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National Governors' Association
Center for Best Practices
Natural Resources
Policy Studies Division
State Considerations
And Strategies for
Implementing the
Chemical Accidental
Release Prevention
Program
By Allyn F. Finegold
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Since their initial meeting in 1908 to discuss inter-
state water problems, the Governors have worked
through the National Governors' Association to
deal collectively with issues of public policy and
governance. The association's ongoing mission is to
support the work of the Governors by providing a
bipartisan forum to help shape and implement
national policy and to solve state problems.
The members of the National Governors' Associa-
tion (NGA) are the Governors of the fifty states,
the territories of American Samoa, Guam, and the
Virgin Islands, and the commonwealths of the
Northern Mariana Islands and Puerto Rico. The
association has a nine-member Executive Commit-
tee and three standing committeeson Economic
Development and Commerce, Human Resources,
and Natural Resources. Through NGA's commit-
tees, the Governors examine and develop policy
and address key state and national issues. Special
task forces often are created to focus gubernatorial
attention on federal legislation or on state-level
issues.
The association works closely with the administra-
tion and Congress on state-federal policy issues
through its offices in the Hall of the States in
Washington, D.C. The association serves as a vehi-
cle for sharing knowledge of innovative programs
among the states and provides technical assistance
and consultant services to Governors on a wide
range of management and policy issues.
The Center for Best Practices is a vehicle for shar-
ing knowledge about innovative state activities,
exploring the impact of federal initiatives on state
government, and providing technical assistance to
states. The center works in a number of policy
fields, including agriculture and rural development,
economic development, education, energy and
environment, health, social services, technology,
trade, transportation, and workforce development.
ISBN 1-55877-291-X
Copyright 1997 by the National Governors' Association,
444 North Capitol Street, Washington, D.C. 20001-1512.
All rights reserved.
Funding for this publication was provided under a grant from the U.S.
Environmental Protection Agency.
The responsibility for the accuracy of the analysis and for the judgments
expressed lies with the author; the report does not constitute policy
positions of the National Governors' Association, individual Governors,
or the U.S. Environmental Protection Agency.
Reproduction of any part of this volume is permitted for any purpose of
the U.S. government.
Printed in the United States of America.
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Contents
iv Foreword
v Executive Summary
v Challenges for States
v Federal Requirements
v Implementation Issues for States
vi Funding Approaches
vi Public Access to Chemical Information
vi Two Strategies for State 112(r) Implementation
1 Introduction
2 Understanding the Requirements for Industry and Government Under Section 112(r)
2 Requirements for Industry
3 Requirements for Government
4 Challenges and Opportunities for States in Implementing Section 112(r)
4 Challenges
5 Opportunities
5 Outstanding Issues
6 Implementing the Section 112(r) Program
6 Applying for Delegated Authority
7 Designating an Implementing Agency
9 Funding the Section 112(r) Program
9 Four States'Experiences in Funding Chemical Accident Prevention Programs
10 Federal Funding Options
10 State Funding Options
12 Communicating Section 112(r) Information to the Public
12 LEPCActivities
12 Industry Efforts
13 Federal Initiatives
14 Implementing Section 112(r) in Florida and Michigan
14 Seeking Full Delegation for Section 112(r) in Florida
15 Implementing Section 112(r) for Title VFacilities in Michigan
16 Conclusions
17 Appendix: State Contacts for Further Information on Section 112(r) Implementation
CONTENTS
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Foreword
iv
The National Governors' Association (NGA) has been actively involved in right-to-know
and emergency management issues for many years. Since the early 1980s, NGA policies
have called for comprehensive emergency management and chemical safety as well as sup-
ported community and worker right-to-know programs. Following the enactment of the
Emergency Planning and Community Right-to-Know Act under Title III of the Super-
fund Amendments and Reauthorization Act of 1986, NGA provided guidance to Gover-
nors' offices and state agencies on the law's implementation. The NGA Center for Best
Practices keeps state officials informed of Tide III issues, challenges, and opportunities
and provides guidance on emergency management. In 1993 NGA published A Governors
Guide to Environmental Risk Response, and in fall 1997 the Center will publish an updated
edition of A Governor's Guide to Emergency Management.
This is the eighth NGA annual report on chemical emergency preparedness and preven-
tion programs. Previous reports have detailed state approaches to administering state
chemical emergency management activities, creating state fee systems to fund these activi-
ties, and educating the public about chemical risks. This report focuses on state imple-
mentation issues and strategies related to the Chemical Accidental Release Prevention
Program established under Section 112(r) of the Clean Air Act of 1990. A grant from the
U.S. Environmental Protection Agency's Office of Solid Waste and Emergency Response
to the NGA Center for Best Practices also funds technical exchange workshops and
national conferences on state chemical emergency preparedness and prevention activities.
The report was written by Allyn F. Finegold and edited by Karen Glass. The author wants
to thank the many state officials who provided information for this report.
John Thomasian, Director
National Governors' Association Center for Best Practices
IMPLEMENTING THE CHEMICAL ACCIDENTAL RELEASE PREVENTION PROGRAM
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Executive Summary
State chemical emergency preparedness programs have been evolving since the Emergency
Planning and Community Right-to-Know Act of 1986 called on states to develop plans
for responding to a chemical emergency and educate the public about chemical risks.
Under Section 112(r) of the Clean Air Act of 1990, states are asked to develop a program
to prevent accidental releases of chemicals that pose the greatest: threat to human health
and the environment and communicate chemical information to the public. The most
critical issue facing states is to determine whether the accident prevention program will be
implemented by state agencies or whether they will leave full or partial responsibility for
the program to the federal government. States must make this decision before the program
takes effect on June 21, 1999.
During the next year, states will need to
answer three questions regarding the Section
112(r) program.
Should the state assume responsibility for
carrying out the activities under Section
If the state assumes responsibility for these
activities, how will a state-administered
Section 1 12(r) program be funded and
structured?
