Respondent is the owner and operator of five (5) facilities as that term is defined in section 112(a)(9) of the CAA, and within the meaning of section 112(r) of the CAA and section 313 of EPCRA. EPA conducted inspections of the facilities on the following dates to determine Respondent’s compliance with section 112(r) of the CAA, 42 U.S.C. § 7412(r), and 40 C.F.R. part 68:
Providence RI Facility – November 18, 2019
Providence RI Facility – Terminal – November 19, 2019
Middletown PA Facility – December 8, 2016
Bunola PA Facility – May 2, 2018
Denver CO Facility – March 21, 2018
The following RMP-regulated substances and their threshold quantities (TQ), listed under 40 C.F.R. § 68.130, can be found at the facilities designated below with their onsite quantities:
This CAFO asserts that Respondent has violated the chemical accident prevention provisions in 40 C.F.R. part 68 and the general duty clause of section 112(r)(1) of the CAA.
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), 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 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 that do occur.
This section of the CAA is referred to as the General Duty Clause (GDC).
Sections 313(a) and (b) of EPCRA and 40 C.F.R.§§ 372.22 and 372.30, provide that the owner or operator of a facility that
(i) has ten or more full-time employees,
(ii) is in Standard Industrial Classification (SIC) Codes 20 through 39, and
(iii) manufactured, processed, or otherwise used one or more toxic chemicals, listed under section 313(f) of EPCRA and 40 C.F.R. §§ 372.28 and 372.65, above their reporting threshold must submit to EPA and the state in which the facility is located a chemical release form published under section 313(g) of EPCRA for each such toxic chemical.
GENERAL ALLEGATIONS
Respondent is the owner and operator of five (5) facilities as that term is defined in section 112(a)(9) of the CAA, and within the meaning of section 112(r) of the CAA, 42 U.S.C. § 7412(r), and section 313 of EPCRA, 42 U.S.C. § 11023
EPA conducted inspections of the facilities on the following dates to determine Respondent’s compliance with section 112(r) of the CAA, 42 U.S.C. § 7412(r), and 40 C.F.R. part 68:
Providence RI Facility – November 18, 2019
Providence RI Facility – Terminal – November 19, 2019
Middletown PA Facility – December 8, 2016
Bunola PA Facility – May 2, 2018
Denver CO Facility – March 21, 2018
The following RMP regulated substances and their threshold quantities (TQ), listed under 40 C.F.R. § 68.130, can be found at the facilities designated below with their onsite quantities:
a. Providence RI Facility
(1) anhydrous ammonia
(i) TQ 10,000 lbs.
(ii) Onsite 363,164 lbs. in single process
(2) aqueous ammonia (conc. 20% or greater)
(i) TQ 20,000 lbs.
(ii) Onsite 949,786 lbs. across two separate processes
(3) chlorine
(i) TQ 2,500 lbs.
(ii) Onsite 1,426,500 lbs
(4) formaldehyde
(i) TQ 15,000 lbs.
(ii) Onsite 16,996 lbs. in a single process
b. Bunola Facility
(1) sulfur dioxide
(i) TQ 5,000 lbs.
(ii) Onsite 38,000 lbs. in a single process
(2) chlorine
(i) TQ 2,500 lbs.
(ii) Onsite 182,260 lbs. in a single process
(3) ammonia (conc 20% or greater)
(i) TQ 20,000 lbs.
(ii) Onsite 245,000 lbs. across two processes
c. Middletown Facility
(1) sulfur dioxide
(i) TQ 5,000 lbs.
(ii) Onsite 1,183,000 lbs. across two processes
(2) chlorine
(i) TQ 2,500 lbs.
(ii) Onsite 3,245,000 lbs. across two single processes
(3) anhydrous ammonia
(i) TQ 10,000 lbs.
(ii) Onsite 15,000 lbs. in a single process
(4) formaldehyde
(i) TQ 15,000 lbs.
(ii) Onsite 183,000 lbs. in a single process
Hydrogen chloride, hydrogen peroxide (52% or greater), nitric acid, and sulfuric acid are listed as extremely hazardous substances under EPCRA section 302 and are extremely hazardous substances within the meaning of the GDC of section 112(r)(1) of the CAA.
Potassium hydroxide (caustic potash 45%) is an extremely hazardous substance within the meaning of the GDC of section 112(r)(1) of the CAA, 42 U.S.C. Potassium hydroxide is a CERCLA-listed hazardous substance with a reportable quantity of 1,000 pounds. 40 C.F.R. § 302.4. It reacts exothermically with water as well as strong acids such as nitric acid. It is corrosive to metals and causes severe skin burns and eye damage per the company’s safety data sheets (SDS). It also is incompatible with several classes of materials per the SDS, including water, organic materials, halogenated hydrocarbon, strong acids, and metals.
