This is an interesting case, with EPA laying claim that although the chemical Toluene is NOT listed as an Extremely Hazardous Substance (EHS) in either the RMP or EPCRA rule it is still an EHS and the Clean Air Act’s RMP General Duty Clause applies to it. EPA wins this case, but the argument the facility puts forth is compelling and thus this decision provides MUCH INSIGHT into EPA’s position on enforcing their General Duty Clause, even to chemicals that are NOT listed as an EHS. The incident that brought about this case was a chemical process that suffered an explosion within the toluene tank. NOTE: I have condensed this decision down quite a bit by cutting out all the legal references as this is meant to be a look into the RMP GDC and not legal proceedings.
In its Motion to Dismiss, the facility makes a number of arguments, the first of which is that the general duty clause of Section 112(r) applies only to “extremely hazardous substances” and that toluene is not such a substance. An “extremely hazardous substances” for the purposes of Section 112(r), The facility asserts, is either:
- one listed as a 112(r) regulated substance or
- as an “extremely hazardous substance” under the Emergency Planning and Community Right-To-Know Act (EPCRA), or
- “the substance is otherwise identified as extremely hazardous due to its toxicity, reactivity, flammability, volatility or corrosivity.”
It notes that toluene (CAS # 108883) is not on either the CAA or EPCRA list. (citing 40 C.F.R. § 68.130 (CAA § 122(r) Tables of Regulated Substances) and 40 C.F.R. Part 355, Appendix A (EPCRA List of Extremely Hazardous Substances)).
Next, the facility counsels, there is a difference between a “hazardous substance” and an “extremely hazardous substance” and that the general duty clause only applies to the latter. Furthermore, the facility claims, an explosion by itself does not make a substance extremely hazardous. The facility avers that the type of substances which were intended to be deemed “extremely hazardous” are only those whose release causes injury or damage, quoting in support from the Report of the Senate Committee on the Environment regarding the 1990 CAA Amendments as follows – the release of any substance which causes death or serious injury because of its acute toxic effect or as a result of an explosion or fire or which causes substantial property damage by blast, fire, corrosion or other reaction would create a presumption that such substance is extremely hazardous.
In this case, “the release of toluene did not cause an explosion, a death or serious injury”; rather, the explosion occurred inside a process vessel and resulted in a “post-explosion” release of toluene. Therefore, because “the release” to the ambient air did not present a hazard, toluene does not meet the criteria for an extremely hazardous substance, the facility offers. To reach a contrary result “requires reading the word ‘release’ out of the general duty clause” and is contrary to the basic tenet of statutory construction that all words in a statute have meaning. The facility also suggests that its reading of the statute is consistent with the statute’s objective which is to “prevent the accidental release of substances which may cause death, injury or property damage as a result of even short term exposure.” Alternatively, the facility asserts it met its obligations under the general duty clause, noting that its duty thereunder is the same as under OSHA. Under OSHA, only “preventable,” “recognized hazards” are within the general duty clause, making compliance with it “achievable,” and so too with the CAA, citing in support EPA CAA Guidance that “the hazard must be recognized either by the employer or generally within the employer’s industry.” The facility maintains that it “did not recognize the potential for large volumes of oxygen to reach TK-1124,” and it acted in response to the alarm, “but those actions were not effective at mitigating the unforseen cause of oxygen entering the tank.” It further reports that it kept the unit damaged by the explosion off-line for seven months while it evaluated the cause of the explosion, and designed and constructed changes to prevent the incident from reoccurring, as a result of which it incurred considerable expense and sacrificed productivity.
The facility’s final argument is that the CAA’s general duty clause “as applied” is void for vagueness, because it fails to provide the requisite reasonable notice of what is prohibited or required. The facility explains that that CAA 112(r) is directed towards releases of extremely hazardous substances, but here the explosion occurred in a closed process vessel and there was no release to the ambient air. Therefore, the statute did not afford reasonable warning that it would apply to the incident as it occurred.
In its response to the motion, EPA acknowledges
- that toluene is not a “listed” extremely hazardous substance under the CAA,
- that the term “extremely hazardous substance” is not defined in the Act, and
- that the Senate Report cited by the facility may be looked to as guidance in regard thereto.
The Senate Report indicates that the term “extremely hazardous substance” would include “any agent . . . ‘which may as the result of short-term exposures associated with releases to the air cause death, injury or property damage due to its toxicity, reactivity, flammability, volatility, or corrosivity.” In that the Material Safety Data Sheets (“MSDSs”) indicate that toluene is toxic, volatile and corrosive, EPA suggests the court can, at this point, find it is an “extremely hazardous substance” covered by CAA § 112(r).
