In the past several years some companies have learned the hard way–i.e., through enforcement–about Section 112(r)(1) of the Clean Air Act (CAA), more commonly called the General Duty Clause (GDC).  Like OSHA’s GDC, its better known relative, Section 112(r)(1), indicates that facilities must take certain actions to prevent releases of extremely hazardous substances and minimize the consequences of releases that do occur.  Section 112(r) is titled “Prevention of Accidental Releases.” 

The major product of this section is the national Risk Management Program (RMP).  Section 112(r)(1) has been a less conspicuous but still potent coprovision, as demonstrated by the EPA in enforcement cases where the RMP does not apply. 

Also, industry has expressed the concern that environmental groups are calling on the EPA to go beyond the objective of preventing accidental releases and use the CAA GDC to regulate security at facilities.  The issue was summarized in a July 2012 letter from 17 trade organizations to House members in support of legislation that would require the EPA to clarify the scope of the GDC. 

‘Any other extremely hazardous substance’

Section 112(r)(1) states, in part:
“… The owners and operators of stationary sources producing, processing, handling or storing such substances [i.e., a chemical in 40 CFR 68 or any other extremely hazardous substance] have a general duty [in the same manner and to the same extent as the general duty clause in the Occupational Safety and Health Act (OSHA)] 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.”

According to the industry letter, the section clearly applies to accidental releases of “extremely hazardous substances.”  The uncertainty has arisen, state the associations, because the EPA has not defined “extremely hazardous substances.”  Neither has the Agency defined “appropriate hazard assessment techniques,” the associations add. 

Rule needed

Industry’s cause was taken up by Rep. Mike Pompeo (R-KS).  Pompeo has argued that despite uncertainties inherent in the section, the EPA has yet to issue any proposed rule detailing enforcement or compliance.  The congressman points to one policy document the EPA wrote in 2000, which directs government employees to use language in the 1990 Clean Air Act Senate Report to determine “possible definitions of the vague terminology included in the General Duty Clause.”  Also, in June 2012, the Agency issued an enforcement policy that covers the GDC.  But industry asserts that neither document adequately clarifies compliance responsibilities for industry.

Pompeo noted that there have been numerous incidents over the last several years involving EPA fines under the GDC. For example, EPA’s Region 6 issued 23 administrative orders in 2011 under the GDC for a total of $108,743 in injunctive relief.  In EPA Region 1, two manufacturing and distribution facilities were fined $179,000 under the GDC.

“After finding facilities in violation, EPA readily admitted that ‘several companies were unaware that the Clean Air Act’s General Duty Clause can apply even when Risk Management Program regulations do not,’” said Pompeo. 

Pompeo adds that in the Homeland Security Appropriations Act of 2007, Congress explicitly assigned jurisdiction over chemical facility security to the Department of Homeland Security, which in turn developed the Chemical Facility Anti-Terrorism Standards (CFATS).  “Nevertheless, certain environmentalist interest groups are calling for EPA to actually expand its use of the General Duty Clause to include regulation of chemical facility security,” said the lawmaker.

Legislation

In an effort to provide clarification regarding Section 112(r)(1), in August 2012, Pompeo introduced the General Duty Clarification Act.  The intent of the legislation is to:

• Require the EPA to complete a rulemaking process before finding any facility in violation of the GDC.
• Require definitions of extremely hazardous substance, appropriate hazard assessment techniques, and design and maintain a safe facility in any GDC regulation.
• Require the EPA to issue guidelines to ensure that EPA enforcement procedures are uniform across its regions.
• Clarify that EPA’s mission is environmental protection, not homeland security, by prohibiting the EPA from regulating chemical facility security under the GDC, thereby reinforcing exclusive jurisdiction under the Department of Homeland Security.

Click here for EPA’s 2000 GDC guidance.

Click here for the Agency’s June 2012 enforcement policy.