Isopropanol is an extremely hazardous substance within the meaning of the GDC of section 112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1). It is a chemical that may, as a result of short-term exposures associated with releases to the air, cause death, injury, or property damage due to its toxicity, flammability, or volatility. Isopropanol is a highly flammable liquid vapor and may form explosive mixtures with air. Furthermore, vapor should not be allowed to accumulate in low or confined areas and should not be exposed to heat or ignition.
Methanol is an extremely hazardous substance within the meaning of the GDC of section 112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1). Methanol is a chemical that may, as a result of short-term exposures associated with releases to the air, cause death, injury, or property damage due to its toxicity, flammability, or volatility. Methanol is a class 1B flammable liquid that requires specialized fire suppression because it can burn with no visible flame and stays flammable even when mixed with large quantities of water. A 75% water/25% methanol mixture remains a flammable liquid.
Natural gas is an extremely hazardous substance within the meaning of the GDC of section 112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1). It is a National Fire Protection Association (NFPA) Category 4 substance (the most flammable NFPA characterization). Natural gas is easily ignited by heat, sparks or flames and will form explosive mixtures with air. Vapors from liquefied gas are initially heavier than air and spread along ground. Vapors may travel to the source of ignition and flash back.
The following key shows the acronyms for certain industry standards and RAGAGEP referred to in this Consent Agreement.
ANSI/ASME – American National Standards Institute/American Society of Mechanical Engineers
ANSI/CGA – American National Standards Institute/Compressed Gas Association
ANSI/ISEA – American National Standards Institute/International Safety Equipment Association
ANSI/UL – American National Standards Institute/Underwriters Laboratories
CGA – Compressed Gas Association
IFC – International Fire Code
NFPA – National Fire Protection Association
EPA FINDINGS OF CAA SECTION 112(r) VIOLATIONS
The complainant hereby states and alleges that the Respondent has violated the CAA and federal regulations promulgated thereunder as follows.
HARBORSIDE FACILITY
The Harborside facility is a chemical blending, repackaging, and distribution facility, employing approximately 48 employees and operating a maximum of two 8-hour shifts daily, seven days a week. Facility operations are spread across four primary site buildings and include bulk chemical storage, bleach production and packaging, aqueous ammonia product blending and repackaging, acid product blending and packaging, fleet and other miscellaneous facility maintenance.
The Harborside facility contains process equipment that produces, processes, handles, stores, or uses anhydrous ammonia, aqueous ammonia (conc. 20% or greater), chlorine and formaldehyde, which are RMP regulated substances under section 112(r)(3) of the CAA, 42 U.S.C. § 7412(r)(3), and 40 C.F.R. § 68.130, and from which accidental releases may occur.
Respondent produces, processes, handles, stores, or uses anhydrous ammonia in a single process, aqueous ammonia (conc. 20% or greater) in two separate processes, chlorine in a single process, and formaldehyde in a single process, at levels greater than their respective threshold quantities as defined in 40 C.F.R. §§ 68.130 and 68.115; thus, these processes are covered processes as defined in 40 C.F.R. § 68.3.
Respondent was required to submit a RMP pursuant to 40 C.F.R. § 68.12(a) and to comply with the Program 3 prevention requirements pursuant to 40 C.F.R. § 68.10(i) for the following reasons:
1) the covered processes at the facility did not meet the eligibility requirements of Program 1;
2) the facility is specified as being in the covered NAICS code 3251; and
3) it is subject to the OSHA process safety management standard at 29 C.F.R. § 1910.119.
The Respondent submitted an RMP to EPA on May 30, 2019.
In addition to the RMP regulated substances in covered processes listed above, Respondent also produces, processes, handles, stores, or uses hydrogen chloride, natural gas, and propane (propane is an RMP regulated substance below threshold quantity in a process at the facility) that could cause accidental releases. Because of toxicity, reactivity, flammability or corrosivity, these chemicals are extremely hazardous substances within the meaning of section 112(r)(1) of the CAA.
RMP VIOLATIONS
Count 1
Respondent failed to adequately label pipes associated with covered processes throughout the Harborside facility, specifically, on:
1) chlorine and other process chemical piping interior to the bleach plant;
2) finished product piping between the bleach plant and the bulk aboveground storage tank farm located immediately to the south; and
3) aqueous/anhydrous ammonia piping exterior to the building 5-alkali area in accordance with relevant RAGAGEP and industry standards of care that include ANSI/ASME A13.1(2015), sections 3.2, 3.3, and 3.4.