In further support of such a finding, EPA cites a case in which it claims “a court of law has recognized EPA’s position . . . that even water . . . can be an extremely hazardous substance. It also notes that it has instituted other cases alleging CAA 112(r) general duty clause violations for unlisted substances which were flammable like toluene. Alternatively, EPA suggests whether toluene was an extremely hazardous substance at the time of the explosion “may be a factual issue to be determined at hearing.” In addition, EPA goes on to contend that “an accidental release to the ambient air is not an element of liability under 112(r)(1).” The purpose of the statute is preventative, and it “would be contrary to the intent of Congress to hold that the very harm that the GDC [general duty clause] is meant to prevent is required for a finding of liability.” The company can be found liable under the general duty clause even if toluene was not released at all, as EPA explains –
The issue is whether the company was maintaining a safe facility by doing what the industry standards require for all plants, which is adequate process safety management, including hazard identification and control, equipment inspections, safe work practices and process operations, equipment maintenance, and employee training. The fact that an explosion occurred at the facility is indicative of process safety failures which are the real GDC violations. The explosions themselves are not the GDC violations. The explosions are the result of GDC violations and may be the cause of subsequent GDC violations (e.g., releasing EHS [extremely hazardous substance] to the ambient air. Explosions are evidence of a risk of harm to the public.
In the instance [sic] case, it is sufficient to prove that the unsafe storage or handling of toluene, an extremely hazardous substance, could have caused a fire or explosion. In support of this assertion, EPA cites to Sec. of Labor v. Duriron Co., Inc., 11 OSHC (BNA) 1405, 1983 OSAHRC LEXIS 121 (OSAHRC 1983), for the proposition that under OSHA’s general duty clause “we look to risk of harm to determine a GDC failure.” Moreover, EPA characterizes as “incomprehensible and incongruous” the facility’s claim that because it failed to recognize the potential hazard, it complied with its general duty. Again citing the Senate Report, EPA asserts that the facility was obliged to take all feasible actions to reduce hazards “‘known to exist’ at its facility, ‘or which have been identified for similar facilities in the same industrial group,’” noting that the existence of an industry code or consensus standard establishes an “employer’s awareness of the hazard.” EPA alleges that industry standards exist for the process vessel in question. The facility did not meet its duty under 112(r) to prevent accidental releases, EPA argues, because it failed to assess or identify the hazards posed by extremely hazardous substances in its tanks and piping, noting such assessment is an extensive process. Further, EPA asserts that the installation of the oxygen sensing alarm “shows that the facility was well aware of the hazard.” The fact that the facility turned the alarm sensor off after 150 warnings, believing it malfunctioning, and continued operating TX-1124, evidences that it failed to operate its facility in a safe manner and minimize the risk of accidental release, as evidenced by the resulting explosion.
Finally, as to the vagueness argument, EPA states that the law is clear as to an owner’s obligation to:
- evaluate hazards posed by chemicals used at its facility,
- to maintain the facility in a way to prevent accidental releases of those chemicals, and
- to minimize the consequences of release that do occur
Citing a case interpreting OSHA’s general duty clause, EPA asserts “[t]he key is safety” and industry codes and consensus standards must be looked to in terms of hazards to be eliminated. Further, EPA suggests that its regulations published in 1994 and its more recent guidance document, publically accessible via the web, provided notice of what was prohibited or required.
In its reply, the facility exclaims that “EPA is attempting to expand the application of the general duty clause beyond its plain language. The legislative history of CAA and EPA’s RMP [Risk Management Plan] general duty clause guidance makes it clear that the measuring point for harm under the general duty clause occurs after an extremely hazardous substance has been released to the ambient air.” Further, it argues that when evaluated after the release to the air, the toluene involved in the explosion is “in no way an extremely hazardous substance.” Citing authority in support, the facility asserts that neither the D.D. Williamson (water) case, resolved upon consent, nor mere allegations made by the Agency in complaints filed other cases, constitute precedent in this case.
Additionally, while acknowledging that a general duty clause violation can occur without an actual release, the facility contends that EPA here identified “the hazard” as the explosion. Toluene was explosive in this case because of the unique conditions created inside the process vessel, not after it was released, the facility asserts. In that the explosion occurred inside the process vessel, it cannot be characterized “as the result of an accidental release.” “Here, there was no release of any substance to the atmosphere which created a risk of explosion.” As to its compliance, and industry standards, the facility raises two points. First, it states that EPA did not contend in its Complaint that the facility failed to adequately “assess” the hazards of its process, but only alleged that it violated the general duty clause by not preventing an accidental release and minimizing the consequences thereof. The facility denies EPA’s right to cure this deficiency by asserting a new claim in its response. The facility asserts that, in fact, it did assess the hazards of its process, and did not identify the hazard, and that “EPA did not controvert this fact.” Moreover, the facility declares that it was only obliged to identify hazards which may result from accidental releases to the atmosphere of a regulated substance, which did not occur here. Finally, as to vagueness, the facility advises that none of the guidance as to the general duty clause cited by EPA indicates its applicability to “hazards internal to a process without a release.”
