EPA’s Risk Management Program – General Duty Clause

November 16, 2011

You have a facility that uses chemicals regulated under the Environmental Protection Agency’s (EPA’s) risk management program (40 CFR 68) and have conducted a study and determined that the quantities stored and in use at the facility are below applicability thresholds, therefore you are not required to have a risk management plan, right?  Well, not exactly.  Section 112(r)(1) of the Clean Air Act Amendments of 1990 contains the following General Duty Clause (GDC):

“…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.”

So, what is an extremely hazardous substance (EHS)?

As the GDC does not offer a definition of what constitutes an EHS, the EPA has interpreted the definition to apply to virtually any chemical that it feels poses a risk if released.  In applying this broad definition, the EPA looks at the consequences of a release (catastrophic or not) to the offsite areas surrounding the property.  There is also no “less than” use threshold, so if you use an EHS in any amount, you are subject to the GDC.

As an example, you operate a warehouse part of which stores refrigerated foods.  The refrigeration system uses anhydrous ammonia and has a total charge capacity of 6,000 pounds. This is below the threshold quantity of 10,000 pounds for anhydrous ammonia and therefore would not trigger the requirement to have a risk management plan (RMP) per 40 CFR 68.  You do, however, have an obligation under the GDC to assess the consequences of an anhydrous ammonia release to the environment.  In particular, you have a duty to:

  • Determine if, and under what circumstances, a release could occur
  • Put in place procedures and controls to prevent a release, and
  • Implement a plan of action should a release occur.

Is the EPA really enforcing the GDC?

In March of 2011, EPA Region 1 (NY, CT, RI, MA, VT, ME) published notification of a violation settlement for a chemical manufacturer located in New Haven, Connecticut. The violation included a finding that the facility failed to develop and put in place a RMP for the storage of concentrated hydrochloric acid.  The case arose out of a number of inspections conducted by EPA Region 1 at chemical warehouses and distribution facilities.  One of the lessons from the inspections (and cited in the violation notification) was that:

“Several companies were unaware that the Clean Air Act’s General Duty Clause can apply, even when RMP regulations do not.  The GDC requires companies that manage EHS to prevent chemical releases by, among other things, designing and maintaining a safe facility.”

The company was fined $12,626 and agreed to spend an additional $40,000 to buy emergency response equipment for the City.

So how do you assure that you meet this obligation? 

It is important to note that the GDC is not a regulation and there is no clearly defined set of procedures or steps to follow to demonstrate compliance.  The EPA document “Guidance for Implementation of the General Duty Clause Clean Air Act Section 112(r)(1)” (EPA 550-B00-002) provides guidance on what EPA inspectors will look at during an inspection at your facility.  Three basis steps cited by the EPA to demonstrate compliance include:  

  • 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, and
  • Be aware of accidents and other incidents in your industry that indicate potential hazards.

CAPACCIO staff is experienced in helping facilities meet the requirements of EPA’s RMP and OSHA’s PSM programs. If you have any questions about the GDC and how it might apply to your facility, please contact David Cotter, PE, at 508.970.0033 ext. 133 or dcotter@capaccio.com.

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OSHA Update: Aligning GHS with the Hazard Communication Standard

September 6, 2011

In September of 2006, OSHA announced that it would be aligning its Hazard Communication Standard (HCS) with the Globally Harmonized System of Classification and Labeling of Chemicals (GHS).  To date, 67 countries around the world have implemented some form of GHS, and many chemical manufacturers, suppliers, and end users of chemical products are anxiously awaiting its implementation in The United States.  In a recent web chat, OSHA announced it has updated its timeframe to publish a final rule on GHS alignment with HCS in September 2011. However, it also stated that the proposed rule is still undergoing an internal agency review and has yet to be submitted to the Office of Management and Budget (OMB) for its usual 90-day review, so it is likely that the final rule will not be published until early 2012.

When the rule is finally published, it may include an implementation schedule that would allow up to three years or more to achieve compliance. OSHA has stated it is not changing the major components of the HCS but instead is modifying it to align with the major elements of GHS which include guidelines for hazard classifications, hazard warning statements, container labels, and safety data sheets (SDS).  The immediate impact will be to chemical manufacturers and suppliers who will have to rewrite, publish, and distribute new chemical safety data sheets and also provide new labels for chemical containers.

 The anticipated impacts to employers in the US will include:

  • Modification of written hazard communication programs
  • Modification of employee training programs to cover the new chemical classifications, labeling, and hazard warnings (pictograms)
  • Obtaining new SDSs to replace existing MSDSs
  • Re-labeling of in-house chemical containers with the new labels

When the final rule is published, CAPACCIO will provide a summary of its major requirements and the implementation timeline for compliance in an e-blast. A series of webinars to discuss the new rule and its impact on our clients will also quickly follow.

For more information, please contact Bob King at 508.970.0033 x113 or bking@capaccio.com.

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The Vision of OSHA

November 7, 2010

On October 15, 2010, OSHA Assistant Secretary, Dr. David Michaels sent a letter to all OSHA personnel that outlined the progress being made to transform the agency.  This letter was an update to a July 19 document Michaels issued to OSHA staff, “OSHA at Forty: New Challenges and New Directions.” In his July letter, Michaels discussed transforming OSHA by focusing on nine areas.

