The general part of the Clean Air Act’s (CAA)  general duty clause (GDC) is viewed by pro-regulation factions as a proper avenue to lower the risk of chemical accidents and by industry as an overly vague term that provides regulatory agencies with almost unlimited power to impose their own concepts of safety on facilities.  Similar to its identically named relative and model—the GDC in the Occupational Safety and Health (OSH) Act of 1970—CAA’s GDC is a brief declaration that owners and operators (O/O) are responsible for the safety of their facilities and must take actions to ensure that safety.  That seems a reasonable requirement given (1) the extraordinary diversity of the risks inherent in chemicals; and (2) the inability of regulatory agencies to customize regulations to all risks from specific industries and facilities, their processes, and the hazardous substances/chemicals they manufacture, store, and use.

But, according to critics, the absence of definitions and specific directions in the GDC frustrates O/Os seeking to confidently make compliance decisions that will withstand the scrutiny of federal and state inspectors.  For example, neither the GDC itself nor guidance developed by the EPA (the GDC does not have implementing regulations) define which chemicals are subject to GDC enforcement.  Further, the GDC does not define the minimum quantity of a chemical that subjects a facility to the GDC.  Again, the philosophy behind the GDC is that these elements should not be defined because such definitions may curtail the ability of regulators to correct conditions that pose a risk. 

But that catch-all approach to safety has become outmoded since the GDC was added to the CAA in 1990, the critics continue.  They argue that industry safety standards plus such regulations as EPA’s risk management program (RMP), chemical reporting requirements under the Emergency Planning and Community Right-to-Know Act (EPCRA), and the Department of Homeland Security’s (DHS) chemical facility anti-terrorism standards (CFATS) collectively eliminate the need for the generalities of the GDC.  They add that those generalities have resulted in inconsistent enforcement of the GDC by the states and the EPA regions. 

“EPA has yet to issue any proposed rule detailing enforcement or compliance requirements,” according to the American Chemistry Council (ACC).  “Regardless of these ambiguities and lack of guidance, in recent years, EPA has increasingly used the General Duty Clause to impose substantial penalties on facilities.  This situation has created uncertainty for industry, leaving questions about how compliance is measured and when compliance has been achieved.”

Proposed amendments

Industry has carried these concerns to their supporters in Congress, who have responded with bills to provide the GDC with more specificity.  The initial bill was introduced in 2012 by Rep. Mike Pompeo (R-KS).  Under that legislation, the EPA would be required to develop regulations to implement the GDC and define the extremely hazardous substances (EHSs) the GDC addresses.  The EPA would also be required to issue guidance to ensure that enforcement of the GDC is uniform across all its regions.  An additional provision would ensure that implementation and enforcement of the GDC do not veer into DHS’s CFATS program. 

In December 2013, Senate Republicans introduced a companion bill that would duplicate the House bill’s requirements that the EPA develop implementing regulations that define extremely hazardous substances and other key phrases in the GDC.  The Senate bill would also prohibit the EPA from imposing any obligation on facilities to consider or implement particular designs, approaches, or technologies relating to manufacturing, processing, handling, or storage.  This provision would prevent the Agency from using its GDC authority to require that industry switch to inherently safe designs or technologies to reduce the risks posed by EHSs.

The EPA has acknowledged some of the concerns lawmakers and industry have raised about the GDC.  In several documents, the Agency lists “difficulties with compliance.”  These include the aforementioned absence of both a definition of EHS and minimum quantities of EHSs that would trigger the obligation to comply with the GDC.  The EPA also recognizes the difficulty of ordering a facility to undertake certain actions if the facility is found in violation of the GDC.  Absent federal standards, which can be applied across all facilities, the Agency may not be able to impose rational requirements in situations that may not be addressed in the kinds of industry standards that have been used to design the RMP and CFATS.  Also, the Agency recognizes that small facilities with EHSs may lack the expertise and staff to follow an order to comply with the GDC.

2000 guidance

In fact, in 2000, the EPA did issue guidance on how its inspectors should measure compliance with and determine violations of the GDC.  (The congressional bills also call for the EPA to issue guidance, but only after regulations providing the sought-for definitions are promulgated.)  Because of the lack of direction in the GDC, the EPA has assembled its own collection of ideas to give the GDC the semblance of regulatory form that inspectors may use to identify a noncompliant facility.  This is the kind of autonomy that causes industry to ask Congress to corral the EPA.  But until Congress amends the CAA, this guidance appears to be the major source of written instruction available to O/Os who want to meet their GDC obligations.

