B-221129.2, Feb 23, 1990

B-221129.2: Feb 23, 1990

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Subcommittee on Oversight and Investigations Committee on Energy and Commerce House of Representatives: This is in response to your letter of March 23. We have concluded that. A hazardous air pollutant is defined by the statute as an "act is applicable and which in the judgment of the Administrator causes. An emission standard is defined by the act as a requirement which "limits the quantity. The term "work practice standard" is not defined by the statute. The term refers to how the polluting activity is performed. Rather than how much pollution is emitted. EPA's interpretation is supported by the legislative history. Which makes clear that this provision is aimed solely at controlling the source of hazardous emissions.

B-221129.2, Feb 23, 1990

MISCELLANEOUS TOPICS - Environment/Energy/Natural - Resources - Environmental protection - Air quality - Standards - Enforcement DIGEST: While section 112 of the Clean Air Act, 42 U.S.C. Sec. 7412, authorizes the Environmental Protection Agency to take certain specified actions to regulate emissions of hazardous air pollutants, it generally does not authorize the agency to implement the National Clean Air Coalition's recommendations (i.e., requiring hazard assessments and accident prevention standards) for regulating the accidental release of chemical air pollutants.

The Honorable John D. Dingell Chairman, Subcommittee on Oversight and Investigations Committee on Energy and Commerce House of Representatives:

This is in response to your letter of March 23, 1989, in which you requested our opinion whether section 112 of the Clean Air Act provides authority for the Environmental Protection Agency (EPA) to institute a regulatory program designed specifically to prevent accidental air releases of chemicals, as recommended by the National Clean Air Coalition. We have concluded that, while section 112 authorizes EPA to take certain specified actions to regulate emissions of hazardous air pollutants, it generally does not authorize the agency to implement the Coalition's recommendations for regulating the accidental release of chemical air pollutants.

BACKGROUND

Clean Air Act

Section 112 of the Clean Air Act, 42 U.S.C. Sec. 7412, provides EPA with authority to regulate the emission of hazardous air pollutants from stationary sources. A hazardous air pollutant is defined by the statute as an "act is applicable and which in the judgment of the Administrator causes, or contributes to, air pollution which may reasonably be anticipated to result in an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness." 42 U.S.C. Sec. 7412(a).

Section 112 requires EPA to publish, and from time to time revise, a list of each hazardous air pollutant, as defined above, for which the agency plans to establish an emission standard. Once EPA has listed a pollutant as hazardous, it must propose emissions standards within 180 days of listing, and issue final standards within another 180 days. According to the act, standards must be set at a level that "provides an ample margin of safety" to protect the public health.

Under section 112, these standards may be promulgated as an "emission standard" or, under special circumstances, as a "design, equipment, work practice, or operational standard" (hereinafter "work practice standard"). An emission standard is defined by the act as a requirement which "limits the quantity, rate, or concentration of emissions of air pollutants on a continuous basis." Clean Air Act, 302(k), 42 U.S.C. Sec. 7602(k). The term "work practice standard" is not defined by the statute. As interpreted by EPA, the term refers to how the polluting activity is performed, rather than how much pollution is emitted. See, e.g., 40 C.F.R. Part 601, Subpart M (describing performance standards for asbestos). EPA's interpretation is supported by the legislative history, which makes clear that this provision is aimed solely at controlling the source of hazardous emissions. S. Rep. No. 127, 95th Cong., 1st. Sess. 43 (1977).

A work practice standard may only be promulgated in cases where it is not feasible to prescribe or enforce an emission standard. The act limits EPA's authority to impose work practice standards to situations in which (1) a hazardous pollutant cannot be emitted through a conveyance designed and constructed to emit or capture such pollutant (or in which use of such a conveyance would be illegal) or (2) the application of measurement technology to a particular class of sources is not practicable due to technological or economic reasons. 42 U.S.C. Sec. 7412(e)(2). Furthermore, any standard promulgated as a work practice standard must be promulgated as an emission standard whenever it becomes feasible to do so. 42 U.S.C. Sec. 7412(e)(4).

Recommendations of the National Clean Air Coalition. In a letter to you dated March 17, 1989, the National Clean Air Coalition stated its opinion that EPA has authority under section 112 to regulate chemical accident air releases, but that the agency has failed to exercise that authority. Therefore, the Coalition recommended that Congress amend section 112 specifically to require EPA to carry out a program to prevent such accidental air releases. The Coalition stressed three essential elements to an effective chemical accident prevention program. According to the Coalition, these are:

1. A requirement that facilities which handle potentially dangerous quantities of acutely hazardous chemicals perform hazard assessments and that these assessments be available for scrutiny by governmental authorities and concerned citizens.

