EPA RMP GDC @ solvent blending, storage, and distribution facilities

Respondent owns and operates several solvent blending, storage, and distribution facilities located in Iowa and Kansas. On July 17, 2007, a series of fires and explosions occurred at a KS Facility. The cause of the incident was a static charge that ignited Special Naphtholite 66/3 (VM&P), an EHS listed under Section 112(r)(3) of the CAA, while it was being unloaded from a tractor trailer into an above ground storage tank. The initial explosion of this EHS led to further fire and explosions of multiple above ground storage tanks. Debris from exploding tanks was launched through the air causing extensive damage to the Facility, as well as to nearby office buildings and a residential trailer. The fire and explosions also caused the release of several hazardous substances and EHSs stored in the tanks including xylene, ethyl benzene, methanol, acetone, toluene, and methyl isobutyl ketone. These releases continued to fuel the fire and ultimately impacted the soil, water, and air of the Facility and neighboring properties. Run-off containing these substances and fire suppressants from the Facility reached a sanitary sewer drain and was later detected in the sludge at the wastewater treatment plant’s aeration basin. The fire and explosions at the Facility were investigated by the Kansas State Fire Marshall (KSFM). KSFM issued a report on the incident dated July 17, 2007. The Report concluded that several factors may have contributed to the incident including:

(1) the type of material being pumped and outside temperature above the flashpoint of that material;
(2) the lack of anti-static additives in the filling process;
(3) the likelihood that there was no bonding/grounding between the trailer and the storage tank;
(4) the low tank level in the tank when the operation started which cause agitation for the liquid that generated static;
(5) air being introduced into the line during the VM&P transfer; and
(6) the high velocity at which the material was pumped.

In addition, the U.S. Department of Labor Occupational Safety and Health Administration (OSHA) found that Defendant had failed to test and inspect the pressure relieving and atmospheric vents on the tanks to ensure their proper operation. On January 18, 2008, Defendant entered into an agreement with OSHA settling an administrative claim for this violation in which it paid a penalty of $3,500.

The practices, acts, and omissions at the VC Facility not in conformance with applicable industry codes, standards, and practices, including but not limited to, Electrostatic Ignitions of Fires and Explosions by Pratt, 2000 edition Flammable and Combustible Liquids and Their Vapors (NFPA 77), National Fire Protection Association, Flammable, and Combustible Liquids Code 30, 2003 edition (NFPA 30); American Solvents Council, Working with Modern Hydrocarbon and Oxygenated Solvents: A Guide To Flammability, September 2004 edition (ASC 2003); American Petroleum Institute Standard 2003, Protection Against Ignitions Arising Out of Static, Lighting, and Stray Currents, 6th ed. 1998 (API 2003).

Information collected during the investigation of the VC Facility incident described in Paragraphs 43 – 45 revealed that Defendant had failed to conduct an adequate process hazard analysis on the transfer of VM&P at the VC Facility, failed to design and maintain the VC Facility in a manner that adequately took into account the volatile nature of the materials used there and the potential for the generation and ignition of static electricity in the VM&P transfer process, and failed to minimize the consequences of accidental releases of hazardous substances and extremely hazardous substances by having an adequate emergency pressure relief vents and containment for chemical spills.

On October 29, 2007, a fire and explosion occurred at the DM Facility while ethyl acetate, an EHS listed under Section 112(r)(3) of the CAA, was being pumped from a 30,000 gallon tank at the tank farm into a 350 gallon, stainless steel intermediate bulk container (IBC). The movement of the liquid through piping and hose into the IBC at an elevated velocity generated a static electric charge that caused the IBC to burst into flames which caused a series of explosions and fires in the packaging/filling area. The fire spread into and throughout a warehouse where it ignited other chemicals stored there. The ignition of these additional chemicals and solvents fueled the initial fire, and resulted in a huge fire that burned for several hours causing extensive damage to the facility. Minor injuries were sustained by a Barton employee and two firefighters. The DM Facility and nearby businesses were evacuated. The fire caused substantial property damage to the DM Facility as well as a neighboring property.

The Iowa Occupational Safety and Health Administration (IOSHA), the State Fire Marshal Division, and McKinzie Environmental (on behalf of EPA) conducted incident investigations of the DM Facility explosions. These investigations concluded that the incident resulted from ignition of a static discharge that was caused by a combination of:
(1) splash filling of ethyl acetate (whereby the ethyl acetate was filled from the top of the IBC and allowed to splash into the bottom);
(2) improper bonding/grounding of the non-metal fill hose nozzle to the IBC in which it was inserted; and
(3) a too rapid fill velocity.

