Type: Law Bulletins
Date: 08/10/2010

Chemical Users: Beware of the Clean Air Act's General Duty Clause

Like OSHA, the Clean Air Act has a General Duty Clause, or GDC.  It is found at Section 112(r) (1) of the Clean Air Act, the section that establishes EPA’s hazardous air pollutants program.  However, unlike the rest of Section 112, the GDC applies to any stationary source that produces processes, handle or stores an “extremely hazardous substance.”  It imposes a general duty, in the same manner as OSHA’s general duty clause, to identify hazards associated with chemical activities, and to design and maintain the facility so as to prevent such hazards.

The GDC differs from, and is broader than, Section 112’s Risk Management Program is three crucial respects.  First, the RMP applies only to certain listed toxic or flammable chemicals stored above established threshold quantities.  The GDC applies to any “extremely hazardous substance” used, processed or stored in any quantity.  Since “extremely hazardous substance” is not defined in Section 112, EPA has interpreted the GDC to apply to virtually any chemical it chooses to regulate.

Second, the RMP requires facilities only to make hazard assessments and to establish emergency response and prevention programs for catastrophic releases.  The GDC is much broader, requiring facilities to design and maintain a “safe facility,” a term that is also undefined.

Third, EPA has not delegated authority to enforce the GDC to the states.  Hence, GDC violations will be identified and enforced solely by EPA.

While facilities have been required to comply with the GDC since the Clean Air Act Amendments of 1990 took effect, EPA has only recently stepped up GDC enforcement.  There are no regulations establishing what constitutes a safely designed facility for GDC purposes.  EPA has informally designated certain industry standards as having general applicability, but generally speaking the GDC appears to mean whatever EPA says it means.

GDC enforcement is problematic in several respects.  EPA applies the GDC to virtually any chemical, although “extremely hazardous substances” has a well-defined and limited meaning in other environmental programs.  There is little guidance for facility owners hoping to determine whether they comply with the GDC.  The GDC duplicates other, more established chemical safety programs, such as OSHA’s Process Safety Management program.

For these reasons, GDC enforcement may well be subject to legal challenge. The GDC has not yet been tested in the courts, and facility owners may not wish to be the first to challenge EPA over the GDC.  For now, facilities handling, processing and storing chemicals need to examine their operations, available industry safety standards (e.g., American Petroleum Institute, ASTM), and what EPA guidance there is to make their facilities as release-proof as possible.  In addition, facility owners should monitor GDC enforcement in their EPA region, to become familiar with EPA’s most current GDC interpretations.

Until EPA promulgates GDC regulations, there are no safe harbors.  Vigilance, prudence, and keeping abreast of GDC developments are the best safeguards against GDC enforcement.

To discuss the Clean Air Act’s General Duty Clause, please contact Larry Vanore or any member of Taft’s Environmental Practice Group.

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