and emergency preparedness at hazardous waste treatment, storage, and disposal facilities. The statute requires owners and operators of landfills or surface impoundments, in their Part B permit applications, to assess the potential for the public to be exposed to hazarouds wastes or hazardous [16 ELR 10305] constituents caused by releases from those units.⁴⁸ The assessment must address 1) reasonably foreseeable potential releases from normal operations and from accidents, including releases associated with transportation to and from the unit; 2) the potential pathways of human exposure to hazardous wastes resulting from such releases, and 3) the potential magnitude and nature of the human exposure resulting from the release. This information must be made available to the Agency for Toxic Substances and Disease Registry. If EPA finds that the landfill or surface impoundment poses a substantial risk to human health, it may request the Agency for Toxic Substances and Disease Registry to undertake a health assessment of the facility.

Owners and operators of treatment, storage, or disposal facilities must also prepare contingency plans for the minimization of unanticipated damage from any treatment, storage, or disposal of hazardous waste.⁴⁹ EPA's regulations require, among other things, that owners and operators make necessary arrangements with emergency and health officials for coordination of response efforts in the event of a release of hazardous waste, and also require each owner or operator to adopt a contingency plan designed to minimize hazards to human health and the environment from unplanned releases of hazardous waste.⁵⁰

CERCLA

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA),⁵¹ discussed above, provides for orderly cleanup of sites at which hazardous substances pose a threat to human health and the environment and assigns liability for site cleanup and related costs. It also addresses response planning in the event of a release of a hazardous substance.⁵² If a reportable quantity of a hazardous substance is released or spilled, the release must be reported to the National Response Center.⁵³ The National Response Center must in turn notify all appropriate federal and state government agencies. The National Contingency Plan established under CERCLA sets out the responsibilities of government agencies in responding to a release.⁵⁴

Conclusion

Regulation of industrial safety procedures, which until recently was primarily the province of worker health and safety laws, is increasingly being addressed in the context of the larger community. Federal and state legislation, triggered primarily by the accident at Bhopal, is placing new responsibilities on the chemical industry, EPA, and state and local officials. In the past, accident prevention and response programs were generally not legislatively mandated in many jurisdictions, and the primary recourse to affected citizens was to obtain after-the-fact judicial relief.

The public's increased awareness of the risks of chemical accidents ensures continued oversight and regulation of the chemical and related industries' safety practices, which, like traditional environmental regulation, will become an accepted part of the industry's business. CERCLA reauthorization will require industry to comply with additional paperwork and reporting requirements in addition to the requirements of some states and local jurisdictions. CERCLA reauthorization will also require state and local agencies to develop response plans that are workable, yet flexible enough to address all scenarios that could arise from an accidental release of any of hundreds of chemicals.

Citizen participation may be the most important element of a comprehensive national prevention and response strategy. Right-to-know laws, for instance, are ineffective unless the public, for whose benefit the laws were adopted, actually seeks and acts upon the information provided under those laws. And even where response plans have been formulated by local officials, they cannot be effective unless the public is informed of the contents of the plans prior to their use in an emergency.

Because the effects of accidental releases of toxic substances from fixed facilities generally impact only on those individuals who reside in proximity to those facilities, and not on the public as a whole or on the environment, traditional methods of ensuring compliance with environmental laws cannot be employed. That is, the effectiveness of these programs will not necessarily be a function of federal oversight and enforcement. Rather, their success and effectiveness will depend to a large extent on 1) the general public's awareness of the problem as well as its cooperation, 2) voluntary initiatives by industry based on a desire to be perceived as good corporate citizens, 3) participation by all affected parties in the formulation of accident prevention and response plans, and 4) the degree to which state and local governments ensure that personnel and resources are maintained at adequate levels to mobilize the public in the event of an actual accident.

1. See, e.g. Clean Air Act § 109, 42 U.S.C. § 7409, ELR STAT. 42209; Federal Water Pollution Control Act § 402, 33 U.S.C. § 1342, ELR STAT. 42141.

2. This article does not address the problems of transportation accidents that release toxic substances into the atmosphere. Transportation of hazardous materials is regulated by the U.S. Department of Transportation; see 49 C.F.R. § 171.1 et seq.