  1. Stronger Enforcement
    OSHA is increasing its inspection activity and imposing more stringent penalties.  OSHA has shifted its employees from compliance assistance to enforcement and plans to hire additional enforcement officers. OSHA conducted 40,600 total inspections during Fiscal Year 2010, compared to 39,004 inspections during Fiscal Year 2009.

    OSHA is issuing more press releases that explain more clearly why a specific employer was cited. “The primary purpose of our enforcement program is deterrence.  By inspecting workplaces and issuing and publicizing penalties where violations are found, we hope that all employers will recognize the risk they take by not abating serious hazards,” wrote Michaels in his October letter.

    OSHA will be changing the way that it calculates penalties.  An outline of the changes can be found here:  http://www.osha.gov/dep/administrative-penalty.html

  2. Ensure workers have a voice
    OSHA is reaching out to vulnerable workers who may be low pay, non-English speaking, low literacy, or not in a labor organization through events like the National Action Summit for Latino Worker Health and Safety.  Workers must know about their rights under the law and feel that they can exercise those rights.  OSHA is reviewing the Whistleblower Protection Program and ensuring that officers talk to workers privately and confidentially during inspections.
  3. Refocus and Strengthen Compliance Assistance Programs
    OSHA is refocusing its compliance assistance programs.  Michaels still supports programs like the Voluntary Protection Program (VPP), but the funding has been redirected to focus on enforcement.  OSHA will develop more compliance assistance materials that all workers can understand and use.
  4. Change Workplace Culture
    OSHA seeks to improve the workplace safety culture, so that employers do not merely just do what’s necessary to comply with OSHA standards.  Employers must “find and fix” all workplace hazards.  This does not just apply when there is a particular hazard covered by an OSHA standard.  This change in culture would require employers to implement risk-based safety programs and focus on hazard assessment and control.
  5. Develop Innovative Approaches to Addressing Hazards: Improve Intra-Agency Cooperation
    OSHA is working to ensure that directors and field operations personnel work together closely and cooperatively.  OSHA will improve its coordination with other agencies whose work is closely aligned, such as the Environmental Protection Agency (EPA) and the National Institute of Occupational Safety and Health (NIOSH).
  6. Improve and Modernize Workplace Injury and Illness Tracking
    OSHA is concerned that employers may be under-recording or incorrectly reporting injuries on the OSHA 300 log. Injury and illness data that is reported to OSHA is used to target inspections.  Under the Recordkeeping National Emphasis Program (NEP), OSHA has conducted 187 inspections and found recordkeeping violations in almost 50% of the inspections.  OSHA is looking into electronic recordkeeping programs in order to obtain more up-to-date information and better focus NEPs. 
  7. Strengthen OSHA’s use of Science
    OSHA is going to begin addressing the outdated Permissible Exposure Limits (PELs), many of which were developed in the 1970s.  Also, there are many chemicals for which a PEL has not been developed.  OSHA held a web forum and received 130 nominations for chemicals that should be added to the list. 
  8. Conduct OSHA’s work with transparency
    OSHA will share useful information with people.  For example, OSHA is posting employer specific injury and illness data and sampling data results.  The sampling data from OSHA inspections can be found on the web and accessed at: www.osha.gov/opengov/healthsamples.html
  9. Strengthen state OSHA plans
    OSHA evaluated the operation of 25 State Plans to ensure that there are not problems with the state-run programs.  OSHA found that many State Plans were operating effectively, but also found some Plans with discrepancies that OSHA will begin to address. 

For your information, below are some other OSHA updates which were not addressed in the above nine areas which may be of interest.

Injury and Illness Prevention Program
OSHA is developing a rule that would require employers to have a written safety and health program that would be referred to as an Injury and Illness Prevention Program. 

Even if a hazard is not regulated under a specific standard, developing programs to control hazards is required under the General Duty Clause.

Severe Violator Enforcement Program
OSHA’s Severe Violator Enforcement Program (SVEP) concentrates resources on inspecting employers who commit willful or repeated violations or fail to abate previously issued violations.  Michaels said in the press release outlining the SVEP, “For many employers, investing in job safety happens only when they have adequate incentives to comply with OSHA’s requirements.  Higher penalties and more aggressive, targeted enforcement will provide a greater deterrent and further encourage these employers to furnish safe and healthy workplaces for their employees.” Once an employer is placed in the SEVP, OSHA may conduct enhanced follow-up inspections and inspections of the other locations of the employer.

Site Specific Targeting Program
OSHA is targeting select high-hazard workplaces where the highest rates of injuries and illness occur.  Based on injury and illness data, OSHA developed a list of 4,100 facilities and will randomly select employers to inspect.

Recordkeeping National Emphasis Programs (NEP)
OSHA adjusted the Recordkeeping NEP to focus on larger worksites with higher injury rates.  The NEP is scheduled to run through February, 2012.   

Most Frequently Cited Standards
OSHA published its list of the most frequently cited standards during Fiscal Year 2010 (October 1, 2009- September 30, 2010).  At the top of the list for general industry was the Hazard Communication Standard, followed by Respiratory Protection, Ladders and Lockout/Tagout.   http://www.osha.gov/Top_Ten_Standards.html

For more information or if you would like assistance with any of your Health and Safety programs, contact Colleen Walsh at cwalsh@capaccio.com or 508.970.0033 extension 129.

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