Simplifying Compliance With the EPA General Duty Clause
Nov 5, 2019
Do know your requirements for hazardous chemical safety and risk management under EPA’s General Duty Clause? If not, here's what you need to know:
Like the EPA's Risk Management Plan (RMP) Rule, the EPA's General Duty Clause is intended to help minimize the risk of chemical releases and chemical-related emergencies at facilities that store, process or otherwise use hazardous substances. Both are established under the Accidental Release Prevention requirements in Section 112(r) of the Clean Air Act, and while the General Duty Clause imposes many of the same chemical safety requirements as the RMP Rule, many covered facilities unfortunately overlook these requirements. In fact, BLR EHS Daily Advisor points to a number of recent enforcement cases where the EPA levied significant fines against companies for violations of the General Duty Clause.
Let’s take a brief look at the applicability and purpose of the General Duty Clause, how it differs from the RMP Rule, and the steps employers need to take to maintain compliance and ensure workplace safety.
Background on the RMP Rule
The RMP Rule requires owners and operators of any “stationary source” who store, process or otherwise use certain hazardous substances at or above pre-determined threshold quantities to create and maintain a facility risk management plan (RMP).
At a basic level, EPA requires a facility's RMP to include:
- Hazard assessments that describe all potential effects of an accidental release and an evaluation of worst-case and alternative accidental releases;
- A facility accident history dating back at least five years;
- A prevention program that includes safety precautions and maintenance, monitoring, and employee training measures;
- An emergency response program that describes emergency medical care, employee training measures, and procedures for informing the public and first responders (e.g the fire department) in the event of an emergency.
RMP regulations establish a substantial level of protection for workers, communities and the environment against chemical-related emergencies, yet there are serious risks that RMP regulations fail to address. Specifically, RMP requirements do not cover facilities which use listed hazardous substances below the published threshold quantities, and only listed hazardous substances will trigger RMP requirements.
Looking at EPA’s list of RMP regulated substances, you’ll notice that the threshold quantities for toxic substances range from 500 to 20,000 pounds, and the threshold quantities for flammable substances is 10,000 pounds. However, these regulated substances can still pose severe risks to workers and the environment, even when present in amounts far less than their threshold quantities.
For example, the threshold quantity for carbonic dichloride, a chemical used in the manufacture of pesticides and pharmaceuticals, is 500 pounds. Carbonic dichloride is also known as phosgene gas, a highly toxic substance used as a chemical weapon during WWI. Exposure to even a small amount can cause immediate death. EPA regulations under the Emergency Planning and Community Right-to-Know Act (EPCRA) list carbonic chloride as an extremely hazardous substance in Appendix A of 40 CFR Part 355 and establish reporting requirements for for amounts released or stored greater than or equal to 10 pounds, but EPCRA does not require affected facilities to implement RMP-type measures to prevent or minimize the risks of release.
So, what if facilities use listed substances below threshold quantities, or hazardous substances that aren’t specifically regulated under the RMP Rule and other requirements? What protections do workers and the public have from potentially devastating chemical-related emergencies? That’s where EPA’s General Duty Clause comes into play.
The General Duty Clause
EPA’s General Duty Clause, published at section 112(r)(1) of the Clean Air Act states:
“The owners and operators of stationary sources producing, processing, handling or storing such substances [i.e., a chemical in 40 CFR part 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.”
That’s it! That’s basically the entirety of the General Duty Clause, but in many ways, EPA’s General Duty Clause provides much the same level of protection as the RMP Rule. As the General Duty Clause states, any stationary source that uses RMP regulated substances or “any other extremely hazardous substance” is required to:
- identify hazards which may result from (such) releases using appropriate hazard assessment techniques
- design and maintain a safe facility taking such steps as are necessary to prevent releases
- minimize the consequences of accidental releases which do occur
These requirements address many of the same risks covered by the RMP Rule. In fact, EPA’s General Duty Clause has an even broader reach than the RMP Rule because it includes “any other extremely hazardous substance” in the list of chemical hazards that must be addressed. EPA doesn’t define “extremely hazardous substance” anywhere within section 112 of the Clean Air Act (CAA), and interpreted broadly, could potentially include ANY hazardous substance. The only guidance that the CAA provides in defining an “extremely hazardous substance” reads as follows:
“For purposes of promulgating such list, the Administrator shall use, but is not limited to, the list of extremely hazardous substances published under the Emergency Planning and Community Right-to-Know 4 Act of 1986 [42 U.S.C. 11001 et seq.], with such modifications as the Administrator deems appropriate.”
General Duty Clause Compliance
The list of extremely hazardous substances (EHSs) in 40 CFR part 355 is a good place to start when determining if you have obligations under EPA’s General Duty Clause, but the CAA leaves it pretty wide open as to what EPA may ultimately deem an EHS.
Luckily, EPA provides some guidance on the General Duty Clause in this fact sheet. The fact sheet states that among other things, you should:
- Adopt or follow any relevant industry codes, practices or consensus standards (for the process or facility as a whole as well as for particular chemicals or pieces of equipment)
- Be aware of unique circumstances of your facility which may require a tailored accident prevention program
- Be aware of accidents and other incidents in your industry that indicate potential hazards
The fact sheet also provides examples of scenarios in which an operator would have obligations under the General Duty Clause. For instance, if facility managers learn that a water-based fire suppression system was installed in areas where water-reactive chemicals are used, they would need to address that as a hazardous condition – perhaps by replacing the system with one compatible with water-reactive chemicals.
Looking at the big picture, the best general course of action is to perform a comprehensive hazard assessment for all hazardous chemicals in your workplace, implement appropriate engineering controls and other hazard elimination strategies necessary to prevent releases of those chemicals, and develop an effective emergency action plan that details what specific measures you will take to respond to potential releases.
Looking for more information about what inspectors might be looking for if they come to your facility? Read EPA’s Guidance for Implementation of the General Duty Clause Clean Air Act.
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