Discussion of Toluene as an Extremely Hazardous Substance and the Necessity of a “Release”
As indicated above, CAA Section 112(r)(1) states in pertinent part as follows:
It shall be the objective of the regulations and programs authorized under this subsection to prevent the accidental release . . . of any substance listed pursuant to paragraph (3) or any other extremely hazardous substance. The owners and operators of stationary sources producing, processing, handling or storing such substances have a general duty in the same manner and to the same extent as section 654 of title 29 of the United States Code, 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.
As such, it is clear that Section112(r)(1)’s “general duty clause” only applies in regard to preventing the release of either a “substance listed pursuant to [112(r)] paragraph (3)” or “any other extremely hazardous substance.” Both parties acknowledge that toluene is not now, and has never been, “listed” as an “extremely hazardous substance” under CAA 112(r)(3). Thus, for the general duty clause to arise and apply in regard to it, EPA must show that toluene is an “extremely hazardous substance,” under CAA112(r)(1).
Section 112(r) was added to the CAA as part of the CAA Amendments of 1990, and interestingly, toluene was listed as an “extremely hazardous substance” in the proposed bill (S.1630). Senate Report at 212, 1990 USCCAN at 3598 (Table III-8.–Extremely Hazardous Substances)(“The named substances are those which are associated with the largest number of accidental: (1) events; (2) deaths; (3) injuries; and (4) evacuations . . . “). See also, 1990 USCCAN at 3513 (identifying toluene (“a constituent of gasoline”) as an “air toxic of concern” and one of the “chemicals most frequently released”). Toluene, however, was not so identified in the statute as enacted, and explanation therefor may be found in the Minority Views of Senator Syms, wherein he stated –
Despite the explicit instructions regarding the selection of the substances, the [Senate] Committee [on Environment and Public Works] then inserts on its own part an initial list of 25 substances to be subject to the accidental release provisions, . . . eleven [of which] . . . do not appear to meet the specified criteria . . . . Some of these [including] toluene – are widely used throughout American industry, and have not been implicated in the Bhopal-like incidents that the emergency release provisions are designed to address.
Nevertheless, toluene is listed as a “hazardous air pollutant” in CAA Section 112(b) (42 U.S.C. § 7412(b)). EPCRA also uses the term “extremely hazardous substance,” which it defines as “a substance on the list describe in section 11002(a)(2) of this tile.” However, other provisions in Section 112(r) do give meaning to the term. Specifically, paragraph (3) thereof states that the list the Administrator promulgates consistent with the Section shall include “substances which, 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.” Further, paragraph (4) thereof states that in listing substances the Administrator shall consider “(i) the severity of any acute adverse health effects associated with accidental releases of the substance; (ii) the likelihood of accidental releases of the substance; and (iii) the potential magnitude of human exposure to accidental releases of the substance.” The term “accidental release,” is defined in Section 112(r) statute as an “unanticipated emission of a regulated substance or other extremely hazardous substance into the ambit air from a stationary source.” Thus, “extremely hazardous substances” for the purposes of 112(r) are those whose unanticipated emission into the ambit air are “known or may be reasonably anticipated to cause” acute and serious adverse effects to human health or the environment.
Such anticipatory phrasing, i.e. that the objective the section is to “prevent” releases, that extremely hazardous substances” are those which “may . . . cause” injury or damage “in case of an accidental release,” and the description of the duty as including “identifying” hazards (using hazard assessment techniques), “which may result from such releases,” and taking steps to “prevent releases,” indicates that neither an actual release of a extremely hazardous substance, nor proof that such release directly caused injury or damage, are conditions of the clause’s application. Rather, as Complainant asserts, the general duty clause in Section 112(r) is a prophylactic measure, imposed upon all owners/operators of stationary sources who produce, process, handle or store “extremely hazardous substances,” regardless of whether a “release” has occurred and/or has directly caused injury or damage. See, Senate Report, 1990 U.S.C.C.A.N. at 3591, 1989 WL 236970 at **177 (explaining that the objective of the section is the “prevention
of accidental releases” and that “[s]ystems and measures which are effective in preventing accidents are preferable to those which are intended to minimize the consequences of a release.”). Such holding is also consistent with OSHA’s general duty clause, to which the CAA duty is to apply in the “same manner and to the same extent.” See, Brennan v Smoke-Craft, Inc. 530 F. 2d 843 (9th Cir. 1976) (Secretary of Labor need not show occurrence of actual injury before citing employer for OSHA violation).
