Respondent is the operator of an aerosol and non-aerosol product manufacturing and packaging facility. The Facility, including its chemical storage tanks, is located less than 0.1 mile from the nearest neighboring commercial/industrial facility. There are several commercial facilities within a 1,000 foot radius of the Facility. Respondent manufacturers and packages into personal-sized containers a number of common cosmetic and home-use fragrance aerosol products using various aerosol propellants, including pure difluoroethane and blended combinations of difluoroethane-isobutane, difluoroethane-propane, and difluoroethane-isobutane-propane. On April 1, 2013, EPA conducted an inspection at the Facility to evaluate Respondent’s compliance with the requirements of the CAA’s risk management program. During the inspection, EPA observed four horizontal ASTs (two 2,550 gallon with maximum 16,878 lbs. capacity each and two 1,990 gallon with maximum 7,983 lbs. capacity each) situated in an outdoor Propellant Storage and Transfer Yard (“Tank Yard”).
DFE, isobutane, and propane are all regulated flammable gases subject to section 112(r) of the CAA, and when held in a covered process in amounts over threshold quantities are subject to Risk Management Plan (RMP) requirements. The flammables (“the RMP chemicals”) are stored in four co-located above-ground storage tanks (“ASTs”) in an outdoor yard at the Facility. The company receives delivery of more than 10,000 lbs of the RMP chemicals at least three times per year. 38. The four co-located ASTs containing more than threshold amounts of the RMP chemicals are, together, a “covered process.”
Given the hazards associated with handling the RMP chemicals, industry and fire safety professionals have developed recognized and generally accepted good-engineering practices to encourage safe handling of the materials. As more specifically discussed in Count II, below, the RAGAGEP for storage of the regulated substances cited herein include, but are not limited to,
- the Liquefied Petroleum Gas Code, National Fire Prevention Association (NFPA) Code 58 (2001) (which has been incorporated in the Massachusetts Fire Code);
- ASME A13.1-2007 the Identification of Piping Systems);
- Compressed Gases and Cryogenic Fluids Code, NFPA Code 55 (2013);
- Hazardous Materials Code;
- state fire codes; and
- the Material Safety Data Sheets (“MSDS”) for DFE, DFE-isobutane mixtures, DFE-butane, and DFE-propane mixtures.
EPA noted that aside from a safety diamond label indicating a flammability of 4, the specific hazardous substances contained within the ASTs were not identified by any labeling on the tanks or the exterior fencing surrounding the Tank Yard as recommended by NFPA 58 Section 2.2.6.1 (container marking).
The ASTs contained one or more of the flammable chemicals listed above. Also, facility personnel indicated that each AST did not always contain the same chemical, and that only one person knew (by memory) which chemical was in which AST. During the inspection, representatives of the facility stated that the gasses, including the propane, butane, and isobutane, were unodorized, but no signage on the ASTs or in the Tank Yard indicated the lack of odorization, as recommended by NFPA 58 Section 2-2.6.5.
At the time of the inspection, EPA inspectors observed that the Tank Yard had a 6-foot chain-link fence with plastic sheet screening surrounding it, along with concrete blocks outside the fence on the street side and by the main entrance. There was a paved drive in the Tank Yard that trucks used to fill the ASTs, which were reported to receive deliveries between one and two times per week. Inspectors observed that Respondent lacked guard posts to prevent vehicle contact or collision at the filling pipes and horizontal tanks. Also, there were no barriers preventing collision with the structure holding the overhead pipes leading from the horizontal tanks to the block house. There was no method observed to prevent vehicle collisions around or near the ASTs as recommended by NFPA 58 Section 3.2.4.2.
Throughout the inspection, EPA observed improper labeling for piping; the pipes running from the ASTs into “block houses” were not labeled for flow direction or contents. Similarly, product transfer piping for blended materials in the compounding room lacked any labeling or identification of the pipes’ contents. Industry standard practices recommend use of both
- arrows indicating flow direction and
- color-coded labels identifying the contents of each pipe and the hazardous characteristics of the contents.
See ASME A13.1-2007 (“Scheme/or the Identification of Piping Systems”) (establishing common standard for identification of hazardous materials conveyed in piping systems to assist facility personnel and emergency responders).
