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!
Recent Posts
Recent Changes to the SARA Title III TRI (Toxic Release Inventory)
Think you are ready to file your Toxic Release Inventory (TRI), aka Form R, reports just the same as you did last year? Hold on a minute. While you might not have an issue doing this, make sure to check the TRI Chemical List for any changes before you press submit. The Environmental Protection Agency (EPA) is making major changes to the list over the next two years.
The EPA makes changes to the TRI chemical list on a periodic basis though EPA-initiated review and the chemical petitions process.
Recent TRI Chemical List ChangesUnder the automatic listing provisions of the 2020 National Defense Authorization Act: Four PFAS were added for reporting year 2022. Reporting forms on these chemicals are due July 1, 2023, for 2022 data if TRI reporting thresholds are met. Nine PFAS were added for reporting year 2023. Reporting forms on these chemicals are due July 1, 2024, for 2023 data if TRI reporting thresholds are met. See Addition of Certain PFAS to the TRI by the National Defense Authorization Act for more information. In November 2022, EPA added 12 chemicals in response to a petition submitted under Section 313(e) of EPCRA. Reporting forms on these chemicals are due July 1, 2024, for 2023 data if TRI reporting thresholds are met.
*from epa.gov
For the Cliff’s Notes version from our technical expert (and skip the clicking)…Or easier still…just call us to help!
For the 2022 reporting year, due by July 1, 2023, the EPA has added four Per- and Polyfluorinated Substances (PFAS) to the EPCRA Section 313 reportable chemical list:
CAS RN Chemical name
375-73-5 Perfluorobutane sulfonic acid (de minimis 0.1%)
29420-49-3 Potassium perfluorobutane sulfonate
65104-45-2 2-Propenoic acid, 2-methyl-, 3,3,4,4,5,5,6,6,7,7,8,8,9,9,10,10,11,11,12,12,12-heneicosafluorododecyl ester, polymer with 3,3,4,4,5,5,6,6,7,7,8,8,9,9,10,10,10- heptadecafluorodecyl 2-methyl-2-propenoate, methyl 2-methyl-2-propenoate, 3,3,4,4,5,5,6,6,7,7,8,8,9,9,10,10,11,11,12,12,13,13,14,14,14- pentacosafluorotetradecyl 2-methyl-2-propenoate and 3,3,4,4,5,5,6,6,7,7,8,8,8- tridecafluorooctyl 2-methyl-2-propenoate
203743-03-7 2- Propenoic acid, 2-methyl-, hexadecyl ester, polymers with 2-hydroxyethyl methacrylate, γ-ω-perfluoro-C10-16-alkyl acrylate and stearyl methacrylate
Note that the de minimis value for each of these PFAS is 1% unless otherwise noted above. The manufacturing, processing, and otherwise use reporting threshold is 100 pounds for each of the PFAS listed above.
Please also note that the PFAS chemical names and CasRNs are listed on separate tables from the remainder of reportable chemicals on the List of Lists.
For the 2023 reporting year, due by July 1, 2024, the EPA automatically added in 9 PFAS to the EPCRA Section 313 reportable chemical list:
375-22-4. Perfluorobutanoic acid
2218-54-4 Sodium perfluorobutanoate
2966-54-3 Potassium heptafluorobutanoate
10495-86-0 Ammonium perfluorobutanoate
45048-62-2. Perfluorobutanoate
2728655-42-1 Alcohols, C8-16, γ-ω-perfluoro, reaction products with 1,6-diisocyanatohexane, glycidol and stearyl alc.
2738952-61-7 Acetamide, N-[3-(dimethylamino)propyl]-, 2-[(γ-ω-perfluoro-C4-20-alkyl)thio] derivs.
2742694-36-4 Acetamide, N-(2-aminoethyl)-, 2-[(γ-ω-perfluoro-C4-20-alkyl)thio] derivs., polymers with N1,N1-dimethyl-1,3-propanediamine, epichlorohydrin and ethylenediamine, oxidized
2744262-09-5 Acetic acid, 2-[(γ-ω-perfluoro-C4-20-alkyl)thio] derivs., 2-hydroxypropyl esters
The EPA has also added the following 12 chemicals to the EPCRA Section 313 list beginning reporting year 2023, in response to a petition filed by the Toxics Use Reduction Institute:
683-18-1dibutyltin dichloride
96-23-11,3-dichloro-2-propanol75-12-7formamide
1222-05-51,3,4,6,7,8-Hexahydro-4,6,6,7,8,8-hexamethylcyclopenta[g]-2-benzopyran;*111-41-1n-hydroxyethylethylenediamine
5064-31-3nitrilotriacetic acid trisodium salt140-66-9p-(1,1,3,3-Tetramethylbutyl) phenol87-61-61,2,3-trichlorobenzene
2451-62-9triglycidyl isocyanurate115-96-8tris(2-chloroethyl) phosphate13674-87-8tris(1,3-dichloro-2-propyl) phosphate
25155-23-1tris(dimethylphenol) phosphate
*classified as a Persistent Bioaccumulative, and Toxic (PBT) chemical with a 100 pound reporting threshold
The Legacy of the Bhopal Gas Tragedy
As we wrapped up the Toxic Release Inventory (Form R) reporting for the year, curiosity got me as to how this program came about. So, I decided to refresh my memory and dive back into my college years during which I studied Environmental Management at Indiana University.