2. Establishment of a Chemical Safety Board, independent of EPA, to determine why chemical accidents have occurred and what can be done to prevent their repetition.

3. A mandate for EPA to set accident prevention standards for equipment and practices most prongs to chemical releases.

The Coalition's recommendations are for legislative action by Congress, rather than regulatory action by EPA. However, aside from the recommendation for establishment of an independent Chemical Safety Board, which would undoubtedly require new legislation, the Coalition appears to suggest that its two other recommended actions may be implemented by EPA pursuant to its existing authority under section 112. The Coalition did not provide any legal support for its position other than to point out that the definition of a hazardous air pollutant applies equally to an acutely dangerous pollutant which can cause death or serious illness due to an accidental release and to a chronically dangerous pollutant which can cause death or serious illness after prolonged routine emissions.

LEGAL OPINION

In our opinion, except under limited circumstances, section 112, which is concerned with routine, and not accidental, releases, does not provide EPA authority to carry out the recommendations of the Coalition to regulate the accidental release of chemical air pollutants. As explained below, section 112 generally authorizes only numerical emission standards. The only statutory language that arguably could support the recommendations of the Coalition is the provision in section 112 authorizing EPA to set work practice standards. This provision might be used by EPA to control the source of hazardous emissions for which a numerical standard is not feasible, regardless of whether those emissions are routine or accidental. This provision, however, would not authorize EPA to require hazard assessments, as recommended by the Coalition.

DISCUSSION

Until 1977, EPA's authority under section 112 was limited to setting emission standards with numerical limitations. In Adams Wrecking Co. v. United States, 434 U.S. 275 (1978), a case involving pre-1977 section 112, the Supreme Court of the United States held that EPA's standard for asbestos, requiring that asbestos insulation and fireproofing in large buildings be watered down before the building is demolished, was not authorized by section 112 because it was a work practice standard, not an emission standard.

In the 1977 amendments to the Clean Air Act, Congress expressly authorized work practice standards. /1/ However, Congress limited the use of such standards to situations where it is not possible either to measure hazardous emissions or capture them through appropriate devices for control. Clean Air Act, 112(e)(2), 42 U.S.C. Sec. 7412(e)(2).

The legislative history of the amendment to section 112 makes it clear that work practice standards should only be used "in a very few limited cases." S. Rep. No. 127, supra, at 44. /2/The Senate report used regulation of asbestos as an example of a situation where it might be appropriate to set a standard other than a numerical limitation under section 112. According to the Senate report, activity such as demolition of existing buildings causes asbestos fibers to escape into the ambiens atmosphere. Work practice and other design characteristics may be the only means available for controlling such a pollutant. Id.

Thus, even assuming that the recommendations of the Coalition for requiring hazard assessments and accident prevention standards constitute work practice standards, under section 112 these standards could, at most, apply only to hazardous pollutants for which it is not feasible for EPA to set an emission standard. That is, except in cases in which pollutants cannot be emitted through a device for control, such as a smokestack, or in which the level of emissions cannot be measured under existing technology, EPA may not regulate them by work practice standards. /3/

Moreover, even in those cases where EPA may set a work practice standard for hazardous air pollutants, section 112 draws no distinction between accidental, as opposed to routine, releases of hazardous pollutants. those cases, EPA may do so regardless of whether the emissions are accidental or routine. By the same token, the fact that the emissions may be accidental does not afford EPA with any enhanced regulatory authority under section 112.

Further, there is nothing in section 112 that authorizes EPA to require facilities that handle hazardous chemicals or other pollutants to perform hazard assessments. The provision authorizing the agency-- under special circumstances-- to impose work practice standards is, in our opinion, insufficient for this purpose. As the legislative history makes clear, this provision is aimed solely at controlling the source of hazardous emissions. S. Rep. No. 127, supra, at 43. In our opinion, it does not extend to requiring hazard assessments.

We hope our comments are helpful to you. Under our usual agreement, this opinion will be available to the public 30 days from its date, unless you release it sooner.

/1/ This provision now authorizes the asbestos regulationinvolved in the Adams case. Adams Wrecking Co. v. United States, supra, at 289.

/2/ The amendments to section 112 derive from Senate bill S. 252, 95th Cong., 1st Sess. (1977). The House bill had no comparable provision. Under the conference agreement, the House adopted the Senate provision, with a minor clarifying amendment. H.R. Rep. No. 564, 95th Cong., 1st Sess. (1977), reprinted in 1977 U.S. Code Cong. Ad. News 1502, 1512.

/3/ In cases where EPA determines that any level of emissions could be harmful, EPA may, theoretically, set a zero-emission limit. See GAO/RCED- 83-199, Apt. I (August 26, 1983).