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 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
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Stormwater "Red Flags"
Many years ago, I interned for the local County Health Department and assisted them with water quality monitoring. The department monitored the water quality from twelve points along the rivers and streams in the county. Rain or shine, I headed out every Wednesday morning to collect samples. At each location, I pulled on the hip waders and walked a few meters from the shore to measure oxygen levels and collect a sample for the lab. Every week I plated petri dishes and counted E. coli colonies. Some days the water quality of the river was excellent and other days the bacteria levels (E. coli) in the river were dangerously high. What spiked the levels of bacteria levels in a body of water that moved over 30,000 cubic feet per minute? Rainfall, or more accurately: the pollution that the rainfall carried.
I later found out that some of the sampling locations were near animal farms, hence the E. coli. Water is often called the ‘universal solvent’ because more substances dissolve in water than in any other liquid. The Clean Water Act defines the term “pollutant” broadly.
“[A pollutant] includes any type of industrial, municipal, and agricultural waste discharged into water. Some examples are dredged soil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste.”
The Environmental Protection Agency and state governments work hard to protect waters through the implementation of the National Pollutant Discharge Elimination System (NPDES) permit program. Many industries obtain NPDES general stormwater permit coverage if they discharge into water of the United States. Sampling from a site’s discharge point(s) is an important part of the general NPDES permit. The data is compared with benchmark thresholds as an indicator of the effectiveness of the permit and stormwater control measures. Unlike an air permit, a stormwater sample result that exceeds one of the benchmark thresholds is often considered a “red flag” as opposed to a violation.
No one wants to have a “red flag” when they submit their stormwater results, but it may point to a problem with an exposed pollutant source at your site or a stormwater control measure that is not working correctly. Stormwater regulations protect our waters and, ultimately, protect our drinking water and health. As cliché as this sounds, our actions upstream impact our water downstream. Whether it’s general housekeeping at your facility or making sure a driver safely transfers material from your site, every action matters. Monitoring the exterior of your facility weekly is a great activity to ensure your site is not unintentionally polluting. Atypical events such as a leak or spill that was not cleaned up can be caught in time before the rainfall.
Remember that rivers, despite their size and capacity, can be significantly impacted by our actions. Let’s minimize the pollution the rain carries to keep the rivers healthy.
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Cornerstone's Waste Services Support RCRA Compliance
Many organizations are subject to the requirements outlined in the Resource Conservation and Recovery Act (RCRA), yet they do not know if they are compliant. Cornerstone offers a variety of waste services to assist our clients in understanding their regulatory obligations, identifying areas of non-conformance, and developing a facility-specific plan to maintain compliance. Our goal is to ensure that compliance is not only met, but sustainable. Two of the services we offer can assist you with both, the Hazardous Waste Compliance Assessment and the Waste Compliance Program. There are a number of differences between these services. Our team of experts will work with your organization to guarantee your specific needs are met.
Hazardous Waste Compliance Assessment
Hazardous Waste Compliance Assessments are most beneficial to facilities with multiple hazardous waste streams. A Cornerstone waste team member will conduct a detailed review of your operations and practices to determine the status of compliance with applicable RCRA regulations. Specifically, labeling, storage, container management, disposal, recordkeeping, and reporting. These particular areas can lead to significant penalties if discovered during a regulatory inspection. Our Hazardous Waste Compliance Assessment is a proactive step to identify areas of gaps in compliance.
Waste Compliance Program
The Waste Compliance Program is a facility-specific program designed to provide clients with detailed information about their waste streams, applicable compliance requirements based on their generator status, and supporting documentation for maintaining compliance. This service is particularly useful for plants that are not sure how to manage their various waste streams. Even Small Quantity Generators (SQG) and Very Small Quantity Generators (VSQG) can benefit from this program since many sites do not receive the necessary guidance to fully comply with applicable regulations.
The Waste Compliance Program goes beyond the assessment and provides an actionable written plan with both required and recommended best practices to manage your waste streams. Based on the waste streams at your facility, Cornerstone will confirm that the necessary practices and procedures are in place to comply with regulatory requirements. The site-specific evaluation includes a thorough look at hazardous waste, non-hazardous waste, universal waste, used oil, and recyclable materials. The program provides information, tools, and resources to achieve and maintain compliance with generator requirements.
A Necessary First Step
With the current emphasis on Environmental, Social and Governance (ESG), many corporate executives understand the need to go beyond environmental regulatory compliance to satisfy stakeholder expectations. Their EHS Managers are being tasked with finding sustainability improvements including the evaluation of waste streams and identification of recyclable materials. Cornerstone’s Waste Compliance Program provides the necessary baseline information to move towards the Environmental Pillar of ESG. The identified processes, waste streams, and current disposal practices can then be used to identify targets for disposal alternatives, including waste to energy, reuse, recycling, and zero waste goals. Developing accurate baseline information for waste streams is the first step in determining realistic reduction goals and sustainable goal development. You cannot manage what is not measured.
Further Information
Contact us for more information on waste services that will benefit your organization.