The CAFO resolves alleged CAA violations that Complainant asserted occurred in conjunction with Respondent’s storage and handling of toluene diisocyanate, an extremely hazardous substance, at its former plant growth media manufacturing facility. Respondent reports that the Facility ceased operations on or about December 3, 2020. Respondent also reports that subsequently, all equipment, inventory, raw materials (including commercial chemical products), packaging and other materials have been removed from the Facility, the premises have been vacated, and the lease terminated.
Toluene diisocyanate (“TDI”) is an extremely hazardous substance listed in Section 112(r)(3) of the CAA and at 40 C.F.R. § 68.130, having a threshold quantity of 10,000 pounds. TDI is toxic and a possible carcinogen and can cause respiratory irritation or breathing difficulties if inhaled. It is also reactive and incompatible with water, among other substances.
On November 8, 2018, EPA and its contractors conducted an inspection at the Facility. The principal purpose of the Inspection was to determine whether Respondent was operating the Facility in compliance with federal environmental laws and regulations administered by EPA, including but not limited to Sections 302 – 312 of EPCRA and Section 112(r) of the Clean Air Act.
During the Inspection and based on information submitted after the Inspection, several areas of concern were noted for the Facility, as described in a May 22, 2019 EPA
Inspection Report (“Inspection Report”), including failure to submit a Risk Management Plan for periods when TDI was allegedly present over the RMP threshold of 10,000 pounds, and some potentially hazardous conditions.
Based on EPCRA Tier II reports submitted in 2016 and 2017, over 10,000 pounds of TDI (mixed isomers) were reported as present at the Facility for use in a process by Respondent in calendar years 2016 and 2017; however, the 2016 and 2017 Tier II forms do not acknowledge the Facility is subject to RMP regulations. On the day of the Inspection in 2018, less than 10,000 pounds of TDI were present.
The former use, handling, and storage of TDI to manufacture growth media trays at the Facility falls within the meaning of a “process” under 40 C.F.R. § 68.3. To manufacture the growth media trays, Respondent combined a peat moss slurry with polyol and TDI in a machine that pumped the mixture through a pouring nozzle and into tray molds that move along a rotary carousel. The mixture hardened into a spongy-type foam material called a seed plug. Filled and hardened trays were then packaged for retail sale. Totes and drums of TDI were stored in a storage cabinet and a chemical storage hut adjacent to the manufacturing area.
The closest “public receptor,” as defined in 40 C.F.R. § 68.3, was less than 0.1 mile from the Facility. The Facility was located within a half-mile of numerous residences and businesses, an elementary school, and an interstate highway (Rt. 1).
ALLEGED VIOLATIONS
COUNT 1: Failure to Submit an RMP
Respondent’s operation of the Facility involved the handling, storage, and use of TDI, a “regulated substance” within the meaning of 40 C.F.R. § 68.3, in an amount which, at certain periods covered by this action, exceeded the chemical’s threshold quantity (TQ) listed in 40 C.F.R. § 68.130.
35. The manufacture of growth media trays and the co-located storage of TDI, as partially described in Paragraph 30 (“Process”) at the Facility is a “covered process,” as defined by 40 C.F.R. § 68.3. At all times relevant to the allegations herein, the Process was subject to the Program 2 requirements of the RMP regulations at 40 C.F.R. § 68.10 because:
(a) the distance to a toxic or flammable endpoint for a worst-case release of TDI was more than the distance to a public receptor such that the Process was ineligible for Program 1; and
(b) the Process was not subject to OSHA’s PSM regulations or in a specified NAICS code.
Pursuant to 40 C.F.R. § 68.12(a), the owner or operator of a stationary source subject to the requirements of Part 68 is required to submit an RMP to EPA, as provided in 40 C.F.R. § 68.150. The RMP documents compliance with Part 68 in a summary format and, for a Program 2 process such as the Process at the Facility, must document compliance with the elements of the Program 2 Risk Management Program including, but not limited to:
40 C.F.R. Part 68.12 (General Requirements);
40 C.F.R. Part 68.15 (Management Requirements);
40 C.F.R. Part 68.20 through 68.42 (Hazard Assessment);
40 C.F.R. Part 68.48 through 68.60 (Program 2 Prevention Program); and
40 C.F.R. Part 68.90 to 96 (Emergency Response Program)
Based on the allegations, for at least two years (2016 and 2017), Respondent did not prepare and submit to EPA an RMP for the Process at the Facility and, therefore, is alleged to have violated Section 112(r)(7) of the Clean Air Act and the RMP regulations at 40 C.F.R. Part 68.
