Chlorine, CAS No. 7782-50-5, is an extremely hazardous substance regulated and listed in 40 C.F.R. § 68.130. As the owner and operator of a stationary source, with respect to the use and storage of ferric chloride and sodium hypochlorite, Respondent has a duty under the General Duty Clause, Section 112(r)(1) of the CAA, to design and maintain a safe facility taking such steps as are necessary to prevent the accidental release of substances listed pursuant to Section 112(r)(3) of the CAA, 42 U.S.C. § 7412(r)(3), or of any other extremely hazardous substances.
Relevant industry standards for the storage, handling and use of sodium hypochlorite and ferric chloride include:
- Chlorine Institute Pamphlet 96 (“CI Pamphlet 96”), “Sodium Hypochlorite Manual,” 4th Edition (October 2011) and 5th Edition (September 2017);
- Chlorine Institute Pamphlet 65 (“CI Pamphlet 65”), “Personal Protective Equipment for Chlor-Alkali Chemicals,” 5th Edition (February 2008) and 6th Edition (July 2016); and
- the SDSs for sodium hypochlorite and ferric chloride
CI Pamphlet 96, 4th and 5th editions, details the necessity to train employees regarding the incompatibility of chemicals and the hazards of accidentally mixing sodium hypochlorite with incompatible chemicals in order to provide safety consistent with industry standards.
a. Section 7.3.1 of CI Pamphlet 96 (2011) states that employers who handle hazardous materials, such as sodium hypochlorite, should develop a company policy and training programs for its employees to educate these employees to the possible hazards of the workplace and to assist them in their understanding of the requirements, responsibilities, safety measures, and procedures that must be followed at the work site. See CI Pamphlet 96 (2011) § 7.3.1; see also CI Pamphlet 96 (5th ed., 2017) at § 5.3.1.
b. Section 8.16.1 of CI Pamphlet 96 (2011) continues, “Unloading operations must be performed by reliable, properly instructed persons. An inspection checklist should be used for all aspects of the unloading operation.” See CI Pamphlet 96 (2011) at § 8.16.1. CI Pamphlet 96, Appendix D “Accidental Mixing Guidance: Avoiding Accidental Mixing of Sodium Hypochlorite” provides an enumerated checklist of recommendations to avoid accidental mixing during bulk unloading of sodium hypochlorite.
CI Pamphlet 96, 4th and 5th editions, and CI Pamphlet 65 detail the necessity to train employees regarding the use of personal protective equipment (“PPE”) in order to provide safety consistent with industry standards.
a. Section 7.9 of CI Pamphlet 96 (2011) states that companies must perform a hazard assessment on each operation to determine what PPE will be needed for that operation, but that PPE must be worn when handling sodium hypochlorite.
See CI Pamphlet 96 (2011) § 7.9; see also CI Pamphlet 65, “Personal Protective Equipment for Chlor-Alkali Chemicals,” (2008) at Table 7.1.
b. Section 8.16.1 of CI Pamphlet 96 (2011) also indicates that a central component of operational safety while unloading sodium hypochlorite is the PPE of unloading personnel: “Proper personal protective equipment (which may include hard hat, chemical splash goggles, full face shields, chemical protective suit, gloves, and boots) should be worn during the transfer operations.” See CI Pamphlet 96 (2011) at § 8.16.1.
c. The SDS for sodium hypochlorite states that sodium hypochlorite is a base and incompatible with acids, that it can cause severe skin burns and eye damage, and recommends that PPE be worn for safe handling to avoid tasting, swallowing, or getting any of the chemical substance on clothes, skin or eyes.
d. The SDS for ferric chloride states that it is an acid and incompatible with bases and their interaction can cause exothermic reactions. The SDS further states that ferric chloride can cause skin irritation and serious eye damage, and recommends that PPE (i.e., tightly fitting googles and face shield, protective gloves, clothing, and boots, and a half mask with filter if aerosol or mist formed) be used for safe handling.
Count I
During EPA’s Inspection, Respondent’s employee, who was responsible for overseeing the unloading of products from delivery trucks into the associated tanks at the Facility, stated that Respondent had not provided him with training on the incompatibility of chemicals and/or avoiding accidental mixing of sodium hypochlorite with other chemicals, or the proper use of PPE.
Respondent is subject to the requirements of the General Duty Clause at the Facility because Respondent is the owner and operator of a stationary source that produces, processes, handles, or stores hazardous substances listed pursuant to Section 112(r)(3) of the CAA, or other extremely hazardous substances.
At the time of the Inspection, Respondent failed to comply with the requirement of Section 112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1), to design and maintain a safe facility by taking such steps as are necessary to prevent accidental releases by failing to adhere to relevant industry standards and provide training to Facility employees on the incompatibility of chemicals and/or avoiding accidental mixing of sodium hypochlorite with other chemicals, and the proper use of PPE.
Respondent violated the requirements of Section 112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1), to design and maintain a safe facility taking such steps as are necessary to prevent the release of substances listed pursuant to Section 112(r)(3) of the CAA, 42 U.S.C. § 7412(r)(3), or any other extremely hazardous substances by failing to provide its employees at the Facility proper training on (1) incompatibility of chemicals and avoiding accidental mixing of sodium hypochlorite with other chemicals, and (2) the proper use of PPE as provided by industry standards.
In failing to comply with Section 112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1), Respondent is subject to the assessment of penalties under Section 113(d) of the CAA, 42 U.S.C. § 7413(d).
