Respondent is the current operator of a chemical manufacturing and distribution facilities. The General Duty Clause applies to any stationary source producing, processing, handling, or storing regulated substances, as defined above, or other extremely hazardous substances (“EHS”). EHSs include regulated substances listed pursuant to Section 112(r)(3) of the Act at 40 C.F.R. § 68.130 and chemicals on the list of extremely hazardous substances published under the Emergency Planning and Community Right-to-Know Act of 1986 at 40 C.F.R. Part 355, and may include the Facility’s proprietary chemicals as well. Respondent closed one Facility on June 11, 2020, having transferred the chemicals present there to its other Facilities. On August 27, 2020, EPA entered into an Administrative Compliance Order on Consent with Respondent to address the violations at both facilities.
Count I
Failure to Comply with General Duty Clause Requirement to Design and Maintain a Safe Facility – Closed facility
During the Inspection of the Facility, one portion of the facility was in operation, the upper warehouse. Based on the observations of EPA inspectors during the Inspection, EPA has determined that Respondent stored oxidizers (hydrogen peroxide, nitric and chromic acid), toxics (chromic acid), corrosives (nitric, sulfuric, phosphoric and chromic acid, ammonium and potassium hydroxide), flammables (methanol) and combustibles (Glycol Ether EB).
The oxidizers, toxics, corrosives, flammables and combustibles present at the Facility during the time of the Inspection constitute extremely hazardous chemicals under Section 112(r)(1) of the CAA.
As the operator of a stationary source, with respect to the use and storage of oxidizers, toxics, corrosives, flammables and combustibles, Respondent has a duty under the General Duty Clause, Section 112(r)(1) of the CAA, to design and maintain a safe facility to prevent the accidental release of this hazardous chemical to the air. The measure for whether an owner or operator has safely designed and maintained its facility is whether the facility provides the same level of protection as that provided by industry codes and standards.
EPA’s Inspection revealed the following instances in which Respondent did not comply with the obligation under Section 112(r)(1) of the CAA to design and maintain a safe facility taking such steps as are necessary to prevent accidental releases. In particular, Respondent’s storage practices were not consistent with the protection provided by industry codes and standards, including:
(1) segregation of incompatible materials; and
(2) exceeding maximum allowable quantities of flammable and combustible chemicals.
One relevant industry standard is National Fire Protection Association 400, Hazardous Materials Code (2013 Edition) (“NFPA 400”). Section 6.1.12 of NFPA 400 provides that incompatible materials in containers greater than 5 pounds must be segregated by an approved method, such as a distance of not less than 20 feet or a noncombustible partition meeting certain dimensional requirements.
Another relevant industry standard is NFPA 30, Flammable and Combustible Liquids Code (2015) (“NFPA 30”). Section 9.17.3 of NFPA 30 provides that flammables shall be separated from oxidizers by at least 25 feet.
At the time of the Inspection, EPA inspectors observed the storage of incompatible materials less than 20-25 feet from one another with no partitions in the upper warehouse. For example, Glycol Ether EB, a combustible liquid, Class IIIA, was stored in totes less than 25 feet from nitric acid, an oxidizer at the Facility. In addition, totes of phosphoric acid and nitric acid solution were stored less than 20 feet from totes of potassium hydroxide 45% solution, sodium hydroxide 45% solution, and ammonium hydroxide solution bases, at the Facility.
NFPA 30 requires that the amount of chemicals present at a facility be monitored to ensure that quantities of chemicals do not exceed the maximum allowable quantities (“MAQ”). NFPA 30, § 12.6.2.2 and Table 12.6.2.2. Exceeding certain maximum allowable quantities triggers secondary containment, ventilation (if mixing), spill control, fire protection systems, and storage restriction requirements for corrosives, oxidizers, and toxics. See NFPA 400, Chapters 3, 5, 12, 15, and 18. EPA determined that Respondent was not in compliance with MAQ limitations of NFPA 30 at the upper warehouse of the Facility, a non-sprinklered building. EPA determined that more than 11,414 pounds of nitric acid 42 (67%), a Class 2 oxidizer, was stored at the Facility’s upper warehouse. This amount of storage, over the MAQ, required detached storage as it was over the building limit for either segregated storage (2,250 pounds) or cutoff walls/separation walls (9,000 pounds) in a non-sprinkled building. See NFPA 400, Chapter 15, Table 15.3.2.3.2.3(a).
Respondent closed the Facility on June 11, 2020, having transferred the chemicals present in the upper warehouse to its other Facilities.
At the time of the Inspection of the Facility until it was closed on June 11, 2020, Respondent violated Section 112(r)(1) of the CAA by failing to achieve the safety standards of NFPA 400 and NFPA 30 to ensure that the Facility was safely designed and maintained to prevent accidental releases to the air.
In failing to comply with Section 112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1), Respondent is subject to the assessment of penalties under Section 113(d) of the CAA, 42 U.S.C. § 7413(d).
Count II
Failure to Failure to Comply with General Duty Clause Requirement to Design and Maintain a Safe Facility – New Facility
Based on the observations of EPA inspectors during the Inspection at the new Facility, EPA has determined that Respondent stored oxidizers (nitric acid 67%, ferric nitrate, potassium and sodium dichromate, and sodium nitrite), corrosives (chromic acid), flammables (methanol, isopropyl alcohol) and combustibles (Glycol Ether DB, Glycol Ether EPH) at the Facility.