Respondent’s failure to adequately label pipes throughout the facility, specifically on the processes identified above, and thus not complying with RAGAGEP and industry standards of care is a violation of 40 C.F.R. §§68.65(d)(2) and/or (d)(3).
Count 2
Respondent failed to adequately label tank contents and service associated with a covered process on bulk chemical above ground storage tanks exterior to the bleach plant in accordance with relevant RAGAGEP and industry standards of care that include 29 C.F.R. § 1910.1200(f)(6).
Respondent’s failure to adequately label tank contents and service, specifically on the process identified above, and thus not complying with RAGAGEP and industry standards of care is a violation of 40 C.F.R §§ 68.65(d)(2) and/or (d)(3).
Count 3
Respondent failed to equip the ammonia railcar unloading area associated with a covered process with any means of egress in case of emergency in the fenced areas associated with building F5 in accordance with relevant RAGAGEP and industry standards of care that include 29 C.F.R. § 1910.22(c).
Respondent’s failure to equip the ammonia railcar unloading area associated with a covered process specified in paragraph 73 with any means of egress in case of emergency in the fenced areas associated with building F5 and thus not complying with RAGAGEP and industry standards of care is a violation of 40 C.F.R §§ 68.65(d)(2) and/or (d)(3).
Count 4
Respondent failed to label the king valve associated with a covered process on the bulk anhydrous ammonia storage tank identifying it as the isolation valve for the tank in accordance with relevant RAGAGEP and industry standards of care that include ANSI/ASME 2007 A.13.1 and NFPA 400 (2019) 23.1.4.4.1(3), referencing NFPA 55 (2016) 7.1.7.4.1.
Respondent’s failure to label the king valve on the covered process specifically identified in paragraph 76 and thus not complying with RAGAGEP and industry standards of care is a violation of 40 C.F.R §§ 68.65(d)(2) and/or (d)(3).
Count 5
Respondent allowed the tank saddle for the bulk anhydrous ammonia storage tank, that is associated with a covered process and located in a flood plain, to show signs of having shifted over time and failed to bolt it down to its concrete pad in accordance with relevant RAGAGEP and industry standards of care that include ANSI/CGA G-2.1 (2014), section 6.4.3.
Respondent’s failure in allowing the tank saddle associated with a covered process for the bulk anhydrous ammonia storage tank specifically identified in paragraph 79 to show signs of having shifted over time and failing to bolt it down to the concrete pad on which it is located and thus not complying with RAGAGEP and industry standards of care is a violation of 40 C.F.R §§ 68.65(d)(2) and/or (d)(3).
Count 6
The Harborside facility has a perimeter fence around the entire operation, including the covered processes. Respondent failed to equip gate doors with panic hardware to allow for egress in the event of an emergency in accordance with relevant RAGAGEP and industry standards of care that include: NFPA 101(2018), section 7.2.1.7(1); NFPA 101 (2018), section 7.11.6; and ANSI/UL 305-2012.
Respondent’s failure to equip gate doors with panic hardware to allow for egress in the event of an emergency in the processes identified in paragraph 82 and thus not complying with RAGAGEP and industry standards of care is a violation of 40 C.F.R. §§ 68.65(d)(2) and/or (d)(3).
GDC VIOLATIONS
Count 7
Respondent failed to use permanent electrical connections to power permanent electrical equipment located in the process bleach plant and the maintenance areas in accordance with relevant RAGAGEP and industry standards of care that include NFPA 1 (2018), Section 11.1.7.6 and NFPA 70 (2017), 400.8, and used extension cords instead, creating a fire hazard. As a result, Respondent failed to meet its general duty to design and maintain a safe facility.
Count 8
Respondent failed to store incompatible chemicals properly by storing incompatible chemicals adjacent to one another in the flammable storage area exterior to the main site building in the loading area, in the above ground storage tank farm adjacent to the acid shed and in the truck maintenance area. Respondent failed to comply with relevant RAGAGEP and industry standards of care that include: NFPA 1 (2012) section 66.9.17 2012 ed.); NFPA 400 (2010) section 6.1.12; Separation of Incompatible Materials
(2010 ed.); for Safe Warehousing of Chemicals, chapter 2.6; and the Center for Chemical Process Safety’s Safe Storage and Handling of Reactive Materials, chapter 5.2. As a result, Respondent failed to meet its general duty to design and maintain a safe facility.