What mechanisms will the state use to
communicate chemical information to the
public?
Challenges for States
States have cited a lack of federal and state
funding and a fear of legal liability as the
greatest challenges to administering Section
1 12(r) at the state level. However, despite
these challenges, a preliminary analysis of state
implementation strategies shows that roughly
half of the states plan to assume responsibility
for some components of Section 112(r), leaving
the remaining responsibilities to the federal
government.
Federal Requirements
Section 112(r) includes requirements for both
industry and government. The program
requires facilities to make information on
potential chemical risks available in risk man-
agement plans and government to audit the
facilities' plans. Although industry must
assume the primary responsibilities of Section
112(r), federal, state, and local governments
need to craft an accident prevention program
that operates efficiendy.
Implementation Issues for States
Among the operational tasks facing states that
opt to develop a state-administered program is
choosing a method to seek delegated authority
from the federal government to implement
Section 112(r). States can incorporate the fed-
eral rule by reference, substitute the federal
rule for state accident prevention laws, or
develop state regulations that conform to the
federal rule. Another task is to determine the
EXECUTIVE SUMMARY
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roles of state agencies in meeting program
requirements. States need to examine the
resources and authorities of state agencies to
determine which one will administer the
Section 112(r) program.
Funding Approaches
States that decide to assume responsibility for
Section 112(r) will also face the challenge of
funding. States are exploring both federal and
state funding mechanisms to cover the costs of
an accident prevention program. Delaware,
Louisiana, Nevada, and New Jersey operate
funding programs for chemical accident pre-
vention. They can serve as models for other
states.
Public Access to Chemical Information
A major component of Section 112(r) focuses
on improving public accessibility and under-
standing of chemical information. The com-
position and experience of local emergency
planning committees (LEPCs) make them
well suited to help educate communities about
potential chemical risks. LEPC members typi-
cally have strong community ties and in-depth
knowledge of local emergency response plans.
However, their funding and training limita-
tions cannot be ignored. States have begun to
address LEPC concerns about their involve-
ment in Section 112(r) implementation by
informing diem of program requirements and
allocating funds for training and technical
support. In addition, industry is beginning to
work with LEPCs and state agencies to help
prepare them for communicating and inter-
preting the information in risk management
plans.
Two Strategies for State 112(r)
Implementation
Each state will develop an implementation
strategy that addresses the operational and
funding issues of Section 112(r) and
maximizes the expertise and resources of state
agencies. Although most states have not yet
chosen a definitive path for Section 112(r)
implementation, two strategies are reflected in
the efforts of Florida and Michigan.
Florida's proposed implementation model calls
for seeking full delegation for Section 112(r).
Its strategy includes designating a single lead
agency for the program but tapping the exper-
tise and resources of other state agencies. The
state plans to address the financial challenges
by charging fees to cover the programs operat-
ing costs. Program operations will begin one
year before the facilities must submit risk
management plans so the state can conduct
education and training activities and increase
public and industry awareness of the program.
Michigan has developed a different strategy to
implement Section 112(r) that focuses only on
facilities that are regulated under the existing
federal air permitting program. Using this
approach, the state will integrate the activities
required under the two programs and use
existing resources to cover the increased oper-
ating costs. The air quality division, the
administering agency for the federal air per-
mitting program, will be the agency responsi-
ble for carrying out 112(r) program activities.
These proposed state implementation
strategies suggest that the Chemical Accidental
Release Prevention Program is not a one-size-
fits-all program. States will need considerable
flexibility from the federal government so they
can choose an approach to funding and
administering the program that maximizes
federal, state, and local resources and
expertise.
IMPLEMENTING THE CHEMICAL ACCIDENTAL RELEASE PREVENTION PROGRAM
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Introduction
Approximately 5,700 tons of anhydrous ammonia entered the atmosphere after an explo-
sion at Terra International, Inc.'s nitrogen fertilizer facility in Port Neal, Iowa, on Decem-
ber 13, 1994. Three thousand people had to evacuate their homes following a chemical
release from a railroad tank car at the Gaylord Chemical Corporation in Bogalusa,
Louisiana, in October 1995.
In the wake of these and other incidents that
have occurred since the Emergency Planning
and Community Right-to-Know Act was
enacted in 1986, the federal government rec-
ognized that the law did not include sufficient
measures for preventing chemical accidents.
Congress responded by creating the Chemical
Accidental Release Prevention Program under
Section 112(r) of the Clean Air Act of 1990.
The Section 112(r) program seeks to prevent
accidents involving chemicals that pose the
greatest risk to public health and the environ-
ment. Its second objective is to provide the
public with information beyond what is
required under the 1986 law about the haz-
ards at chemical facilities located in communi-
ties. States are now deciding whether they will
administer this program at the state level by
seeking delegated authority from the U.S.
Environmental Protection Agency or leave its
implementation in the state to the federal
government.
This report describes the requirements of the
accident prevention program for both facilities
and governments. In addition, it examines
operational and financial considerations for
implementing a state Section 112(r) program.
The report also addresses issues related to
communicating information on chemical risks
to the public. Two case studies illustrate differ-
ent approaches to administering an accident
prevention program in the state. A second
report, Emergency Planning and Community
Right-to-Know Act: State Profiles, 1997, pro-
vides updated profiles of state emergency
response commissions.
Information for this report was collected from
March 1997 through June 1997 from state
officials charged with developing a state strat-
egy for implementing Section 112(r). In addi-
tion, the report incorporates findings from the
NGA State Emergency Response Commission
Conference held in June 1997 that focused
primarily on state implementation issues
related to the Chemical Accidental Release
Prevention Program. Representatives from
thirty-seven states, federal and local govern-
ment officials, and industry representatives
attended the conference.