The oxidizers, corrosives, flammables and combustibles present at the new Facility constitute extremely hazardous chemicals under Section 112(r)(1) of the CAA.
EPA’s Inspection of the Facility revealed the following instances in which Respondent did not comply with the obligation under Section 112(r)(1) of the CAA to design and maintain a safe facility taking such steps as are necessary to prevent accidental releases. In particular, Respondent’s storage practices at the Facility were not consistent with the protection provided by industry codes and standards, regarding segregation of incompatible materials, in accordance with NFPA 400 and NFPA 30.
EPA inspectors observed two drums of ferric nitrate, an oxidizer, were stored less than 25 feet from a drum of Glycol Ether DB, a combustible liquid at the Facility.
EPA inspectors observed that Glycol Ether EPH and DB, combustible liquids, were stored in drums less than 25 feet from containers of nitric acid and ferric nitrate, oxidizers, at the Facility.
EPA determined that Respondent exceeded NFPA 30’s MAQ limitations of flammable and combustible chemicals at the Facility, a non-sprinklered building. The Facility stored 1,844 pounds of nitric acid 67%, a Class 2 oxidizer, in an open storage area, in amounts exceeding the MAQ of 250 pounds. NFPA 400 requires either separation by solid noncombustible barrier in protection level 3 building or detached building. See NFPA 400, Table 15.3.2.3.2.3(a). Further, NFPA 400 Sections 6.2.1.1 and 6.2.4 requires protection level 3 to have a fire protection system. EPA inspectors observed that oxidizers were not provided with separation by a noncombustible wall or not stored in detached storage in a sprinkled building at the Facility.
Respondent also stored at the Facility 850 pounds of hydrofluoric acid 49% in two 55-gallon drums and 160 pounds of hydrofluoric acid 19.75% (both corrosive and highly toxic) in quantities greater than its MAQ of 10 pounds. NFPA 400 Sections 6.2.1.1 and 6.2.4 require facilities to have a fire protection system whenever the MAQ is exceeded. NFPA 400 requires spill control, secondary containment, ventilation and fire protection for corrosives stored above the MAQ. See NFPA 400, §§ 12.2.1, 12.2.3, 12.2.4 and 12.2.6. NFPA 400 also requires spill control, secondary containment and fire protection for highly toxic chemicals stored above the MAQ. See NFPA 400, §§ 18.2.1, 18.2.3, 18.2.4, and 18.2.6. EPA determined that the Facility lacked spill control, secondary containment, ventilation and fire protection.
At the time of the Inspection of the Facility until the work was completed at the Facility in August 2022, Respondent violated Section 112(r)(1) of the CAA by failing to achieve the safety standards of NFPA 400 and NFPA 30 to ensure that the Facility was safely designed and maintained to prevent accidental releases to the air.
Count III
Failure to Failure to Comply with General Duty Clause Requirement to Design and Maintain a Safe Facility – 3rd Facility
Based on the observations of EPA inspectors during the Inspection at the 3rd Facility, EPA has determined that Respondent stored oxidizers (hydrogen peroxide, nitric acid and ferric nitrate), toxics (hydrofluoric acid 49%) and corrosives (hydrofluoric acid 49%, sodium hydroxide, Bulk Bond 777 and Bulk Kleen 841) at the Facility.
The oxidizers, toxics, and corrosives present at the Facility constitute extremely hazardous chemicals under Section 112(r)(1) of the CAA.
EPA’s Inspection of the Facility revealed the following instances in which Respondent did not comply with the obligation under Section 112(r)(1) of the CAA to design and maintain a safe facility taking such steps as are necessary to prevent accidental releases. In particular, Respondent’s storage practices at the Facility were not consistent with the protection provided by industry codes and standards, regarding segregation of incompatible materials, in accordance with NFPA 400 and NFPA 30.
EPA inspectors observed totes and drums of acids and bases stored less than 20 feet from one another in the main area and the annex at the Facility. This storage distance is inconsistent with the safe storage distances specified in Section 6.1.12 of NFPA 400.
EPA determined that Respondent stored at the Facility hydrofluoric acid 49% (corrosive and highly toxic) in quantities greater than its MAQ of 10 pounds. Hydrofluoric acid 49% was stored in three 529-pound drums or approximately 1,587 pounds on-site. NFPA 400 Sections 6.2.1.1 and 6.2.4 require facilities to have a fire protection system whenever the MAQ is exceeded. As noted above, NFPA 400 requires storage of corrosives over the MAQ to have spill control, secondary containment, and ventilation, and storage of highly toxic chemicals to have spill control, secondary containment and fire protection. The Facility lacked spill control, secondary containment, ventilation or fire protection.
During the implementation of the Order, Respondent informed EPA that it would be transferring all chemicals from the Facility to a newly leased facility located in Reading, Pennsylvania, by February 1, 2022. EPA and Respondent entered into Amendment 1 to the Order on August 23, 2021, to modify Respondent’s obligations under the Order with respect to the Facility.
At the time of the Inspection of the Facility, until the chemicals were transferred to the newly leased Reading location in January 2022, Respondent violated Section 112(r)(1) of the CAA by failing to achieve the safety standards of NFPA 400 and NFPA 30 to ensure that the Facility was safely designed and maintained to prevent accidental releases to the air.
CIVIL PENALTY
In settlement of EPA’s claims for civil penalties for the violations alleged in this Consent Agreement, Respondent consents to the assessment of a civil penalty in the amount of EIGHTY-FIVE THOUSAND DOLLARS ($85,000)
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