The applicability of the U.S. Environmental Protection Agency’s (EPA) Risk Management Program (RMP) is reasonably clear, but facilities with chemicals in amounts less than the RMP thresholds are finding themselves in trouble with the EPA because they are overlooking EPA’s General Duty Clause (42 U.S. Code 7412(r)(1)). Several times over the last 6 months the EPA has levied 5- and 6-figure fines to facilities for violating the General Duty Clause.
A cold storage and distribution facility was fined almost $80,000, a wastewater treatment facility was required to pay a penalty of over $20,000, and a windshield wiper fluid manufacturer was fined almost $200,000. These facilities were not required to have an accidental chemical release risk management plan, but all facilities where extremely hazardous substances are present have a general duty to identify hazards and take actions to prevent and minimize the impacts of accidental releases.
What Chemicals Are Covered?
The General Duty Clause applies to stationary sources producing, processing, handling, or storing extremely hazardous substances (EHS). However, the statute does not define an EHS, and there is no specific list of chemicals covered by the General Duty Clause. The only guidance on what constitutes an EHS comes from a Senate report used in the development of the 1990 Clean Air Act Amendments. According to the report, a substance is presumed to be an EHS if its release may cause:
- Death or serious injury because of its acute toxic effect or as a result of an explosion; or
- Substantial property damage by blast, fire, corrosion, or other reaction.
Good places to start when determining what is an EHS are (1) the list of chemicals regulated by EPA’s Risk Management Program under 40 CFR 68.130; and (2) the list of extremely hazardous substances (EHS) under the Emergency Planning and Community Right-to-Know Act (EPCRA) section 302 at 40 CFR 355, Appendices A and B. However, keep in mind that the universe of EHSs includes, but is not limited to, the substances on these lists. Ultimately, it is up to the facility to determine if a substance is an EHS according to the aforementioned criteria.
What Is the Threshold?
There is no quantity threshold for the General Duty Clause. The General Duty Clause covers any facility producing, processing, handling, or storing any extremely hazardous substance, regardless of the quantity of substance managed at the facility.
This is where facilities get themselves into trouble—they believe that because they did not trigger the RMP threshold, there are no compliance obligations. This is false because the General Duty Clause will always apply.
How Do You Comply?
There are no regulations detailing how to comply with the General Duty Clause, but the objective remains to prevent the accidental release of EHSs and to minimize the consequences of a release, if one occurs. To accomplish this, facilities producing, processing, handling, or storing EHSs must:
- Identify hazards that may result from accidental releases using appropriate hazard assessment techniques;
- Design and maintain a safe facility taking such steps as are necessary to prevent releases; and
- Minimize the consequences of accidental releases which do occur.
Each facility is unique and will require specific actions be taken to meet the aforementioned obligations. However, at the very minimum, facilities must conduct hazard analyses on their operations and adhere to recognized industry standards and practices and applicable regulations to be deemed in compliance with the General Duty Clause. If no industry standards exist or if existing standards are not adequate to meet the objectives of the General Duty Clause, then the facility must take additional appropriate actions to meet its obligations. Facilities should also develop clear operating procedures, ensure all equipment is maintained in good working condition, and develop an emergency response plan to deal with a release, should one occur.
Facilities subject to EPA’s Risk Management Program must also keep in mind that they may have General Duty Clause obligations for other EHSs on-site.