On November 20, 2019, the Environmental Protection Agency (EPA) completed its latest review and revisions to the Accidental Release Prevention (ARP) program for toxic catastrophe prevention under the Clean Air Act (CAA). These changes complete the Trump Administration’s review and repeal of most changes enacted during the Obama Administration, returning ARP requirements to roughly the point they were at before 2016. The remainder of this note summarizes these changes.
It’s been a long fraught path. I wrote about a 2014 Obama Executive Order here), prompting EPA to propose ARP revisions in March 2016 (here), which were finalized in January 2017 (here). After President Trump took office, EPA reversed course, repeatedly deferring the effective date of those revisions while the agency reviewed them. EPA published draft re-revisions in May 2018 (here); in August 2018 the District of Columbia Circuit Court rescinded the deferral but effectively left EPA to continue its review (here). The November 2019 final rules complete this process for now – although it’s safe to anticipate further litigation that’s likely to continue at least until the November 2020 election.
What are Existing ARP Program Requirements?
The 1990 CAA amendments (Section 112(r)), directed EPA to create a program to prevent accidental releases of air contaminants that might produce catastrophic offsite consequences. EPA issued regulations in 1996. The statute and regulations received limited revisions over the following two decades, until the current sequence of events. Generally, requirements:
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Specify regulated substances, including 77 toxics and 63 flammables. Each substance has one or more threshold quantities that trigger compliance responsibilities (some thresholds depend on the physical state).
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Regulate stationary sources (borrowing the general CAA term) of those substances, based on an interconnected process with a threshold quantity of one or more regulated substances. EPA assigns them to risk-based “programs” – Program 1 contains demonstrably low-risk sources, Program 3 are sources in industrial categories generally deemed high risk, and Program 2 sources are those not in 1 or 3.
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Define a risk management plan (RMP) which has contained the following elements:
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Registration with EPA/state, with source information (ownership, location, etc.);
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Offsite consequence analysis (OCA) that models exposures from a “worst-case release scenario” (complete release of largest container). Program 2 and 3 facilities must also analyze “alternative release scenarios” that could exceed an exposure “endpoint” (concentration, temperature, and/or pressure).
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Five-year accident history and description of post-accident enhancements.
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Prevention program (for sources in Programs 2 and 3), based on a detailed hazard review, with written operating procedures, maintenance and internal compliance procedures, post-incident investigation procedures, and training for all relevant employees.
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Emergency response program including procedures for notification and response, and training for relevant employees.
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Certification of the truth and accuracy of submitted information.
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The rules also specify periodic and event-related update requirements.
What Changes did EPA Adopt in January 2017?
EPA completed its 2016-2017 adopting multiple revisions to ARP/RMP requirements, covering:
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Enhanced hazard review, including root cause analyses by Program 2 and 3.
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Enhanced emergency response requirements for Program 2 and 3 facilities.
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Expanded public information.
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Additional administrative and technical revisions.
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Phase in of new/revised requirements over 5 years.
What Changes is EPA Now Making?
EPA’s “RMP Reconsideration Final Rule” accomplishes the Trump Administration’s goal of rescinding most ARP/RMP newly adopted in January 2017 (readers can look back through my earlier blogs, cited above). The only provisions being retained are the following:
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Requirement that post-incident investigation teams include at least one person familiar with the affected process
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Requirement that post-incident investigation teams prepare a “report,” not just a summary
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Administrative cleanups to update references to the Occupational Safety and Health Administration (OSHA) replacement of material safety data sheets (MSDSs) with more useful safety data sheets (SDSs) (OSHA rules adopted in 2012)
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Reducing post-incident public notification requirements (requirement will be effective March 15, 2021), but retaining requirement for a public meeting within 90 days (requirement effective with publication in Federal Register)
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Making most requirements effective either 4 or 5 years after publication in Federal Register.
What’s Next?
Given the controversial nature of this series of rulemakings, I anticipate additional litigation opposing these changes. I can’t predict how that will go.
Self-Assessment Checklist
Does the organization own or operate any facility with any “stationary source” subject to ARP requirements?
- If so, has the organization considered the impacts on its operations and compliance position under potential revisions?
Where Can I Go For More Information?
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EPA’s ARP program webpage
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EPA’s ARP rulemaking webpage
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Latest rule (12/19/19 Federal Register)
Specialty Technical Publishers (STP) provides a variety of single-law and multi-law services, intended to facilitate clients’ understanding of and compliance with requirements.
About the Author
Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 30 years.
Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).
Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).
You may contact Mr. Elliott directly at: tei@ix.netcom.com