Respondent is supplied with raw chemical feedstocks by tanker truck or railcar. Chemical unloading operations occur on the eastern portion of the Facility at dedicated tank truck and railcar unloading stations. Several chemicals are stored in bulk at the Facility in dedicated aboveground storage tanks (ASTs), including, nitric acid (one tank), hydrogen peroxide (four tanks), sodium hypochlorite (two tanks), and sulfuric acid (three storage tanks). The nitric acid, hydrogen peroxide, and sodium hypochlorite ASTs are located within dedicated concrete secondary containment areas located beyond the Facility’s eastern building wall. The sulfuric acid tanks are located inside the building in the chemical transfer room. Finished products are primarily packaged into drums and totes for off-site shipments to customers.
Some of the extremely hazardous substances processed, handled, or stored at the Facility are described below.
a. Sulfuric acid (93% and 50% concentrations) and nitric acid are listed as extremely hazardous substances under EPCRA Section 302 and 40 C.F.R. Part 355, Appendices A and B.
b. Aqueous ammonia (29% concentration) is a CAA 112(r) regulated substance listed in 40 C.F.R. § 68.130.
c. Cyanides are extremely hazardous substances within the meaning of the GDC because they are fast-acting poisons that can be lethal when breathed in, among other possible routes of exposure.
d. The incompatible chemical combinations also are “extremely hazardous substances,” as that term encompasses any substance that alone or in combination with other substances or factors may cause death, serious injury, or substantial property damages as a result of short-term exposures associated with releases to the air.
On November 21, 2019, EPA and its contractors conducted an inspection (the “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, 42 U.S.C. §§ 11002 – 11022, and Section 112(r) of the Clean Air Act.
During the Inspection and based on information submitted by Respondent after the Inspection, several areas of concern were noted for the Facility. EPA issued an inspection report on January 17, 2020 (revised in May 2020), documenting observations and areas of concern identified under the CAA Section § 112(r) that form the basis of the alleged violations described below.
Also, in 2021, a sulfuric acid spill occurred during the offloading of a railcar at the Facility due to a ruptured hose, resulting in further information gathering by EPA in 2022. The unanticipated release of any extremely hazardous substance into the ambient air from the Facility, either alone or as a result of a reaction with a co-located incompatible material, would constitute an “accidental release,” as that term is defined by Section 112(r)(2)(A) of the CAA.
ALLEGED VIOLATIONS
Count 1: 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 instances when Complainant alleges 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.
a. Incompatible chemicals were stored adjacent to one another. Potassium hydroxide adjacent to sulfuric and phosphoric acid in Storage Room 1 and nitric acid adjacent to/within storage areas for other acids in Storage Room 3. Industry standards of care require separation of incompatible chemicals. For example, NFPA 400 (2016) Section 6.1.12.1 requires separation of incompatible materials when stored in quantities greater than five pounds, and Section 6.1.12.2 provides examples of separation methods such as by a distance of at least 20 ft. or isolating materials using a non-combustible partition.
b. NFPA diamonds are not present on chemical storage room entrances, facility entrance doors, or bulk storage equipment throughout the Facility – all areas where extremely hazardous substances are present. Standards by the NFPA require signs indicating health, flammability, and ignitibility should be on the entrance to each room or area with hazardous materials to assist fire department response and access. See, NFPA 704 (2017), Section 4.3(2).
c. Multiple distressed or damaged chemical storage drums were present within Storage Room 2 of the Facility. Sulfuric, nitric, and hydrochloric acid are stored in Storage Room 2, among other chemicals. Industry standards require that equipment associated with hazardous materials should be maintained in operable condition and defective containers should be removed from use and repaired or disposed of in an approved manner. See, NFPA 400 (2016), Sections 6.1.16.1 and 6.1.16.3.
d. Unstable storage of bulk chemical totes containing acids in Storage Room 1 of the Facility. NFPA 400 (2016), Section 6.1.13.2, requires hazardous material storage shelving should be designed to carry the designated loads and to be braced and anchored appropriately.
e. Inadequate pipe labeling was present on sulfuric acid and caustic piping leading to the Chemical Transfer Room. Industry standards regarding hazardous material piping include: ANSI/ASME A13.1 (2015), a system for identification of contents of piping systems and NFPA 400 (2016), Section 6.1.6.2, indicating piping and tubing associated with hazardous materials should be labelled in accordance with ASME A13.1.
f. The Facility’s hose program was inconsistently applied throughout the Facility. For example, several hoses present in the hydrogen peroxide AST farm were not equipped with hose tags to indicate adequate certification. See, Hose Safety Institute Handbook, NAHAD (2015) Section 11.2, which provides details on markings for hose assemblies.
Complainant alleges that by failing to design and maintain a safe facility to prevent accidental releases of an extremely hazardous substance processed, handled, or stored as part of its operations, Respondent violated the General Duty Clause at Section 112(r)(1) of the Clean Air Act.
Count 2: Failure to minimize the consequences of accidental releases which do occur
The recommended standard of care to minimize the consequences of accidental releases includes emergency planning and preparedness measures, as well as design and maintenance measures to minimize the severity and duration of releases that do occur. The National Fire Protection Association, American Society of Mechanical Engineers, and the American National Standards Institute have published standards and guidance for this purpose. 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 Complainant alleges that Respondent failed in its general duty to minimize the consequences of an accidental release of an extremely hazardous substance are summarized below.
a. Labeling for normal operations and emergency shutdown buttons on the bulk railcar loading/unloading area electrical panel was faded and illegible. The NFPA 400 (2016), Section 6.1.6.2(4), requires that emergency shutoff valves should be identified and the location clearly visible, accessible, and indicated by sign.
Complainant alleges that by failing to minimize the consequences of accidental releases of an extremely hazardous substance processed, handled, or stored as part of its operations, Respondent violated the General Duty Clause at Section 112(r)(1) of the Clean Air Act.
V. TERMS OF SETTLEMENT
Pursuant to Section 113(e) of the CAA, 42 U.S.C. § 7413(e), 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 $74,914 for the violations alleged in this matter.
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