The entirety of the GDC—Section 112(r)(1) of the CAA—is as follows:

“It shall be the objective of the regulations and programs authorized under this subsection to prevent the accidental release and to minimize the consequences of any such release of any substance listed pursuant to paragraph (3) or any other extremely hazardous substance.  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 section 654, title 29 of the United States Code [the OSH Act GDC], to identify hazards which may result from such releases using appropriate hazard assessment techniques, to design and maintain a safe facility taking such steps as are necessary to prevent releases, and to minimize the consequences of accidental releases which do occur.”

Based on the guidance, here are several ways the EPA interprets key phrases in the GDC and otherwise determines compliance.

Accidental release.  CAA Section 112(r)(2)(A) defines this term as “an unanticipated emission of a regulated substance or other extremely hazardous substance into the ambient air from a stationary source.”  The legislative history of the 1990 amendments indicates that the term does not include releases that are authorized by a permit or are subject to an emissions limitation or standard under the CAA or other federal law.  Also, accidental releases would not include releases from vents and releases resulting from process upsets that are planned and are designed to prevent catastrophic events.  Further, an accidental release is one that causes or may cause immediate (or near-term) death, serious injury, or substantial property damage as the result of exposure to an EHS over limited periods of time.  It does not include releases, even when accidental, where the potential impact on public health is a measurable increase in probability of death, illness, or adverse effects normally associated with “chronic” exposures over a long period of time.

Any other extremely hazardous substance.  The EPA says it was not the intent of Congress to limit this phrase to either the substances listed under Section 112(r) or the EHSs listed under EPCRA.  The Agency bases this interpretation on a 1989 Senate report that states that the term would include any agent that “may or may not be listed or otherwise identified by an government agency which may as the result of short-term exposures associated with releases to the air cause death, injury, or property damage due to its toxicity, reactivity, flammability, volatility, or corrosivity.” 

General duty in the same manner and to the same extent as the OSH Act GDC.  In other words, compliance with CAA’s GDC must generally match compliance with the OSH GDC.  According to the EPA, the “standard for applying the OSH GDC was described in an opinion issued in 1985 by the U.S. Court of Appeals for the 6th Circuit in Secretary of Labor v. Duriron Company, Inc.”  Following the court’s rule, the EPA guidance states:  “For purposes of compliance with the CAA general duty clause, owners and operators must maintain a facility that is free of a hazard, the hazard must be recognized by the owner/operator or recognized by the owner/operator’s industry, the hazard from an accidental release was likely to cause harm, and the owner/operator could have eliminated or reduced the hazard.” 

O/O obligations

Several points about compliance with the GDC can be drawn from the above Agency interpretations.

• The EPA will look to hazards identified by the facility or industry rather than a specific list of chemicals; this is consistent with many industry standards that do not contain a specific list of chemicals.  Likewise, the Agency will look, in part, to industry practices and standards for addressing a hazard in determining how each regulated entity should comply with the GDC. 
• If no industry practice, standard, or regulatory requirement exists for the substance or process, or if the practice or standard is not protective of public health and the environment, O/Os are responsible for identifying hazards and taking appropriate measures to prevent releases and minimize the consequences of a release. 
• O/Os should operate process/equipment in a safe manner (e.g., keep volumes, temperatures, pressures, flows, concentrations, and pH within specified limits).  O/Os should comply with all applicable state and local regulations; meet or exceed applicable industry practices, codes, or standards for that process; and follow all recommended practices of the process equipment manufacturers.  They should also be prepared to minimize the effects on the public and the environment if a release should occur by identifying at-risk receptors in the event of the maximum possible release and other probable releases as may be identified in the appropriate hazard analysis/review.
• Mitigation should include coordination among facility management, employees, and local response agencies.  The RMP was designed to address these concerns for some processes.  But the EPA notes that the RMP does not cover all processes, and inspectors should apply the GDC in such cases.

The bills in Congress are intended to place limits on where the EPA can apply the GDC.  This may result in situations where the EPA will lose its ability to regulate a risk from an unlisted EHS and/or process.  And that may be the main obstacle to passage of a CAA amendment.

Guidance for Implementation of the General Duty Clause Clean Air Act Section 112(r)(1)

William C. Schillaci

BSchillaci@blr.com