EPA Releases Compliance Advisory for Federal Facilities Subject to CAA Chemical Accident Prevention Regulations

Introduction

The 1990 Clean Air Act (CAA) Amendments include Section 112(r), the chemical accident prevention rule, to “provide for the prevention and mitigation of accidental chemical releases”¹.  The rule requires owners and operators of stationary sources that produce, process, handle, or store regulated hazardous substances in amounts above threshold quantities, as promulgated under Section 112(r), to develop and implement a Risk Management Program (RMP).  A RMP includes development of an accident prevention program, an emergency response program, and an offsite consequence analysis (OCA) to evaluate worst-case and alternative release scenarios.  A RMP must be established prior to any regulated substances being present on-site above threshold quantities at a facility.  Once a RMP is established and submitted to the United States Environmental Protection Agency (U.S. EPA), it is subject to review and renewal every five years, and includes documentation of a five-year accident history at the facility.  The purpose of the RMP is to require facilities to:

• Identify the potential effects of an accidental release of a regulated substance,
• Identify the proactive actions established to prevent an accident, and
• Establish emergency response procedures in the event an accident occurs.

Development of a RMP includes consideration of the program level specific to each facility.  There are three program levels under the RMP rule, with Program 1 applying to “extremely safe facilities”, Program 2 applying to facilities subject to threshold quantities that trigger Occupational Safety and Health Administration (OSHA) or U.S. EPA planning requirements, and Program 3, which applies to facilities that do not meet Program 1 requirements, but are subject to OSHA Process Safety Management (PSM) requirements.  RMP requirements are specific to the applicable program level, but generally include:

• Conducting a hazard assessment,
• Developing a prevention program,
• Establishing an environmental emergency-response program, and
• Operating an overall management system.

Any facility that is required to submit an annual Toxics Release Inventory (TRI) Form R, or is subject to OSHA PSM regulations, is likely to be regulated under the RMP rule.  Threshold quantities vary by the specific regulated substance, between 500 and 2,000 pounds onsite for toxic chemicals and 10,000 pounds onsite for flammable substances.

National Enforcement and Compliance Initiative

Section 118 of the CAA requires federal facilities “comply with, all Federal, State, interstate, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of air pollution in the same manner, and to the same extent as any nongovernmental entity” ², which includes the requirements for accidental releases of regulated substances under CAA Section 112(r).

The U.S. EPA has determined that many regulated federal facilities are not managing the risks associated with the handling of regulated hazardous substances, and therefore, are not adequately protecting the welfare and safety of surrounding communities.  The U.S. EPA cites approximately 150 “catastrophic accidents” ³ occur each year at industrial and chemical facilities that store regulated hazardous substances.  To reduce the risk to human health and the environment in communities surrounding regulated facilities, the U.S. EPA established the National Enforcement and Compliance Initiative (NECI) in 2017 to conduct inspections and enforcement activities to identify risk management inadequacies and improve safety measures at these facilities.

In February, the U.S. EPA Office of Enforcement and Compliance Assurance released a compliance advisory ⁴ announcing additional priority to be levied on enforcing NECI policies and associated impacts related to federal facility compliance.  The NECI is intended to ensure that all federally regulated entities comply with all CAA requirements associated with handling regulated hazardous substances and, if noncompliance is identified, use enforcement authority to correct facility inadequacies and bring facilities into compliance.  The compliance advisory is a notification specifically targeted to federal facilities to “promptly” address any known issues of noncompliance in operations including, but not limited to:

• Water treatment systems,
• Refrigeration systems,
• Controlled temperature laboratories, and
• Animal and plant health inspection services.

Assessing Compliance

The U.S. EPA has established the Enforcement & Compliance History Online (ECHO) tool (https://echo.epa.gov/) to facilitate the review of environmental compliance status for more than 800,000 regulated facilities.  In addition, the ECHO Notify system provides weekly email notifications of changes to ECHO enforcement and compliance data, which a facility can use to find specific notifications based on options such as geographic location or facility IDs.  It is recommended that federal facilities review their compliance status regularly, and if a noncompliance status occurs, to either report a data error or to take prompt corrective action to resolve the compliance delinquency.

Potential Impacts to Stakeholders

Facilities regulated under CAA Section 112(r) are required to comply with chemical accident prevention regulations – and have the responsibility to take necessary preventative or corrective actions to prevent accidental releases of regulated hazardous substances.  This responsibility does not, however, fall solely on federal facilities.  Facilities subject to CAA Section 112(r) are located in every state, with the risk of an accidental release of regulated hazardous substances applicable to a significant number of local communities and their populations.  Facilities have the responsibility of protecting their surrounding communities and face serious enforcement actions and administrative penalties for failing to do so.  In Fiscal Year (FY) 2022 alone, the U.S. EPA increased its number of on-site inspections by over 150% (compared to FY 2021) and concluded 113 administrative penalty actions to address identified violations.  With increased NECI priority being placed on enforcing compliance under the February advisory, federal facilities are recommended to take prompt action to correct any compliance inadequacies to avoid costly penalties and subjecting local communities to the risk of an accident.

How Can ALL4 Assist?

ALL4 has a staff of experienced Environmental Consultants familiar with RMP assessments able to provide facilities, regardless of federal status, with evaluations and recommendations to stay current and compliant with CAA Section 112(r) requirements.  Please contact ALL4 to evaluate your facility’s RMP status and address any compliance needs.

Contact Ryan Cleary rcleary@all4inc.com (919-230-0716) for more information.

[1] Accidental Release Prevention Requirements; Risk Management Programs Under Clean Air Act Section 112(r)(7); Amendments, 64 Fed. Reg. 964 (January 6, 1999).

[2] 42 U.S. Code § 7418 – Control of pollution from Federal facilities.

[3] U.S. EPA; National Enforcement and Compliance Initiative: Reducing Risks of Accidental Releases at Industrial and Chemical Facilities, https://www.epa.gov/enforcement/national-enforcement-and-compliance-initiative-reducing-risks-accidental-releases (December 22, 2022).

[4] U.S. EPA Office of Enforcement and Compliance Assurance; Federal Facility Compliance Under EPA’s National Enforcement and Compliance Initiative to Reduce Accidental Releases at Industrial and Chemical Facilities; EPA Document #315F23001 (February, 2023).