Safety First: The General Duty Clause's Impact on Toxic Substance Management
Don’t Forget the General Duty Clause! Even if you don’t violate a specific air quality regulation, you could still violate the General Duty Clause.
Don’t Forget the General Duty Clause! Even if you don’t violate a specific air quality regulation, you could still violate the General Duty Clause.
Under the Clean Air Act Section 112(r)(1), the General Duty Clause states: “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.”
Environmental Protection Agency (EPA) has cited industries for violating the general duty clause of the Clean Air Act. The general duty clause requires facilities to take precautions to prevent the release of hazardous air pollutants, even if those pollutants are not explicitly regulated under the act.
Violations of the general duty clause have been cited, and violators fined. Just last year, for example, the U.S. Environmental Protection Agency (EPA) settled with Greenfield Global USA, Inc., a chemical repackaging and storage company in Brookfield, Connecticut, for alleged violations of the Clean Air Act's General Duty Clause (CAA GDC) and the Emergency Planning and Community Right-to-Know Act (EPCRA). Greenfield agreed to pay a penalty of $179,596 and certify compliance with all CAA GDC and EPCRA requirements.
EPA inspectors found that Greenfield failed to design and maintain a safe facility to prevent releases of toxic chemicals under the CAA GDC requirements. Additionally, the company did not correctly submit nine reports on certain toxic chemicals to EPA's Toxic Release Inventory (TRI) database for 2017 and 2018. Greenfield stored and processed various toxic chemicals, including highly hazardous substances like chloroform, formaldehyde, and sulfuric acid.
The facility's location near retail businesses, highways, and a residential neighborhood, as well as neighboring environmental justice concerns, raised concerns about potential risks to human health and the environment due to the presence of carcinogenic and highly flammable substances.
Don’t forget that you have a general duty to manage your toxic substances safely!
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The Sackett Case: How the Supreme Court's Wetlands Decision Alters Environmental Regulations
The U.S. Supreme Court recently issued a ruling that narrowed the definition of water in the Clean Water Act. Learn more.
In late May, the U.S. Supreme Court issued a ruling that narrowed the definition of water in the Clean Water Act. This is the second recent court decision that significantly affects the regulatory authority of the Environmental Protection Agency. Less than 11 months earlier, a Supreme Court ruling curbed the EPA’s authority to limit coal plant emissions.
The May 2023 decision affecting the Clean Water Act pertains to wetlands. Michael and Chantell Sackett own a parcel of land about 300 feet from Priest Lake, one of Idaho’s largest lakes. The Sacketts want to build a house on their land, but the property has been considered part of a large wetland complex that, like all wetlands, requires a permit for any type of development. A government agency denied a Sackett petition for developing their land, and the case eventually reached the Supreme Court. A majority of the Supreme Court ruled in favor of the family.
At the heart of the Sackett family case was the definition of wetlands, which have long been protected under the Clean Water Act enacted in 1972. Wetlands have generally been defined as areas that are wet for all or part of a year, such as bogs, marshes, swamps, and fens. Development has not been allowed on wetlands that are adjacent to a body of water, even if a levee or other barrier separates the two. The definition of water has been vague in the Clean Water Act, however. In its recent ruling, the court determined that wetlands must have a continuous surface connection to a navigable body of water. Accordingly, the ruling specifies that wetlands must directly adjoin rivers, lakes, and other bodies of water.
Proponents of the decision indicate that there is now a clear, workable standard for regulators to utilize in implementing the Clean Water Act. Organizations focused on property rights applaud the decision as a clarification of the freedoms of landowners, including water. Critics of the decision maintain that scaling back the scope of the EPA’s authority could have devastating effects on water quality, including a possible increase in pollution, disruption of ecosystems, and harm to wildlife. They note that wetlands often serve as a buffer that will disappear with additional development, thereby increasing the risk of contaminated water runoff and related issues.
For over seven years, Rachel Powell has worked as a Chemical Data Management Specialist at Cornerstone. She assists clients in setting up and maintaining their Safety Data Sheet FOUNDATION System and facilitates new user training monthly. Additionally, each year, she files Tier II Emergency and Chemical Reports on behalf of our clients.
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This Month in Environmental History: The Ozone Hole
In May 1985, a group of scientists from a British Antarctic Survey discovered a hole in the (Antarctic) Ozone. Learn more.
