Who's In Charge? One Approach to Preparing for a Facility Emergency Response when the FBI Will Be the Lead Agency

Carrick Brooke-Davidson, John Dugdale and Jeff Gordon
Andrews & Kurth, L.L.P.

Introduction

While the Federal Bureau of Investigation (FBI) has become progressively more involved in investigating environmental crimes over the twenty year history of the Environmental Protection Agency's (EPA's) environmental crimes program, investigating uncontrolled hazardous waste sites during actual emergencies have always posed challenges to both the FBI and EPA's Criminal Investigation Division (CID). In contrast, On Scene Coordinators (OSCs) at the U.S. Coast Guard (USCG), U.S. EPA and their state equivalents are specifically trained for such sites. As first responders to emergency response situations, they often are the ones to call in EPA CID or the FBI if they have reason to believe the situation at hand involved criminal activity. In those situations, the OSC would typically not relinquish his or her authority under the National Oil and Hazardous Substances Pollution Contingency Plan, a/k/a the National Contingency Plan (NCP), 40 CFR Part 300, which applies to response activities pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq., and the Oil Pollution Act of 1990 (OPA), 33 U.S.C. § 2701 et seq. Rather, to the extent practicable, the OSC would accommodate evidence gathering and other typical crime scene matters, but those would typically be subordinate to the primary mission of abating the imminent and substantial endangerment conditions that gave rise to the emergency response.

Following the September 11 terrorist attacks, however, the FBI's role in emergency responses where terrorist activity is suspected has greatly expanded. This expansion is due in part to Presidential Decision Directive 39 (PDD-39), issued by the Clinton White House on June 21, 1995, which articulates the U.S. policy on counterterrorism and designates which federal agencies serve as lead agencies with respect to crisis management. See http://www.ojp.usdoj.gov/odp/docs/pdd39.htm. The critical aspect of PDD-39 as it affects emergency responses involving hazardous substances is that in instances of domestic terrorism, it places the FBI as the lead agency responsible for the Domestic Emergency Support Team. Therefore, were a refinery explosion and ensuing emergency response to be suspected to have been caused by terrorists, the FBI, and not the EPA OSC would be entitled to take the lead as the lead agency representative in a unified incident command. Although the Attorney General's Guidelines on General Crimes, Racketeering Enterprises and Terrorism Enterprise Investigation, which became effective by attorney general signature on May 30, 2002, redefines the relationship between FBI Headquarters and field offices, it does not appear to alter the relationship between a special agent and his or her SAC.

The specter of FBI agents assuming the broad authorities conferred upon an OSC and having full access to a complicated industrial facility has caused great consternation among industries such as the petroleum and chemical refining sector, whose facilities are by their very nature vulnerable to sabotage and whose compliance matters are complex. In addition, an issue of critical importance that distinguishes the way OSCs work under the NCP, versus how FBI agents work under PDD-39, is that the NCP provides a highly decentralized command structure, where the OSC makes almost all decisions in the field. Conversely, the FBI command structure is highly centralized, so that the FBI agent heading a unified emergency/terrorist response typically must clear decisions with his or her special agent-in-charge (SIC), who typically will not be located in the field.

This article proposes a common-sense approach to developing a rapport with all the potential players in a post-September 11 emergency response. Specifically, it explores potential merits and disadvantages of educating the federal and state emergency responders/investigators to a greater degree using emergency planning and preparedness documentation that a facility already is required to submit to the government under provisions of the Emergency Planning and Community Right-to- Know Act of 1986 (EPCRA), 42 U.S.C. § 1101, et seq., and the Clean Air Act (CAA), 42 U.S.C. § 7401, et seq., in the hope of fostering a better understanding of the facility and its high risk areas. By fostering such an understanding of a facility's high risk areas and by establishing a rapport with the facility's operators, any subsequent emergency response action where the FBI serves as the lead agency should theoretically focus on the physical areas most likely to be under attack and minimize the prospect that criminal investigators would comb through the facility in search of evidence of the purported terrorist attack.

Current EPCRA and CAA Reporting Requirements

Before addressing regulated facilities' concerns about meeting with FBI agents and about their activity in an actual emergency, it is useful to summarize current reporting requirements under EPCRA and the CAA that form the backdrop for information about a facility that already may be on file, and who may have access to it. EPCRA currently includes two basic reporting requirements for industrial facilities that maintain hazardous chemicals above certain prescribed threshold quantities.