Count II
Failure to Immediately Notify the National Response Center of a Release
The information and allegations in the preceding paragraphs of this Consent Agreement are incorporated herein by reference.
Section 103(a) of CERCLA, 42 U.S.C. § 9603(a), requires any person in charge of a facility, as soon as he has knowledge of a release of a hazardous substance from such facility, in a quantity equal to or greater than the reportable quantity (“RQ”) for that hazardous substance, to immediately notify the National Response Center (“NRC”) of the release.
Section 102(a) of CERCLA, 42 U.S.C. § 9602(a), requires the Administrator of the EPA to publish a list of substances designated as hazardous substances, which, when released into the environment may present substantial danger to public health or welfare or to the environment, and to promulgate regulations establishing that quantity of any hazardous substance, the release of which shall be required to be reported under Section 103(a) of CERCLA, 42 U.S.C. § 9603(a). The list of hazardous substances is codified at 40 C.F.R.§ 302.4.
Chlorine is a hazardous substance, as defined under Section 101(14) of CERCLA, 42 U.S.C. § 9601(14), and 40 C.F.R. § 302.3, with an RQ of 10 pounds, as listed in 40 C.F.R. § 302.4.
The December 23, 2019 release of approximately 2,000 pounds of chlorine from the Facility (“the Release”) constitutes a release of a hazardous substance in a quantity equal to or exceeding the RQ for that hazardous substance, requiring immediate notification of the NRC pursuant to Section 103(a) of CERCLA, 42 U.S.C. § 9603(a).
Respondent should have had knowledge of a release of chlorine from the Facility in quantities exceeding the RQ at approximately 6:00 a.m. on December 23, 2019, when an employee reported smelling a strong chlorine odor and knew that ferric chloride had been loaded into the sodium hypochlorite tank.
The respondent did not notify the NRC of the Release.
Respondent violated Section 103(a) of CERCLA, 42 U.S.C. § 9603, by failing to immediately notify the NRC of the Release as soon as Respondent knew or should have known that a release of a hazardous substance had occurred at the Facility in an amount equal to or exceeding the applicable RQ, as required by Section 103 of CERCLA, 42 U.S.C. § 9603, and 40 C.F.R. § 302.6.
In failing to comply with Section 103(a) of CERCLA, 42 U.S.C. § 9603(a), and 40 C.F.R. Part 302, Respondent is subject to the assessment of penalties under Section 109(a) of CERCLA, 42 U.S.C. § 9609(a).
Count III
Failure to Immediately Notify the State Emergency Response Commission of a Release
The information and allegations in the preceding paragraphs of this Consent Agreement are incorporated herein by reference.
Chlorine is an extremely hazardous substance, as defined under Section 302(a) of EPCRA, 42 U.S.C. § 11002(a), and 40 C.F.R. § 355.61, with an RQ of 10 pounds, as listed in 40 C.F.R. Part 355, Appendices A and B.
Section 304(a)(1) and (b) of EPCRA, 42 U.S.C. § 11004(a)(1) and (b), as implemented by 40 C.F.R. Part 355, Subpart C, requires, in relevant part, the owner or operator of a facility at which hazardous chemicals are produced, used, or stored to notify the SERC immediately following the release of an extremely hazardous substance for which notification is also required under CERCLA Section 103, 42 U.S.C. § 9603.
The Release from the Facility constituted a release of an extremely hazardous substance in a quantity equal to or exceeding the RQ for that extremely hazardous substance, requiring immediate notification under CERCLA Section 103, 42 U.S.C. § 9603, and therefore, required immediate notification of the SERC pursuant to Section 304(a)(1) and (b) of EPCRA, 42 U.S.C. § 11004(a)(1) and (b).
The Release was not a “federally permitted release” as that term is defined in Section 304(a)(2)(A) of EPCRA, 42 U.S.C. § 11004(a)(2)(A), and 40 C.F.R. § 355.31(b).
The respondent did not notify the SERC of the Release.
Respondent violated Section 304(a)(1) and (b) of EPCRA, 42 U.S.C. § 11004(a)(1) and (b), by failing to immediately notify the SERC, West Virginia Division of Homeland Security and Emergency Management, as soon as Respondent knew or should have known that a release of an extremely hazardous substance had occurred at the Facility in an amount equal to or exceeding the applicable RQ.
In failing to comply with Section 304(a)(1) and (b) of EPCRA, 42 U.S.C. § 11004(a)(1) and (b), and 40 C.F.R. Part 355, Subpart C, Respondent is subject to the assessment of penalties under Section 325(b) of EPCRA, 42 U.S.C. § 11045(b).
CIVIL PENALTY
In settlement of EPA’s claims for civil penalties for the violations alleged in this Consent Agreement, Respondent consents to the assessment of a civil penalty in the amount of SIXTY-SIX THOUSAND dollars ($66,000). The total penalty amount consists of FIFTEEN THOUSAND AND FIVE HUNDRED dollars ($15,500) for a violation of Section 112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1) (“CAA civil penalty”), TWENTY-FIVE THOUSAND AND TWO HUNDRED FIFTY dollars ($25,250) for a violation of Section 103 of CERCLA, 42 U.S.C. § 9603 (“CERCLA civil penalty”), and TWENTY-FIVE THOUSAND AND TWO HUNDRED FIFTY dollars ($25,250) for a violation of Section 304(a)(1), and (b) of EPCRA, 42 U.S.C. § 11004(a)(1), and (b) (“EPCRA civil penalty”).
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