Multi-Agency Chemical Advisory on Ammonium Nitrate Asserts EPA Jurisdiction Under the Clean Air Act’s General Duty Clause
On August 30, 2013, the Environmental Protection Agency (“EPA”), the Occupational Safety and Health Administration (“OSHA”) and the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) (collectively, the “Agencies”) issued a chemical advisory (the “Advisory”) that provides information on the hazards of ammonium nitrate storage, handling and management, and catalogs provisions of various statutes and regulations that may apply to activities involving ammonium nitrate. The Advisory follows President Obama’s August 1, 2013, Executive Order: Improving Chemical Facility Safety and Security, issued in response to the tragic West Fertilizer Company ammonium nitrate explosion that occurred in West, Texas on April 17, 2013.
The Advisory summarizes the Agencies’ conclusions on lessons learned from past ammonium nitrate accidents, hazard information, hazard reduction, community emergency planning, and emergency response measures. These conclusions are drawn from a wide range of legal authorities and non-binding sources. The regulatory authorities cited as “applicable to the manufacture of or processes involving ammonium nitrate” are:
the Clean Air Act, Section 112(r) (i.e., the so-called “CAA General Duty Clause” (Section 112(r)(1)), EPA’s Risk Management Program, and OSHA’s Process Safety Management Standard;
the Emergency Planning and Community Right-to-Know Act (administered by EPA);
the OSHA Explosives and Blasting Agents Standards;
the OSHA Hazard Communication Standard;
the Chemical Facility Anti-Terrorism Standards (administered by the Department of Homeland Security, “DHS”);
the Department of Transportation (“DOT”) Hazardous Materials Regulations; and
the ATF Explosives Regulations.
The Advisory additionally provides what is, in effect, an ammonium nitrate research outline listing a total of 28 different design, construction and operational codes, standards and general references, including a series of guidance documents issued by the European Fertilizer Manufacturers Association. While noting that the “codes and standards are not binding,” the Advisory indicates that they “may be adopted by reference into laws or regulations” and that “[u]sers of the codes and standards should consult applicable federal, state and local laws and regulations.”
The long list of codes, standards and references creates ambiguity for facilities that handle ammonium nitrate, particularly related to how they should interpret their legal obligations and the weight they should place on the varied domestic and international standards. Moreover, the many laws and regulations cited in the Advisory are administered by a total of five different federal agencies (i.e., EPA, OSHA, DHS, DOT, and ATF), in addition to any state, local and tribal agencies whose authority may be invoked in particular cases, creating a significant potential for confusion.
Among the various regulatory authorities cited, EPA’s role under the Clean Air Act may present the greatest potential for expansion of existing oversight and legal obligations. While the authorities of OSHA, DHS, DOT and ATF to regulate the management of ammonium nitrate are relatively well-defined, EPA’s General Duty Clause authority under Section 112(r)(1) of the Clean Air Act is much less clear, and the agency has only recently begun to exercise this authority through enforcement activity.
The CAA General Duty Clause applies to a broad category of chemicals, both listed substances under Clean Air Act regulations and “extremely hazardous substances,” a term that is not specifically defined. Interestingly, while ammonium nitrate is not a listed substance under Clean Air Act regulations, the Agencies assert in the Advisory that it “may be considered extremely hazardous under certain circumstances.” This suggests that EPA would consider ammonium nitrate to be regulated by the CAA General Duty Clause in some circumstances but not in others.
The CAA General Duty Clause requires those who produce, process, handle or store such substances, to the same extent as required under the OSHA general duty clause, “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.” 42 U.S.C. § 7412(r)(1).
The OSHA qualifier in the CAA General Duty Clause is very important to evaluate in determining Clean Air Act applicability, as the separate OSHA general duty clause has been interpreted by both the courts and the Occupational Health and Safety Review Commission to apply only in limited circumstances, most importantly, in those circumstances where an employer has the ability to foresee a hazard and it is feasible to reduce or eliminate the hazard. See, i.e., Fabi Constr. Co. v. Sec. of Labor, 508 F.3d 1077 (D.C. Cir. 2007).
Consequently, following the West Fertilizer incident, the publication of the Advisory may be viewed by the Agencies under the Clean Air Act as a notice to the regulated community that specific types of accidents are foreseeable when managing ammonium nitrate, and that many rules, codes and standards, both domestic and foreign, identify methods and design parameters which can reduce or eliminate those hazards. Should there be future ammonium nitrate incidents, it would not be surprising to see EPA seeking to enforce allegations of CAA General Duty Clause violations, using the Advisory as evidence both that certain types of accidents were foreseeable and that risk reduction techniques described in the many cited rules, codes and standards were feasible.