EPA revises Accidental Release Prevention Rules

Air_Pollution-1 On March 1, 2024, the Environmental Protection Agency (EPA) revised Accidental Release Prevention (ARP) program rules under the Clean Air Act (CAA). ARP was authorized by the 1990 Clean Air Act (CAA) Amendments, and is often known by its core requirement that targeted facilities prepare Risk Management Programs (RMPs) to prevent and respond to potential catastrophic releases of chemicals. The adoption finalizes an agency proposal from 2022 (it also recounts a long series of proposal dating back to 2014; I wrote about it HERE), in which the Biden-era EPA proposed to many of the narrowing amendments to RMP/ARP enacted in 2019 during the Trump Administration (I wrote about the 2019 changes HERE).

The rest of this note summarizes the new revisions, noting their differences from current rules.

What are Existing ARP Program Requirements?

The 1990 CAA Amendments (Section 112(r)), directed EPA to create a program to prevent accidental releases of chemicals that would produce catastrophic airborne plumes and or physical/thermal shock waves. EPA issued initial ARP/RMP regulations in 1996, which changed very little until 2014. Generally, these rules:

Specify “regulated substances,” presently 77 toxics and 63 flammables. Each substance has one or more threshold quantities that trigger compliance responsibilities (some thresholds depend on the physical state).
Regulate “stationary sources” (applying the general CAA term) of any regulated substance, 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) which has contained the following elements:
- Registration with EPA/state, with source information (ownership, location, etc.);
- 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) at or beyond the facility boundary.
- 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 and process hazard analysis (PHA), 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.

The rules also specify periodic and event-related update requirements.

How have EPA’s approaches to revisions varied since 2017?

EPA has made repeated effort to revise ARP/RMP requirements, spanning the last three Presidential administrations – and changing with those administrations’ approaches to regulation. These included the adoption of expanded requirements in January 2017 (just before President Obama left office), which were subsequently stayed by litigation and never took effect. In December 2019, during President Trump’s administration, issued a “RMP Reconsideration Final Rule” that rescinded most of the 2017 amendments, and made more limited changes. In August 2022, after President Biden took office, EPA proposed additional revisions restoring many of the expansions proposed in 2017. I’ve written about each of these successive efforts, including a more detailed summary in 2022 (HERE). EPA has now adopted final rules generally consistent with its 2022 proposal.

What revisions is EPA now adopting?

EPA is finalizing its 2022 proposal, with modifications. The new revisions do the following:

amplify hazard evaluations – adding regulatory text to emphasize that hazard reviews and PHAs must consider a range of natural hazards (“meteorological, climatological, environmental, or geological phenomena”) and loss of power (necessitating consideration of standby or emergency power systems), and possible hazards related to facility siting and configuration
enhance information sharing and collaboration - between chemical facility owners/operators, tribal and local emergency planning committees (TEPCs/LEPCs), first responders, and the public. These include a requirement to provide information about safety enhancements that are recommended in hazard evaluations but declined,
enhance prevention programs – require Safer Technologies and Alternatives Analysis (STAA) for PHAs at Program 3 chemical refining and chemical manufacturing facilities, and practicability assessments for inherently safer technology/design (IST/ISD) at facilities in additional selected sectors, and adoption of at least one STA.
expand employee participation requirements (at a minimum):
- Consult with employees and their representatives on addressing, correcting, resolving, documenting, and implementing recommendations of PHAs, incident investigations, and compliance audits
- Add explicit provisions for “knowledgeable” employee stop-work and refusal of dangerous work
Ensure participation in incident reporting
simulated release exercises – convert current recommended field and tabletop exercise evaluation report to mandatory; require field exercises involving a simulated accidental release of a regulated substance at least once every 10 years, and provide for notice to local response agencies
public information – allow residents within 6 miles of an ARP facility to request specific chemical hazard information
post-incident investigations:
- require Program 2 and 3 facilities to conduct investigation after an ARP-reportable accident, finalized within 12 months
- require root cause analysis (using a “recognized method”) within post-incident investigations
- require third-party compliance audits after a qualifying ARP-reportable accident (second within 5 years for most facilities, first from petroleum/chemical facility or other ARP facility within 1 mile)
community notification - require facility reporting to the public and appropriate emergency response agencies about accidental releases of ARP-regulated substances and non-compliance, and “partnering” with agencies on community notification system to warn the public within the threatened area
technical edits and clarifications

EPA provides 3 years to comply with new requirements, and a total of 4 to reflect the revisions in facility RMPss.

What’s Next?

The revisions will become effective 60 days after publication in the Federal Register. Given the longstanding controversies over 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?

About the Author

jon_f_elliott 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

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