Here we have a darn near perfect example as to why OSHA/EPA are now asking businesses with PSM/RMP covered process to “justify” their “maximum intended inventory(s)” of their Highly Hazardous Chemicals (HHC)/Extremely Hazardous Substances (EHS). The business had, at the time of the EPA inspection four (4) 1-ton cylinders of Chlorine in the same room (i.e. 8,000 pounds). Here is a process description from the business’s 2015 RMP…
Four one-ton containers of liquid chlorine are stored in a cutoff storage room that shares two walls with the rest of the building. The containers are manifolded in pairs with one in each pair supplying chlorine to the system while the other container is held in reserve. The containers are set on cradles that are part of the weighing system. There is a potential for chlorine release during the change-out of empty containers when pipes are disconnected, containers are hoisted from their cradles, full containers are transferred from the delivery truck with an overhead crane, and pipes are reconnected. A XXXXXX employee uses the standard operating procedures to minimize the risk of a catastrophic release during container change-out. The one-ton chlorine containers are positioned so that chlorine is withdrawn only from the gaseous phase. The gas pressure in the containers and in the withdrawal lines is the vapor pressure of chlorine at the temperature of the liquid in the container. At 70 degrees F, the vapor pressure is approximately 85 psig. The Chlorine Storage Room is not climate controlled, so that in the warm weather seasons with temperatures as high as 90 degrees F, the pressure could rise to about 125 psig. In colder weather, the pressure would be less than 50 psig. The containers have fusible plugs which release at 159-165 degrees F to prevent tank rupture during a fire. There are no sources of ignition or flammable materials in the Chlorine Storage Room; however, a fire in the rest of the building that engaged the room could cause the fusible plugs to release large quantities of liquid and gaseous chlorine. The evaporation of chlorine in the containers reduces the temperature of the liquid and the vapor pressure. Immediately next to each set of chlorine containers is a Capital Controls pressure regulator that reduces the pressure to below atmospheric for transmission through two chlorinated polyvinyl chloride (CPVC) and PVC delivery lines through the Wastewater Treatment Room and into the Etching Room. The regenerators operate in such a way as to maintain the pressure in the delivery lines below atmospheric. The regulators in the Chlorine Storage Room are set below atmospheric and will not deliver gas to the transmission lines if the pressure in the delivery lines exceeds the subatmospheric set point.
After EPA’s inspection, the business agreed to reduce its chlorine storage from 8,000 pounds to about 2,450 pounds (e.g. below the 2,500 RMP Threshold). It will also install a three (3) cylinder manifold system to replace one (1) of the two one-ton cylinder distribution lines it now uses and it will re-plumb the entire chlorine piping system that feeds the etchers. Finally, it will use a vacuum system along the chlorine line to minimize any potential leakage and will install an automatic alarm and shut down system connected to the chlorine source.
Here is a breakdown of what EPA found during their inspection:
Respondent began operations in 1980, and manufactures decorative metal ornaments, awards and precision components. Respondent’s manufacturing process consists of metal etching using ferric chloride in automated etching machines. Chlorine is used in the manufacturing process to regenerate the ferric chloride used for etching. Respondent’s operations are located on two separate parcels of land. One parcel of land, (“Parcel One”), contains a two-story, 30,000 square foot building that is used for administration, assembly, and products storage. The second parcel (“Parcel Two”), contains a 15,000 square foot structure that is used for the manufacturing process of Respondent’s products (the “Facility”). The Facility contains storage areas for all hazardous chemicals and hazardous waste including chlorine gas, acids, cyanides, caustics, and flammable liquids.
The chlorine storage room is located on the eastern end of the Facility and contains four 2,000 pound cylinders of liquefied chlorine gas. Chlorine is added into the etching/manufacturing process by connecting one of the chlorine cylinders in the chlorine storage room to a hard piping system that feeds directly to the automated etching machines.
Respondent submitted its initial RMP for the Facility on November 9, 1999 (the “1999 RMP”), and updated it on June 13, 2006 (the “2006 RMP”). At the time of the Inspection, the most recent RMP for the Facility was submitted by Respondent on June 13, 2011 (the “2011 RMP”). Subsequent to the Inspection, Respondent updated the RMP for the Facility on June 30, 2015.
