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Understanding the CAA’s General Duty Clause
The CAA Amendments of 1990 marked the birth of the GDC, which became effective in November of that year for any stationary source producing, processing, handling, or storing regulated substances or extremely hazardous substance. But the GDC is not an actual regulation, nor can compliance with the GDC be checked against a regulation or data submission requirement. Instead it provides the means for the EPA to set general obligations for covered facilities to identify hazards from accidental releases of hazardous substances, design and maintain a safe facility, and take steps to minimize impacts from accidental releases that do occur.
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Granted, these very broad requirements leave plenty of room for interpretation, but the EPA does narrow them somewhat by defining the following as some (but not all) of the responsibilities of facilities to:
1) Adopt or follow any relevant industry codes, practices or consensus standards (either for whole processes/facilities as well as for specific chemicals or pieces of equipment),
2) Be aware of those unique facility-specific circumstances that could require an equally unique accident prevention program, and
3) Be knowledgeable about accidents and incidents in your industry that illustrate potentially hazardous situations.
These slightly more explanatory requirements indicate not only the EPA’s desired level of due diligence, but also its strong reliance on industry to develop and follow its own best practices and to learn from and react to accidents and other preventable releases of listed and extremely hazardous chemicals within their respective industries.
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The CAA GDC can also be better understood and complied with thanks to its similarity to OSHA’s GDC that applies when:
1) An employer fails to provide a hazard-free workplace,
2) The hazard is recognized either by the employer or the employer’s industry,
3) The hazard causes or is likely to cause death or serious harm, and
4) Feasible means are available to the employer for eliminating or materially reducing the hazard.
Like the EPA’s GDC, OSHA’s is broad and far reaching without being specific, and as such serves to cover situations and circumstances that increase risk and could lead to accidents, injury, or death, but can be minimized or eliminated all together. In either case, facility owners can get information about accident investigations and hazard bulletins from OSHA and the Chemical Safety & Hazard Investigation Board bulletins, as well as from EPA’s Chemical Safety Alerts, Enforcement Alerts and through the Emergency Response Notification System (ERNS).
Another confusing aspect of the EPA’s GDC is its close association with risk management plan (RMP) program requirements that are also established under 112(r) via the Chemical Accident Prevention Program. The RMP requirements, however, are much more targeted and address facilities that use listed toxic or flammable substances above defined threshold quantities. The facilities must implement and submit to the EPA an RMP containing a set of accident prevention and emergency response program elements tailored to their processes, chemicals, facilities, and other factors. Most RMP information is also made available to the general public by the EPA.
Keep in mind that RMP preparation, implementation, and submission do not relieve a facility of meeting requirements under the GDC because the GDC applies to any facility using a regulated substance or other extremely hazardous substance in any amount. Conversely, compliance with the GDC also does not relieve covered facilities of the need to comply with the RMP requirements if they are above threshold levels. Penalties for non-compliance with the GDC can be assessed at up to $37,500 per day for each violation. Tomorrow we will look at several recent enforcement actions that illustrate how facilities have violated both the GDC and the RMP regulations.