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The Massachusetts Emergency Management Agency Did Not Meet All Its Responsibilities Under the Emergency Planning and Community Right-to-Know Act.

Audit calls on MEMA to establish EPCs and implement policies for reviewing emergency response plans and retaining documentation to substantiate this review.

Table of Contents

Overview

Although the Massachusetts Emergency Management Agency (MEMA) has been designated by the Governor as the state emergency response commission (SERC) for Massachusetts, it has not established local emergency planning committees (LEPCs) or regional emergency planning committees (REPCs) in all cities and towns with businesses that use and store significant levels of hazardous chemicals. In addition, it did not appoint LEPC and REPC members and could not substantiate that it had ensured that LEPCs and REPCs had effective emergency response plans to deal with any chemical hazards that might occur. As a result of these issues, there is a higher-than-acceptable risk that local communities may not be adequately prepared to deal effectively with any potential chemical hazards.

MEMA Did Not Establish EPCs for All Cities and Towns With Businesses Storing Hazardous Chemicals

MEMA did not establish emergency planning committees (EPCs) that included all Massachusetts cities and towns with businesses that stored hazardous chemicals that were subject to reporting under the Emergency Planning and Community Right-to-Know Act (EPCRA).

During calendar year 2018, at least 442 businesses that had inventories of hazardous materials, as evidenced by the fact that they filed Tier II reports with MEMA, were located in 53 different cities and towns for which MEMA had not established LEPCs or REPCs, as shown below.

 

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MEMA officials told us they were not involved in establishing emergency planning districts and did not appoint committee members as required by EPCRA.

Authoritative Guidance

Chapter 116(11001) of Title 42 of the United States Code (USC) establishes that the SERC (MEMA) is responsible for implementing EPCRA within the state. This responsibility includes the following:

  • establishing local emergency planning districts
  • appointing an LEPC for each district
  • reviewing local emergency response plans for each LEPC
  • supervising the activities of LEPCs

As previously noted, MEMA has established a 26-member commission to facilitate EPCRA compliance. According to the commission’s bylaws, its duties include the following:

2.   Appointing and coordinating local and regional emergency planning committees for each district, and reviewing local and regional emergency plans . . .

4.   Increasing state and local emergency response capabilities.

Finally, according to officials from the United States Environmental Protection Agency with whom we spoke, every community in a state should be associated with an EPC and every community that has facilities that file Tier II reports is required to be associated with an LEPC or REPC.

Reasons for Issue

MEMA has not established sufficient internal controls or a process to effectively identify where LEPCs and REPCs should be established, based on Tier II reporting information, and ensure that they are established.

MEMA Could Not Demonstrate That It Received and Reviewed Each LEPC’s/REPC’s Emergency Response Plan.

MEMA could not demonstrate that it received and reviewed each LEPC’s/REPC’s emergency response plan to ensure that each one fully met EPCRA requirements. During our audit, we asked officials at each of the MEMA regional offices to provide us with copies of the emergency response plans they had received from a judgmental sample of 40 different cities and towns. MEMA officials could not produce emergency response plans for any of the 40 communities in our sample.

Authoritative Guidance

The regulation 42 USC 116(11003) requires the following:

(a) Plan required

Each local emergency planning committee shall complete preparation of an emergency plan in accordance with this section. . . . The committee shall review such a plan once a year, or more frequently as changed circumstances in the community or at any facility may require. . . .

(c) Plan provisions . . .

(1)  Identification of [businesses that file Tier II reports] that are within the emergency planning district. . . .

(2)  Methods and procedures to be followed by facility owners and operators and local emergency and medical personnel to respond to any release of [hazardous/toxic chemicals].

(3)  Designation of a community emergency coordinator and facility emergency coordinators, who shall make determinations necessary to implement the plan.

Reasons for Issue

MEMA has not developed sufficient policies and procedures for reviewing emergency response plans or retaining documentation to substantiate this review.

Recommendations

  1. MEMA should identify where EPCs should be established and should establish them.
  2. MEMA should establish policies and procedures for reviewing emergency response plans and retaining documentation to substantiate this review.

Auditee's Response

As the lead agency for the Massachusetts State Emergency Response Commission (SERC), MEMA recognizes the importance of EPCRA. At its core, EPCRA is a set of requirements imposed on state and local governments as well as on private entities to ensure effective planning, response, and public notification activities, focused on hazardous substances within our communities. Through the SERC, MEMA brings together subject matter experts from state agencies, local first responders, and industry representatives to oversee and coordinate EPCRA-required activities.