Count 9
Respondent failed to label the contents of the cage containing propane cylinders adjacent to the ammonia above ground storage tank farms in accordance with relevant RAGAGEP and industry standards of care that include NFPA 704 (2017), section 4.3 and NFPA 704 (2017), chapter 9. As a result, Respondent failed to meet its general duty to design and maintain a safe facility.
Count 10
Respondent failed to place NFPA diamonds on building entrances, doors, or bulk chemical storage room entrances that lead to areas where a range of extremely hazardous substances are stored, including entrances to the bleach plant and entrance doors to the building 5 – alkali area, in accordance with relevant RAGAGEP and industry standards of care that include: NFPA 1 (2018), section 63.2.11; NFPA 704 (2017), section 4.3; and NFPA 704 (2017), chapter 9. As a result, Respondent failed to meet its general duty to design and maintain a safe facility.
Count 11
Respondent failed to make signage indicating emergency egresses readily visible in the flammables storage area (building 1) or in building 5 – alkali area in accordance with relevant RAGAGEP and industry standards of care that include NFPA 1 (2018), sections 4.4.3.2.1 and 4.4.3.2.2. As a result, Respondent failed to meet its general duty to design and maintain a safe facility.
Count 12
Respondent failed to cover adequately open chemical storage containers of flammable liquids with ill-fitting and or missing bungs in the flammables storage area and the acid shed in accordance with relevant RAGAGEP and industry standards of care that include NFPA 1 (2018) 66.18.4.1. As a result, Respondent failed to meet its general duty to design and maintain a safe facility.
Count 13
Respondent failed to provide emergency lighting and sufficient aisle spacing for flammable material storage racks in the flammables storage area (building 1) in accordance with relevant RAGAGEP and industry standards of care that include NFPA 101 (2018), section 7.3.4.1.2 and NFPA 101 (2018), section 101. As a result, Respondent failed to meet its general duty to design and maintain a safe facility.
TERMINAL ROAD FACILITY
The Terminal Road facility, a separate facility from the Harborside facility, is used as a chemical storage warehouse and distribution/shipping facility. The Terminal Road facility contains process equipment that produces, processes, handles, stores, or uses anhydrous ammonia, aqueous ammonia (conc. 20% or greater), chlorine and formaldehyde, from which an accidental release may occur. These RMP regulated substances may occur in amounts less than RMP threshold amounts and, as such, the processes associated with these RMP regulated substances also are subject to the GDC.
In addition to the RMP regulated substances listed above, Respondent also produces, processes, handles, stores, or uses other extremely hazardous substances, such as hydrogen chloride, natural gas, and propane, among other toxic, flammable, caustic, and corrosive chemicals.
GDC VIOLATIONS
Count 14
Respondent did not provide NFPA diamonds on building entrance doors or on fenced cages surrounding oxidizer storage areas in accordance with relevant RAGAGEP and industry standards of care that include: NFPA 1 (2018), section 63.2.11; NFPA 704 (2017), section 4.1; NFPA 704 (2017), section 4.3; and NFPA 704 (2017), chapter 9. As a result, Respondent failed to meet its general duty to design and maintain a safe facility.
Count 15
Respondent failed to equip fenced cages surrounding the oxidizer storage areas with panic hardware on the gate doors to allow for egress in the event of an emergency in accordance with relevant RAGAGEP and industry standards of care that include: NFPA 101 (2018); section 7.2.1.7.1(1); NFPA 101 (2018), section 7.11.6; and ANSI/UL 305 (2012). As a result, Respondent failed to meet its general duty to design and maintain a safe facility.
Count 16
Respondent failed to provide signage to indicate emergency egresses and associated emergency lighting was not readily visible in the main warehouse–combustibles area in accordance with relevant RAGAGEP and industry standards of care that include NFPA 1 (2018), sections 4.4.3.2.1 and 4.4.3.2.2. As a result, Respondent failed to meet its general duty to design and maintain a safe facility.
Count 17
Respondent stored incompatible chemicals adjacent to one another in multiple areas of the facility. In the corrosives loading docks, sulfuric acid was stored next to potassium hydroxide (caustic potash 45%) and ammonium hydroxide. In the combustibles area of the main warehouse, nitric acid was stored next to potassium permanganate, ammonium persulfate, and hydrogen peroxide; hydrochloric acid was stored next to aluminum sulfate. These incompatible chemicals were not stored in accordance with relevant RAGAGEP and industry standards of care that include NFPA 400 (2016), sections 6.1.12.1 and 6.1.12.2. As a result, Respondent failed to meet its general duty to design and maintain a safe facility.
