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EPA’s General Duty Clause

October 21, 2013 - Kestrel Management

When the USEPA first enacted Section 112(r)(1) of the Clean Air Act in 1990—also known as the General Duty Clause—it was used largely in the context of accidents after they occurred. More and more, however, the Agency is trying to use General Duty as a means to prevent accidents before they occur and, as a result, continues to step up its enforcement efforts.

Enforcement Policy

On June 20, 2012, the USEPA adopted a revised Combined Enforcement Policy to determine penalties for violations of the General Duty Act. The Policy enacts varying levels of enforcement (e.g., administrative orders, civil judicial referrals, civil penalty orders, criminal sanctions) aimed at achieving compliance and deterring future violations. Penalties range from a potential maximum of $37,500/day for major violations to a minimum of $500/day for minor violations.

The adoption of the Combined Enforcement Policy is coupled with an increased effort by the USEPA to penalize violations of the General Duty Clause. Despite imposing these mandates, however, the Agency has not adopted a clear set of regulatory standards for affected facilities to follow, leaving many entities unclear about their General Duty Clause compliance obligations.

A “General Duty” to Protect

As with OSHA’s General Duty Clause, USEPA’s General Duty Clause is not a regulation and compliance cannot be “checked” by submitting a report. (Read related blog on the OSHA General Duty Clause.) Rather than setting limits, the purpose of the General Duty Clause is to prevent unusual but catastrophic accidental releases of extremely hazardous substances (EHS). The Clause states that owners/operators of stationary sources producing, processing, handling, or storing EHS in any quantity (no threshold) have a general duty to make sure that these chemicals are managed safely. Note that according to the EPA guidance, EHS are not limited to the list of regulated substances listed under Section 112(r) nor the extremely hazard substances under the Emergency Preparedness and Community Right-to-Know Act (40 CFR 355).

Under the General Duty Clause, facilities are responsible for:

  • Knowing the hazards posed by chemicals at the facility and assessing the impacts of a potential release
  • Designing and maintaining a safe facility to prevent accidental releases
  • Minimizing the consequences of accidental releases that do occur

Again, each of these obligations requires that the facility take certain measures to ensure compliance; however, the General Duty Clause is not prescriptive as to what those measures should be. Rather, it is the owner’s/operator’s responsibility to understand their obligations and address the EHS on a facility-specific basis.

Satisfying the General Duty Clause

The USEPA has published Guidance for Implementation of the General Duty Clause Clean Air Act Section 112(r)(1) to promote safe operating practices and prevent chemical accidents. Many industries have also developed their own standards and generally recognized safe practices to manage the risks associated with EHS. Owners/operators must adhere, at a minimum, to these recognized industry standards and practices, as well as government requirements (such as Risk Management Program (RMP)), in order to be in compliance with the General Duty Clause.

This being said, it should be noted that meeting RMP requirements does not necessarily satisfy the General Duty Clause. And, in some cases, industry practices may also be inadequate for accident prevention at a given facility. The General Duty Clause ultimately gives the USEPA authority to require measures that go beyond such standards/practices to ensure safe operating practices.

As long as there is no clear guidance as to how much hazard prevention is enough, facilities can be in a tough spot. Here are some things you can do to make sure you aren’t caught off-guard and in violation of the General Duty Clause:

  • Know your chemicals and their hazards—remember, there is no threshold quantity
  • Be aware of any unique circumstances within your facility that might require a custom accident prevention program
  • Be prudent in your operations and keep vigilant watch over safe practices
  • Be aware of accidents at similar facilities or in similar industries that might identify potential hazards of concern for your facility
  • Follow relevant and established industry practices and standards for compliance

Submitted by: Sarah Burton

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