In addition, the IOSHA found that the DM Facility failed to dispense the ethyl acetate into containers where the nozzle and container were electrically interconnected as required by IAC 875-Chapter 10, 1910.106(f)(3)(iv). On January 8, 2008, Defendant entered into an agreement with IOSHA settling a state administrative claim for this violation in which it paid a penalty of $3,500.

With respect to the explosions at the DM Facility, the IOSHA Inspection Report noted that there was not a sprinkler system or fire suppression system in the packaging/filling area where the fire and explosions originated. The DM Facility Plan also indicated that there were no hazard control system features in the packaging/filling area. A portable fire extinguisher was available in the packaging/filling area, but it was quickly used by a Barton employee and was ineffective in stopping the spreading of the fire. The McKenzie Report also noted that the on-site water supply at the facility was also inadequate for the desired suppression streams. The practices, acts, and omissions described above were not in conformance with applicable industry standards, practices, and codes including but not limited to NFPA 30, NFPA 77, API 2003, and Thomas H. Pratt, Electrostatic Ignitions of Fires and Explosions (1997).

Information collected during the investigation of the incident at the DM Facility described above revealed that Defendant had failed to conduct an adequate process hazard analysis on the transfer of ethyl acetate at the DM Facility, failed to design and maintain the DM Facility in a manner that adequately took into account the volatile nature of the materials used there and the potential for the generation and ignition of static electricity in the liquid transfer process, and failed to minimize the consequences of accidental releases of hazardous substances and EHSs by having an adequate hazard control and fire suppression system and firefighting capabilities including water supply.

Each of the incidents resulted in the “accidental release” of an EHS and other hazardous substances listed under Section 112(r)(3) of the CAA, within the meaning of Section 112(r)(1) of the CAA. 42 U.S.C. § 7412(r).

Factual Allegations Pertaining to EPCRA Claims

The explosions that occurred at the VC Facility on or about July 17, 2007, resulted in the releases of hazardous chemicals, hazardous substances, and/or EHSs in amounts equal or greater than the Reportable Quantities designated by EPA under Section 302 of EPCRA, 42 U.S.C. § 11002. These releases include but are not limited to 87,000-112,000 lbs of xylene, 12,400-37,373 lbs of ethyl benzene, 43,000 lbs of methanol, 9,400 lbs of acetone, 7,000-8,000 lbs of toluene, and over 5,000 lbs of methyl isobutyl ketone were released during the VC Facility incident described in Paragraphs 43 – 47 above. 40 C.F.R. 302.4. Following the releases of the hazardous substances and EHSs described in Paragraphs 43 – 47 above, Defendant failed to provide immediate notice to the Kansas SERC which was at the time the Kansas Emergency Management Department. Following the releases described in Paragraphs 43 – 44 above, Defendant failed to submit to the Kansas SERC and Sedgwick County LEPC, as soon as practicable, a written emergency follow-up notice updating the information required by Section 304(b) of EPCRA, 42 U.S.C. § 11004(b), and regulations at 40 C.F.R. 355.43(b).

FIRST CLAIM FOR RELIEF
(Failure to Assess Hazards of the VM&P Transfer Process at the VC Facility in Violation of Section 112(r)(1) of the CAA) Pursuant to Section 112(r)(1) of the Clean Air Act, 42 U.S.C. § 7412(r)(1), Defendant was required “to identify hazards which may result from [accidental] releases [of listed hazardous substances] using appropriate hazard assessment techniques…”

Beginning in or before July of 2007, Defendant failed to adequately identify, through the use of appropriate hazard assessment techniques, the hazards associated the transfer of VM&P, a hazardous substance listed under Section 112(r)(3) of the CAA, at the VC Facility including but not limited to the potential for fast pumping of VM&P to generate static electricity while the chemical was being moved into the tank above its flashpoint, and the potential for ignition of such static due to the addition of air in the tank, lack of adequate bonding, and a low tank level.

Feasible means existed by which Defendant could have eliminated or reduced hazards associated with the transfer of VM&P at the VC Facility, including but not limited to, by conducting an appropriate hazard assessment, following the recognized and generally accepted good engineering practices associated with static electricity and flammable/combustible liquids.

