Printreg Archive
Re: General Duty Clause


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From: gjonesprinting@aol.com
Date: Tue Jun 01 1999 - 12:18:00 CDT


Dear Brigette:

As you have discovered in your research on the applicability of the General
Duty Clause of CAA Section 112 (r)(1), there is some uncertainty associated
with its applicability. The general duty clause requires facilities to
identify hazards that may result from accidental releases, to design and
maintain a safe facility, and to minimize the consequences of any releases
that may occur. Even though the amount of hazardous material stored at a
facility is not enough to trigger a formal risk management plan, all
facilities storing "extremely hazardous substances" in any quantity are
subject to the general duty clause. There is no list of specific substances
or thresholds that subjects a printer to the general duty provisions.

EPA has stated that additional regulations on this subject are not necessary.
Given the uncertainty associated with the general duty clause, its
applicability will most likely be defined through enforcement actions. To
date, only one enforcement action-against a company which had an ammonium
nitrate explosion-has taken place under it. EPA does have a web site
dedicated to the subject and it is www.epa.gov/swercepp/acc-pre.html.

The following are several questions and answers I pulled off EPA's web site
several months back when I was investigating the applicability question.

"(r) Prevention of Accidental Releases.-
       "(1) Purpose and general duty.-It shall be the objective of the
    regulations and programs authorized under this subsection to
    prevent the accidental release and to minimize the consequences
    of any such release of any substance listed pursuant to paragraph
    (3) or any other extremely hazardous substance. The owners and
    operators of stationary sources producing, processing, handling
    or storing such substances have a general duty in the same manner
    and to the same extent as section 654, title 29 of the United
    States Code, 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. For purposes
    of this paragraph, the provisions of section 304 shall not be
    available to any person or otherwise be construed to be
    applicable to this paragraph. Nothing in this section shall be
    interpreted, construed, implied or applied to create any
    liability or basis for suit for compensation for bodily injury or
    any other injury or property damages to any person which may
    result from accidental releases of such substances.

I. 1. Question: What is the general duty clause under CAA 112(r)(1)?

Answer: The CAA general duty clause directs owners and operators of
stationary sources to identify hazards that may result from accidental
releases, to design and maintain a safe facility, and to minimize the
consequences of releases when they occur.

(CAA Q&A Database, October 1996)

I. 2. Question: For CAA section 112(r)(1), General Duty, what are the
chemicals that are covered?

Answer: There is no specific list of substances which subject a stationary
source owner or operator to the general duty provisions. The general duty
provisions apply to owners and operators of all stationary sources which have
any "extremely hazardous substances." Extremely hazardous substances are not
limited to the list of regulated substances listed under section 112(r), nor
the extremely hazardous substances under EPCRA 302 (40 CFR Part 355,
Appendices A and B).

Although there is no definition for extremely hazardous, the Senate Report on
the Clean Air Act provides criteria EPA may use to determine if a substance
is extremely hazardous. The report expressed the intent that the term
"extremely hazardous substance" would include any agent "which may or may not
be listed or otherwise identified by any Government agency which may as the
result of short-term exposures associated with releases to the air cause
death, injury or property damage due to its toxicity, reactivity,
flammability, volatility, or corrosivity" (Senate Committee on Environment
and Public Works, Clean Air Act Amendments of 1989, Senate Report No. 228,
101st Congress, 1st Session 211 (1989) - "Senate Report").

As the Senate makes clear, "the release of any substance which causes death
or serious injury because of its acute toxic effect or as a result of an
explosion or fire or which causes substantial property damage by blast, fire,
corrosion or other reaction would create a presumption that such substance is
extremely hazardous." Senate Report at 211. Revisions to the list of
regulated substances under CAA 112(r) do not affect the applicability of the
general duty provisions.

(CAA Q&A Database, May 1997)

In reading the General Duty Clause, it is not apparent that a facility
subject to it (Which I think potentially includes just about every
manufacturing operation in America!) needs to develop and submit a formal RMP
to EPA. However, the prudent course of action would be to review the storage
of flammable and toxic substances and develop, with documentation, a
prevention and response plan. This may already be covered in your facilities
other spill response and fire prevention programs as dictated by OSHA or
these plans could be modified.

Gary Jones
GATF


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