During the April 2013 inspection, EPA asked a facility representative whether the company had a written Process Hazard Analysis (“PHA”). The representative stated that it had been working on an OSHA Process Safety Management (“PSM”) program with a PHA for OSHA compliance. Respondent provided an electronic version of the written PHA several days after the inspection (the “2012 PHA”). The 2012 PHA’s coverage of the ASTs was minimal, and did not analyze the gas tanks (although the 2012 PHA indicates that action items from a previous PHA concerning the tanks were addressed in the 2012 PHA).
During the follow-up inspection in November 2013, Respondent stated that it had made no updates or revisions to the PHA sent to EPA in April 2013. Nor was any PHA updated between 1999 and 2012.
On January 21, 2014, the company provided the worksheets for a PHA that had been written in 1999 (the “1999 PHA”). The 1999 and 2012 PHAs did not identify at least the following hazards posed by the RMP chemicals that were stored in the ASTs and the Tank Yard:
- Lack of leak detection program: The PHAs designated no program to routinely identify whether valves (which are engineering controls) were functional as required by 40 C.F.R. § 68.67(3)-(4). Moreover, the gasses in the leaks and piping were odorless, so odor would not provide warning of leak, as recommended by NFPA 58 Sections 11.2.1 and 11.2.2, and NFPA 400 Section 21.3.6.5.
- Lack of protection from traffic: The PHAs did not address the risks from vehicular collision with tanks, fill pipes, or overhead pipes within the fenced area, although all were unprotected. See, for example, NFPA 58 Sections 3.2.4.2 and NFPA 400 Section 21.3.1.8.3.2.
- Potential for fire or explosion and off-site effects: The PHA did not identify the potential for an explosion or the various dangers that such an explosion could create (such as hydrofluoric acid fall-out from the DFE, or off-site effects from an explosion). See 40 C.F.R. § 68.67(c)(4); MSDSs and Fire Safety Analysis Manual for LP Gas Storage Facilities, Chapter 7 .1; NFPA 400, Chapter 7.
Because the 1999 and 2012 PHAs do not identify or evaluate many hazards associated with these RMP chemicals, they also fail to address or recommend controls that might prevent and/or mitigate an accidental release of these materials. 40 C.F.R. § 68.67(a), (c), and (e) (PHA must address controls and establish system for implementing recommendations).
During the inspection, EPA requested, but the facility failed to produce, written operating procedures that provide clear instructions for safely conducting activities involved in each covered process as required by 40 C.F.R. § 68.69(a)(2)-(4).
During the inspection, EPA also asked Respondent whether it had a written emergency response plan (“ERP”). Respondent stated that it did not have a formal ERP, but put forth an emergency evacuation plan (“EEP”) that it believed could serve as an ERP. Subsequent to the investigation, EPA obtained and reviewed the EEP. Like the PHA, the EEP fails to specifically identify the RMP chemicals or the hazards they pose. The EEP does not address the potential for explosion or the release of hydrogen fluoride as a combustion byproduct, and contains no mention of the ASTs. Part of the evacuation procedure in the event of an explosion or large fire calls for employees to evacuate to an assembly point in the parking lot, approximately 100 feet from the Tank Yard area.
However, the 2008 Emergency Response Guidebook (a document commonly used by emergency responders) instructing on releases ofDFE recommends evacuees move at least 800 meters downwind in the event of a spill and 1600 meters in the event of fire. Finally, the EEP does not identify facilities within area impacted by the worst case scenario for a vapor cloud explosion. See Fire Safety Analysis Manual for LP-Gas Storage Facility Section 7-1.
Because the EEP was silent on the RMP substance hazards, it lacked
- procedures for informing the public and local emergency response agencies about accidental releases;
- documentation of proper first-aid and emergency medical treatment necessary to treat accidental human exposures to regulated substances;
- procedures and measures for emergency response after an accidental release of a regulated substance;
- procedures for use of emergency response equipment and for its inspection, testing, and maintenance;
- training for employees in all relevant procedures; and
- procedures to review and update the emergency response plan and to ensure employees are informed of changes. 40 C.F.R. § 68.95(a)(1)-(4).
The emergency response plan shall be coordinated with the community emergency response plan. See 40 C.F.R. §§ 68.90, 68.95. Pursuant to 40 C.F.R. § 68.95(a)(1), all such information must be contained in the emergency response plan itself in order to be readily available to facility personnel and emergency responders the event of an accidental release of a regulated substance. Respondent stated that it had coordinated with the local fire department (see 40 C.F.R. § 68.90(b)) and therefore was not required to comply with 40 C.F.R. § 68.95. However, the fire department informed EPA that coordination was not adequate. Coordination has improved since the inspections.