First, any facility that is required to prepare or have available a Material Safety Data Sheet (MSDS) for a hazardous chemical under the Occupational Safety and Health Act of 1970 (OSHA), 29 U.S.C. § 651, et seq., must submit certain information about that chemical to the Local Emergency Planning Committee (LEPC), the State Emergency Response Commission (SERC) and the fire department for that facility. 42 U.S.C. § 11021(a)(1). Specifically, EPCRA requires the facility to submit either: (1) the actual MSDS for each hazardous chemical; or (2) a list of the MSDS chemicals, including its chemical or common name and its hazardous components. 42 U.S.C. § 1021(a)(2)(A). This information is made available, in turn, to the general public by the LEPC upon request. 42 U.S.C. § 11021(c)(2).

Second, if the facility is required to submit an MSDS, the facility must also prepare and submit an annual Emergency and Hazardous Chemical Inventory Form (Inventory Form) to the LEPC, the SERC and the local fire department. 42 U.S.C. § 11022(a)(1). There are two types of Inventory Forms that may be required: Tier I and Tier II. Tier I includes information on the estimated quantities of hazardous chemicals and their general location in the facility. 42 U.S.C. § 11022(d)(1)(B). EPA regulations provide that general locations include "the names or identifications of buildings, tank fields, lots, sheds, or other such areas." 40 C.F.R. § 370.40 (1999). The facility may also opt to submit a facility map with the general chemical location coordinates marked on the map. Id.

Tier II Inventory Forms includes more specific information about the hazardous chemicals at the facility, including the name of the hazardous chemical, the manner in which it is stored at the facility, its location in the facility and whether the facility owner elects to withhold location information from public disclosure. 42 U.S.C. § 11022(d)(2). A Tier II disclosure is only made when a facility voluntarily decides to submit this information or, as is more often the case, when a request is made by the LEPC, the SERC or the local fire department to submit a Tier II Inventory Form. 42 U.S.C. §§ 11022(d)(2) & (e). State and local officials and the general public may also request Tier II information from the LEPC or the SERC. 42 U.S.C. §§ 11022(e)(2) & (e)(3). If such a request is received from a state or local official and the LEPC or the SERC does not have the Tier II information in its possession, the LEPC or the SERC must request this information from the facility and make it available to the requesting official. 42 U.S.C. § 11022(e)(2). If, however, the request is received from the general public and the LEPC or the SERC does not have the Tier II information in its possession, the LEPC or the SERC must request this information from the facility only if the facility stores over 10,000 pounds of the hazardous chemical in question, and make the information available the public. 42 U.S.C. § 11022(e)(3)(B). If the facility stores less than 10,000 pounds of the chemical, the person requesting the information must also explain his/her "general need for the information" and the LEPC or the SERC are not automatically required to request this Tier II information from the facility. 42 U.S.C. § 11022(e)(3)(C).

Additionally, once an emergency response plan, MSDS and Inventory Form has been submitted to the proper authorities, this material must be made available to the general public, subject to certain trade secret restrictions, during normal business hours at the location(s) designated by EPA, the SERC or the LEPC. 42 U.S.C. § 11044(a). Finally, the LEPC is annually required to notify the public via the local newspaper when emergency plans, MSDSs and Inventory Forms are submitted. 42 U.S.C. § 11044(b).