INTRODUCTION
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Understanding the Requirements for
Industry and Government
Under Section 112(r)
The Chemical Accidental Release Prevention Program established under Section 112(r) of
the Clean Air Act of 1990 requires industry and federal, state, and local governments to
prevent and plan for accidental releases of hazardous chemicals. The U.S. Environmental
Protection Agency (EPA) promulgated the final rule for risk management planning in
June 1996, and government and industry are exploring how they can:
prevent accidental releases of toxic chemicals and other hazardous substances;
minimize the consequences of a release by encouraging preventive measures for chemi-
cals that pose the greatest risk; and
provide information to the public about the hazards at a chemical facility and the poten-
tial consequences of a major chemical incident.
Section 112(r) complements the requirements
of the Emergency Planning and Community
Right-to-KnowAct of 1986 (EPCRA), which
addresses chemical emergency preparedness
and prevention. EPCRA created state emer-
gency response commissions and local emer-
gency planning committees to develop plans
for responding to chemical emergencies.
These plans are based on information that
facilities must provide under the law on the
hazardous chemicals they handle. However,
EPCRA did not require that facilities work
widi state and local governments to establish
accident prevention programs.
Requirements for Industry
Section 112(r) requires facilities to provide
information to state and local governments
and the public on potential chemical hazards.
EPA's final rule identifies a list of chemicals
and threshold quantities. It requires facilities
that "produce, handle, process, distribute,
store, or use" any of these chemicals at the
threshold levels to submit a risk management
plan (RMP) to designated government agen-
cies by June 21, 1999. The RMP must include
a hazard analysis of the facility, an assessment
of the risks of chemicals on site, and a descrip-
tion of activities that the facility is performing
or will undertake to reduce the likelihood of a
chemical release at the site.
The final rule also established additional
requirements for facilities, depending on
whether they fall into one of three categories.
Releases from facilities in the first category
would have only minimal effects on the sur-
rounding community and the environment.
IMPLEMENTING THE CHEMICAL ACCIDENTAL RELEASE PREVENTION PROGRAM
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These facilities must prepare a five-year his-
tory of accidental releases and an analysis of
alternative scenarios and of a potential 'worst-
case" scenario for a release. Accidental releases
from facilities in the second or third categories
would pose higher risks to human health and
the environment. These facilities must
develop an accident prevention program, an
emergency response plan, and a management
system for implementing the accident preven-
tion program. EPA estimates that approxi-
mately 66,000 facilities across the United
States fall into one of the three categories.
Requirements for Government
Although industry assumes most of the
responsibility for preventing and mitigating
chemical accidents, all levels of government
and the public play important roles in chemi-
cal emergency preparedness and prevention
programs. The state must choose a govern-
ment agency to review facilities' risk manage-
ment plans; perform onsite inspections and
periodic audits at facilities; ensure that facili-
ties revise their plans, if necessary; and enforce
the program. If a state chooses to implement
the Section 112(r) program, it must also seek
formal delegation from EPA to administer its
own program. In addition, EPA, state and
local government agencies, and local emer-
gency planning committees have access to
summaries of facilities' risk management plans
and are responsible for making these sum-
maries available to the public and other inter-
- ested parties.
UNDERSTANDING THE REQUIREMENTS FOR INDUSTRY AND GOVERNMENT UNDER SECTION 112(R)
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Challenges and Opportunities for States
In Implementing Section 112(r)
States must decide whether to assume responsibility for implementing and enforcing the
requirements of Section 112(r), or whether to have full or partial responsibility for the
program rest with EPA. They identify limited resources and liability concerns as the most
formidable challenges in Section 112(r) implementation. However, states also recognize
the opportunities of implementing the program at the state level. State implementation
enables states to craft programs that meet the specific needs of state and local governments
and local industry, incorporate Section 112(r) activities with other chemical preparedness
and prevention activities, increase their knowledge of chemical risks, and build on estab-
lished state-local emergency response relationships.
Challenges
States choosing to implement and enforce the
Section 112(r) program face significant chal-
lenges, including the following.
Lack of federal and state resources. Most
states that will not seek delegation cite a
lack of federal resources for administering
die program as the major reason. Limited
funding, staff, and training at the state level
further limits states' ability to assume Sec-
tion 112(r) responsibilities.
Fear of liability. Several states have raised
the issue of the legal liability associated with
auditing facility risk management plans
under a state-administered and state-
enforced program. Although EPA has not
set a minimum number or percentage of
risk management plans that states are
required to audit, states will not have the
resources to audit all of the facilities subject
to Section 112(r). State officials have
expressed concern that they will be vulnera-
ble to lawsuits if an accident occurs at a
facility where the state has not conducted
an audit. States will be forced to weigh the
costs of auditing a greater number of
facilities against the potential for being held
liable for a chemical accident under
Section 112(r).
Two states have chosen not to undertake pri-
mary responsibility for Section 112(r) but
have indicated that they will still play a lim-
ited role in administering the program. The
Oklahoma Department of Environmental
Quality will work with local emergency plan-
ning committees to assist them in understand-
ing and communicating the information in
risk management plans. The Wisconsin
Department of Natural Resources will assume
responsibility only for determining whether
risk management plans submitted by facilities
that also are subject to federal air permitting
regulations fulfill the Section 112(r) require-
ments. The state will rely on EPA to review
the content of all risk management plans and
make this information available to local com-
munities and the public.
IMPLEMENTING THE CHEMICAL ACCIDENTAL RELEASE PREVENTION PROGRAM
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Opportunities
Designating a state agency, rather than EPA,
to implement Section 112(r) creates several
opportunities for states, including the
following.
Flexibility to design a state program. A
state implementing its own program can
tailor that program to suit its available
resources and the types of facilities in the
state that are subject to statutory and regu-
latory requirements. For example, a state
program can direct its resources to help
small businesses comply with Section 112(r)
or focus outreach and compliance efforts on
those facilities that are engaged in activities
posing the greatest risk to public health and
the environment.
Freedom to integrate related activities.