3. Bhopal Update: India, U.S. Still Grapple With Effects, CHEM. & ENG'G NEWS, Jan. 21, 1985, at 4.

4. See Union of India v. Union Carbide Corporation, No. 85 Civ. 2696 (S.D.N.Y. Apr. 1, 1985), ELR Pend. Lit. 65870; In re Union Carbide Corp. Disaster at Bhopal, India in Dec. 1984, 54 U.S.L.W. 2586 (S.D.N.Y. May 12, 1986).

5. One serious accident occurred in August 1985, only months after the accident in Bhopal, when a cloud of toxic aldicarb oxime gas leaked from a Union Carbide facility in Institute, West Virginia. Over 130 people were sent to hospitals for treatment. Union Carbide: New Accidents Revive Safety Issue, CHEM. & ENG'G NEWS, Aug. 19, 1985, at 4.

6. Kean, Dealing with Toxic Air Pollutants: New Initiatives, ISSUES SCI. & TECH., Summer 1986, at 21.

7. This is because there are no set criteria for what constitutes a release or accident. Such criteria could include, for instance, whether the release was from a chemical plant or another type of stationary facility, or was a result of a transportation accident; whether the release was into the air, surface water, groundwater, or soil; whether and to what degree the chemicals were toxic or hazardous; whether evacuations of nearby residents were necessary; and whether death or injuries resulted.

8. Acute Hazardous Events Data Base, EPA 560-5-85-029, Industrial Economics, Inc. et al., Dec. 1985. The data base was purposely biased toward events considered to have the greatest potential for sudden, large-scale harm to the general public. The study was not undertaken to determine the total number of such accidents in the U.S. over a period of time.

9. New Jersey Toxic Catastrophe Prevention Act, P.L. 1985, C. 403. Under the law, facilities that handle substances on an "extraordinarily hazardous substance list" must submit to the state a form which inventories the types and quantities of such substances present at the facility and includes a description of processes and equipment used in the management of the substances, along with a profile of the area in which the facility is located. The state evaluates each facility to determine whether or not the facility adequately has considered and corrected factors that could contribute to an accident release of extraordinarily hazardous substances.

10. Some federal laws that impact on accident prevention and emergency response predate the accident in Bhopal. However, these older programs are generally too specific to address the problem of accidental releases from fixed facilities. See infra notes 24-38 and accompanying text.

11. Planners need to know the types and quantities of chemicals that are present in a community as well as the adverse health effects that could ensue from an accidental release of those chemicals. Information available to the public under environmental statutes, such as emissions data, may provide only indirect evidence of the types of chemicals present at a facility. See, e.g. Clean Air Act § 114(c), 42 U.S.C. § 7414(c), ELR STAT. 42219; Federal Water Pollution Control Act § 308(b), 33 U.S.C. § 1318(b), ELR STAT. 42310; Toxic Substances Control Act § 14, 15 U.S.C. § 2613, ELR STAT. 41346.

12. See infra notes 36-39 and accompanying text.

13. See U.S. Chemical Industry Moving to Assure No More Bhopals, CHEM. & ENG'G NEWS, Jan. 6, 1986, at 9. See also Daigre, Daisy Who: Dow's Louisiana Emergency Response System, ENVTL. F., May 1982, at 7.

14. This is being done through the Chemical Manufacturers Association's Chemical Awareness and Emergency Response Program (CAER), which encourages plant officials to develop community outreach programs in order to make the public aware of the hazards associated with a facility. The program also encourages member facilities to develop and update emergency response plans.

15. FEMA coordinates federal emergency preparedness, mitigation, and response activities for natural and nuclear disasters, severel weather-related emergencies, and other large-scale emergencies requiring a federal presence. See FED. EMERGENCY MANAGEMENT AGENCY, Planning Guide and Checklist for Hazardous Materials Contingency Plans, (1981).

16. U.S. ENVT'L PROTECTION AGENCY, Chemical Emergency Preparedness Program — Interim Guidance, (1985). CEPP was published as interim guidance, see 50 Fed. Reg. 51451 (1985), and is scheduled to be revised in 1986.

17. U.S. ENVT'L PROTECTION AGENCY, Executive Summary: A Strategy to Reduce Risks to Public Health from Air Toxics, (1985).

18. A total of 379 chemicals were selected for the list based on toxicity criteria. The remaining chemicals, although not meeting the criteria, were included on the list because their toxicity posed a sufficient hazard when considered in conjunction with their high production capacity. Toxicity data, where available, were taken from published sources and were based on animal exposures. The list excludes many substances which are toxic but which had lethality values above the criteria values. Also not on the list are substances which are hazardous due to characteristics other than toxicity. EPA selected only those chemicals currently in production, by referring to the 1977 inventory of toxic substances compiled under TSCA § 8(b).