While my childhood is mostly gaps or memories created from thumbing through yearbooks or my dad’s slides, I do have solid memories of my first pair of high-top Air Jordans in the fifth grade and the time I peed my pants taking a standardized test in the first grade. I vaguely remember learning that littering was bad for the environment and, later, in middle school, understanding that my can of hairspray might also be bad somehow and looking for the ‘no CFCs*’ labels on bottles at the drugstore.
It was probably my middle school science class before a teacher mentioned the ozone layer and the subsequent havoc that the human population wreaked on the thin part of Earth’s atmosphere that absorbs a portion of the radiation from the sun.
In May 1985, a group of scientists from a British Antarctic Survey (Cambridge) published a ‘letter’ in the scientific journal Nature titled Large losses of total ozone in Antarctica reveal seasonal ClOx/NOx interaction. (Abstract below)
Translation: the discovery of the (Antarctic) Ozone Hole, thought to be one of the most striking indictors of ozone depletion. According to NASA, the depletion of the ozone layer is recognized as on the Earth’s most important environmental issues.
In October 1985, the area of the ozone hole was measured at 7.25 million square miles. Thirty-seven years later in October 2022, it measured 10.23 million square miles. For reference, the entire continent of North America is just over 9.5 million square miles.
Large losses of total ozone in Antarctica reveal seasonal ClOx/NOx interaction
Abstract: Recent attempts1,2 to consolidate assessments of the effect of human activities on stratospheric ozone (O3) using one-dimensional models for 30° N have suggested that perturbations of total O3 will remain small for at least the next decade. Results from such models are often accepted by default as global estimates3. The inadequacy of this approach is here made evident by observations that the spring values of total O3 in Antarctica have now fallen considerably. The circulation in the lower stratosphere is apparently unchanged, and possible chemical causes must be considered. We suggest that the very low temperatures which prevail from midwinter until several weeks after the spring equinox make the Antarctic stratosphere uniquely sensitive to growth of inorganic chlorine, ClX, primarily by the effect of this growth on the NO2/NO ratio. This, with the height distribution of UV irradiation peculiar to the polar stratosphere, could account for the O3 losses observed.
For more information on Federal (Clean Air Act) and International (Montreal Protocol et al) actions to address Ozone Depletion, visit this site.
*chlorofluorocarbons and other Ozone-Depleting Substances (ODS)
Sources: Farman, J., Gardiner, B. & Shanklin, J. Large losses of total ozone in Antarctica reveal seasonal ClOx/NOx interaction. Nature 315, 207–210 (1985). https://doi.org/10.1038/315207a0
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West Virginia v EPA
On June 30, 2022, the Supreme Court’s decision in West Virginia v. Environmental Protection Agency was filed. In a 6-3 opinion, the Court ruled that Congress did not grant the Environmental Protection Agency (EPA) in the Clean Air Act (CAA) the authority to devise emission caps on carbon emissions. Headlines swept the nation ranging from disappointment to outright misinformation.
How Did We Get Here?
The Clean Air Act was passed in 1970 as a comprehensive federal law that regulates air emissions from stationary and mobile sources. The CAA covers a wide scope of air topics including the National Ambient Air Quality Standards (NAAQS), State Implementation Plans (SIPs), and lays the groundwork for Major Source thresholds (a.k.a. the Title V Program). The CAA has been used by the EPA for decades to regulate sources of air pollution and create environmental programs, even if the CAA does not expressly mention the pollutant or program.
As society advanced and technology furthered our ability to evaluate sources of air pollution, many environmental leaders and researchers began to address carbon emissions throughout the country. Did you know that coal-fired power plants are the single-largest source of carbon emissions in the United States? In 2015, as a response to the growing need for regulations to curb carbon emissions, the EPA created the Clean Power Plan (CPP) in order to address carbon dioxide emissions from existing coal and natural gas-fired power plants. The EPA cited Section 111 of the Clean Air Act as the basis for the CPP. Although Section 111 promulgates New Source Performance Standards, certain pollutants from existing sources were regulated under Section 111(d). Under this section, individual states set the actual enforceable rules surrounding an environmental program, while the EPA set the emission limit with which the entity must comply. Interestingly, this section of the CAA has only been cited a handful of times since the CAA’s enactment in 1970. The CPP set emission limits based on three different criteria, most of which encouraged a shift in energy production from high-emitting sources to low-emitting sources (i.e., a change from coal to renewable energy).
As a result of both lobbying efforts and administration changes, the CPP was stayed by the Court in 2016 and underwent a cycle of repeals and rebranding for several years. The EPA reevaluated the regulatory authority of the plan (specifically the use of Section 111(d)) and replaced the CPP with the Affordable Clean Energy (ACE) rule, based on a different Section 111 citation than before. With the promulgation of ACE, many states and industry leaders petitioned the courts on the legality of the EPA’s regulatory reach.