States already are working closely with
industry and local emergency planning
committees to fulfill the requirements of
EPCRA and can incorporate Section 112(r)
activities into current state activities. For
example, facility inspections mandated
under Section 112(r) can be conducted as
part of current compliance and enforcement
procedures carried out by the state.
Increased knowledge of chemical risks. A
state-operated program will enhance the
state's ability to prevent and plan for chemi-
cal accidents. It will also enable the state to
collect additional information about the
chemicals and processes at facilities located
in the state, making LEPCs and the public
more knowledgeable about the chemical
risks in communities.
Reliance on established state and local
emergency response systems. State agen-
cies' relationship with and understanding of
their local facilities and LEPCs are better
than those of EPA. A state has the most
knowledge about the nature of the facilities,
the possible environmental risks, and the
strengths and weaknesses of local emergency
planning committees.
Outstanding Issues
Most states will not decide whether to assume
the responsibility for implementing and
enforcing the requirements of Section 112(r)
until EPA resolves several outstanding issues.
A common concern among states is that EPA
has not described the accident prevention pro-
gram that it would administer in a state that
chooses not to implement the program. Until
EPA outlines the activities it would undertake
in concert with state agencies and facilities,
states cannot weigh all of the advantages and
disadvantages of administering a state pro-
gram. In addition, states and EPA are develop-
ing guidance that outlines the mechanisms
through which states can seek delegation of
authority for the program, delineates federal
and state agency responsibilities, and deter-
mines training needs for state and local agency
personnel. The outcome of these discussions
has major imporc for state decisions to imple-
ment Section 112(r).
CHALLENGES AND OPPORTUNITIES FOR STATES I N IMPLEMENTING SECTION
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Implementing the Section 112(r) Program
Once a state has decided to assume responsibility for Section 112(r), it must consider two
issues that are critical to the development of a successful state program: applying for dele-
gated authority to implement Section 112(r) and designating an implementing agency.
States will choose the most effective approach for formally seeking federal delegation of
program responsibilities. They will either amend existing legislation that addresses chemi-
cal accident prevention to codify new requirements of the Section 112(r) program or craft
new state legislation that addresses chemical accident prevention. States also need to exam-
ine the structure and activities of state agencies to determine which agency will carry out
the new accident prevention activities. In addition, they need to identify which agency has
staff and other resources dedicated to chemical emergency planning that can be used to
implement the program.
Applying for Delegated Authority
States that decide to administer all or some of
the Section 112(r) requirements must obtain
approval from EPA. Section 112(1) of the
Clean Air Act established the following mini-
mum requirements for states to qualify for full
delegation. A state must:
demonstrate that it has the authority and
resources to implement the regulations;
develop procedures for registering facilities,
receiving and reviewing risk management
plans, making risk management plans avail-
able to the public, and providing technical
assistance to regulated facilities and small
businesses;
demonstrate enforcement authority and a
strategy for auditing risk management
plans; and
establish state mechanisms for coordinating
with federal and state agencies, the state
emergency response commission, and local
emergency planning committees.
Under Section 112(1), states can seek delega-
tion of Section 112(r) in three ways.
Incorporate the federal rule by reference.
States can choose to incorporate the federal
rule by reference in a state statute. However,
they may still be required to submit a sepa-
rate implementation document to EPA that
defines their strategy for ensuring compli-
ance with the federal regulation.
Substitute the federal rule for state acci-
dent prevention laws. Under Section
112(1) of the Clean Air Act Amendments,
states with an existing risk management law
that meets the minimum requirements of
the federal Section 112(r) program can sub-
stitute the federal rule for the states acci-
dent prevention laws. However, this
mechanism only grants delegation to the
states air permitting agency and does not
allow the state to transfer program responsi-
bility to another state agency.
IMPLEMENTING THE CHEMICAL ACCIDENTAL RELEASE PREVENTION PROGRAM
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Develop state regulations that conform to
the federal rule. States can develop regula-
tions that meet the requirements of the fed-
eral rule but also fulfill specific state needs.
Several states have crafted legislation that
establishes a risk management program or
amends existing accident prevention laws.
' For example, California Governor Pete Wil-
son signed legislation in September 1996
that amended the states risk management
and prevention program to fulfill the federal
rule's requirements. The legislation desig-
nates the Governor's office of emergency
services as the implementing agency and
goes beyond the requirements of the federal
program to include additional chemical
substances, grant greater authority to local
agencies, and create a role for the public in
reviewing risk management plans.
Designating an Implementing Agency
Under the federal rule, states that decide to
implement Section 112(r) must designate a
state agency to administer the program. States
may also designate more than one agency to
perform this task. The implementing agency is
responsible for providing technical assistance,
reviewing facility records and risk manage-
ment plans, performing onsite inspections and
audits, and carrying out enforcement activi-
ties. It is likely that the agency assigned these
responsibilities will vary among states.
The Florida Emergency Response Commis-
sion formed a Section 112(r) workgroup to
study implementation approaches. The work-
group identified the following questions that
state officials may want to consider when des-
ignating an agency to administer the program.
Does the state agency have the legislative,
enforcement, and budgetary authority to
implement the program?
What are potential funding sources for
administering Section 112(r) in the state?
What resources are available to perform the
initial program activities and sustain pro-
gram operations?
How many and what types of facilities in
the state will be covered by Section 112(r)?
In some states, facilities subject to Section
112(r) may also be required to submit
information to the state's air permitting
agency under Title V of the Clean Air Act.
Some states will delegate the responsibility
for implementing Section 112(r) for these
facilities to the state air agency and make
another state agency responsible for the
remaining facilities that must submit infor-
mation under Section 112(r).
Single-Agency Approach
Designating a single state agency to carry out
the states Section 112(r) program simplifies
the process for both industry and the public.
A single state agency gathers information,
serves as the point of contact for industry in
preparing and submitting risk management
plans, and provides a central source of infor-
mation for the public. However, states have
identified potential drawbacks to this
approach. Agency staff may lack the expertise
to administer all aspects of the program.
