Common use of STATUTORY AND REGULATORY AUTHORITY Clause in Contracts

STATUTORY AND REGULATORY AUTHORITY. A. CAA Section 112(r)(1) 1. Section 112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1), states that the purpose of Section 112(r) of the CAA and its implementing regulations is “to prevent the accidental release and to minimize the consequences of any such release” of an “extremely hazardous substance.” 2. Pursuant to Section 112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1), owners and operators of stationary sources producing, processing, handling, or storing substances listed pursuant to Section 112(r)(3) of the CAA, 42 U.S.C. § 7412(r)(3), or any other extremely hazardous substance, have a general duty, in the same manner and to the same extent as 29 U.S.C. § 654, to (a) identify hazards which may result from accidental releases of such substances using appropriate hazard assessment techniques; (b) design and maintain a safe facility taking such steps as are necessary to prevent releases; and (c) minimize the consequences of accidental releases which do occur. This section of the CAA is referred to as the “General Duty Clause” (“GDC”). 3. Section 112(r)(8) of the CAA, 42 U.S.C. § 7412(r)(8), requires EPA to develop and disseminate information on how to conduct hazard assessments. According to EPA’s Guidance for Implementation of the GDC CAA Section 112(r)(1), dated May 2000 (“EPA GDC Guidance”), available at ▇▇▇▇▇://▇▇▇.▇▇▇.▇▇▇/sites/production/files/documents/gendutyclause- rpt.pdf, facilities subject to the GDC should identify hazards that may result from hazardous releases by determining: (a) the intrinsic hazards of the chemicals used in the processes; (b) the risks of accidental releases from the processes through possible release scenarios; and (c) the potential effect of these releases on the public and the environment. The document that contains this analysis is often referred to as a process hazard review (“PHR”).

STATUTORY AND REGULATORY AUTHORITY. A. CAA Section 112(r)(1)CAA 19. Section 112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1), states that the purpose of Section 112(r) of the CAA and its implementing regulations is “to prevent the accidental release and to minimize the consequences of any such release” of an “extremely hazardous substance.” 210. Pursuant to Section 112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1), owners and operators of stationary sources producing, processing, handling, or storing substances listed pursuant to Section 112(r)(3) of the CAA, 42 U.S.C. § 7412(r)(3), or any other extremely hazardous substance, have a general duty, in the same manner and to the same extent as 29 U.S.C. § 654, to (a) identify hazards which may result from accidental releases of such substances using appropriate hazard assessment techniques; (b) design and maintain a safe facility taking such steps as are necessary to prevent releases; and (c) minimize the consequences of accidental releases which do occur. This section of the CAA is referred to as the “General Duty Clause” (“GDC.”) 11. The extremely hazardous substances listed pursuant to Section 112(r)(3) include, among others, anhydrous ammonia. 312. The term “accidental release” is defined by Section 112(r)(8112(r)(2)(A) of the CAA, 42 U.S.C. § 7412(r)(87412(r)(2)(A), requires as an unanticipated emission of a regulated substance or other extremely hazardous substance into the ambient air from a stationary source. 13. The term “stationary source” is defined by Section 112(r)(2)(C) of the CAA, 42 U.S.C. § 7412(r)(2)(C), in pertinent part, as any buildings, structures, equipment, installations, or substance-emitting stationary activities, located on one or more contiguous properties under the control of the same person, from which an accidental release may occur. 14. The term “have a general duty in the same manner and to the same extent as section 654 of title 29 [of the U. S. Code]” means owners and operators must comply with the General Duty Clause in the same manner and to the same extent as employers must comply with the Occupational Safety and Health Act (“OSH Act”) administered by the Occupational Safety and Health Administration (“OSHA”). Section 654 of the OSH Act provides, in pertinent part, that “[e]ach employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees” and “shall comply with occupational safety and health standards promulgated under this act.” 29 U.S.C. § 654. 