EPCRA Frequent Questions - Sections 324 & 326
Q. Section 324 of EPCRA addressing the public availability of documents, states that the emergency response plan, material safety data sheet or list submission, Tier I/II, Form R and Section 304 written follow-up notice are to be made available to the public by "the State Emergency Response Commission (SERC), or Local Emergency Planning Committee (LEPC), as appropriate," (Section 324(a)). Can this be interpreted to mean that the documents can be made available by the SERC or LEPC as long as all the mentioned documents are made available by one or the other?
A. What Section 324(a) is addressing by saying the SERC or LEPC can make documents available as appropriate is the instance where a form may be submitted to one and not the other. For example, the LEPC does not receive Section 313 Form R submissions. Therefore, it would not be appropriate for the LEPC to make Form Rs publicly available. Therefore, EPA has interpreted Section 324 to mean that both the SERC and LEPC must make publicly available all the above documents that are submitted to them.
Q. Can individuals, as members of a State emergency response commission or a local emergency planning committee, be sued and/or be held liable for their commission's or committee's failure to fulfill its EPCRA requirements?
A. Under Section 326, an individual may assert a Federal cause of action against a SERC in Federal court for the commission's failure to fulfill certain obligations under the Act. Section 326 authorizes only injunctive relief against a State commission, i.e., if successful, the citizen may compel the State commission to fulfill the EPCRA obligations listed under Section 326, but may not receive money damages for the State's failure to do so. The Act does not create a Federal cause of action for citizens who wish to sue individuals as members of these State commissions or local committee. Thus, whether an individual can be liable as a member of a State commission is a question of the law of each particular State. In most states, this issue has been addressed by legislation or a ruling of the Attorney General.
Q. What are the liabilities of members of a State emergency response commission and a local emergency planning committee, if an incident is not handled properly despite following procedures developed and reviewed by those commission and committee members? Can the individual members be sued and held liable?
A. The general rule is that persons who serve on government committees have no liability for their actions except for gross negligence. According to EPA's Office of General Counsel, however, this issue varies from state to state. Those who wish to know the answer to this question must check with their individual State Attorney General's offices with regard to liability when serving on State emergency response commissions and local emergency planning committees.