§2063. Prevention of accidental releases

           A. As used in this Section:

           (1) The term "accidental release" means an unanticipated emission of a regulated substance into the ambient air from a stationary source.

           (2) The term "regulated substance" means a substance listed under Subsection E of this Section.

           (3) The term "stationary source" means any buildings, structures, equipment, installations, or substance emitting stationary activities:

           (a) Which belong to the same industrial group.

           (b) Which are located on one or more of contiguous properties.

           (c) Which are under the control of the same person, or persons under common control.

           (d) From which an accidental release may occur.

           B.(1) In addition to such other regulations, authorized or required by this Chapter, it shall be the objective of the regulations and programs authorized under this Section to prevent the accidental release to the air and to minimize the consequences of any such release of any regulated substance listed pursuant to Subsection E of this Section which in the case of an accidental release is known to cause or may reasonably be anticipated to cause death, injury, or serious adverse effects to human health or to the environment.

           (2) It is the intent of the legislature that the regulations adopted pursuant to this Section shall be as consistent as possible with the requirements of the U.S. Environmental Protection Agency accident prevention regulations which are proposed or adopted pursuant to the federal Clean Air Act.

           C. The owners and operators of stationary sources producing, processing, handling, or storing such substances have a general duty in the same manner and to the same extent as 29 U.S.C. 654 to identify hazards which may result from such releases using appropriate hazard assessment techniques, to design and maintain a safe facility and to minimize the consequences of accidental releases which do occur. For the purposes of this Subsection, the provisions of R.S. 30:2026 shall not be available to any person or otherwise be construed to be applicable to this Subsection. Nothing in this Section shall be interpreted, construed, implied, or applied to create any liability or basis for suit for compensation for bodily injury or any other injury or property damages to any person which may result from accidental releases of such substances.

           D. In exercising any authority under this Section, the secretary shall not be deemed to be exercising statutory authority to prescribe or enforce standards or regulations affecting occupational safety and health. Nothing in this Section shall be deemed to grant to the secretary any jurisdiction or authority to make any rule, regulation, recommendations, or determination, to enter any order with respect to air conditions existing solely within the property boundaries of commercial and industrial plants, works, or shops, or to affect relations between employers and employees with respect to or arising out of any air condition.

           E. The secretary shall establish by rule, and may periodically revise, a list of regulated substances. The list may contain but is not limited to any substance listed by the United States Environmental Protection Agency pursuant to Section 112(r) of the Clean Air Act, 42 U.S.C.A. 7412(r), provided that the secretary shall not include any air pollutant for which a national primary ambient air quality standard has been established pursuant to Section 109 of the Clean Air Act, 42 U.S.C. 7409, on such list. No substance, practice, process, or activity regulated under Subchapter VI of 42 U.S.C. Chapter 85, or that is subject to Section 112(q)(2) of the Clean Air Act, 42 U.S.C. 7412(q)(2), shall be subject to regulations under this Section. In listing substances, the secretary shall consider each of the following criteria:

           (1) The toxicity, reactivity, volatility, dispersibility, combustibility, explosivity, or flammability of the substance.

           (2) The severity of any acute adverse health effects associated with accidental releases of the substance.

           (3) The likelihood of accidental releases of the substance.

           (4) The potential magnitude of human exposure to accidental releases of the substance.

           F.(1) At the time any substance is listed pursuant to Subsection E of this Section, the secretary shall establish a threshold quantity for the substance, considering the toxicity, reactivity, volatility, dispersibility, combustibility, or flammability of the substance and the amount of the substance which, as a result of an accidental release, is known to cause or may reasonably be anticipated to cause death, injury, or serious adverse effects to human health or to the environment. If a threshold quantity is established or proposed by the U.S. EPA pursuant to Section 112(r) of the Clean Air Act, 42 U.S.C. 7412(r), the threshold quantity adopted by the secretary shall be not less than the U.S. EPA threshold quantity. The secretary is authorized to establish a greater threshold quantity for, or to exempt entirely, any substance or any facility including but is not limited to any substance that is a nutrient used in agriculture when held by a farmer.

