S 3529 Introduced – Clean Air Act General Duty Clause

Earlier this week Sen. Roberts (R,KS) introduced S 3529, the General Duty Clarification Act of 2012. This is essentially a companion bill to HR 6345; a bill that was introduced by Rep. Pompeo (R,KS). As I noted in that earlier blog post, these bills are intended to make it more difficult for the EPA Administrator from using the General Duty clause of the Clean Air Act to require high-risk chemical facilities to use substitute chemicals or processes as has been suggested by many activists.

A companion bill allows both branches of Congress to work on the same bill at the same time to potentially reduce how long it will take it to complete the consideration process. I called this ‘essentially a companion bill’ because the language in the two bills is not strictly identical. There are two minor, non-substantive wording changes; one in §2(a)(1)(B)(i) (some wording is moved into two new subparagraphs) and the other in §2(b) (a descriptive phrase is moved to the end of the sentence). Neither change should have any impact on the progress of these two bills.

Neither of these bills will receive any consideration before the election. If Romney wins, there will be no need for these bills to be considered; he would never allow his EPA to enforce such an action. If Obama wins there will be an attempt to pass these bills in the lame duck session as his EPA might consider such an attempt in his second term. Or it might not, there is certainly a mixed environmental agenda in the Obama Administration.

The House could certainly pass HR 6345, but the Senate will never see either bill make it to consideration by the Committee on Environment and Public Works, much less than to the floor for a vote. All of that could, of course, change next session depending on the results of the election.

HR 6345 Introduced – Clean Air Act General Duty Clause

On the last day that the House was in session, Rep. Pompeo (R,KS) introduced HR 6345, the General Duty Clarification Act of 2012. This bill is a legislative effort to address the recent petition to the EPA to have the EPA take actions under the ‘general duty’ clause of the Clean Air Act {42 USC 7412(r)(1)} to force chemical facilities with significant inventories of toxic inhalation hazard (TIH) chemicals to implement inherently safer technology (IST).

Amending Clean Air Act

This bill would not specifically prohibit the EPA from taking such enforcement action. Rather it takes a three pronged approach to making it difficult for the EPA to take such actions. First it would specifically require the EPA to promulgate regulations under which enforcement actions would be undertaken {§2(a)(2)(B)}.Second it would require the publish enforcement guidelines to ensure that the regulations were applied in a uniform manner in all EPA regional offices {§2(a)(2)(B)(iii)}. Finally it would modify the wording of the definition of ‘accidental release’ to eliminate releases resulting from an intentional act {§2(b)}.

General Duty Clause

The actual ‘general duty clause’ that everyone is talking about is actually a single sentence in 42 USC §7412(r)(1). That sentence reads:

“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 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 key phrase in that sentence is “have a general duty in the same manner and to the same extent as section 654 of title 29”. Looking at that section of the US Code we see that each employer is required to provide “each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees” {29 USC §654(a)(1)}. Since, based upon the historical record, neither terrorist attacks nor catastrophic releases are ‘likely’, the EPA would have a hard time justifying the use of this general duty clause to require IST implementation.

Of course, the ease of justification is not necessarily a controlling factor in political decisions.

Political Future

Given, however, the closeness of the presidential race, it is unlikely that the Obama administration would take action on the current petition before the election. Agreeing to the petitioners request would be used against the President on the campaign trail and ignoring the petition would have little effect on the support Obama would receive from the environmentalists.

As always, the election results could change everything. An Obama re-election coupled with a takeover of the House by Democrats might embolden EPA to favorably consider the general duty clause petition. This is especially true they do not get a super majority in the Senate as the Republicans could continue to block any IST legislation from being considered. An Obama loss would mean a virtual end to the general duty clause petition for the next four years, regardless of the results of Congressional elections.

In the meantime it is unlikely that this particular bill will go very far between now and the election. If it does come to the floor of the House it would likely be approved (okay highly likely). There is no way that Sen. Reid would bring it to the floor of the Senate in the short time between a House passage and the election; he would have an easy time justifying ignoring the bill (not that he needs any justification) because of the higher importance of other pending legislation.

We will certainly see this bill again in the 113^th Congress.