On October 10, 2013, OSHA issued a citation for various PSM violations. As a result of EPA’s observations and review of documents, EPA alleges that Respondent violated several requirements of 40 C.F.R. Part 68. On April 17, 2014, EPA issued a Finding of Violation. On May 14, 2014, the parties met to discuss the Finding of Violation.
VIOLATIONS
COUNT 1: Failure to Document, Implement, or Submit a Program 3 Risk Management Plan
At all times relevant to this Consent Agreement, Respondent’s storage and handling of DFE in a process over threshold quantities at the Facility subjected it to Program 3 RMP requirements. Respondent’s storage and handling ofDFE mixture with propane, butane, and isobutane in a process over threshoid quantities at the Facility subjected it to Program 3 RMP requirements. Respondent is subject to OSHA Process Safety Management (PSM) requirements. As required under OSHA, Respondent started drafting a Process Safety Management (PSM) program in 2012. The worst-case scenario for a release of 10,000 lbs. or more ofDFE at 1 psi is 0.1 miles, which is greater than the flammable endpoints of nearby commercial industrial and state park public receptors.
The worst-case scenario for a release of 10,000 lbs. of isobutane and the isobutane mixtures at 1 psi is 0.2 miles, which is greater than the flammable endpoints of nearby commercial/industrial and state park public receptors. The worst-case scenario for a release of 10,000 lbs. of propane and propane mixtures at 1 psi is 0.2 miles, which is greater than the flammable endpoints of nearby commercial/industrial and state park public receptors. Respondent has used RMP chemicals in amounts exceeding threshold quantities since at least 2009.
Respondent submitted an RMP on June 27, 2013 (although EPA had continuing concerns about the company’s underlying program to prevent and respond to releases). Respondent failed to submit a Program 3 RMP until at least four years after it first exceeded RMP thresholds. Respondent failed to submit a Program 3 RMP for any covered processes from at least 2009 until June 27, 2013. Accordingly, Complainant alleges that Respondent violated 40 C.F.R. §§ 68.12 and 68.150.
COUNT II: Failure to Compile Process Safety Information
Respondent failed to document PSI. At the time of the inspections on April 2013 and November 2013 there was no written PSI to review. Respondent failed to document and confirm its processes complied with RAGAGEP. 40 C.F.R. § 68.65(d)(2). As referenced above, the RAGAGEP for ASTs and the Tank Yard include, among others,
- NFPA 58 Liquefied Petroleum Gas Code;
- NFPA 55 Compressed Gasses and Cryogenic Fluids Code;
- NFPA 400 Hazardous Materials Code;
- ASME A13.1-2007 Scheme for the Identification of Piping Systems; and
- the MSDS for the chemicals.
Respondent failed to document its RAGAGEP.
Respondent also did not comply with the following RAGAGEP:
- The Facility lacked guard posts to prevent vehicle contact or collision at the filling pipes and horizontal tanks. Also, there were no barriers preventing collision with the structure holding the overhead pipes leading from the horizontal tanks to the block house. No method prevented vehicle collisions around or near the tanks. See, for example, NFPA 58, Section 3.2.4.2; NFPA 1 Section 60.5.1.9.1 and 60.5.1.9.2; NFPA 400 Section 21.3.1.8.3
- The Facility failed to properly label the contents of tanks containing flammable gasses. See, for example, NFPA 58 Section 2.2.6.1; NFPA 1Section 60.5.1.8.2.1; NFPA 400 Section 21.3.1.7;
- The Facility failed to properly label each tank of flammable “unodorized” liquefied petroleum gas. See NFPA 58 Section 2.2.6.5 and;
- The Facility failed to properly label the piping containing flammable gasses and label the direction of flow. See ASME A13.1-2007 Scheme for the Identification of Piping Systems and NFPA 400 Section 21.3.1.7.4.1.