Moreover, implementation activities may be
duplicated in related programs operated by
other state agencies.
Georgia has designated its department of nat-
ural resources as the agency that will imple-
ment Section 112(r). The state's air quality,
emergency response, and emergency planning
and community right-to-know programs are
all housed in this agency, enabling the state to
draw on their expertise and resources to
administer the Section 112(r) program.
Minnesota will augment the role of the state
emergency response commission to carry out
activities under the Section 112(r) program.
The state expanded the SERC's responsibilities
beyond carrying out the requirements of
EPCRA to include providing Section 112(r)
technical assistance and outreach to local gov-
ernments and facilities. In addition, the
SERC, working with the Minnesota Pollution
Control Agency and the Minnesota Depart-
ment of Agriculture, will perform an initial
review of risk management plans and may
undertake activities to ensure compliance with
the Section 112(r) program.
IMPLEMENTING THE SECTION 112(R) PROGRAM
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Multi-Agency Approach
Some states are taking a multi-agency
approach to operating the Section 112(r) pro-
gram, primarily because many facilities in the
state are subject to both the requirements of
Section 112(r) and federal air permitting regu-
lations under Title V. This approach enables a
state's air permitting agency to focus on those
facilities subject to the two regulations; a sepa-
rate agency assumes the responsibility for
those facilities subject only to Section 112(r).
States taking a multi-agency approach to Sec-
tion 112(r) implementation will benefit from
pooling the expertise and resources of several
state agencies and reducing the burden on a
single entity. However, industry may receive
conflicting information on compliance and
enforcement issues if more than one agency is
involved in implementation.
The Illinois Environmental Protection Agency
(IEPA) and local emergency planning com-
mittees under the jurisdiction of the Illinois
Emergency Management Agency will imple-
ment and enforce the Chemical Accidental
Release Prevention Program for facilities sub-
ject to both Section 112(r) and Title V. The
state will coordinate Section 112(r) program
activities by establishing memoranda of agree-
ment between IEPA and the state's LEPCs
that outline each entity's responsibilities. The
state chose this approach because 15 percent
of the states facilities that are covered under
the Section 112(r) program also are subject to
Title V requirements, which are enforced by
lEPA's bureau of air permits. Under the Illi-
nois program, the bureau of air permits will
administer Section 112(r) for these facilities
and the state's emergency management agency
will administer Section 112(r) for facilities
submitting risk management plans. The state
will consider implementing the program for
facilities subject only to Section 112(r) if addi-
tional federal resources become available.
IMPLEMENTING THE CHEMICAL ACCIDENTAL RELEASE PREVENTION PROGRAM
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Funding the Section 112(r) Program
Funding the Section 112(r) program will present the most significant challenge to states.
The funding approaches of states with existing risk management programs offer guidance
to other states that are beginning to develop a state-administered program. States are
examining these state funding approaches as well as the federal funding options for Sec-
tion 112(r). They also are exploring other state funding options. State and federal sources
can be used separately or in combination to help states address the financial challenges of
implementing Section 112(r).
Four States' Experiences in Funding
Chemical Accident Prevention Programs
The experiences of Delaware, Louisiana,
Nevada, and New Jersey suggest the potential
fiscal impact of Section 112(r) on states.
These states operated risk management pro-
grams before the federal program was estab-
lished. Their experiences indicate that the
annual cost to a state of operating a chemical
accident prevention program will vary
- depending on its strategy for ensuring compli-
ance with the program, as well as the number
and types of facilities in the state that must
comply with the federal requirements.
For example, the 1995-96 staff and operating
costs for operating New Jersey's risk manage-
ment program were $810,000 for the states
104 facilities covered under the program. The
state recovered these costs by assessing fees on
these facilities based on the quantity of chemi-
cals on site and the number of processes cov-
ered under the rule. Most of these funds were
dedicated to paying for the staff costs to per-
form comprehensive onsite facility inspections
and audit risk management plans to ensure
compliance with the state's requirements.
Although Delaware covers approximately the
same number of facilities as New Jersey under
its accident prevention program, the state's
program costs are significantly less than those
of New Jersey because Delaware performs
fewer facility audits. The state's fee system that
funds its accident prevention program raises
$140,000 of the $170,000 needed to adminis-
ter the program; the remaining costs are cov-
ered by the state. Delaware reduced its costs
by developing a generic compliance program
for the state's propane distributors, the indus-
try sector that comprises 44 percent of the
facilities affected, by the state's program. This
approach has reduced the need for costly, indi-
vidual audits.
The Nevada Department of Environmental
Protection spends $270,000 annually to
administer its risk management program for
thirty-six facilities. State officials anticipate
that an additional 100 facilities will be subject
to both the state program and federal Section
112(r) requirements, increasing the state's
costs to $390,000. Louisiana allocates
$165,000 for its accident prevention program
to cover the costs of establishing a database,
registering facilities that must comply under
state law, and developing the state's accident
prevention rule.
The cost to a state of administering Section
112(r) will be affected by the scope of train-
ing, technical assistance, inspection, review,
FUNDING THE SECTION 112(R) PROGRAM
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10
and oversight activities that state agencies
undertake. States will be better able to deter-
mine program costs after assessing their capa-
bilities, existing state agency expertise, and the
potential risks of chemical accidents at facili-
ties covered under the program.
Federal Funding Options
Limited state funds for administering a state
chemical accident prevention program give
states litde choice but to tap federal funding
sources to implement the Section 112(r) pro-
gram. The following two federal funding pro-
grams are available to states.
Using Section 105 Air Quality Grants
' The federal government has made limited
funds available to states for developing and
implementing the Section 112(r) program.