COUNT 2: Failure to Identify Hazards under the General Duty Clause
Pursuant to the General Duty Clause in Section 112(r)(1) of the CAA, 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.
To identify hazards that may result from accidental releases of extremely hazardous substances under the GDC and Section 112(r)(1) of the CAA, 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, using appropriate hazard assessment techniques, as identified in Attachment A.
As part of the Process, Respondent used, handled, or stored TDI, an extremely hazardous substance, without identifying the hazards that may have resulted from accidental releases or otherwise conducting a process hazard review using appropriate, industry-recognized hazard assessment techniques.
By failing to identify hazards that may result from accidental releases of an extremely hazardous substance that had been used, handled, or stored as part of the Process, Respondent violated the General Duty Clause at Section 112(r)(1) of the Clean Air Act.
Count 3: Failure to Design and Maintain a Safe Facility to Prevent Releases
Pursuant to the General Duty Clause in Section 112(r)(1) of the CAA, owners, and operators of stationary sources producing, processing, handling, or storing extremely hazardous substances have a general duty, to the same extent as 29 U.S.C. § 654, to design and maintain a safe facility to prevent releases.
The recommended standard of care for designing and maintaining a safe facility is to base design considerations upon applicable design codes, federal and state regulations, and recognized industry practices, to prevent releases or minimize their impacts, and to develop and implement standard operating procedures, preventative maintenance programs, personnel training programs, management of change practices, incident investigation procedures, and self-auditing procedures.
The National Fire Protection Association (“NFPA”), manufacturers of TDI, the Center for Chemical Process Safety, and the American Chemistry Council have published standards and guidance for this purpose, as set out in Attachment A. See also U.S. EPA, Guidance for Implementation of the General Duty Clause Clean Air Act Section 112(r)(1) (May 2000) (“EPA’s General Duty Clause Guidance”).
The instances when Respondent failed in its general duty to design and maintain the Facility as a safe facility, taking such steps as are necessary to prevent a release of an extremely hazardous substance are summarized below and further described in Attachment A.
- Missing NFPA diamonds on TDI storage areas;
- Fire hazards caused by use of extension cords on the carousel line and inside the chemical storage hut, use of a portable electric space heater inside the chemical storage hut, improper storage of combustible wood pallets, and electrical hazards;
- Lack of ventilation in TDI storage area;
- Failure to maintain equipment such that it was leaking TDI; and
- Open drums of TDI-containing chemicals.
By failing to design and maintain a safe facility to prevent accidental releases of an extremely hazardous substance used, handled, or stored as part of the Process, Respondent violated the General Duty Clause at Section 112(r)(1) of the Clean Air Act.
Count 4: Failure to Minimize the Consequences of Accidental Releases
Pursuant to the General Duty Clause in Section 112(r)(1) of the CAA, owners, and operators of stationary sources producing, processing, handling, or storing extremely hazardous substances have a general duty, to the same extent as 29 U.S.C. § 654, to minimize the consequences of accidental releases that do occur.
Industry standards for minimizing the consequences of an accidental release from TDI are found in Attachment A. Among other things, they include measures such as standards for labeling, ventilation, reducing fire hazards, keeping containers of TDI closed, maintaining equipment so as to prevent TDI spills, and access to emergency eyewash stations and showers.
Some of these measures are also cited in Count 3 as they can both help prevent releases from occurring and minimize the consequences of releases that do occur.
The instances in which Respondent failed in its general duty to minimize the consequences of releases, taking such steps as are necessary to prevent a release of an extremely hazardous substance, include those cited above, and the failure to have safety showers available, and a lack of secondary containment for TDI containers in several areas. The instances of violation are further described in Attachment A.
By failing to minimize the consequences of accidental releases of TDI, Respondent violated the General Duty Clause at Section 112(r)(1) of the Clean Air Act.
TERMS OF SETTLEMENT
Within thirty (30) days of the effective date of this CAFO, Respondent shall pay the total penalty amount of $137,294.
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