May 5, 1999
The Honorable Brian J. Bushweller
Department of Public Safety
P. O. Box 818
Dover, Delaware 19903-0818
Re: State Emergency Response Commission Legal Opinion
Dear Secretary Bushweller:
You have asked for an Attorney General's Opinion addressing the following questions:
1. Do federal and state law and regulations permit a Local Emergency Planning Committee ("LEPC") to incorporate as a private entity governed by its own charter and by-laws?
2. Would a privately incorporated entity still be subject to State Emergency Response Commission ("SERC") control as required by federal regulations and state law?
3. If an LEPC incorporated as a private entity, would it still enjoy
exemptions from civil liability and would it still be entitled to receive
In order to appreciate the complex federal, state and local partnership forged by the Emergency Planning and Community Right-to-Know Act, (EPCRA), 42 U.S.C. § 11001 et seq., it is necessary to review some background. The Superfund Amendments and Reauthorization Act (SARA) of 1986 adopted a new Title III to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), known as the Emergency Planning and Community Right-to-Know Act. (1) EPCRA stands on its own as a statute designed to protect the public in the event of emergencies caused by hazardous substances. In general, it imposes obligations on state and local governments to develop plans and organize groups capable of responding to such emergencies.(2)
Historically, emergency planning and the regulation of public nuisances have been functions of local and state governments. EPCRA is a major step toward a federal role in areas previously regulated by state and local governments. As its name implies, EPCRA has two major themes: emergency planning and community right-to-know. The emergency planning portion requires local communities to prepare plans for dealing with an emergency relating to hazardous materials. Importantly, EPCRA does not mandate particular methods of emergency planning rather, it provides the tools for local governments and members of the community to make their own decisions regarding hazardous materials in their communities. Essentially, EPCRA shifts information from business and other industrial facilities to governments and individuals. Section 301 of EPCRA established two planning levels within each state. The Governor of each state was required to appoint a State Emergency Response Commission ("SERC") by April 17, 1987. 42 U.S.C.§ 11001(a). The SERC, in turn, was required to appoint members of Local Emergency Planning Committees ("LEPC"). 42 U.S.C. § 11001(a), (c).
The state emergency response commissions are composed of individuals with technical expertise in emergency response. In response to EPCRA, Delaware's General Assembly enacted 9 Del. C. § 8226, giving the SERC a statutorily created status. Among the duties of the Commission is the designation of emergency planning districts and appointment of local emergency planning committees for each emergency planning district. The Commission must supervise and coordinate the activities of the local committees. 42 U.S.C. § 11001(a); 29 Del. C. § 8226(d).
A state emergency response commission may revise its designations and appointments to emergency planning districts and emergency planning committees as it deems appropriate. Interested persons may petition the state emergency response commission to modify the membership of a local emergency planning committee. 42 U.S.C. § 11001(d).
1. No. Federal and state laws do not expressly dictate the organizational form of an LEPC and thus do not expressly prohibit the incorporation of a LEPC. The federal and state law read together in light of their express purposes, however, strongly suggest the conclusion that creation of a "private entity governed by its own charter and bylaws" would be inconsistent with several parts of EPCRA. First, the federal law provides that each SERC has the responsibility to "supervise and coordinate the activities of [the LEPCs]." 42 U.S.C. § 11001(a). This duty is inconsistent with the concept of the LEPC as either an independent body or a non-governmental agency. The SERC's duty to supervise and coordinate would be undermined absent the accountability inherent in the governmental hierarchy scheme. Second, the General Assembly has acknowledged by statute that the SERC will "regulate." (Section 8226(b) provides that the SERC may adopt regulations to carry out the purposes of the Act.). Any attempt to create independent status for the LEPCs would potentially violate the Supremacy Clause because of the SERC's responsibility to "supervise and coordinate." The emergency response commission that EPCRA orders governors to create has numerous obligations and powers. 42 U.S.C. § 11001(a). As noted above, the commission thus created, is further required to create and supervise local emergency planning committees that have yet broader duties. 42 U.S.C. § 11001(b), (c). The LEPCs are required to prepare comprehensive plans for emergencies. This planning process imposes several key obligations on industry. For example, each company subject to the Act must appoint an emergency coordinator (§ 11003(a)) and notify the SERC that it is subject to EPCRA requirements (§ 11002(c)). Companies must also notify the SERC and LEPC when a chemical is released into the environment in amounts that exceed threshold planning quantities. (§ 11004). In this context, it is difficult to avoid the conclusion that the commission and the committees are envisioned to be state regulatory agencies empowered and limited by longstanding constitutional law principles. (3) The SERC and the LEPCs have considerable power to alter the legal rights and duties of facilities covered by EPCRA. This power to alter the legal rights and duties of facilities covered by EPCRA constitutes law making. See Immigration & Naturalization Service v. Chadha, 462 U.S. 919, 952 (1983) (defining lawmaking as "altering the legal rights, duties and relations of persons").
The provision authorizing interested persons to petition the state emergency response commission to modify the membership of a local emergency planning committee would be frustrated or nullified if the LEPC attained independent status. There is nothing that prevents the NCCLEPC, however, from availing itself to the invitation contained in Section 11001(d) to "petition the [SERC] to modify the membership of the [LEPC]."
2. Yes. EPCRA creates an unambiguous SERC duty to supervise and coordinate the activities of the local committees. 42 U.S.C. § 11001(a).
3. Yes. The Hazardous Materials Transportation Act of 1979, 29 Del. C. §§ 8223-8230, contains its own exemption from liability provisions according to its terms. 29 Del. C.
§§ 8230, 8232. It appears that an LEPC incorporated as a privately incorporated
entity would remain eligible to receive state funds.
Should you have any questions or comments, please do not hesitate to
contact this office.
Very truly yours,
Kevin M. Maloney
Deputy Attorney General
Michael J. Rich
cc: Honorable M. Jane Brady
1. 42 U.S.C. §§ 11001-11050.
2. Id. §§ 11001-11005
3. In fact, by ordering governors to create and fund
state regulatory agencies, a function traditionally vested in the state
legislature, one could argue that EPCRA forces the executive branch to
exercise legislative powers in violation of basic state separation of powers
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