Count 18
Respondent’s concrete secondary containment berm enclosing the oxidizer storage area was damaged in several areas that could lead to potential migration of liquid oxidizer outside of the dedicated storage area in the event of releases. The state of disrepair of the concrete secondary containment berm was not in accordance with relevant RAGAGEP and industry standards of care that include NFPA 400 (2016), section 6.2.1.9.2.1. As a result, Respondent failed to meet its general duty to design and maintain a safe facility.
Count 19
Respondent failed to label cages located within 25 feet of building doors exterior to the northern building wall of the main warehouse with their contents of the facility’s propane cylinders. This inaction was not in accordance with relevant RAGAGEP and industry standards of care that include NFPA 55 (2016), section 7.6.2.5 and NFPA 704 (2017), section 4.1.1. As a result, Respondent failed to meet its general duty to design and maintain a safe facility.
Count 20
Respondent powered permanent electrical equipment in the maintenance garage using extension cords rather than permanent electrical connections and flammables and acids were repackaged in this area, and some chemicals were stored in the area. These actions were not in accordance with relevant RAGAGEP and industry standards of care that include NFPA 400 (2016), section 6.1.8.2.2. As a result, Respondent failed to meet its general duty to design and maintain a safe facility.
Count 21
Respondent failed to consistently label chemical storage containers throughout the combustibles area in the main warehouse, such that storage container labels did not consistently point outward to notify emergency response personnel of contents in the case of an emergency in accordance with relevant RAGAGEP and industry standards of care that include NFPA 400 (2016), section 6.1.8.2.2. As a result, Respondent failed to meet its general duty to design and maintain a safe facility.
Count 22
Respondent failed to provide the top-most rack of materials stored in the southwestern corner of the warm storage area with adequate clearance from ceiling level to allow for proper sprinkler function in the event of a fire in accordance with relevant RAGAGEP and industry standards of care that include NFPA 13 (2016), section 8.5.6.1. As a result, Respondent failed to meet its general duty to design and maintain a safe facility.
BUNOLA FACILITY
The Bunola facility manages certain chemicals for warehouse, repackaging, and distribution for its customers. The property includes a large warehouse, a caustic soda tank farm, a corrosives tank farm with blending/filling area, a bleach tank farm with filling area, and a solvent plant and tank farm. The warehouse stores dry products in the main area with drum and liquid storage in the other half of the warehouse. The Bunola facility contains process equipment that produces, processes, handles, stores, or uses anhydrous ammonia, aqueous ammonia (conc. 20% or greater), chlorine and sulfur dioxide, which are RMP regulated substances under section 112(r)(3) of the CAA, 42 U.S.C. § 7412(r)(3), and 40 C.F.R. § 68.130, and from which accidental releases may occur.
Respondent produces, processes, handles, stores, or uses anhydrous ammonia in a single process, aqueous ammonia (conc. 20% or greater) in a single process, chlorine in a single process, and sulfur dioxide in a single process at levels greater than their respective threshold quantities as defined in 40 C.F.R. §§ 68.130 and 68.115; thus, these are covered processes as defined in 40 C.F.R. § 68.3.
The Respondent submitted an RMP to EPA on April 5, 2018.
In addition to the RMP regulated substances in covered processes listed above, Respondent also produces, processes, handles, stores, or uses isopropanol, which is an extremely hazardous substance within the meaning of section 112(r)(1) of the Clean Air Act, 42 U.S.C. § 7412(r)(1), and from which an accidental release may occur.
As an owner and operator of a stationary source that produces, processes, handles, stores, or uses RMP regulated substances and other extremely hazardous substances, Respondent was, at all times relevant to the allegations herein, also subject to the GDC in section 112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1).
RMP VIOLATION
Count 23
Respondent failed to complete a compilation of written process safety information that included the ventilation system design, to provide adequate ventilation in the chlorine storage rooms associated with a covered process to prevent accumulation of toxic vapors due to chlorine releases from a chlorine storage room cylinder, and to document that the ventilation system design complied with relevant RAGAGEP and industry standards of care that include: NFPA 55 (2005/2013) sections 7.9.2.1, 7.9.2.1.3; 6.4.1; 6.4.2; CGA P-1 2008, section 6.5.2; and IFC chapter 50 (2012/2018) section 5003.8.4.2.
