April 11, 2021

Volume XI, Number 101

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April 09, 2021

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April 08, 2021

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Revival of the General Duty Clause

In a somewhat surprising decision issued at the end of 2020, U.S. EPA ruled that Section 112(r)(1) of the Clean Air Act, better known as the “General Duty Clause,” requires facilities to implement the latest industry practices in order to minimize the potential for accidental releases. Given this decision, and in anticipation of future inspections or regulatory inquiries, facilities should review, update, and document their programs for meeting the General Duty Clause requirements.

First enacted in the 1990 Amendments to the Clean Air Act, the “General Duty Clause” in Section 112(r)(1) is likely to take on renewed importance in future environmental inspections and enforcement actions. Under the General Duty Clause, facilities handling, processing, or storing “extremely hazardous substances” are required to (i) identify hazards that may result from accidental releases, (ii) design and maintain safe facilities, and (iii) minimize consequences of accidental releases. Extremely hazardous substances are not defined and are not limited to Section 112(r) regulated substances or those on the EPCRA extremely hazardous list. Moreover, an exemption from U.S. EPA’s “risk management plan” threshold does not exempt a facility from the General Duty Clause.

U.S. EPA recently clarified several key aspects of the General Duty Clause in In re Hazlehurst Wood Pellets, LLC (Dec. 31, 2020). In that petition, Sierra Club challenged the Title V permit issued to Hazlehurst Wood Pellets for failure to specifically incorporate the General Duty Clause into the facility’s Title V permit so as to authorize citizen suits to be brought for noncompliance with the General Duty Clause. U.S. EPA rejected Sierra Club’s position, ruling that the Act precludes citizen suits alleging violations of this provision. In reaching this conclusion, U.S. EPA stated that the agency retains authority to enforce violations of the standard. At the same time, U.S. EPA clarified that the General Duty Clause is “self-implementing,” meaning it is independently enforceable and applies even though it is not part of an air permit. In addition, the General Duty Clause requires facilities to review and, where appropriate, incorporate the latest recognized industry practices and standards. Thus, a facility’s obligation to comply with the clause is “fluid” and may readily change.

With the new Biden Administration’s emphasis on compliance and environmental justice, facilities with hazardous materials that could be released to the atmosphere should review existing plans and procedures for the safe handling and processing of these substances, verify these plans and procedures are consistent with industry standards, and document the facility’s ongoing process for meeting the General Duty Clause requirements.

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© 2021 Foley & Lardner LLPNational Law Review, Volume XI, Number 29
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About this Author

Mark A. Thimke Partner Milwaukee
Partner

Mark A. Thimke is a partner and environmental lawyer with Foley & Lardner LLP. His practice encompasses all major environmental programs, including hazardous waste, Superfund, the Clean Air Act, air toxics, and wastewater. Mark has been involved in Superfund matters ranging from landfills, municipal well fields, and the investigation and cleanup of river and harbor sediment remediation areas, representation of dischargers on issues involving water toxics limitations, and the development of a detailed anti-degradation policy, and work on several major air enforcement actions. He is a...

414-297-5832
Peter Tomasi, Foley Lardner, Environmental lawyer, regulations, environmental issues,
Of Counsel

Peter A. Tomasi is of counsel and a business lawyer with Foley & Lardner LLP, where he is a member of the firm’s Environmental Regulation Practice. His practice focuses on regulatory compliance and renewable energy. Mr. Tomasi has further experience with general civil, commercial, and intellectual property litigation.

Representative Experience

  • Representation of logistics providers and reverse distributors in rulemaking and enforcement matters involving hazardous waste pharmaceuticals
  • ...
414-297-5621
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