COUNT III – Failure to Properly Document, Implement, or Update a Process Hazard Analysis
Respondent’s 1999 and 2012 PHAs were incomplete. The 2012 PHA only briefly mentioned the ASTs, and as described more fully in paragraph 49-52, Respondent failed to meet many elements of a compliant PHA. For example, the PHAs did not address the hazards posed by the RMP chemicals in the ASTs, such as an explosion or the release of hydrogen fluoride as a combustion byproduct. Nor did the PHAs address the dangers associated with an off-site release, the risks of vehicle collision, or the lack of a program to routinely identify valve failure or leaks. In addition, the PHAs were not updated between 1999 and 2012.
Respondent failed to document, implement, or update many elements of a PHA for RMP chemicals. Accordingly, Complainant alleges that Respondent violated 40 C.F.R. § 68.67 from at least January 22, 2009 to the present.
COUNT IV – Failure to Have or Coordinate an Emergency Response Plan
Respondent’s protocols at the time of the EPA inspections required Respondent employees to call 911 in the event of the release of a regulated substance. As of the dates of the EPA inspections, Respondent could not provide any written documentation of coordination with the local fire department or emergency responders or document an emergency response plan. Nor did the Fire Department believe that the company had coordinated emergency response with it. Therefore, Respondent failed to coordinate with the fire department under 40 C.F .R. § 68.90(b)(2). Given that Respondent had not adequately coordinated with the fire department, the company was required to have an emergency response plan under 40 C.F.R. § 68.95. The EEP prepared by Respondent calls for an Emergency Coordinator to “make emergency calls to the Fire Department and outside help [to] give information concerning the location or the fire status, chemicals involved and what personnel rescue efforts are needed.” It does not, however, contain any specific procedures for informing local emergency planning and response organizations of accidental releases ofRMP substances. 40 C.F.R. § 68.95(a)(l)(i). The EEP does not document proper first-aid and emergency medical treatment necessary to treat accidental human exposures. 40 C.F.R. § 68.95(a)(l)(ii). The EEP does not contain adequate procedures and measures for an emergency response after an accidental release of a regulated substance. 40 C.F.R. § 68.95(a)(l)(iii). The procedures it did have would have put evacuees in harm’s way of an explosion or release of hydrogen fluoride, a combustible byproduct. The EEP does not itself contain procedures for the inspection, testing, and maintenance of emergency response equipment. 40 C.F.R. § 68.95(a)(l)(iii)(2). The EEP provides for employee training in emergency plan procedures. However, it states that training “may include use of Self Contained Breathing Apparatus (“SCBA”).” The EEP does not contain procedures to review and update the emergency response plan and to ensure employees are informed of changes. 40 C.F.R. § 68.95(a)(4). Accordingly, Complainant alleges that Respondent has violated 40 C.F.R. §§ 68.90 and 68.95 from at least January 22, 2009 to the present.
Accordingly, pursuant to Section 113(e) of the CAA, and taking into account the relevant statutory penalty criteria, the facts alleged in this CAFO, and such other circumstances as justice may require, EPA has determined that it is fair and proper to assess a civil penalty of $57,369 for the violations alleged in this matter.
Supplemental Environmental Project (“SEP”)
Respondent shall complete the Supplemental Environmental Project (“SEP” or “Project”) as described in Attachment 1, which the parties agree is intended to secure significant environmental and public health protection and benefits. The SEP requires purchasing equipment for the Fall River Fire Department that will enhance the Fire Department’s ability to respond to and prepare for emergencies involving hazardous chemicals.
Respondent shall satisfactorily complete the SEP according to the requirements and schedule set forth in Attachment 1, which is incorporated herein by reference and is enforceable by this CAFO. The SEP is projected to cost approximately $147,000. Except as otherwise specified on page 5, item 8 of Attachment 1, “satisfactory completion” means
- purchasing the required equipment within one year of the effective date of this CAFO;
- ensuring that the equipment is in working order according to manufacturer instructions at the time of its delivery to the Fall River Fire Department;
- purchase training classes for the Fall River Fire Department as specified in Attachment 1; and
- spending approximately $147,000 to purchase the equipment.
SCOPE OF WORK
The SEP will provide Fall River’s emergency response personnel with appropriate emergency response equipment, as described below. Precise Packaging shall purchase and provide to the Fall River Fire Department the following specialized emergency response equipment within one year of the effective date of the CAFO. Precise Packaging shall also confirm that the equipment is in working order according to manufacturer instructions at the time of its delivery to the Fall River Fire Department and purchase training classes for the Fall River Fire Department as specified below.
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