On January 20-21, 2015, EPA conducted an inspection at the Facility to determine its compliance with Section 112(r) of the CAA and with RCRA (the “Inspection”). Based on the Inspection, and other information obtained by EPA during and after the Inspection, Complainant has identified the following violations at the Facility:
Count 1 – Failure to Perform Proper Worst-Case Scenario Analysis
At the time of the Inspection, the chlorine storage room at the Facility contained, among other things, four 2,000 pound cylinders of chlorine. For the worst-case release scenario analysis in the 1999 RMP (as well as in the 2006 RMP and the 2011 RMP), Respondent used the scenario of the release of the entire contents of one 2,000 pound cylinder of chlorine inside the chlorine storage room during delivery in an urban setting. This scenario resulted in a distance to endpoint of less than one mile, potentially impacting a small residential population.
Respondent’s worst-case release scenario for the Facility, however, did not meet all of the requirements of Subpart B of the RMP Regulations because Respondent should have used:
(1) a scenario for a release of chlorine outside of the chlorine storage room during delivery; and
(2) a rural setting as one of the parameters for the scenario. (Respondent’s alternative release scenario also failed to use a rural setting as one of its parameters.)
A worst-case release scenario of a release of 2,000 pounds of chlorine outside of the chlorine storage room during delivery and in a rural setting results in a release of several miles to an endpoint, potentially impacting a much larger residential population than estimated in Respondent’s scenario.
Accordingly, from at least December 1999 to January 2015, Respondent’s failure to prepare a worst-case release scenario (and alternative release scenario) that met all of the requirements of Subpart B of the RMP Regulations violates Section 112(r)(7)(E) of the CAA and Subpart B of the RMP Regulations.
Count 2 – Failure to Perform Proper Process Hazard Analysis
At the time of the Inspection, the most recent PHA for the chlorine process at the Facility had been completed in or about March/April 2011 (the “2011 PHA”). Prior to the 2011 PHA, Respondent had last completed a PHA on January 18, 2002 (the “2002 PHA”), which was more than five years prior to the 2011 PHA. At the time of the Inspection, Respondent was not able to provide any documentation regarding the 2002 PHA for review by Complainant’s inspectors.
At the time of the Inspection, Respondent’s 2011 PHA did not identify all possible hazards for the chlorine process at the Facility such as:
(a) the rupture of chlorine piping that extends from the chlorine storage into the WTA and the plating room at the Facility;
(b) the fall of a full chlorine cylinder from its railing system and subsequent release of chlorine outside of the chlorine storage room;
(c) the lack of any staff at the Facility for 12 or more hours per day (i.e., the Facility’s chlorine monitoring system was unable to notify someone remotely in the event of a chlorine release during a Respondent’s June 13, 2011 RMP stated that a PHA was performed on April 5, 2011. Respondent’s PHA records however indicated that the PHA was performed between March 18, 2011 and March 25, 2011 at a time when the Facility was unstaffed);
(d) chlorine detectors that only alarm/sound within the Facility (and not outside of the building); and
(e) the Facility’s lack of any outdoor alarm beacons
At the time of the Inspection, Respondent was not able to provide full documentation regarding the actions taken to address the findings and recommendations made in the 2011 PHA.
Accordingly, from at least February 2002 to January 2015, Respondent’s failure to:
(a) update the 2002 PHA within five years; and
(b) retain any documentation regarding the 2002 PHA;
(c) identify all possible hazards for the chlorine process at the Facility in the 2011 PHA, and
(d) fully document the actions taken address the findings and recommendations made in the 2011 PHA violates Section 112(r)(7)(E) of the CAA and 40 C.F.R. 68.67.
Count 3 – Failure to Comply with Program 3 Operating Procedure Requirements
At the time of the Inspection, while Respondent did have some written operating procedures to control the proper operation of the chlorine process at the Facility (which were developed for the 1999 RMP), Respondent did not have written operating procedures for emergency shutdown of the chlorine process at the Facility.
At the time of the Inspection, Respondent had not reviewed the operating procedures for the chlorine process at the Facility as often as necessary to assure that they reflect current operating practice.