This issue was finally brought to the Supreme Court in West Virginia v. Environmental Protection Agency. In a 6-3 opinion, SCOTUS invoked explicitly for the first time in court history the “major questions doctrine”. The major questions doctrine requires that Congress speak clearly when authorizing agency action in certain extraordinary cases to strike down an agency rule. In summary, the court ruled that because the CAA did not explicitly address carbon emissions, the EPA could not use the CAA to do so. In the future, Congress would have to either amend the CAA to explicitly include carbon emissions or pass an entirely new act.
This leads us to June 30, 2022. The SCOTUS opinion was handed down, and the news took the public by storm. Headlines ranged from “Supreme Court Limits EPA’s Power to Curb Emissions” (Harvard School of Public Health) to “US Supreme Court Deals Blow to Climate Action” (Human Rights Watch). I saw countless posts across social media platforms claiming that SCOTUS had taken away the government’s right to regulate any air pollutants, as well as concern for the future of global warming and carbon emissions. In light of the sensationalism that surrounded this court ruling, it is important to know the facts and how they may impact the future of our legal system, as well as the EHS (Environmental, Health and Safety) industry.
What did the court do?
SCOTUS ruled that Congress must pass explicit legislation giving the EPA authority to regulate carbon emissions from coal and natural gas-fired power plants.
What did the court NOT do?
West Virginia v. EPA did not limit the EPA’s power to regulate and control criteria air pollutants (carbon monoxide, ground-level ozone, lead, nitrogen oxides, particulate matter, and sulfur dioxide) and hazardous air pollutants.
What does this mean for me?
If your organization isn't a coal or natural gas-fired power plant, this regulation does not directly affect your operations or current regulatory requirements.
What does this mean for the future of the EPA?
The court’s precedent of the major questions doctrine will put all agency regulations under a microscope of scrutiny. Any agency regulation (whether it be the EPA, DHS, DOT (Department of Transportation), FCC, etc.) that does not derive from an explicit act of Congress will most likely not receive interpretive deference from the courts.
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1-bromoprane: Its Regulatory Evolution from Unregulated to a Hazardous Air Pollutant
Remember 10 to 12 years ago when solvent salesmen were touting a great “alternative” to Trichloroethylene or TCE. The alternative was 1-bromopropane (1-BP). It had several appealing selling points since it worked almost as well, it was unregulated and, thanks to the removal of “once in, always in”, the solvent swap could get sources out of the Halogenated Solvent Cleaning NESHAP (40 CFR 63, Subpart T). As a result, a large number of industrial users flocked to it. Yeah, it was more expensive, but what was the downside? There wasn’t one at the time (at least they thought).
It didn’t take long to figure out that 1-BP wasn’t some inert, benign chemical. In fact, the Department of Health and Human Services classified it as “reasonably anticipated to be a human carcinogen”. The US EPA then followed their standard protocol of first throwing it on a petition to add it to the hazardous air pollutant (HAP) list on February 6, 2015.
Later that year, 1-BP was added to the 313 Chemical list as it was to be tracked and potentially reported for sites that qualified for TRI 313 reporting beginning with RY 2016 by sources that clipped the usage of 10,000 pounds per year for Otherwise Used chemicals.
Fast forward almost 7 years later and finally, on December 22, 2021, the EPA signed the final rule adding 1-BP to the HAP list. The ruling was published in the January 5th Federal Register, and went effective February 4, 2022.
So, if your operation uses 1-BP in a vapor degreaser, aerosol solvent, or other form of degreaser, it would behoove you to react as quickly as you can. Depending on your operations, you may find you only require a minor modification to your air permit, or it could result in a change to your permitting level. Either way, jump on it or seek out a professional consultant with knowledge in this area (yes, I can help), whatever makes the most sense for you.
So, what’s going to happen down the line for 1-BP? It could find its way into a NESHAP. That would be kind of ironic since it became famous for getting sources out of a NESHAP. Go figure!!
Further Information
Cornerstone’s air experts follow the state permitting regulations that affect our clients very carefully. Contact us at info@corner-enviro.com to discuss your facility’s situation and how it may affect any new project plans.
Greg Towler is a Senior Air Quality Project Manager whose role is to oversee and perform air permitting and compliance-related projects and work directly with clients to achieve full compliance. He also performs compliance work in wastewater, stormwater, hazardous waste generation, EPCRA reporting and general environmental compliance.
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