The Clean Air Act also includes certain reporting requirements for facilities that maintain hazardous chemicals. Specifically, Section 112(r) of the Clean Air Act requires facility owners and operators to prepare and implement Risk Management Plans (RMPs) to detect and prevent or minimize accidental releases of hazardous substances from their facility and provide a "prompt emergency response" to any such releases to "protect human health and the environment." 42 U.S.C. § 7412(r)(7)(B)(ii). These RMPs must assess the "potential effects of an accidental release" of a hazardous substance, including, among other things, an evaluation of the "worst case" scenario that could be caused by such a release from the facility. 42 U.S.C. § 7412(r)(7)(B)(ii)(I). Additionally, the RMP must include a program for preventing accidental releases, including safety precautions, chemical monitoring and employee training procedures. 42 U.S.C.
§ 7412(r)(7)(B)(ii)(II). Further, the RMP must identify the specific actions to be taken by the facility to respond to an accidental release, including the procedures for "informing the public and local agencies responsible for responding to accidental releases." 42 U.S.C. § 7412(r)(7)(B)(ii)(III). Once prepared, these RMPs must be submitted to the EPA, the state where the facility is located and any local agencies with responsibility for responding to accidental releases from this facility. 42 U.S.C. § 7412(r)(7)(B)(iii). Additionally, RMPs are available to the general public, subject to trade secret restrictions, under the Freedom of Information Act. 42 U.S.C. §§ 7412(r)(7)(B)(iii) and 7414(c). However, in response to concerns raised by law enforcement agencies, EPA decided in 1998 not to post the worst case scenario information on the Internet, though it continues to post all other RMP information on its Website.

Concerns of the Facility Owner or Operator

Regulated facilities' concerns are understandable when you consider that trained criminal investigators, whose forte is not necessarily addressing the immediate threats posed by an emergency response situation, could take charge and potentially take over a facility as part of the response action. This scenario may constitute a warrantless entry under exigent circumstances that is not subject to the warrant requirement of the 5th Amendment. Further, the scenario presents a situation where the traditional emergency response goal of protecting the human health and the environment may be subordinated to the criminal investigation goal of securing a crime scene and gathering evidence. This is not to say that OSCs will not be present at such an emergency response, but any conflict over who is in charge of the situation and whose mission objectives will be of primary importance. However, where OSCs are impeded from performing their jobs fully and in a timely manner, the facility owner/operator may be left open to significant economic losses if the emergency situation escalates due to those impediments. Were the emergency situation to worsen under those circumstances, toxic tort suits from employees and neighbors claiming they were unnecessarily exposed to hazardous pollutants could arise, and production areas not immediately involved in the disaster could be affected due to inadequate containment measures. Finally, the possibility exists that criminal investigators and agents who are inadequately trained and prepared for traditional emergency response activities could range widely and in an unfocused manner throughout a facility, gathering evidence unrelated to the purported act of sabotage, which could then be used for the prosecution of environmental regulatory violations.

Proposed Solution

As discussed supra, facilities such as petroleum or chemical refineries and petroleum product terminals invariably are required annually to submit EPCRA Tier II Inventory Forms and CAA Section 112(r) Risk Management Plans. By proactively arranging annual meetings (not necessarily at the facility in question) with the LEPC, the EPA, USCG (if appropriate) and state OSCs, EPA CID, and the FBI, the facility operator can go over those reports with these various officials and pinpoint the location(s) that, in the facility operators' best judgment, might be most vulnerable to attack. By educating the parties who would participate in a unified command structure on vulnerable areas of facility and general facility layout, in theory emergency responders and criminal investigators will focus on correct facility areas in event of emergency response with terrorist implications.

In addition, a facility may wish to consider inviting those parties to participate in a tabletop exercise, akin to the annual desktop Spill of National Significance response exercises that are conducted pursuant to the OPA at randomly selected facilities. Under such an approach, the facility would devise a worst-case terrorist attack scenario and would provide itself with an opportunity, assuming it had done so, to determine if the proposed intensive facility briefing provided to the emergency responders/criminal investigators was in fact effective in educating them on the intricacies of the facility. Such an exercise not only fosters a working relationship between the facility and the post-September 11 emergency responders/criminal investigators, but also could serve to work through the "who's in charge" issue before the consequences are real. Finally, these approaches provide the facility the opportunity to influence the new working relationships between the emergency response and criminal investigation communities that are developing post-September 11 and since PDD-39 has been invoked.

Possible Disadvantages To This Approach

Many companies understandably may be reluctant to engage in any activity that brings their operation to the attention of environmental criminal enforcement agents. This attitude may be most keenly felt in the petrochemical and refining industries due to a number of high profile criminal prosecutions of corporate environmental officials at such facilities along the Texas Gulf Coast. As a result of these cases, many environmental managers now are fearful that any environmental violation may be the subject of a criminal prosecution. This view, if held, will obviously color a company's perspective on the wisdom of proactive involvement with the very agents that they most fear.