Defendant’s failure to identify hazards associated with the transfer of VM&P at the VC Facility using appropriate hazard assessment techniques constitutes a violation of the General Duty Clause of Section 112(r)(1) of the Act.

SECOND CLAIM FOR RELIEF

(Failure to Design and Maintain a Safe Facility with respect to the VM&P Transfer Process at the VC Facility in Violation of Section 112(r)(1) of the CAA)
Pursuant to Section 112(r)(1) of the Clean Air Act, 42 U.S.C. § 7412(r)(1), Defendant was required to “design and maintain a safe facility taking such steps as are necessary to prevent releases [of listed hazardous substances]…”

Beginning in or before July of 2007, Defendant failed to design and maintain a safe facility at the VC Facility with respect to the transfer of VM&P, a hazardous substance listed under Section 112(r)(3) of the CAA, by taking such steps as necessary to prevent accidental releases of listed hazardous substances in the following respects:
(a) it failed to control the generation of static electricity;
(b) it failed to have sufficient bonding/grounding between the trailer and the storage tank in the VM&P filling process;
(c) it permitted filling the storage tank at a high velocity when the liquid in the tank was low;
(d) it allowed air to be introduced into the line during the VM&P transfer; and (e) it pumped the VM&P at too high a velocity for the circumstances.

Feasible means existed by which Defendant could have designed and maintained a safe facility with respect to the transfer of VM&P at the VC Facility. Defendant’s failure to design and maintain a safe facility with respect to the transfer of VM&P at the VC Facility constitutes a violation of the General Duty Clause of Section 112(r)(1) of the Act, 42 U.S.C. § 7412(r)(1).

THIRD CLAIM FOR RELIEF

(Failure to Minimize the Consequences of a Release in the VM&P Transfer Process at the VC Facility in Violation of Section 112(r)(1) of the CAA)

Beginning in or before July of 2007, Defendant failed to minimize the consequences of accidental releases of hazardous substances listed under Section 112(r)(3) of the CAA associated with the VM&P transfer process at the VC Facility by having insufficient emergency pressure vents on its tanks and inadequate containment for chemical spills. Feasible means existed by which Defendant could have minimized the consequences of an accidental release of hazardous substances listed under Section 112(r)(3) of the CAA associated with the VM&P transfer process at the VC Facility.

Each of Defendant’s failures to minimize the consequences of accidental releases of hazardous substances listed under Section 112(r)(3) of the CAA associated with the VM&P transfer process at the VC Facility constitutes a violation of the General Duty Clause of Section 112(r)(1) of the Act.

FOURTH CLAIM FOR RELIEF

(Failure to Assess Hazards Associated with the Handling of Ethyl Acetate at the DM Facility in Violation of Section 112(r)(1) of the CAA)

Pursuant to Section 112(r)(1) of the Clean Air Act, 42 U.S.C. § 7412(r)(1), Defendant was required “to identify hazards which may result from [accidental] releases [of listed hazardous substances] using appropriate hazard assessment techniques…”

Beginning in or before October of 2007, Defendant failed to adequately identify, through the use of appropriate hazard assessment techniques, the hazards associated with the transfer of ethyl acetate at the DM Facility including, but not limited to, the potential for splash filling to generate static electricity, the risks of using a non-metal fill hose nozzle with metal components, and the process hazards associated with fill velocity.

Feasible means existed by which Defendant could have eliminated or reduced hazards associated with the transfer of ethyl acetate at the DM Facility, including but not limited to, by conducting an appropriate hazard assessment. Defendant’s failure to identify hazards associated with the transfer of ethyl acetate at the DM Facility using appropriate hazard assessment techniques constitutes a violation of the General Duty Clause of Section 112(r)(1) of the Act, 42 U.S.C. § 7412(r)(1).

Subject to a reasonable opportunity for further investigation or discovery, Defendant’s failure to identify the hazards associated with the transfer of ethyl acetate at the DM Facility using appropriate hazard assessment techniques continues. Pursuant to Section 113(b) of the CAA, 42 U.S.C. § 7413(b), Defendant is liable for injunctive relief for the violations alleged herein.

