Monday, April 6, 2015

S 88 Introduced – Clean Air Act General Duty Clause

As I mentioned earlier Sen. Vitter (R,LA) introduced S 88, the General Duty Clarification Act of 2015. This bill would amend 42 USC 7412(r), the section of the Clean Air Act dealing with the prevention of accidental releases. The bill is nearly identical to both HR 888 and S 1781 introduced in the 113th Congress. Neither bill was considered by committee.

The bill attempts to accomplish three things. First it requires the Administrator of the EPA to clarify by regulation what some of the terminology in the section means and ensure that those definitions are consistently applied across the country. Secondly it clarifies that the actions required only apply to the prevention of accidental release not to prevention of deliberate releases, like a terrorist attack. Finally it would prohibit the Administrator from specifying any particular method for complying with the requirement to ‘design and maintain a safe facility’.

General Duty Definitions

Section 7412(r)(1) is the General Duty clause of the Clean Air act. It was intended to approximate the use of 29 USC 654, the Duties of Employers and Employees clause of the Occupational Health and Safety Act. The important portion of the sub-paragraph reads:

“The owners and operators of stationary sources producing, processing, handling or storing such substances [listed in paragraph (3) or “any other extremely hazardous substance”] have a general duty in the same manner and to the same extent as section 654 of title 29 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.”

The bill would require regulatory definitions for ‘extremely hazardous substance’, ‘appropriate hazard assessment techniques’, and ‘design and maintain a safe facility’ {§7412(r)(1)(B)(i)}.

Consistent Enforcement

Since there have not been specific definitions provided for these terms the various regional offices charged with enforcing the Clean Air Act have apparently interpreted these terms in different ways in the enforcement activities and even in different ways when enforcement personnel have changed within an office.

The bill addresses this by requiring the Administrator to publish a guidance document about how this section of the Clean Air Act would be enforced {§7412(r)(1)(B)(ii)}.

Deliberate Acts

There has been a growing effort in the environmental and safety advocacy communities away from getting legislation passed requiring the implementation of inherently safer technology and instead having the EPA to require such implementation via the General Duty Clause. This suggestion has been made particularly vociferously in conjunction with the storage and/or use of toxic inhalation hazard chemicals. Where current safety standards may be applicable to routine storage and use, these advocates point out that they are not adequate to protect those deadly chemicals from deliberate release from a terrorist attack.

This bill would prohibit the application of the General Duty Clause to security issues by amending the definition of ‘accidental release’ to read:

“The term ‘accidental release’ means an unanticipated emission of a regulated substance or other extremely hazardous substance into the ambient air from a stationary source, other than an emission resulting from an act intended to cause harm.” [New language in italics]

Specifying Methods

Industry has long maintained that the design of a safe facility is primarily an engineering function and that each chemical facility will require a unique approach to that design based upon the products produced, the raw materials used and the manufacturing processes employed. Because of this it is claimed that there is no way that a regulatory agency could require any specific design or process that would meet the safety requirements of every covered facility.

The bill reinforces this idea by adding a new sub-paragraph to §7412(r). It prohibits the EPA from requiring any owner/operator “to consider or implement particular designs, approaches, or technologies relating to manufacturing, processing, handling, or storage” {§7412(r)(12)}.

Moving Forward

While Sen. Vitter has considerably more clout in the 114th Congress than he did in the 113th there is still enough opposition to this bill on the part of environmentalists and labor that the bill would almost certainly be able to make it to the floor of the Senate for consideration.

Vitter is a Sub-Committee Chairman, but the Transportation and Infrastructure Subcommittee will not be the subcommittee of the Senate Environment and Public Works Committee that will initially consider this bill. It will be interesting to see if he has enough power to see the Committee consider this bill knowing full well that it has no chance in its present form of being considered by the Senate.

The prospects for this bill would dramatically change, however, if the EPA were to begin to craft IST regulations.

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