Audit, Compliance and Risk Blog

EPA Revises Accidental Release Prevention Requirements

Posted by Jon Elliott on Tue, Mar 28, 2017

Efforts to prevent and respond to chemical disasters are undergoing their first thorough review since many were created decades ago after December 1984’s catastrophe in Bhopal, India. President Obama triggered these reviews in August 2013, when he issued an Executive Order directing federal regulatory agencies to review specified regulatory programs that are designed to prevent such disasters: Occupational Safety and Health Administration’s (OSHA) Chemical Process Safety Management Standard (PSM); Environmental Protection Agency’s (EPA) Accidental Release Prevention (ARP) program and Emergency Planning and Right-to-Know Act (EPCRA) program; and Department of Homeland Security’s (DHS) Chemical Facility Anti-Terrorism Standards (CFATS) program (I blogged about the EO here). EPA proposed ARP revisions in March 2016 (I blogged about them here), and adopted final revisions on January 13, 2017.

These revisions were controversial when adopted, so it’s not surprising that they now are caught up in the transfer of power between President Obama and President Trump. EPA issued these revisions a week before the change in Presidents, with an effective date of March 13, 2017. After President Trump assumed office, EPA deferred the date until March 21, as one of many 60-day regulatory deferrals. Then EPA announced a further delay until June13, 2017.

What Are Existing ARP Program Requirements?

The 1990 Clean Air Act (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 have received limited revisions in intervening years. Detailed requirements:

  • Specify regulated substances, including 77 toxics and 63 flammables. Each substance has one or more threshold quantities that trigger compliance responsibilities (some have multiple quantities that depend on the physical state).

  • 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.

  • Define a risk management plan (RMP) with the following elements:

    • Registration with EPA/state, with source information (ownership, location, etc.).

    • Offsite consequence analysis (OCA), modeling 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.

    • Five-year accident history and description of post-accident enhancements.

    • 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.

    • Emergency response program including procedures for notification and response, and training for relevant employees.

    • Certification of the truth and accuracy of submitted information.

Regulated sources are responsible for periodic and event-related updates.

EPA reports that in the last decade, there have been more than 1,517 reportable accidents, 473 of which had offsite impacts including 58 deaths, 17,099 people who were injured or sought medical treatment, almost 500,000 people evacuated or sheltered-in-place, and over $2 billion in property damages.

What Changes Has EPA Announced?

EPA is adopting multiple changes. Some borrow from PSM and CFATS, while others have surfaced through the many reviews following President Obama’s Executive Order and other federal and state initiatives. These include:

  • Enhance hazard review:

    • Require root cause analysis as part of an incident investigation of a catastrophic release or near-miss, in Program 2 or 3 processes.

    • Require independent third-party compliance audit of all ARP-regulated processes at a facility after a reportable release from any Program 2 or 3 process.

    • Enhance every-five-year process hazard analyses by Program 3 in North American Industrial Classification System (NAICS) codes 322 (paper manufacturing), 324 (petroleum and coal products manufacturing), and 325 (chemical manufacturing) to include safer technology and alternatives analysis (STAA), and to evaluate the feasibility of any inherently safer technology (IST) identified.

  • Enhance emergency response requirements for Program 2 and 3 facilities:

    • Require annual coordination with local emergency response agencies, to ensure that resources and capabilities are in place to respond to an accidental release.

    • Require annual notification exercise ensure that emergency contact information is accurate and complete.

    • Conduct a full field exercise at least once every 10 years (EPA had proposed every 5 years) and a tabletop exercise every 3 years (EPA had proposed annual); appropriate responses to actual incidents may satisfy this requirement.

  • Expand public information:

    • Require all facilities to provide basic information to the public through easily accessible means such as a organization’s website or a public library.

    • Require public meeting within 90 days after a reportable release.

    • Require Program 2 and 3 facilities to share appropriate information with local response agencies as part of coordination efforts noted above (replaces proposal to submit specified information to Local Emergency Planning Committee (LEPC), Tribal Emergency Planning Committee (TEPC) or other local emergency response agencies).

  • Make administrative and technical revisions:

    • Revise RMP submission requirements, to remove some elements EPA considers more appropriate to site-specific inspections or information requests, and to add others that EPA considers important to regulators and response agencies.

    • Make various technical revisions to clarify, correct and/or update provisions.

  • Phase in new/revised requirements as follows:

    • One year - comply with emergency response coordination activities.

    • Three years - develop an emergency response program after agency written request to do so.

    • Four years – comply with other new provisions.

    • Five years - to correct or resubmit RMPs to reflect new and revised data elements.

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 each applicable revision?

Where Can I Go For More Information?

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Specialty Technical Publishers (STP) provides a variety of single-law and multi-law services, intended to facilitate clients’ understanding of and compliance with requirements. These include:

About the Author

Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 25 years. He was involved in developing 13 existing products, including Environmental Compliance: A Simplified National Guide and The Complete Guide to Environmental Law.

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:

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Tags: Environmental risks, Environmental, EPA, Hazcom