19. The guidance suggests that community preparedness programs should be developed by a work group appointed by the jurisdiction's chief executive officer and composed of affected members of the community, including government officials, emergency personnel, industry, and the general public.

20. Example questions that work groups need to ask in order to determine if any chemicals of concern are located in the community are provided.

21. The elements of a contingency plan for responding to an acutely toxic chemical accident, including a sample plan outline, are presented. The guidance also suggests that response plans must continually be evaluated and updated for maximum effectiveness, since plans reflect current environmental, economic, and social conditions.

22. Since the Acute Hazards List is not all-inclusive, the guidance helps communities identify other chemicals capable of producing detrimental health effects manifested immediately or shortly after exposure.

23. The Environmental Law Institute has been conducting research on use of CEPP in the state of Ohio. The state is using CEPP, along with the CAER program and FEMA guidance, to formulate a statewide response strategy. That strategy will be used by county governments in preparing county plans.

24. In a recent study conducted by the General Accounting Office, several state officials cited CEPP's voluntary nature and lack of funding as reasons why they had not used CEPP to formulate response plans. U.S. GEN. ACCOUNTING OFFICE, Chemical Emergencies: Preparedness for and Response to Accidental Chemical Air Releases, (1986).

25. State and Local Right to Know and Hazard Communication Activities, ENVTL. ANALYST, July 1984, at 14.

26. Most of these have worker provisions as well. About eight states have worker right-to-know laws only. OFFICE OF TECHNOLOGY ASSESSMENT, Transportation of Hazardous Materials: State and Local Activities (1986).

27. For instance, the state of Ohio has no right-to-know law, but six communities have established right-to-know ordinances. The Cincinnati, Ohio, ordinance was one of the first municipal right-to-know laws. See O'Reilly, Right to Know: Cincinnati's More Righteous, Less Knowing Experiment, 52 U. CIN. L. REV. 337 (1983).

28. An example of a right-to-know law with strong community provisions is the New Jersey Worker and Community Right to Know Act, N.J. STAT. ANN. § 34:5A-1 et seq. The law directs the New Jersey Department of Environmental Protection (DEP) to prepare an environmental survey designed to enable employers to report information about environmental hazardous substances at their facilities, including the quantities manufactured, used, and transported at a facility. Employers must submit completed environmental surveys to the DEP, county health departments, and fire and police departments. Any person may request a copy of any survey for DEP or county health departments.

29. See, e.g. CAL. HEALTH & SAFETY CODE, Chapter 6.95, § 25500 et seq. (requiring businesses to submit chemical inventory information to city or county agency and to prepare plans specifying emergency response procedures to be implemented in the event of a release or threatened release of hazardous materials).

30. See, e.g. N.J. STAT. ANN. § 34:5A-15 (New Jersey Worker and Community Right to Know Act); 35 P.S. § 7311 (Pennsylvania Worker and Community Right to Know Act); CINCINNATI, OHIO, MUNICIPAL CODE §§ 1247-31.

31. See 48 Fed. Reg. 53280 (1983) (codified at 29 C.F.R. § 1910.1200 (1985)). This "Hazard Communication Standard" is designed to reduce the incidence of chemically related occupational illnesses and injuries in employees that handle dangerous chemicals. The Hazard Communication Standard is addressed to manufacturers, importers, distributors, and employers in the "manufacturing sector" (has defined by the Office of Management and Budget's Standard Industrial Classification Manual; specifically, those manufacturers, importers, distributors, and employers in Standard Industrial Classification Codes 20-39), who are required to evaluate chemicals produced or imported by them and determine whether the chemicals are hazardous. Containers of hazardous chemicals in the workplace must have labels that identify the chemical and include the name and address of the manufacturer and appropriate hazard warnings. The Standard applies to certain chemicals that are per se hazardous or carcinogenic, including those on OSHA's Toxic and Hazardous Substances List (29 C.F.R. § 1910 Subpart Z). In addition, manufacturers and importers must prepare a material safety data sheet (MSDS) for each chemical that they produce or import. The MSDS must provide, among other things, the name of the chemical and constituents of any mixture, physical/chemical characteristics, health hazard and toxicity data, exposure information, safe handling precautions, and first aid procedures. A trade secrets provision allows employers in some instances to withhold the identity of the chemical if the employer can prove that such information is a trade secret. Employers must keep copies of each MSDS in the workplace and must keep it readily accessible to employees.

