On August 2, Congressman Mike Pompeo (R-Kansas) introduced a bill designed to provide greater regulatory certainty for companies affected by Section 112(r)(1) of the Clean Air Act, commonly known as the General Duty Clause. The General Duty Clause is intended to prevent accidental releases of hazardous substances and to minimize the consequences of any such releases. It 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.”
According to a press release issued by Congressman Pompeo’s office (the actual text of the bill has not yet been released) the bill, called the General Duty Clarification Act, requires: (1) EPA to complete a rulemaking process before finding any facility in violation of the General Duty Clause; (2) definitions of “extremely hazardous substance,” “appropriate hazard assessment techniques,” and “design and maintain a safe facility” in any General Duty Clause regulation; and (3) EPA to issue guidelines to ensure that EPA enforcement procedures are uniform across its regions. It also prohibits EPA from regulating chemical facility security under the General Duty Clause, reinforcing the exclusive jurisdiction of the Department of Homeland Security over such regulations.
Prior to the formal introduction of the bill, seventeen trade associations, including the National Association of Chemical Distributors, American Chemistry Council, National Association of Manufacturers, American Petroleum Institute, American Forest & Paper Association, and the U.S. Chamber of Commerce, sent a letter of support for the bill to all members of the House of Representatives. The letter notes industry concerns over arbitrary application of the General Duty Clause and the fact that EPA has not issued any proposed rule detailing enforcement or compliance requirements in the 22 years since the General Duty Clause was passed as part of the 1990 Clean Air Act amendments.
Combining environmental experience with our governmental relations practice, the Bradley Arant Boult Cummings Environmental Practice Group regularly works with congressional representatives to advance industry concerns regarding Clean Air Act issues, as well as a broad range of other environmental issues.