At the time of the Inspection, Respondent had not certified annually that the operating procedures for the chlorine process at the Facility were current and accurate.
Accordingly, from at least December 1999 to January 2015, Respondent’s failure to:
(a) have written operating procedures for emergency shutdown of the chlorine process at the Facility;
(b) review the operating procedures for the chlorine process at the Facility as often as necessary to assure that they reflect current operating practice; and
(c) certify annually that the operating procedures for the chlorine process at the Facility were current and accurate violates Section 112(r)(7)(E) of the CAA and 40 C.F.R. § 68.69.
Count 4 – Failure to Comply with Program 3 Training Requirements
At the time of the Inspection, Facility staff informed the Complainant’s inspectors that, dating back to the start of operations of the Facility in the 1980s, the only training on the chlorine process occurred on January 13, 2015 just prior to the Inspection). In addition, the training for the chlorine process was not complete operator training for the covered process. Furthermore, Facility staff also indicated that there had been no previous chlorine-related safety training conducted other than hazardous waste operations and emergency response (“HAZWOPER”) training that had last been completed by five employees in December 2011.
At the time of the Inspection, Respondent had not ever ascertained that each employee involved in operating the chlorine process at the Facility had received and understood the training required by 40 C.F.R. § 68.71.
At the time of the Inspection, Respondent did not have any records to document that each employee involved in operating the chlorine process at the Facility received and/or understood any initial or refresher training on an overview of the process and in the operating procedures of the process.
Accordingly, from at least December 1999 to January 2015, Respondent’s failure to:
(a) provide each employee involved in operating the chlorine process at the Facility with initial and/or refresher training;
(b) ascertain that each employee involved in operating the chlorine process at the Facility had received and understood the training required by 40 C.F.R. § 68.71; and
(c) have any records to document that each employee involved in operating the chlorine process at the Facility received and/or understood any initial or refresher training violates Section 112(r)(7)(E) of the CAA and 40 C.F.R. § 68.71.
Count 5 – Failure to Comply with Program 3 Contractor Requirements
At the time of the Inspection, although at least three contractors had worked on or around the chlorine process at the Facility, Respondent did not have any records to document that the contractors were properly trained to work on or around a chlorine gas process and/or were aware of the specific hazards and emergency procedures for the chlorine process at the Facility.
Respondent had not obtained nor evaluated any information regarding any contractors’ work practice/process hazards/safety training for each contract employee.
Accordingly, from at least December 1999 to January 2015, Respondent’s failure to:
(a) have any records to document that the contractors were properly trained to work on or around a chlorine gas process and/or were aware of the specific hazards and emergency procedures for the chlorine process at the Facility; and
(b) obtain and evaluate information regarding any contractors’ work practice/process hazards/safety training for each contract employee violates Section 112(r)(7)(E) of the CAA and 40 C.F.R. § 68.87.
Count 6 – Failure to Have Adequate Emergency Response Program
Upon information and belief, at the time of the Inspection, the Facility was not included in a community emergency response plan developed under 42 U.S.C. § 11003. (The local fire department had previously informed facility staff that it would not respond to emergencies in the chlorine storage room, and the LEPC apparently has no records for the Facility.) Thus, Respondent did not qualify for the exception under 40 C.F.R. § 68.90(b), and was required to comply with the requirements under 40 C.F.R. § 68.95 for an emergency response program.
At the time of the Inspection, Respondent maintained a document titled “Emergency Response Plan,” dated February 1, 2011 (the “Facility ERP”). Respondent was not able to provide any records regarding any outreach or facility tours with the Facility’s emergency response contractor, the local fire department, the Local Emergency Planning Committee (“LEPC”), or regional hazardous materials response teams.
Respondent was not able to provide any records regarding any documented drills and/or exercises for the Facility ERP.
At the time of the Inspection, Respondent had not provided any emergency response training to the Facility’s employees since December 2011. HAZWOPER training had last been completed by five employees in December 2011. Furthermore, HAZWOPER refresher training should be completed on an annual basis.