Respondent’s failure to complete a compilation of written process safety information that included the ventilation system design, to provide adequate ventilation in the chlorine storage rooms associated with a covered process to prevent accumulation of toxic vapors due to chlorine releases from a chlorine storage room cylinder, and to document that the ventilation system design complied with RAGAGEP was a violation of 40 C.F.R. §§ 68.65(d)(1)(v) and/or (d)(2).
GDC VIOLATION
Count 24
Respondent failed to utilize the proper metal storage tote for flammable liquids, including isopropanol, located in an outdoor location with proper weather protection in accordance with relevant RAGAGEP and industry standards of care that include NFPA 30 (2008/2012/2015) section 4.3.1. As a result, Respondent failed meet its general duty to design and maintain a safe facility.
MIDDLETOWN FACILITY
The Middletown facility manages chemicals for warehouse, repackaging, and distribution for its customers. Chemical storage is organized into four primary areas: (1) corrosives loading docks, (2) bag storage, (3) main warehouse – combustibles and (4) warm storage area. The Middletown facility contains process equipment that produces, processes, handles, stores, or uses anhydrous ammonia, chlorine, formaldehyde, and sulfur dioxide, which are RMP regulated substances under section 112(r)(3) of the CAA and 40 C.F.R. § 68.130, and from which an accidental release may occur.
Respondent produces, processes, handles, stores, or uses anhydrous ammonia in a single process, chlorine in two separate processes, formaldehyde in a single process, and sulfur dioxide in two separate processes at levels greater than their respective threshold quantities as defined in 40 C.F.R. § 68.115; thus, these processes are covered processes as defined in 40 C.F.R. § 68.3.
The Respondent submitted an RMP to EPA on December 19, 2018.
In addition to the RMP regulated substances in covered processes listed above, Respondent also produces, processes, handles, stores, or uses flammable liquids including chlorine, which is an extremely hazardous substance within the meaning of section 112(r)(1) of the Clean Air Act and from which an accidental release may occur. As an owner and operator of a stationary source that produces, processes, handles, stores, or uses RMP regulated substances, and other extremely hazardous substances, Respondent was, at all times relevant to the allegations herein, also subject to the GDC in section 112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1).
RMP VIOLATION
Count 25
Respondent failed to complete a compilation of written process safety information that included the ventilation system design, to document that the ventilation system design complied with RAGAGEP, and to provide adequate ventilation in the chlorine storage rooms associated with a covered process to prevent accumulation of toxic vapors due to chlorine releases from a chlorine storage room cylinder were not in accordance with relevant RAGAGEP and industry standards of care that include: NFPA 55 (2005/2013) sections 7.9.2.1, 7.9.2.1.3; 6.4.1; 6.4.2; CGAP-1 2008, section 6.5.2; and IFC chapter 50 (2012/2018) section 5003.8.4.2.
Respondent’s failures to complete a compilation of written process safety information that included the ventilation system design, to document that the ventilation system design complied with RAGAGEP, and to provide adequate ventilation in the chlorine storage rooms associated with a covered process to prevent accumulation of toxic vapors due to chlorine releases from a chlorine storage room cylinder and not complying with RAGAGEP and industry standards of care is a violation of 40 C.F.R. §§ 68.65(d)(1)(v) and/or (d)(2).
GDC VIOLATION
Count 26
Respondent failed to utilize the proper metal storage tote for flammable liquids, including chlorine, located in an outdoor location with proper weather protection in accordance with relevant RAGAGEP and industry standards of care that include NFPA 30 (2008/2012/2015) section 4.3.1. As a result, Respondent failed meet its general duty to design and maintain a safe facility, taking such steps as are necessary to prevent releases.
DENVER FACILITY
The Denver facility blends, repackages, and distributes chemicals for a variety of uses. The chemicals the Denver facility distributes are handled in several ways. The bulk chemicals can be offloaded from railcars or tanker trucks into atmospheric storage tanks, blended, and/or repackaged. The bulk chemicals are distributed to customers via tank trucks, drums, or totes. Packaged chemicals are either repackaged and/or relabeled or distributed directly to the customers in the original packaging. The Denver facility contains process equipment that produces, processes, handles, stores, or uses extremely hazardous substances, including but not limited to, nitric acid, sulfuric acid, methanol, and potassium hydroxide (caustic potash 45%).