FIFTH CLAIM FOR RELIEF

(Failure to Design and Maintain a Safe Facility with respect to Handling of Ethyl Acetate at the DM Facility in Violation of Section 112(r)(1) of the CAA)

Pursuant to Section 112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1), Defendant was required “to design and maintain a safe facility taking such steps as are necessary to prevent releases [of listed hazardous substances]…”

Beginning in or before October of 2007, Defendant failed to design and maintain a safe facility with respect to the transfer of ethyl acetate at the DM Facility by taking such steps as are necessary to prevent accidental releases of hazardous substances in the following respects:
(1) it used splash filling of ethyl acetate;
(2) it failed to properly bond the non-metal fill hose nozzle to the IBC in which it was inserted; and
(3) it used too rapid a fill velocity in transferring ethyl acetate into an IBC.

Feasible means existed by which Defendant could have designed and maintained a safe facility with respect to the transfer of ethyl acetate at the DM Facility. Defendant failure to design and maintain a safe facility with respect to the transfer of ethyl acetate at the DM Facility constitutes a violation of the General Duty Clause of Section 112(r)(1) of the Act, 42 U.S.C. § 7412(r)(1).

Subject to a reasonable opportunity for further investigation or discovery, Defendant’s failure to design and maintain a safe facility with respect to the transfer of ethyl acetate at the DM Facility continues. Pursuant to Section 113(b) of the CAA, 42 U.S.C. § 7413(b), Defendant is liable for injunctive relief for the violations alleged herein.

SIXTH CLAIM FOR RELIEF

(Failure to Minimize the Consequences of a Release in the Handling of Ethyl Acetate at the DM Facility in Violation of Section 112(r)(1) of the CAA)

Pursuant to Section 112(r)(1) of the Clean Air Act, 42 U.S.C. § 7412(r)(1), Defendant was required “to minimize the consequences of accidental releases [of listed hazardous substances] which do occur.” Beginning in or before October of 2007, Defendant failed to minimize the consequences of accidental releases of hazardous substances listed under Section 112(r)(3) of the CAA associated with the transfer of ethyl acetate at the DM Facility by having adequate hazard control and fire suppression system and equipment.

Feasible means existed by which Defendant could have minimized the consequences of an accidental release of hazardous substances associated with the transfer ethyl acetate at the DM Facility.

Defendant’s failure to minimize the consequences of accidental releases of hazardous substances associated with the transfer of ethyl acetate at the DM Facility constitutes a violation of the General Duty Clause of Section 112(r)(1) of the Act, 42 U.S.C. § 7412(r)(1). As a result of its failure to minimize the consequences of accidental releases of hazardous substances listed under Section 112(r)(3) of the CAA associated with the transfer of ethyl acetate at the DM Facility, Defendant violated the General Duty Clause of Section 112(r)(1) of the CAA, 42 U.S.C. §7412(r)(1).

Subject to a reasonable opportunity for further investigation or discovery, Defendant’s failure to minimize the consequences of accidental releases of hazardous substances listed under Section 112(r)(3) of the CAA associated with the transfer of ethyl acetate at the DM Facility continues. Pursuant to Section 113(b) of the CAA, 42 U.S.C. § 7413(b), Defendant is liable for injunctive relief for the violations alleged herein.

SEVENTH CLAIM FOR RELIEF

(Violations of Section 304 of EPCRA at the VC Facility)

The explosions that occurred at the VC Facility on or about July 17, 2007, resulted in the releases of hazardous substances in amounts equal or greater to the Reportable Quantities designated by EPA under Section 302 of EPCRA, 42 U.S.C. § 11002 including but not limited to 87,000-112,000 lbs of xylene, 12,400-37,373 lbs of ethyl benzene, 43,000 lbs of methanol, 9,400 lbs of acetone, 7,000-8,000 lbs of toluene, and over 5,000 lbs of methyl isobutyl ketone. Following the releases of the hazardous substances described in the previous paragraph, Defendant failed to provide immediate notice to the Kansas SERC. Defendant’s failure to immediately notify the SERC as described in the preceding paragraph, constitutes a violation of Section 304(b) of EPCRA, 42 U.S.C. § 11004(b) and regulations at 40 C.F.R. 355, Subpart C.

Following the releases, Defendant failed to submit, as soon as practicable, a written emergency follow-up notice updating the information required by Section 304(b) of EPCRA, 42 U.S.C. § 11004(b), and regulations at 40 C.F.R. 355.43(b), to the Kansas SERC and LEPC. Defendant’s failure to provide written emergency follow-up notice to the LEPC and Kansas SERC as described in the preceding Paragraph, constitutes a violation of Section 304(c) of EPCRA, 42 U.S.C. § 11004(c).

EIGHTH CLAIM FOR RELIEF

(Violations of Section 311 of the CWA at the Bettendorf Facility)