For example, EPA distributes air quality grants
allocated through Section 105 of the Clean
Air Act for administering federal air permit-
ting regulations. States can also use these
grants to fund Section 112(r) activities for
facilities subject to both regulations. However,
in most states, diese funds are committed to
staffing and other expenses needed to operate
the state's air permitting program and will not
be adequate to support Section 112(r)
activities.
Using Technical Assistance Grants
EPA also has established a temporary federal
funding source for states implementing Sec-
tion 112(r) through the agency's Technical
Assistance Grant (TAG) program. Announced
in January 1997, the EPA Office of Chemical
Emergency Preparedness and Prevention's
temporary grant program will provide finan-
cial assistance to states that are in the initial
stages of developing chemical accident preven-
tion programs and integrating these activities
into related chemical emergency preparedness
programs. Under the TAG program, states can
request up to $150,000 to cover activities
related to Section 112(r) implementation,
such as developing a comprehensive imple-
mentation strategy for the state or providing
guidance and training materials to LEPCs.
The state must provide matching funds equal
to 25 percent-of-the grant. It is uncertain
whether TAG program funds will be dedi-
cated to assisting states with Section 112(r)
implementation in 1998.
State Funding Options
The limited federal resources available to
states make it necessary for states to use exist-
ing funds or create new funding sources to
fund a state-administered Section 112(r) pro-
gram. States can use three funding sources
separately or in combination.
Using Existing State Agency Resources
This funding strategy will place the greatest
burden on state agencies involved in Section
112(r) implementation. States are faced with
implementing existing chemical emergency
planning and response programs on limited
budgets. Relying on existing funds will
require states to integrate Section 112(r)
activities with other related state programs. It
will also require them to examine current
emergency planning and response priorities to
reallocate funding and staff for Section 112(r)
implementation.
Establishing a New State Fee System
Most state officials believe that the political
climate will make it difficult for their legisla-
tures to pass legislation that imposes new fees
or raises existing fees on businesses in the state
to cover the costs of implementing Section
112(r). However, some states already have fee
systems to fund existing chemical accident
prevention programs. Fees are based on the
category under which the facility falls, which
is tied to the severity of possible risks, or on
the number of processes at a facility that are
subject to the requirements of the Section
112(r) program.
Delaware legislation passed in 1989 and
amended in 1991 established a fee program to
fund the state's accident prevention program.
The fee is based on units that are calculated by
dividing the facility's total inventory of-a spe-
cific chemical by the threshold quantity estab-
lished by the state regulation for that
chemical. The state charges $500 each year for
the first unit and $25 for each additional unit
IMPLEMENTING THE CHEMICAL ACCIDENTAL RELEASE PREVENTION PROGRAM
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covered under Section 112(r), up to a maxi-
mum of $7,975 per facility. Legislation passed
in Louisiana in August 1997 revises the exist-
ing fee structure to cover the anticipated oper-
ating costs of the states accident prevention
program, totaling approximately $500,000 in
fiscal 1997 and fiscal 1998. Under the state
law, facilities that pose the greatest risk are
subject to a $2,500 fee and those that pose less
risk are charged a $200 fee.
Using Revenue from the State's Title V Operating
Permit Fee Program
States are looking to tap resources dedicated to
related programs that can also be used for Sec-
tion 112(r) implementation. For example,
States have imposed permit fees to cover the
costs of implementing federal air permitting
regulations under Title V of the Clean Air
Act. Georgia is one of several states that will
use the revenue currently collected under the
states Title V fee program to administer Sec-
tion 112(r) for facilities subject to both Sec-
tion 112(r) and air permitting programs.
However, revenues from this fee system may
be insufficient to cover the costs of adminis-
tering both programs, and the state may find
it difficult to raise the fees to cover Section
112(r)-related expenses.
States may need to use multiple funding
sources to operate their Section 112(r) pro-
grams. The South Carolina Department of
Health and Environmental Control will use
federal funding it receives for facilities that
must obtain air quality permits under Title V,
as well as revenue from state operating permit
fees, to administer Section 112(r) for those
facilities subject to both Section 112(r) and air
quality permit regulations. The state will con-
sider establishing a fee system to cover the
costs of administering the program for the
remaining facilities, or requesting assistance
from EPA to cover these costs.
The fiscal impacts demand that states choos-
ing to implement the program find creative
funding approaches that best use the states
expertise and resources. Sharing resources
among state agencies and keeping abreast of
potential state and federal funding sources can
help states address the financial challenges of
Section 112(r) implementation.
11
FUNDING THE SECTION 112(R) PROGRAM
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Communicating Section 112(r)
Information to the Public
12
Educating the public about the presence of hazardous and toxic chemicals in communities
has been a primary goal of federal, state, and local emergency planning activities since the
enactment of the Emergency Planning and Community Right-to-Know Act in 1986.
Similarly, the Section 112(r) program encourages public access to and understanding of
the chemical information included in risk management plans.
LEPC Activities
Although die Section 112(r) rule does not
specifically charge local emergency planning
committees with the task of educating citi-
zens about the information included in risk
management plans, LEPCs may be an effec-
tive forum for communicating RMP informa-
tion to the public. These committees have a
broad-based membership that includes repre-
sentatives from the public, police and fire
departments, civil defense entities, public
health agencies, hospitals, and die chemical
industry, as well as members of the media and
elected officials. This composition encourages
public discussion of chemical hazards among a
diverse group of community members. LEPC
members typically have strong ties to die com-
munity and are well positioned to communi-
cate information and respond to public
inquiries. In addition, unlike other commu-
nity organizations, these LEPCs also have
firsthand knowledge of their community's
emergency response plans and the potential
local hazards.
LEPCs are still working to meet the public
education requirements of EPCRA and will
face major challenges in carrying out addi-
tional responsibilities under Section 112(r).