GDC VIOLATION
Count 27
Respondent failed to perform any formal external or internal inspections of the approximately 50 above-ground tanks in service for 23-24 years, which contained nitric acid, sulfuric acid, and methanol, among other chemical substances in accordance with relevant RAGAGEP and industry standards of care that include the company’s Operating Standards Manual (OSM) 3.17 Tank Inspection Program and Steel Tank Institute Standard and American Petroleum Institute Standard 653 Tank Inspection, Repair, Alteration and Reconstruction. As a result, Respondent failed to meet its general duty to design and maintain a safe facility.
Count 28
Respondent failed to maintain records confirming monthly and annual tank inspections were performed on tanks that included nitric acid, sulfuric acid and methanol, and to keep the records on site for three years in accordance with relevant RAGAGEP and industry standards of care that include the company’s OSM 3.17 Tank Inspection Program. As a result, Respondent failed to meet its general duty to design and maintain a safe facility.
Count 29
Respondent failed to maintain labeling on a storage tank that contained potassium hydroxide (caustic potash 45%) in accordance with relevant RAGAGEP and industry standards of care that include the company’s OSM 3.17 Tank Inspection Program. As a result, Respondent failed to meet its general duty to design and maintain a safe facility, taking such steps as are necessary to prevent releases.
Count 30
Respondent failed to inspect and provide documentation that monthly inspections of fixed piping, valves and flexible hoses containing nitric acid, sulfuric acid and methanol, among other chemical substances, were performed in 2016 and 2017 in accordance with relevant RAGAGEP and industry standards of care that include the company’s OMS 3.20 Repacking, Personal & Environmental Safety Procedure. As a result, Respondent failed to meet its general duty to design and maintain a safe facility.
Count 31
Respondent failed to ensure annual pressure testing of flexible hoses containing nitric acid, sulfuric acid and methanol, among other chemical substances in accordance with relevant RAGAGEP and industry standards of care that include the company’s OMS 3.20 Repacking, Personal & Environmental Safety Procedure. As a result, Respondent failed to meet its general duty to design and maintain a safe facility.
EPA FINDINGS OF EPCRA SECTION 313 VIOLATIONS
During the reporting year 2015, Respondent “processed,” as that term is defined in 40 C.F.R. § 372.3, over 25,000 pounds each of ethylene glycol, methanol, nitric acid, 1,2,4-trimethylbenzene, naphthalene, and formic acid at the facility.
EPA notified the Respondent of an upcoming inspection on March 21, 2018, and requested the Respondent have calculations and supporting documents used to determine threshold quantities, releases, transfers, and waste management for TRI chemicals for each reporting year being reviewed, including reporting year 2015, as required by 40 C.F.R. § 372.10.
The only document the Respondent supplied to EPA was sent several months after the inspection. On June 11, 2020, the Respondent supplied a half-page document titled “TRI Report 2015 Master Data Table” that included a summary number of the pounds processed for ethylene glycol, methanol, nitric acid, 1,2,4-trimethylbenzene, and pounds otherwise used for formic acid without any of the required underlying documentation.
Complainant hereby states and alleges that Respondent has violated section 313 of EPCRA and its federal regulations promulgated thereunder as follows.
DENVER FACILITY
Counts 32-34
Respondent was unable to provide any of the requested records to the inspector on March 21, 2018, the date of the inspection, for reporting year 2015 for ethylene glycol, methanol, and nitric acid.
Respondent failed to retain complete records for ethylene glycol, methanol, and nitric acid for a period of three years from the date of submission of its Form R reports under 40 C.F.R. § 372.30 as required by section 313 of EPCRA, 42 U.S.C. § 11023, and 40 C.F.R. § 372.10(a).
Respondent failed to maintain such retained records at the facility to which the reports applied and failed to make such records readily available for purposes of inspection by EPA as required by section 313 of EPCRA, 42 U.S.C. § 11023, and 40 C.F.R. §372.10(c).
Respondent’s failure to retain complete records for ethylene glycol, methanol, and nitric acid for a period of three years from the date of submission of its reports under 40 C.F.R § 372.30, to maintain such retained records at the facility to which the reports applied, and to make such records readily available for purposes of inspection by EPA for ethylene glycol, methanol, and nitric acid constitutes three violations of section 313 of EPCRA, 42 U.S.C. § 11023, and 40 C.F.R. §§ 372.10(a) and (c).
Counts 35–37
Respondent was unable to provide any of the requested records to the inspector on March 21, 2018, the date of the inspection, for reporting year 2015 for 1,2,4-trimethylbenzene, naphthalene and formic acid.
Respondent failed to retain complete records for 1,2,4-trimethylbenzene, naphthalene and formic acid for a period of three years from the date of submission of its Form R reports under 40 C.F.R § 372.30 as required by section 313 of EPCRA, 42 U.S.C. § 11023, and 40 C.F.R. § 372.10(d).
