EPA’s Risk Management Program – General Duty Clause

Cotter, David
(Capaccio Environmental Engineering, Inc.)

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If your facility has conducted a review of chemicals stored and used in processes, and determined that you do not exceed applicable thresholds under the Environmental Protection Agency (EPAs) risk management program (40 CFR 68), you may not be completely done. 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.” 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 potentially subject to the GDC. The EPA has been enforcing the GDC. In March of 2011, EPA Region 1 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.” This presentation will review the requirements of the GDC, a facility’s obligations under the GDC, and the procedures to follow to make sure your facility meets those obligations. Topics presented will include: how to identify potential EHS that could be covered by the GDC, under what circumstances an EHS could be released, what type of procedures and controls to put in place to mitigate this potential, and how to develop a plan of action should a release occur.

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