They often operate with litde or no funding
or staff and, in many cases, they lack the train-
ing to interpret information in risk manage-
ment plans and communicate risk to the pub-
lic. Recognizing these limitations, some states
will help LEPCs with Section 112(r) imple-
mentation at the local level. For example,
Florida's Section 112(r) implementation
model calls for the state to help its eleven local
emergency planning committees obtain the
computer equipment they need to access and
use the risk management plans that will be
stored in an EPA database. The state's Section
112(r) workgroup proposed a budget for
implementation diat sets aside $25,000 for
LEPC support and automation enhancement.
Industry Efforts
Although die federal rule does not require
chemical facilities to develop a formal risk
communication strategy for Section 112(r), it
is advantageous for industry to work with
state emergency response commissions, local
emergency planning committees, and citizen
groups to increase public understanding of the
hazards in communities. Ten industries
located in Richmond County, Georgia, are
using the relationships they have developed
with the county's LEPC in implementing
EPCRA to lay the groundwork for Section
112(r) implementation at the local level.
Industry representatives are participating in a
voluntary program that was initiated by the
IMPLEMENTING THE CHEMICAL ACCIDENTAL RELEASE PREVENTION PROGRAM
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LEPC. For each facility, they will develop a
"worst-case scenario," as required under Sec-
tion 112(r), and work with the LEPC to
develop a model risk communication plan for
disseminating information to the public. The
state is providing technical assistance to the
LEPC to develop the risk communication
program. It also is encouraging other facilities
subject to Section 112(r) and other LEPCs to
undertake this type of program.
Federal Initiatives
EPA is taking steps to make the information
contained in risk management plans accessible
to the public. The agency is developing a
reporting mechanism that will encourage elec-
tronic submission of RMPs and increase
LEPC and public access to the information.
By December 1997, EPA will also publish
guidance for local emergency planning com-
mittees on using the information in risk man-
agement plans to educate communities on
potential chemical risks.
13
COMMUNICATING SECTION 112
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Implementing Section 112(r) in Florida
And Michigan
14
Several states have begun to design their own strategies for implementing Section 112(r).
These-Strategies take into account the requirements of the program, challenges and oppor-
tunities of a state-administered program, and methods for communicating potential
chemical risks. Other implementation approaches may emerge as outstanding issues
related to the program are resolved.
Seeking Full Delegation for Section 112(r)
in Florida
Florida became one of the first states to begin
formal discussions on state Section 112(r)
implementation when it created a Section
112(r) state workgroup in July 1996. Estab-
lished by the Florida State Emergency
Response Commission, the workgroup is
composed of state and local representatives
from multiple government agencies, federal
government officials, and industry representa-
tives. Its mission was to recommend to the
commission the best approach to implement-
ing Section 112(r).
The group developed implementation options
based on the authority and resources available
to state agencies and the approximate costs of
the chemical accident prevention programs in
Delaware and Nevada. Based on this informa-
tion, the workgroup estimated that Florida's
risk management program for 2,000 facilities
would cost the state a minimum of-$302,000
annually to administer. In October 1996, the
workgroup recommended to the SERC that
the state seek full delegation authority from
EPA to administer Section 112(r), and it
began developing a state implementation
model.
Florida's proposed state implementation
model addresses both the structure and
processes the state will use to administer its
risk management program. To make the most
efficient use of agency expertise and resources,
the state has chosen to designate its depart-
ment of community affairs (DCA), the state
agency responsible for carrying out EPCRA
activities, as the lead agency responsible for
implementing Section 112(r). However, the
state will also involve other relevant state
agencies in program implementation. For
example, the department of environmental
protection will support Section 112(r) imple-
mentation by providing DCA with in-kind
services, such as technical assistance in devel-
oping models for risk management plans, and
by helping perform onsite inspections at facili-
ties the department of environmental protec-
tion inspects to comply with other regula-
tions. In addition, the state plans to create a
technical advisory group composed of state
agency staff to work with DCA to administer
the state's Section 112(r) program. The work-
group's model also outlines the processes the
state will use to receive risk management plans
by electronic submission, audit Section 112(r)
facilities, and conduct enforcement activities.
Under DCA's proposed timeline for imple-
mentation, the state will begin operating its
program in 1998, one year before facilities
will submit risk management plans to the
IMPLEMENTING THE CHEMICAL ACCIDENTAL RELEASE PREVENTION PROGRAM
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department. This lead time will enable the
department to perform extensive facility out-
reach, education, and technical assistance that
the state hopes will contribute to a high rate
of program compliance. During this period,
DCA will also help local emergency planning
committees prepare to assume their responsi-
bilities under the program. State officials in
Florida believe that this assistance is critical to
the success of the program given the limited
funds and training support available from
EPA to address LEPC needs in the early stages
of implementation.
The Florida SERC gave its preliminary
approval to the state implementation plan in
April 1997. Currently it is seeking input from
industries within the state on the implementa-
tion plan and a state fee system for Section
112(r). The commission will then review draft
legislation that establishes a state risk manage-
ment program and submit the draft language
to EPA for approval. Florida's legislature will
consider the bill during its 1998 legislative
session.
Implementing Section 112(r) for Title V
Facilities in Michigan
Michigan's approach to implementing Section
112(r) requires fewer state resources than does
Florida's approach. The state is integrating the
activities it conducts to comply with Title V
with those required under the Section 112(r)
program.
States that already are administering the fed-
eral air permitting program for facilities under
Title V of the Clean Air Act can also imple-
ment the Section 112(r) program for these
facilities, leaving EPA responsible for imple-
menting the program for the remaining facili-
ties. The Section 112(r) program also applies
to facilities that are subject to the federal air
permitting program. Consequently, Michi-
gan's permitting agency will be responsible for
ensuring that these facilities submit a risk
management plan.
The air quality division of the Michigan
Department of Environmental Quality, which
implements the state's Title V program, will
also implement Section 112(r) for these facili-
ties. The state cites a lack of funds and agency
staff as the primary reason it will not imple-
ment the Section 112(r) program for all of the
facilities subject to the federal rule.