Respondent failed to maintain such retained records at the facility to which the Form A applies and to make such records readily available for purposes of inspection by EPA as required by section 313 of EPCRA, 42 U.S.C. § 11023, and 40 C.F.R. § 372.10(c).
Respondent’s failure to retain complete 1,2,4-trimethylbenzene records, naphthalene and formic acid for a period of three years from the date of submission of the Form A reports under 40 C.F.R § 372.30, Respondent’s failure to maintain such retained records for 1,2,4-trimethylbenzene, naphthalene and formic acid at the facility to which the reports apply, and to make such records for 1,2,4-trimethylbenzene, naphthalene and formic acid readily available for purposes of inspection by EPA constitutes three violations of section 313 of EPCRA, 42 U.S.C. § 11023, and 40 C.F.R. §§ 372.10(d) and (c).
Penalty Payment
Respondent agrees that in settlement of the claims alleged herein, Respondent shall pay a civil penalty of Six Hundred Thousand Dollars ($600,000) as set forth below.
Enhanced Compliance Project
To ensure enhanced compliance, Respondent certifies it has started design work to reconfigure storage of incompatible chemicals at the Harborside and Terminal Road facilities. In both instances, the process of completing design, obtaining permits, and completing construction may take 2‐3 years.
Supplemental Environmental Project
Respondent must implement an agreed-to Supplemental Environmental Project (SEP) in accordance with all provisions of this Consent Agreement and the schedule set forth in Appendix A.
The parties agree that the SEP is consistent with EPA’s 2015 SEP Policy and is intended to secure significant environmental and public health protection and benefits by enhancing the hazardous material incident response capabilities of first responders in the areas by providing equipment and training that is necessary to respond to emergency releases of hazardous chemicals. Respondent is obligated to expend no less than Two Hundred Thousand dollars ($200,000) associated with implementing the SEP which Respondent has chosen, and costs incurred by contractors and other third-parties selected by Respondent to develop, implement, maintain and administer the SEP.
APPENDIX A SUPPLEMENTAL ENVIRONMENTAL PROJECT
Project Description – Overview
This Supplemental Environmental Project (SEP) consists of emergency response equipment to be purchased and donated by the company to emergency response organizations local to the company facilities. The company has selected the Denver Fire Department in Colorado and the Bunola Fire Department in Pennsylvania to own and use the donated equipment. The company will order the equipment described below within sixty (60) days following the Effective Date. Dependent on supplier capabilities, the company expects delivery within a reasonable time after the orders are placed. The SEP will be considered complete when each piece of equipment described below, or substantially similar equipment in the event the equipment listed below is not available, is delivered to the Denver and Bunola Fire Departments. If necessary due to product availability or supply chain issues, substantially similar equipment will be purchased by the company after consultation with the impacted fire department. The company shall complete this SEP no later than six (6) months after the Effective Date.
Respondent alone selected the SEP recipients and specific equipment identified herein. This CAFO shall not be construed to constitute EPA approval or endorsement of the equipment or technology donated by Respondent in connection with the SEP undertaken pursuant to this Agreement.
The following describes the purchase of emergency response equipment Respondent has chosen to make for the Denver and Bunola Fire Departments.
Description of Project – Denver Fire Department
The listed emergency response equipment, selected by Respondent in consultation with the Denver Fire Department, will be purchased for the Denver Fire Department.*
Kappler DuraChem® 500 NFPA Multi-Threat Hazmat Protection Suits $28,317.93
Kappler Zytron® 500 Level A Chemical Protection Suits $17,697.88
ERK Multi-Purpose Railcar Kit $8,932.69
ECA2 – Oversized Surface Plug Kit $296
Teledyne FLIR Griffin™ G510 Field Ready Kit – Portable Gas Chromatograph/Mass Spectrometer (GC/MS) with integrated Heated Sample Probe and Liquid Injector $137,475
Kit-B Conversion Package Dev12 $1,196
“OFFSET” Drum Patching & Plugging Kit with Ladder Patch and Twin T-Patch Non-Sparking $1,188
Grand Total $195,103.50
Description of Project – Bunola Fire Department
The listed emergency response equipment selected by Respondent in consultation with the Bunola Fire Department, will be purchased for the Bunola Fire Department.*
DJI Aerial Drone
Mavic 3 Cine Premium Combo $4,999
Care Refresh 2-Year Plan $599
Grand Total $5,598
CLICK HERE for the CAFO