The findings and recommendations made through this audit reflect the auditors’ understanding that EPCRA both requires and authorizes the state, through the SERC, to appoint local officials to a local emergency planning committee. This requirement would conflict with Massachusetts’ interpretation of municipal self-governance by mandating that a state agency appoint municipal representatives to a municipal body. Rather than interpret the federal legislation as authorizing an approach inconsistent with established state practice, MEMA has instead led the SERC as a state-level coordinating entity for local activities rather than a replacement for local decision-making.

Additionally . . . the draft report purports to quote from the SERC bylaws that its duties include "[a]ppointing and coordinating local and regional emergency planning committees." This quotation references an outdated version of the SERC bylaws. Revisions to the by-laws (approved in January 2019 and available at https://www.mass.gov/doc/serc-bylaws/download) do not contain this language.

MEMA Actions Relative to Finding 1a—MEMA will coordinate with local communities and leverage Tier II reports to identify local jurisdictions that should be part of an Emergency Planning Committee (EPC) and conduct outreach to those jurisdictions. MEMA can provide support and guidance in the formation of a LEPC or REPC.

MEMA Actions Relative to Finding 1b—The EPCRA statute requires the SERC to review, but not maintain, local emergency response plans. During the audit period, MEMA brought EPCRA planning into its Comprehensive Emergency Management Plan (CEMP) process. Through this process, emergency response plans at the local level were to be included in a jurisdiction’s overall emergency management plan. The result is more effective local level planning that incorporates an all-hazards approach and ensures continual MEMA-Local partnership in strengthening resiliency across all Massachusetts communities. MEMA works regularly with local communities to review plans and provide feedback. Moving forward, MEMA will retain documentation of the plan review process to demonstrate that it is meeting this obligation.

Auditor's Reply

MEMA’s response and its reliance upon the principles of self-governance and established state practice conflict with the requirements of federal law. Specifically, 42 USC 116(11001)(c) states,

Not later than 30 days after designation of emergency planning districts or 10 months after October 17, 1986, whichever is earlier, the State emergency response commission shall appoint members of a local emergency planning committee for each emergency planning district. Each committee shall include, at a minimum, representatives from each of the following groups or organizations: elected State and local officials; law enforcement, civil defense, firefighting, first aid, health, local environmental, hospital, and transportation personnel; broadcast and print media; community groups; and owners and operators of facilities subject to the requirements of this subchapter. (Emphasis added.)

This federal law requires the SERC, in this case MEMA, to appoint specific members, including state and local officials, of an LEPC for each emergency planning district. The federal law does not authorize an exemption for established state practice.

In its response, MEMA acknowledges that it needs to monitor Tier II reports to identify local jurisdictions that should be part of EPCs and that those communities need to have LEPCs or REPCs. We also urge MEMA to consider implementing our recommendations on this matter.

The SERC bylaws that we quote in our report were in effect during our audit period, and we believe they appear to accurately depict the cited responsibilities of the SERC.

Regarding the review of emergency response plans, 42 USC 116(11003)(e) states,

After completion of an emergency plan under subsection (a) [of Section 11003(a)] for an emergency planning district, the local emergency planning committee shall submit a copy of the plan to the State emergency response commission of each State in which such district is located. The commission shall review the plan and make recommendations to the committee on revisions of the plan that may be necessary to ensure coordination of such plan with emergency response plans of other emergency planning districts.

This federal law, EPCRA, requires the SERC to “make recommendations to” the LEPC on necessary “revisions of” the plan to ensure coordination with the emergency response plans of other emergency planning districts. The law specifically envisions the SERC making recommendations to the LEPC regarding necessary revisions to the plan. It further states that an LEPC “shall submit a copy” of its emergency plan to the SERC. The Office of the State Auditor therefore interprets the federal law to require the SERC to maintain a copy of any emergency response plan that an LEPC submits pursuant to the law.

In its response, MEMA states that it will retain documentation of the plan review process to demonstrate that it is meeting this obligation. We urge MEMA to fully implement our recommendation of establishing policies and procedures for reviewing emergency response plans and retaining documentation to substantiate this review, to ensure that adequate internal controls over this process exist.

Date published: February 27, 2020
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