The Environmental Protection Agency (EPA) has a great website filled with amazing resources and content. However, in looking for detailed information on the history of a specific regulation, they tend to provide only a summary -- presumably to allow space for more current resources.
This is the EPA version of how TRI came to be:
On December 2, 1984, a cloud of extremely toxic methyl isocyanate gas escaped from a Union Carbide Chemical plant in Bhopal, India. Thousands of people died that night in what is widely considered to be the worst industrial disaster in history. Thousands more died later as a result of their exposure, and survivors continue to suffer from permanent disabilities.
The incident raised public concern about toxic chemical storage, releases, and emergency response. It led to the passage of the Emergency Planning and Community Right-to-Know Act (EPCRA) under the 1986 Superfund Amendments and Reauthorization Act. Section 313 of EPCRA established the Toxics Release Inventory.
Boom! There you have it…explained, right? Yeah, not so much.
Here’s the more detailed -- but not too wordy -- version of what happened… But, before I get into the aftermath of this catastrophic event, let’s discuss what led to it.
When the facility was built in Bhopal (in the 1970s), the site was zoned for light industrial and commercial use, not for the hazardous industry, as the plant was approved only for the formulation of pesticides. MIC was only to be imported in small quantities. However, pressure from competitors in the chemical industry led to the manufacture of raw materials and intermediate products for the formulation of the final product. This was inherently a more hazardous process.
By the early 1980s, the plant had significantly reduced production due to a decrease in demand for pesticides. Local managers of the UCIL plant were instructed to close the plant in preparation for sale in the summer of 1984. When no buyer was found, UCIL made plans to dismantle key production units. All the while, “the facility continued to operate with safety equipment and procedures far below the standards found in its sister plant in Institute, West Virginia.” It seems the local government was aware of the safety issues but hesitant to place burdens on the struggling industry at risk of losing the economic gains afforded by such a large employer
“The vent-gas scrubber, a safety device designed to neutralize toxic discharge from the MIC system, had been turned off three weeks prior. Apparently, a faulty valve had allowed one ton of water for cleaning internal pipes to mix with forty tons of MIC. A 30-ton refrigeration unit that normally served as a safety component to cool the MIC storage tank had been drained of its coolant for use in another part of the plant. Pressure and heat from the vigorous exothermic reaction in the tank continued to build. The gas flare safety system was out of action and had been for three months.”
On Sunday, December 2, the 100 workers on the late shift at the Union Carbide India Limited (UCIL) facility in Bhopal, India were in the process of making the pesticide Sevin. This involved mixing carbon tetrachloride, methyl isocyanate (MIC), and alpha-naphthol.
While most of the one million residents of Bhopal slept, at 11:00 p.m. a plant operator noticed a small leak of MIC gas and increasing pressure inside a storage tank.
Around 1:00 a.m. on December 3, 1984, more than 40 tons of methyl isocyanate gas leaked from the pesticide plant. Within hours, an estimated 3,800 people perished, and the final death toll is estimated to be between 15,000 and 20,000 which includes premature deaths reported during the two decades following the disaster.
In a settlement mediated by the Indian Supreme Court, Union Carbide Corporation accepted moral responsibility and agreed to pay $470 million to the Indian government to be distributed to claimants as a full and final settlement. By the end of October 2014, according to the Bhopal Gas Tragedy Relief and Rehabilitation Department, compensation (~$486,101,760) had been awarded to 574,366 people (dependents of the deceased, seriously injured, permanently disabled, cancer and kidney patients, and temporally disabled people). This averages out to approximately $846.33 per person.
This disaster cast a spotlight on the urgent need for enforceable international standards for environmental safety, preventative strategies to avoid similar accidents, and help ensure industrial disaster preparedness.
Enter the Emergency Planning and Community Right to Know Act (EPCRA) and Toxic Release Inventory (TRI).
TRI tracks the management of certain toxic chemicals that may pose a threat to human health and the environment. U.S. facilities in different industry sectors must report annually how much of each chemical is released to the environment and/or managed through recycling, energy recovery, and treatment. (A "release" of a chemical means that it is emitted to the air or water, or placed in some type of land disposal.)
https://www.britannica.com/event/Bhopal-disaster
https://www.epa.gov/toxics-release-inventory-tri-program/what-toxics-release-inventory
https://ehjournal.biomedcentral.com/articles/10.1186/1476-069X-4-6
https://www.history.com/this-day-in-history/explosion-kills-2000-at-pesticide-plant