15. The intent of Section 112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1), is for facility owners and operators to implement all feasible means to reduce the threat of death, serious injury, or substantial property damage to satisfy the requirements of the General Duty Clause. S. Rep. 101-228, 1990 U.S.C.C.A.N. 3385, 3595 (1989). 16. EPA routinely consults codes, standards, and guidance issued by chemical manufacturers, trade associations, and fire prevention associations (collectively, “industry standards”) to develop understand the hazards posed by using various extremely hazardous substances. The industry standards also are evidence of the standard of care that industry itself has recognized to be appropriate for managing those hazards. These industry standards are consistently relied upon by industry safety and disseminate information on how to conduct hazard assessmentsfire prevention experts and are sometimes incorporated into state building, fire, and mechanical codes. 17. According to Sections 113(a) and (d) of the CAA, 42 U.S.C. §§ 7413(a) and (d), the Debt Collection Improvement Act of 1996 (as amended in 2015 by Section 701 of Pub. L. 114–74, 31 U.S.C. § 3701), and EPA’s Guidance Civil Monetary Penalty Inflation Adjustment Rule, 40 C.F.R. Part 19, provide for Implementation the assessment of civil penalties for violations of Section 112(r)(1) of the GDC CAA Section 112(r)(1CAA, 42 U.S.C. § 7412(r), dated May 2000 in amounts of up to $51,796 per day per violation for violations that occurred after November 2, 2015 and are assessed on or after January 12, 2022. 18. EPCRA was enacted on October 17, 1986, and establishes requirements regarding emergency planning for, and reporting on, hazardous and toxic chemicals. 19. Under Section 312(a) of EPCRA, owners and operators of facilities that are required to prepare or have available a safety data sheet (“EPA GDC GuidanceSDS”) for a hazardous chemical under the Occupational Safety and Health Act of 1970 and regulations promulgated thereunder (“hazardous chemicals”) must prepare and submit an emergency and hazardous chemical inventory form (“Tier 1” or “Tier 2” form) to the local emergency planning committee (“LEPC”), available at ▇▇▇▇▇://▇▇▇.▇▇▇.▇▇▇/sites/production/files/documents/gendutyclause- rpt.pdfthe state emergency response commission (“SERC”), facilities subject and the local fire department. Tier 1 or Tier 2 forms must be submitted annually on or before March 1 and are required to contain information with respect to the GDC should identify hazards preceding calendar year. 20. Section 312(b) of EPCRA, 42 U.S.C. § 11022(b), authorizes EPA to establish minimum threshold levels of hazardous chemicals for the purposes of Section 312(a) of EPCRA, 42 U.S.C. § 11022(a). In accordance with Section 312(b) of EPCRA, 42 U.S.C.§ 11022(b), 40 C.F.R. § 370.10 establishes minimum threshold levels for hazardous chemicals for the purposes of 40 C.F.R. Part 370. 21. Under 40 C.F.R. §§ 370.20, 370.40, and 370.44, the owner or operator of a facility that may result from has present a quantity of a hazardous releases by determining: (achemical exceeding the minimum threshold level, as set forth in 40 C.F.R. § 370.10, must prepare and submit a Tier 1 or Tier 2 form to the LEPC, SERC and local fire department. Forty C.F.R. § 370.45(a) requires that Tier 1 or Tier 2 forms be submitted annually on or before March 1 and contain information relating to the intrinsic hazards preceding calendar year. Forty C.F.R. § 370.40(b) allows the LEPC, SERC or local fire department to request that a facility submit the more comprehensive Tier 2 form in lieu of the chemicals used in the processes; (b) the risks of accidental releases from the processes through possible release scenarios; and (c) the potential effect of these releases on the public and the environmentTier 1 form. The document State of Connecticut requires the more comprehensive Tier 2 form. 22. Section 325(c) of EPCRA, 42 U.S.C. § 11045(c), the Debt Collection Improvement Act of 1996 (as amended in 2015 by Section 701 of Pub. L. 114–74, 31 U.S.C. § 3701), and EPA’s Civil Monetary Penalty Inflation Adjustment Rule, 40 C.F.R. Part 19, provide for the assessment of civil penalties for violations of Section 312 of EPCRA, 42 U.S.C. § 11022, in amounts of up to $62,689 per day per violation for violations that contains this analysis is often referred to as a process hazard review (“PHR”)occurred after November 2, 2015 and are assessed on or after January 12, 2022.