At the time of the Inspection, the Facility ERP contained information regarding when chlorine detectors at the Facility would sound a warning or alarm that conflicted with observations of Complainant’s inspectors. The Facility ERP stated that in the event of a “Leak in Chlorine Storage Room,” an alarm would sound at the detection of chlorine at 2 parts per million (“ppm”) and that a warning buzzer would sound at 1 ppm. However, at the time of the Inspection, a “sign” (i.e., a hand-written piece of paper) in the chlorine storage room that was taped to the wall directly above the chlorine detector, stated that the detector levels were set at “.5 PPM WARNING 1.00 PPM ALARM.”
Accordingly, from at least February 2011 to January 2015, Respondent’s failure to:
(a) conduct any outreach or facility tours with Clean Harbors, the local fire department, the LEPC, or regional hazardous materials response teams;
(b) conduct any drills and/or exercises for the Facility ERP;
(c) provide any emergency response training to the Facility’s employees since 2011; and
(d) have information in the Facility ERP regarding when chlorine detectors at the Facility would sound a warning or alarm that was consistent with the “sign” in the chlorine storage room violates Section 112(r)(7)(E) of the CAA and 40 C.F.R. § 68.95.
Count 7 – Failure to Comply with Program 3 Compliance Audit Requirements
At the time of the Inspection, Respondent was not able to provide any records regarding an appropriate response to each of the findings of the 2010 Audit. Respondent was not able to provide any records documenting that any of the deficiencies identified in the 2010 Audit had been corrected.
On May 15, 2014, Respondent conducted a compliance audit at the Facility (the “2014 Audit”). The 2014 Audit, however, did not meet the requirements of 40 C.F.R. § 68.79 because it consisted merely of completing a Program 3 process checklist and did not include a written report with findings and recommendations. Furthermore, the 2014 Audit contained incorrect conclusions regarding the adequacy of the Facility’s compliance with Program 3 requirements (e.g., operating procedures, training, mechanical integrity, etc.). In addition, the 2014 Audit was late since it occurred several months after the three-year deadline for Respondent to have conducted a RMP compliance audit subsequent to the 2010 Audit.
Accordingly, from at least October 2010 to January 2015, Respondent’s failure to:
(a) document an appropriate response to each of the findings of the 2010 Audit;
(b) document that any of the deficiencies identified in the 2010 Audit had been corrected;
(c) conduct the 2014 Audit on time; and
(d) develop a written report of the findings of the 2014 Audit violates Section 112(r)(7)(E) of the CAA and 40 C.F.R. § 68.79.
In light of the above-referenced allegations, Complainant seeks to assess
civil penalties of up to $37,500 per day of violation for the following CAA violations that occurred on or after January 13, 2009 through November 2, 2015:
(a) One period of violation for Respondent’s failure to perform a proper worst-case release scenario (and alternative release scenario) for its chlorine process including 1209 days from October 1, 2011 through at least January 21, 2015.
(b) One period of violation for Respondent’s failure to comply with the process hazard analysis requirements for its chlorine process including 1209 days from October 1, 2011 through at least January 21, 2015;
(c) One period of violation for Respondent’s failure to comply with Program 3 operating procedure requirements for its chlorine process including 1209 days from October 1, 2011 through at least January 21, 2015;
(d) One period of violation for Respondent’s failure to comply with Program 3 training requirements for its chlorine process including 1209 days from October 1, 2011 through at least January 21, 2015;
(e) One period of violation for Respondent’s failure to comply with Program 3 contractor requirements for its chlorine process including 1209 days from October 1, 2011 through at least January 21, 2015;
(f) One period of violation for Respondent’s failure to have an adequate emergency response program for its chlorine process including 1209 days from October 1, 2011 through at least January 21, 2015; and
(g) One period of violation for Respondent’s failure to comply with Program 3 compliance audit requirements for its chlorine process including 1209 days from October 1, 2011 through at least January 21, 2015.
Respondent is spending $25,000 to reduce the amount of chorine it stores at its facility and to install safety and alarm features. According to an agreement signed recently with the New England office of the U.S. Environmental Protection Agency, Respondent will also pay a $221,326 penalty for its violations of the Clean Air Act and the Resource Conservation and Recovery Act.