           (2) Regulations establishing the list and the threshold quantities shall include an explanation of the basis for establishing the list and the threshold quantities. The regulations shall also identify and explain any additional requirements imposed that are not specifically required by the U.S. Environmental Protection Agency accident prevention regulations which are proposed or adopted pursuant to the federal Clean Air Act. The term "threshold quantity" as used in this Section shall be applicable solely for the purposes of the accident prevention regulations provided for in this Section.

           G. In order to prevent accidental releases of regulated substances, the secretary is authorized to adopt and promulgate regulations governing release prevention, detection, and correction requirements.

           H.(1) No later than November 20, 1993, the secretary shall propose reasonable regulations to provide, to the greatest extent practicable, for the prevention and detection of accidental releases of regulated substances and for response to such releases by the owners or operators of the sources of such releases. Where appropriate in the development of such regulations the secretary shall review and consider any regulations under development and/or promulgated by the U.S. Environmental Protection Agency under Section 112(r) of the 1990 amendments to the Clean Air Act.

           (2) In order to protect human health and the environment, the regulations under this Subsection shall require the owner or operator of stationary sources at which a regulated substance is present in more than a threshold quantity to prepare and implement a risk management plan to detect and prevent an accidental release of such substances from the stationary source, to minimize any release, and to provide a prompt emergency response to any such release which does occur.

           (3) The owner or operator of each stationary source covered by Paragraph (2) of this Subsection shall register the risk management plan prepared pursuant to this Subsection with the secretary in accordance with rules promulgated by the secretary. The risk management plans prepared pursuant to this Subsection shall be available to the public, subject to the confidentiality provisions of R.S. 30:2030. The emergency response portion of the risk management plan shall also be submitted to the local agency or entity having responsibility for planning for or responding to accidental releases which may occur at such source and to any governmental agency which requests the emergency response portion.

           (4) The secretary shall establish by rule an auditing system to review regularly and, if necessary, require revision in risk management plans to assure that the plans comply with this Subsection. Each such plan shall be updated periodically as required by the secretary by rule.

           (5) Any regulations promulgated pursuant to this Subsection shall be, to the maximum extent practicable, consistent with the recommendations and standards established by commonly accepted and applicable engineering and professional codes, including but not limited to the American Society of Mechanical Engineers (ASME), the American National Standards Institute (ANSI), or the American Society of Testing Materials (ASTM).

           (6) The secretary shall take into consideration the concerns of small business in proposing regulations under this Subsection.

           (7) Notwithstanding any of the provisions of this Chapter or of this Subsection to the contrary, no stationary source shall be required to apply for, or operate pursuant to, a permit issued under such Chapter solely because such source is subject to regulations or requirements under this Subsection.

           I. After the effective date of any regulation or requirement imposed, authorized, or required by this Section, it shall be unlawful for any person to operate any stationary source subject to such regulation or requirement in violation of such regulation or requirement. Each regulation or requirement under this Section shall be treated as a standard in effect for purposes of R.S. 30:2025 and other enforcement provisions of Subtitle II of Title 30.

           J. The regulations authorized pursuant to this Section may provide for the registration of each process covered by the regulations. In accordance with the provisions of Article VII, Section 2.1 of the Constitution of Louisiana and R.S. 30:2014, the department is authorized to increase fees to cover the operating expenses of the department for the continued implementation of the accidental release prevention program. The fee increase shall be implemented by increasing, on an average of four and one-half percent, existing fees assessed by the department pursuant to its fee schedules under the air quality control program. The fee schedule shall be based on industrial groups that reflect the degree that these are to be regulated under the accidental release prevention program.

           K.(1) Storers of liquefied petroleum gas whose facilities are permitted through or inspected by the Louisiana Liquefied Petroleum Gas Commission of the Department of Public Safety and Corrections shall not be required to pay any additional fees on liquefied petroleum gas pursuant to this Section.

           (2) Storers of liquefied petroleum gas who use such gas as a fuel in an agricultural process shall not be required to pay any additional fees on liquefied petroleum gas pursuant to this Section.

           (3) The Department of Environmental Quality shall not regulate the storers of liquefied petroleum gas provided for in this Subsection, for purposes of the chemical accident prevention program, at those facilities in which the presence of liquefied petroleum gas is the sole reason for the inclusion of the facility in the chemical accident prevention program.

           Acts 1992, No. 1127, §1; Acts 1997, No. 885, §1; Acts 1999, No. 839, §1.