Notice of intent given to file lawsuit against Linden

LINDEN, NJ — The New Jersey Work Environment Council, along with Teamsters Local 877, has put the city of Linden on notice, stating that they will file suit against the city on behalf of workers at the Phillips 66 Bayway Refinery and Watco Crude Rail Terminal, both located in Linden.

The NJWEC and the Teamsters claim that Linden Mayor Derek Armstead has failed to provide the public with a current Emergency Response Plan in the event of a chemical fire, explosion, or toxic emergency. The NJWEC and the union said in a statement that Armstead is violating federal law that requires public access to local emergency response plan in Linden.

The Bayway refinery, which is owned by Phillips 66 and is the largest petrochemical complex on the East Coast, converts crude oil into gasoline, diesel fuel, jet fuel and heating oil. Its products are delivered to East Coast customers via pipeline transport, barges, railcars and tank trucks.

The facility also houses a petrochemical plant which produces lubricants and additives and a polypropylene plant that produces more than 775 million pounds of polypropylene per year. The refinery has its own railway container terminal and heliport.

Workers at the plant have been unionized under Teamsters, Local 877, since 1960.

In a statement put out by NJWEC and the Teamsters on Oct 5, Armstead is called out for violating federal law. “Mayor Derek Armstead of the city of Linden has failed to carry out his legal responsibility under federal law for ensuring that the public has access to an up-to-date Emergency Response Plan in the event of a chemical fire, explosion or other toxic emergency,” read the statement.

“Today, Teamsters Local 877 and NJ Work Environment Council filed the required 60-day notice of the intent to file suit against the city of Linden for violating federal law.”

As of press time, Armstead had not responded to LocalSource’s requests for comment.

The statement cites Section 326 of the Emergency Planning and Community Right to Know Act, which dictates that citizens have the authority to file civil actions against violators of EPCRA. “Since February 2014, WEC and Teamsters Local 877, representing chemical and terminal workers at the Phillips 66 Bayway Refinery and Watco Crude Rail Terminal, located in Linden, have repeatedly requested access to Linden’s ERP and have been denied on multiple occasions.”

According to the statement, the most recent denial occurred on June 29 of this year. “Linden continues to keep community members and workers at industrial facilities within its municipal borders in the dark,” the statement read. “This is despite both the U.S. Environmental Protection Agency and N.J. State Emergency Response Commission issuing documents in 2015 regarding the legal obligation to publicly disclose ERPs and the importance of engaging community stakeholders.”

Public access to ERPs is required under the 1986 EPCRA, which was passed in part to address concerns after the Union Carbide pesticide plant in Bhopal, India, released a highly toxic gas which killed and disabled hundreds of thousands of people unaware of the chemical risks.

NJWEC executive director Dan Fatton denounced Armstead in his statement. “The mayor’s failure to grant access to ERPs as required by federal law means that Linden residents are not protected from toxic disaster,” said Fatton. “Knowing the information is critical, residents need this information to properly prepare and make effective emergency plans.”

John Pajak, president of Teamsters Local 877 and WEC Board member told LocalSource in an email that Linden officials are simply ignoring the public’s right to safety information. “City officials obviously believe that they can just ignore the public’s legal right to information about our own safety, Pajak said. “It is egregious that the workers at these facilities can’t access the ERP. The town and the facility are woefully unprepared with man and machine to deal with a catastrophic event.”

Pajak maintains that there could be a serious loss of life and property due to what he refers to as the city’s “inactions.” He said, “all this can be avoided if there was transparency in the ERP as required by law,” said Pajak. “Our worst-case scenario is the same as what happened at Paulsboro, when a chemical train derailed and the response was inadequate,” Pajak said of the Nov. 30, 2012 train derailment in Paulsboro over the Jefferson Street Bridge.

Assistant Director of WEC Debra Coyle McFadden questioned in a statement whether there is an ERP in place at all. “The SERC has failed to provide a system to request county and municipal ERPs and that is why you are allowed access in some places and not others.” stated McFadden. “When workers at a facility are denied access to the ERP, you have to question if there is an ERP and the quality of it.”

Fatton reiterated McFadden’s assertion that if workers at the facilities have been denied access to an ERP, one questions whether there is a plan in place at all. “We don’t know when the last time the ERP was updated or if one even exists, and in fact, that is the crux of the issue,” Fatton told LocalSource in an email. “Linden is violating federal law by preventing access.”

According to Fatton, both the WEC and the Teamsters have reached out to the city of Linden many times but received no response. “WEC and IBT 877 requested the Linden emergency response plan in various ways, including verbal and email requests and utilizing the OPRA system. The requests went to the appropriate city official.”

Fatton claims that five independent requests were made between February, 2014 and June, 2016. “Emergency Response Plans contain critical information about chemicals in the community, that can be used to help residents prepare for a toxic release,” said Fatton. “Emergency Response Plans include information such as identification of facilities using or storing extremely hazardous substances, the outline of emergency notification procedures and evacuation plans. These plans are about preparedness. Residents cannot wait until a catastrophe occurs to find out how to respond.”

“Federal law is clear,” said David Tykulsker, an attorney and WEC counsel. “It does not provide for blanket denial of all public access to emergency response plans, whether on so-called security grounds or anything else not in the Federal EPCRA statute.”

This article was updated Oct. 21, 2016

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