Although workplace safety professionals are generally familiar with the requirements imposed by the Occupational Safety and Health Act, fewer are aware of analogous requirements under the Clean Air Act. But failing to understand the interface between these programs can be costly; as discussed below, these requirements have generated significant penalties for noncompliance over the last few years. Since 2017, the Trump administration’s U.S. Environmental Protection Agency has cited these provisions in some of its largest enforcement actions, some requiring millions — in one case, hundreds of millions — of dollars in penalties and required plant upgrades.
Although the Trump administration has recently proposed to repeal some of these requirements, it will likely not decrease its enforcement trend. In June 2019, the administration included these provisions in its “National Compliance Initiative” for fiscal years 2020-2023 with the CAA requirements being one of only two initiatives continued in the same form from the prior cycle. Surprisingly (in an era of agency enforcement down-shifting), the ongoing focus by the EPA on these CAA provisions has largely gone unnoticed.
The Clean Air Act Provisions
CAA Section 112(r) includes two different provisions to promote safety and effective responses to releases of hazardous substances. The more specific CAA provision, the risk management plan, or RMP, program, applies to owners or operators of stationary sources with more than a threshold quantity of a regulated substance in a process. The provision mandates that every regulated stationary source implement a RMP, which must include measures to identify, prevent and respond to accidental releases of regulated chemicals. The RMP regulations apply increasingly stringent regulatory levels (i.e., programs 1, 2 and 3) dependent on, among other things, the process’ industrial code, history of releases and the surrounding area.
Acting as a catchall safety provision, Congress also inserted the general duty clause, or GDC, into the CAA. Under this provision, the EPA broadly requires compliance with applicable industry safety standards. Unlike the specific chemicals listed under the RMP regulations, the GDC provision broadly applies to stationary sources with “extremely hazardous substances,” which not only include chemicals listed under the RMP regulations and other environmental statutes, but also any other substance that “in the case of an accidental release, are known to cause or may reasonably be anticipated to cause death, injury, or serious adverse effects to human health or the environment.” Importantly, the EPA has interpreted the GDC to apply irrespective of whether any specified threshold quantity of an extremely hazardous substance is present or a release actually occurred.
Overlap With the Occupational Health and Safety Act
In the CAA Amendments of 1990, Congress also required the Occupational Safety and Health Administration to adopt similar standards focused on protecting workers, rather than the environment, from releases of regulated substances. The two statutes’ GDC requirements are identical; however, the overlapping coverage between the CAA RMP regulations and the OSH Act process safety management, or PSM, provisions is close, but not exact.
Although most of the requirements under RMP program 3 (i.e., the most burdensome regulatory level) are identical to OSHA’s PSM requirements, compliance with these OSH Act provisions does not always translate into compliance with its CAA equivalent. Notably, the required analyses under the statutes could slightly differ, since the OSH Act focuses on on-site consequences of releases and the CAA regulates effects on the environment and surrounding public. The list of regulated chemicals, their respective threshold quantities, and the programs’ exemptions are somewhat different as well. As such, processes not falling under one program could still be subject to the other.
Enforcement Actions and Civil Penalties
Prompted by its conclusion that “many regulated facilities are not adequately managing the risks they pose or ensuring the safety of their facilities in a way that is sufficient to protect surrounding communities,” the EPA added these CAA provisions as an enforcement priority in 2015. Interestingly, the agency has remained active in this area under the Trump administration. Not only has the Trump administration maintained CAA Section 112(r) as a national compliance initiative, the administration has pursued a similar number of enforcement actions under these CAA provisions as the Obama administration filed in its last two years. These penalties range from minimal amounts to millions of dollars.
The broad reach of these provisions, and their inherent ambiguities, have translated into hefty fines in some CAA and OSH Act enforcement actions. In fact, penalties brought by the EPA have ranged between three to 50 times those brought by OSHA for the same event. These discrepancies are at least partially explained by the fact that CAA Section 112(r) almost always allows for much higher fines than those available for equivalent OSH Act violations. Some recent significant penalties under these provisions include:
- A $750,000 EPA penalty and $99,000 OSHA penalty assessed against a chemical manufacturing plant in 2019 after a facility explosion.
- A $950,000 EPA penalty and $80,000 OSHA penalty originating from three chemical manufacturing facilities audits in 2016. The EPA also required the installation of a $2.4 million fire suppression system in eight of the company’s warehouses.
- A $975,000 EPA penalty and $143,000 OSHA penalty in 2015 against a pesticide manufacturing facility after a facility explosion. Additional EPA-required compliance measures costed an estimated $4.7 million.
Under EPA enforcement actions, larger penalties seem to more frequently involve program 3 facilities (i.e., the highest regulatory level) that have released a regulated substance into the environment. For these types of events, the EPA frequently brings both RMP allegations for specific regulatory violations and GDC claims for broader allegations of design or operational failures.
However, even in cases in which a facility is not subject to the RMP regulations or is in compliance with most applicable RMP provisions, the EPA’s broad interpretation of the GDC provisions affords it wide discretion to bring an enforcement action. The EPA has interpreted the GDC provisions to apply to facilities with any chemical in quantities “pos[ing] a significant hazard to the community should an accident occur.” Although, it has not listed the qualifying chemicals or provided detailed guidance regarding its meaning. Instead, the EPA determines whether an extremely hazardous chemical is present on a case-by-case basis; in one case, it even argued that an aqueous solution containing mostly water could qualify as an extremely hazardous substance.
In enforcement actions for RMP violations, the EPA commonly alleges that facilities lack proof of compliance with the “recognized and generally accepted good engineering practices,” or RAGAGEP. Although the EPA does not include the definition of the term in its regulations, OSHA generally defines the term in guidance to include widely adopted industry codes, consensus documents, equipment manufacturers’ recommendations, and internal standards. The facility operator is responsible for determining the codes and standards applicable for their processes; however, note that the EPA has disputed the applicable RAGAGEP in past enforcement actions.
Despite the Trump administration’s upcoming rollback of certain RMP provisions, facilities should be keenly aware of continued enforcement of these CAA provisions. The EPA’s extremely broad interpretation of these provisions means that practically all processes utilizing potentially dangerous chemicals could presumably be subject to at least one program. As such, facility personnel should ensure that they have adequately determined the industry standards applicable to their facilities, processes, chemicals and/or equipment, as well as documented compliance with those standards
Facilities also should not automatically assume that compliance with the OSH Act PSM provisions satisfy their obligations under the RMP regulations or vice versa. In order to ensure compliance with both programs, in-house environmental and workplace safety professionals should coordinate their efforts in order to identify processes subject to each program and specifically confirm compliance with the requirements of both.
Most importantly, every inspection that is linked to these provisions should be taken very seriously. Many company-wide enforcement actions started with a release or inspection at one facility that then spilled over to others. Given the similarities between the CAA and OSH Act, facts collected by one agency can be relevant to the other. The results of an OSHA inspection may therefore be used by the EPA to bring much more substantial fines than those authorized under the OSH Act.
Also, according to the EPA’s enforcement policy, it may use past CAA RMP or GDC violations against a company to increase penalties in subsequent CAA RMP and GDC enforcement actions. Relatively minor violations under these provisions could therefore have major repercussions in future enforcement actions. In order to avoid these issues, companies should carefully evaluate the applicability of these regulations and ensure that RMP/GDC requirements are part of their compliance programs.