As toluene is not a listed substance, no threshold quantity has been established for it. Thus, it remains an issue to be established whether Respondent had a sufficient quantity of toluene such that it would constitute an “extremely hazardous substance.” Both parties at various points in their pleadings cite the legislative history of the CAA regarding a presumption that a substance is “extremely hazardous,” specifically that: “[t]he release of any substance which causes death or serious injury because of its acute toxic effect or as the result of explosion or fire or which causes substantial property damage by blast, fire, corrosion or other reaction would create a presumption that such substance is extremely hazardous.” It is observed that such presumption was not incorporated into the CAA Amendments as enacted in 1990. Further, Complainant has not challenged Respondent’s claim that the “release” of toluene did not cause the injury or damage, and therefore the presumption would not come into play in this case.
Thus, to successfully make out a claim for application of the general duty clause, all EPA must allege is that Respondent is an owner/operator of a stationary source who produces, processes, handles or stores “an extremely hazardous substance,” i.e., one that in the event of an “accidental release,” is “known to cause or may reasonably be anticipated to cause“ acute serious injury or damage. EPA broadly makes such allegations, and specifies the substance as toluene and its location at the facility. Moreover, the facility has in large measure admitted the truth thereof, resting its denial of toluene being an “extremely hazardous substance” only upon the arguments discredited above regarding preconditions of release and injury. As such, EPA has not shown that the allegations in the Complaint fail to “state a claim for relief that is plausible on its face” under Twombly, supra, and has not shown that it is entitled to judgment as a matter of law as to its initial arguments for dismissal. Similarly unpersuasive is EPA’s assertion that this Tribunal can find on the record as it now exists that toluene is, in fact, an “extremely hazardous substance.” In support thereof, EPA has proffered a series of Material Safety Data Sheets (MSDS) which indicate that toluene has “potential acute health effects.” However, it cannot be determined by review of such sheets alone, if, upon “accidental release” from the facility to the ambient air such potential health effects would rise to the level of being “extremely hazardous,” i.e. the substance is likely to acutely cause “death, injury, or serious adverse effects to human health,” especially as the quantity of toluene available thereat for release is not yet established. Therefore, EPA’s request for a ruling in this cases that toluene is an “extremely hazardous substance” is denied as premature.
Discussion of the facility’s Compliance with the General Duty Clause
In its Motion, the facility suggests that even if the general duty clause applied to it, it was in compliance with its duty thereunder “because the hazard was not recognized.” It is observed, however, that the operative language of the CAA, “known to cause or may reasonably be anticipated to cause,” does not limit the knowledge or anticipation to that possessed by owner/operator personally. Further, such a reading would be absurd as it would potentially reward intentional ignorance. Thus, the knowledge and “reasonable anticipation,” must arise from a wider source, as indicated by the Senate Report – A fourth element of the program is a general duty imposed on each facility owner or operator . . . The facility owner or operator is obligated to take all feasible actions that are available to reduce hazards which are known to exist at that particular facility or which have been identified for similar facilities in the same industrial group.
As such, the fact that the facility did not recognize the hazard at its facility prior to the incident does not alone prove its compliance with its obligations under the general duty clause. Under the OSHA general duty clause, in the absence of actual knowledge, the standard of conduct is set with reference to “industry custom and practice.”. As noted above, the facility argues that EPA is attempting in its Response to alter its allegations of violations from failing to prevent the hazard or minimize the consequences thereof, to failing to do a hazard assessment, and that it did conduct a hazard assessment. EPA alleges that “Respondent did not exercise its general duty to assure a safe facility by not taking such steps as are necessary to prevent releases.” Such allegations, read in a light most favorable to EPA, would include a violation based upon the failure to do an adequate hazard assessment in that the general duty clause of Section 112(r) indicates that a hazard assessment is a “step” necessary to prevent releases. 42 U.S.C. § 7412(r)(1) (“owners . . . have a general duty . . . 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 . . . “).
Second, while the facility alleges it conducted a “hazard assessment,” it is observed that the facility has not alleged that such assessment was consistent with industry standards. In its Response, EPA implies that had Respondent followed the American Institute of Chemical Engineers’ published “Guidelines for Hazard Evaluation Procedures” (1985), it would have identified the hazard which led to the release of toluene. Thus, the issues at play here are not merely what “Respondent knew and when did it know it,” but whether the hazard assessment Respondent undertook, if any, was compliant with industry custom and practice. Therefore, at this point it cannot be determined as a matter of law whether the facility fully complied with its general duty clause obligations, if any such obligations existed in regard to it prior to the incident.
Upon consideration of the foregoing, the facility’s Motion to Dismiss is hereby DENIED.