As suggested above, engaging in those planning activities at a location other than the plant site is one approach that could minimize the potential for cooperation to turn into prosecution for unrelated offenses that come to light as part of the emergency planning activities. However, there may be issues about the efficacy of such off-site exercises, in which case the issue of conducting activities on-site may need to be addressed. One approach may be to deal with these issues frankly with governmental authorities and educate them on the concerns that are presented by the consensual presence of law enforcement authorities at these facilities. Thought should be given to the possibility in these instances of a written protocol by which the government would agree that its presence is limited for the purposes of emergency planning and obviously is not meant to constitute consent to a search of the property. Of course, the mere request for such a protocol in and of itself may raise concerns that an entity has "something to hide." It appears that these issues can be best addressed by establishing a working relationship with the authorities, initially through the off-site mechanisms discussed above and then, if necessary, to limited on-site preparations.

Of course, many companies may decide that the potential risks are not worth this level of candor. Many avail themselves of EPA's self-disclosure policy while others don't, often because of what amounts to a distrust of the government. Environmental counsel and management need to take a hard look at their corporate culture and decide if an approach that signals a more open relationship with regulatory authorities is already consistent with the facilities' approach to regulatory matters or represents a major change in dealings with environmental regulators. Given the potential problems that can occur due to a failure to coordinate in advance, some companies may feel it is in their best interest to attempt to change internal attitudes towards government regulations, because the benefits outweigh the potential risks involved. This is something that each company will obviously have to weigh for itself, but the events of September 11th obviously put these risks in a starker perspective than prior to that tragedy.

Another potential disadvantage of this approach may be a tendency for all incidents to become criminalized in the minds of federal officials, in part because the advance planning has made such a determination easier to facilitate. While every incident takes on a potentially new meaning because of the concern over terrorism, experience to date does not indicate that federal officials are inclined to overreact to incidents that otherwise should be handled through the normal civil environmental response mechanisms. Moreover, to the extent that coordination and education have already taken place, this may minimize the tendency of criminal officials to want to take over environmental response activities if terrorism is not the clear cause of the incident. There may be real benefits to raising the comfort level of criminal investigators' knowledge of the traditional environmental responder's ability to address a situation without undue prejudice to a subsequent criminal investigation if evidence is later revealed that indicates a terrorist act may have been the cause of the emergency.

Conclusion

For the foreseeable future, the attacks of September 11th have fundamentally changed the federal government's response to emergency situations when terrorist activities are suspected. In the future, when a chemical plant or refinery explosion occurs and terrorism is suspected, the FBI, not the EPA, will assume the lead agency role in a unified incident command. Accordingly, it is incumbent on those industries that are vulnerable to such incidents to begin to foster a rapport with the potential federal and state emergency responders/investigators that will be involved in a post-September 11th emergency response. One manner in which to begin to develop this relationship is through the use of facility information that has already been prepared and disseminated to federal, state and local governments through the Emergency Planning and Community Right-to-Know Act and the Clean Air Act. Annual EPCRA Tier II Inventory Forms and CAA Section 112(r) RMPs could be utilized at off-site meetings with those agencies and officials who will likely participate in a unified command situation to identify vulnerable areas of the facility and help focus the responders/investigators on the correct facility areas during an emergency response event. These meetings may also serve a dual purpose by raising the confidence level of criminal investigators in the ability of traditional environmental responders to handle non-terrorist emergency incidents. Of course, the potential downside to this type of proactive behavior is that it could voluntarily open up facility operations to criminal investigators who may use these cooperative efforts as a "green light" for new prosecutions. Ultimately, however, the decision to undertake these types of proactive measures will likely turn on corporate culture and pre-existing relationships with federal, state and local officials. If a facility's culture and current working relationship with government officials will permit this voluntary approach, it is an approach that is worth exploring before the facility finds itself in an emergency response situation with FBI agents at the front door.

Mr. Brooke-Davidson, Mr. Dugdale and Mr. Gordon practice in the Environmental Litigation Group of ANDREWS & KURTH, L.L.P. in its Austin and Dallas offices. The views expressed in this article are those of the authors, and do not necessarily represent the views of Andrews & Kurth, L.L.P. or its clients.