32. 774 F.2d 587, 15 ELR 21030 (3d Cir. 1985). See also United Steelworkers v. Auchter, 763 F.2d 728, 15 ELR 20545 (3d Cir. 1985).

33. N.J. STAT. ANN. § 34:5A-1 et seq.

34. Manufacturers Association of Tri-County v. Knepper, 623 F. Supp. 1066, 16 ELR 20383 (M.D. Pa. 1985).

35. Ohio Manufacturers Association v. City of Akron, 628 F. Supp. 623, 16 ELR 20583 (N.D. Ohio 1986).

36. The Senate reauthorization bill, S. 51, is at 131 CONG. REC. S12184 (1985). The House version, H.R. 2817, is at 131 CONG. REC. H11619 (1985).

37. CERCLA's taxing provisions expired in 1985. The program received $48 million as a stopgap measure in August 1986, the second such measure. Hill Extends Toxic Cleanup, The Washington Post, Aug. 16, 1986, at A10. A conference committee report had not been published by press time.

38. The conference agreement requires facilities to submit to local emergency response committees and the state 1) a material safety data sheet or a list of chemicals on site, for all chemicals regulated by OSHA, and 2) an inventory of chemicals by group (aggregated according to risk) and general location of the chemicals.

39. The Senate bill would only have subjected facilities in SIC Codes 20-39 that manufacture or process more than 200,000 pounds per year of such substances to this requirement. The House bill would have allowed EPA to set a 12-month cumulative threshold reporting requirement. See Waldo & Griffiths, Behind the House Funding and Right-to-Know Votes, ENVTL. F., Apr. 1986, at 18.

40. Although § 112 of the Clean Air Act, 42 U.S.C. § 7412, ELR STAT. 42215, requires EPA to establish emissions limitations for hazardous air pollutants, that section has proven to be difficult to implement and is not designed to regulate unplanned, nonroutine releases of hazardous substances. See Comment, The Trial of Hazardous Air Pollution Regulation, 16 ELR 10066 (March 1986).

41. 15 U.S.C. § 2601 et seq., ELR STAT. 41335.

42. TSCA requires EPA to publish and maintain a listing of all chemical substances that are manufactured or processed in the United States. TSCA § 8(b), 15 U.S.C. § 2607(b), ELR STAT. 41335. This list has been published by EPA as the "TSCA Chemical Substances Inventory," and currently lists over 60,000 chemicals.

43. TSCA requires manufacturers, processors, and distributors of chemicals to maintain health and safety data on chemicals, which must be reported to EPA. Such information must be made available to the public, unless confidentiality is requested by the manufacturer and the request is approved by EPA. TSCA § 2613(b), ELR STAT. 41346. Health and safety studies required by and submitted to EPA cannot be the basis of a trade secret exemption. Also, any person who manufactures, processes, or distributes a chemical substance is required to maintain records of "significant adverse reactions to health and the environment" alleged to have been caused by use of the substance, including personal injury, occupational injury, and injuries to the environment. 40 C.F.R. § 717.5.

44. 15 U.S.C. § 2605(a), ELR STAT. 41341.

45. Section 6(a) rulemaking has been applied to polychlorinated biphenyls, 40 C.F.R. § 761; fully halogenated chlorofluoroalkanes, 40 C.F.R. § 762; and asbestos, 40 C.F.R. § 763.

46. See also § 6(b), 15 U.S.C. § 2605(b), ELR STAT. 41341, which allows EPA to order manufacturers and processors of toxic substances to revise quality control procedures and give warning to the public if those procedures are inadequate to prevent the substance from presenting an unreasonable risk of injury to health and the environment.

47. 42 U.S.C. § 6901 et seq., ELR STAT. 42001.

48. RCRA § 3019, 42 U.S.C. § 6939a, ELR STAT. 42025.

49. RCRA § 3004(a)(5), 42 U.S.C. § 6924(a)(5), ELR STAT. 42014.

50. 40 CFR §§ 264.30-264.56.

51. 42 U.S.C. § 9601 et seq., ELR STAT. 41941.

52. The proposed reauthorization of CERCLA contains national emergency planning and right-to-know provisions. See infra notes 36-39 and accompanying text.

53. CERCLA § 103(a), 42 U.S.C. § 9603(a), ELR STAT. 41944.

54. 40 C.F.R. § 300, ELR REG. 47401.