Respondent engages in chemical warehousing and storage activities at the Facility. The Warehouse comprises more than 200,000 square feet of space. It is used, in part, for storing hazardous materials, including, without limitation, flammable liquids and other extremely hazardous substances that may be toxic, reactive, flammable, volatile, or corrosive as stored in the Warehouse.
As part of Respondent’s operation of the Warehouse, during calendar years 2019 and 2020, the facility stored approximately 10 to 12 separate hazardous chemical products, each of which was a “hazardous chemical” subject to reporting under Section 312 of EPCRA. Some of the reportable substances were also EHSs within the meaning of the CAA GDC due primarily to their flammability, including, but not necessarily limited to, ethanol, isopropyl alcohol, methanol, and acetone. In 2019, the total quantity of reportable substances at the Facility exceeded approximately 2.2 million pounds.
During the Inspection, conditions were observed inside the Warehouse, generally consisting of numerous rows of palleted products, some on support racks and others free-standing. Container types observed on pallets included bags, boxes, totes, 5-gallon pails, and 55-gallon drums. During the inspection, numerous pallets of 55-gallon drums of chemicals were observed to be stacked (without a racking system) more than three tiers high.
During the Inspection, a number of dangerous and/or potentially violative conditions were observed and documented by EPA in the Warehouse, including, without limitation:
- lack of required markings (NFPA hazard diamonds) at chemical storage area access points [see, e.g., NFPA 30, Ch. 4, NFPA 704,4 Secs. 1.3, 4.3];
- inadequate aisle space between stacked and palleted 55-gallon drums of chemicals [see, e.g., NFPA 30, Sec.12.3.5 and 29 C.F.R. § 1910.106(d)(4)(v)];
- pallets of drums or totes with chemicals stacked more than three tiers high [see, e.g., NFPA 30, Secs. 9.3.8, 12.6.1.2];
- improper storage of propane canisters in close proximity to the Facility entrance [see, e.g., NFPA 58,5 Section 8.4.1.1];
- lack of required markings (NFPA diamonds) at exterior propane storage area access and storage to indicate whether each canister is full or empty [see, e.g., NFPA 704, Sec.4.3 and Compressed Gas Association (CGA) Pamphlet P-1];
- stacks of combustible materials (empty wooden pallets) more than 6 feet high stored inside the warehouse [see, e.g., NFPA 30, Sec. 12.3.8]; and
- failure to notify State and local emergency response authorities (including local fire response personnel) of the presence of chemicals under EPCRA Sections 302, 311, and 312, 42 U.S.C. §§ 11002, 11021, and 11022.
Based on information obtained at or as a result of the Inspection, Respondent handles or stores, or has in the past handled or stored, the following maximum inventory amounts for each of the chemicals listed below as part of the facility’s Warehousing Process at the Facility:
- 474,389 pounds of ethanol;
- 125,596 pounds of isopropyl alcohol;
- 60,034 pounds of methanol; and
- 59,213 pounds of acetone.
Based on information obtained at or as a result of the Inspection, on August 26, 2021, EPA issued a Notice of Violation and Administrative Order (“NOV/AO”) to Respondent containing EPA findings and specifying compliance measures for the facility to implement at the Facility. The NOV/AO cited Respondent’s violation of CAA GDC requirements and set forth a schedule under which the facility must address the conditions of noncompliance described therein.
In light of the above, Complainant alleges the following violations of CAA GDC and EPCRA requirements.
Count 1: Failure to Perform GDC Hazard Identification/Analysis
Pursuant to the GDC at CAA Section 112(r)(1), owners and operators of stationary sources producing, processing, handling, or storing extremely hazardous substances have a general duty, in the same manner, and to the same extent as Section 654 of Title 29, to identify hazards that may result from accidental releases of such substances, using appropriate hazard assessment techniques.
Under the GDC, to identify hazards that may result from accidental releases of EHSs, owners, and operators of stationary sources should determine: (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.6 The recommended industry practice and standard of care for warehouses to identify, analyze, and evaluate the potential hazards associated with storage of EHSs includes, among other things, using standard, industry-developed checklists, a “What If” analysis, a Hazard and Operability study, or a Consequence Analysis. See, e.g., Section 2.3.1 of EPA’s
Guidance for Implementation of the General Duty Clause: Clean Air Act (CAA) Section 112(r)(1) (May 2000),
NFPA 400 Hazardous Materials Code (2010 and later editions),
See, e.g., EPA’s Guidance for Implementation of the General Duty Clause: Clean Air Act (CAA) Section 112(r)(1) (May 2000), available at https://www.epa.gov/sites/production/files/documents/gendutyclause-rpt.pdf.