15
IMPLEMENTING SECTION 112(8.) IN FLORIDA,AND MICHIGAN
-------
Conclusions
16
Most states have not decided whether they will assume the responsibility for the Chemical
Accidental Release Prevention Program under Section 112(r). However, a preliminary
analysis of implementation approaches suggests that states will assume the responsibility
for some components of the program but leave the responsibility for other requirements
with EPA. Program funding is a major consideration for states in making this decision.
Another determining factor will be the degree of flexibility that EPA grants to states to
enable them to design and implement a program that meets their needs.
The Section 112(r) program presents govern-
ments and industry with an important oppor-
tunity to prevent serious chemical accidents
that have the potential to affect public health
and the environment. However, critical issues
still need to be resolved before many states
determine their final approach to program
implementation. These issues include the
following.
Ensuring state/EPA coordination of the
Section 112(r) program. Successful imple-
mentation of the program can be achieved
only if states and EPA work cooperatively to
ensure that state Section 112(r) programs
meet federal and state objectives, clarify the
methods for seeking delegated authority for
the program, and provide the necessary
training and technical assistance to state and
local government agency staff.
Providing the necessary support to local
emergency planning committees. LEPCs
will play a critical role in Section 112(r)
implementation. However, they need guid-
ance on interpreting and communicating
the information in risk management plans.
Federal and state governments and industry
need to provide LEPCs with the training
and equipment that will enable these com-
mittees to serve as the primary vehicles for
providing the public with access to this
information.
Specifying the requirements for auditing
facility plans. The federal government
needs to inform states of the percentage or
minimum number of risk management
plans that they would be required to audit if
they choose to administer a state Section
112(r) program.
States also have expressed concern about being
given the necessary flexibility to create a pro-
gram that meets their needs and considers
constraints on resources. If states assume full
or partial responsibility for the Section 112(r)
program, they will need a great deal of auton-
omy in determining how it will be structured,
funded, and enforced. The federal govern-
ment will need to be mindful of this need as it
works with states during the next year to clar-
ify many of the issues related to implementa-
tion of the Section 112(r) program.
IMPLEMENTING THE CHEMICAL ACCIDENTAL RELEASE PREVENTION PROGRAM
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Appendix: State Contacts for Further
Information on Section 112(r)
Implementation
California
Steve DeMello
Program Manager
Planning and Technological Assistance
Hazardous Materials Unit
California Office of Emergency Services
11070 White Rock Road, Suite 210
Rancho Cordova, California 95670
916/464-3230
steven_demello@oes.ca.gov
Delaware
Bob Barrish
Environmental Engineer
Division of Air and Waste Management
Delaware Department of Natural Resources and
Environmental Control
715 Grantham Lane
New Castle, Delaware 19720
302/323-4542
rbarrish@dnrec.state.de.us
Florida
Eve Rainey
Bureau Chief
Division of Emergency Management
Florida Department of Community Affairs
2555 Shumard Oak Boulevard
Tallahassee, Florida 32399
904/413-9914
eve.rainey@dca.state.fl.us
Georgia
KentP.Howell
Environmental Specialist
Georgia Environmental Protection Division
7 Martin Luther King Drive, Suite 139
Atlanta, Georgia 30334
404/656-6905
kent-howell@mail.dnr.state.ga.us
Illinois
Hank Naour
Manager
Air Toxics Unit
Illinois Environmental Protection Agency
1340 North 9th Street
Springfield, Illinois 62702
217/785-1716
epa221 l@epa.state.il.us
Kansas
Frank Moussa
Technological Hazards Administrator
Kansas Division of Emergency Management
2800 Southwest Topeka Boulevard
Topeka, Kansas 66611-1287
913/274-1408
frankm@agtop.wpo.state.ks.us
Louisiana
Yasoob Zia
Coordinator
Accident Prevention Section
Louisiana Department of Environmental Quality
7290 Bluebonnet Boulevard
Baton Rouge, Louisiana 70810
504/765-0151
yasoob_z@deq.state.la.us
Michigan
Donna Davis
Technical Assistance Coordinator
Clean Air Assistance Program
Environmental Assistance Division
Michigan Department of Environmental Quality
Post Office Box 30457
Lansing, Michigan 48909
517/335-2784
davisdk@deq.state.mi.us
Minnesota
Steve Tomlvanovicli!
Pollution Control Specialist
Minnesota Emergency Response Commission
State Capitol
75 Constitution Avenue
St. Paul, Minnesota 55155
612/282-5396
steve.tomlyanovich@state.mn.us
Nevada
Mark Zusy
Supervisor
Chemical Accident Prevention Program
Bureau of Waste Management
Nevada Department of Conservation and Natural
Resources
333 West Nye Lane
Carson City, Nevada 89706
702/687-4670
17
APPENDIX: STATE CONTACTS FOR FURTHER INFORMATION
-------
IS
New Jersey
Allan Edwards
Assistant Director, Release Prevention
New Jersey Department of Environmental
Protection
CN 424-120 South Stockton Street, 3rd Floor
Trenton, New Jersey 08625
609/633-1146
aedwards@dep.state.nj.us
Oklahoma
Monty Elder
Environmental Specialist
Customer Assistance
Oklahoma Department of Environmental Quality
1000 NE 10th Street
Oklahoma City, Oklahoma 73117
405/271-8062
monty.elder@oklaosf.state.ok.us
South Carolina
Rhonda Thompson
112(r) Coordinator
South Carolina Department of Health and
Environmental Control
2600 Bull Street
Columbia, South Carolina 29201
803/734-4750
thompsrb@columb31 .dhec.state.se. us
Wisconsin
Christine Bacon
Director
Technological Hazards Division
Wisconsin Emergency Management
2400 Wright Street
Post Office Box 7865
Madison, Wisconsin 53707
608/242-3206
IMPLEMENTING THE CHEMICAL ACCIDENTAL RELEASE PREVENTION PROGRAM
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