EPA’s Risk Management Program – General Duty Clause Reply

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 Lynn Sheridan at 508.970.0033 ext. 122 or lsheridan@capaccio.com.

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