Center for Chemical Process Safety’s Guidelines for Safe Warehousing of Chemicals
Guidelines for Safe Storage and Handling of Reactive Materials, Chapter 4, NFPA 30 Flammable Liquids Code (2018 edition),
NFPA 704 Standard System for the Identification of the Hazards of Materials for Emergency Response (2017 edition), and
NFPA 58 Liquified Petroleum Gas Code (2017 edition)
As part of its operation of the Warehouse, Respondent handled or stored EHSs including, without limitation, ethanol, isopropyl alcohol, methanol, and acetone without identifying the hazards that may result from accidental releases and without conducting a process hazard review using appropriate, industry-recognized hazard assessment techniques.
The unanticipated emission of any EHS, including ethanol, isopropyl alcohol, methanol, or acetone, either alone or in combination, into the ambient air from the Facility would constitute an “accidental release,” as that term is defined by Section 112(r)(2)(A) of the CAA, 42 U.S.C. § 7412(r)(2)(A).
By failing to identify hazards that may result from accidental releases of extremely hazardous substances handled or stored as part of the Warehouse operation, Respondent violated the General Duty Clause at Section 112(r)(1) of the Clean Air Act.
Accordingly, Respondent violated the CAA’s hazard analysis and identification requirements of Section 112(r)(1).
Count 2: Failure to Design and Maintain a Safe Facility (GDC)
Under the GDC and CAA Section 112(r)(1), at all times relevant to the violations alleged in this CAFO, Respondent had a general duty to design and maintain the Facility, including the Warehouse, as a safe facility taking such steps as are necessary to prevent a release of an EHS at or from the Facility.
The recommended industry practice and standard of care for designing and maintaining a safe warehouse or warehousing process are drawn from the industry standards.
At all times relevant to the allegations in this CAFO, based on the conditions identified, Respondent failed in its general duty to design and maintain the Warehouse and the Warehousing Process as a safe facility taking such steps as are necessary to prevent a release of an extremely hazardous substance, in accordance with applicable industry standards.
Accordingly, Respondent violated Section 112(r)(1) of the CAA on each and every day that it failed to design and maintain the Facility, including the Warehouse, as a safe facility by taking such steps as are necessary to prevent a release of an EHS at or from the Facility, and is properly subject to the assessment of civil penalties pursuant to CAA Section 113(d).
Count 3: Failure to Submit Chemical Inventory Forms under EPCRA Sections 311/312
Pursuant to Section 312 of EPCRA, 42 U.S.C. § 11022, and 40 C.F.R. Part 370, commencing on or before March 1 following the date upon which Respondent was required to prepare or have available an SDS for ethanol, isopropyl alcohol, methanol, and acetone at or in connection with the Facility (including the Warehouse), and on or before March 1 of each year thereafter, Respondent was required to submit “emergency and hazardous chemical inventory forms,” containing the data regarding ethanol, isopropyl alcohol, methanol, acetone, and any other reportable substances at the Facility, required under Section 312, for the preceding calendar year (“Inventory Form”), to the appropriate LEPC, the SERC, and the fire department with jurisdiction over the Facility. Under Section 311 of EPCRA, Respondent would have been required to provide an SDS or Chemical List (which can be the same as the Inventory Form) to the LEPC, SERC, and fire department even earlier, namely, within three months of being required to prepare or have available an SDS for each hazardous chemical.
Based on information obtained at or as a result of the Inspection or EPA’s subsequent investigation of this case, EPA finds that the amounts of ethanol, isopropyl alcohol, methanol, and acetone or have in the past been present at the Facility in excess of the minimum threshold levels established under 40 C.F.R. § 370.10(a).
Based on information obtained at or as a result of the Inspection or subsequent EPA investigation, EPA finds that Respondent failed to report the presence at the Facility of one or more of the hazardous chemicals despite being in operation with threshold amounts of one or more of such substances (namely, ethanol, isopropyl alcohol, methanol, and acetone) in excess of their respective minimum threshold levels in 2019 and 2020.
At the time of the Inspection, Respondent had not submitted SDSs or Tier II forms to the appropriate LEPC, the SERC, and the fire department with jurisdiction over the Facility for all of the hazardous chemicals present at the Facility including, but not limited to, those substances listed in the preceding Paragraph 52, as required by Sections 311 and 312 of EPCRA, 42 U.S.C. §§ 11021and 11022.
Pursuant to EPCRA Section 325(c)(3), 42 U.S.C. § 11045(c)(3), each day that the facility failed to timely submit to the appropriate LEPC, SERC, and fire department an SDS or Tier II form for any of the substances listed in this Count 3 (or any other hazardous chemicals present at the Facility in excess of their applicable threshold levels) constitutes a separate violation of EPCRA.
Accordingly, Respondent’s failure to submit the required Tier II forms for the reporting years 2019 and 2020 constitute separate violations of EPCRA Section 312 and 40 C.F.R.
TERMS OF CONSENT AGREEMENT
Respondent agrees to pay the civil penalty of $109,635 (“Civil Penalty”).
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