The U.S. Environmental Protection Agency (EPA) and the U.S. Department of Justice has announced they have entered into a consent decree that settles claims that the company violated provisions of the Clean Air Act that impose requirements regarding prevention of chemical releases from certain facilities. Under the settlement agreement, the company will assure that its accident prevention program complies with all applicable requirements.
Section 112(r)(1) of the CAA, includes a “General Duty Clause” that places the responsibility to design and maintain a safe facility (one free of accidents, but equipped for release mitigation and community protection should a release occur) on the owner or operator of the facility. The General Duty Clause applies to owners and operators of stationary sources of air pollution that produce, process, handle, or store specific hazardous substances. Determining whether an owner or operator has met the General Duty Clause requirements focuses on whether a facility is being operated in accordance with “industry standards.”
An “extremely hazardous substance” (EHS) as used in Section 112(r)(1) is any chemical which may, as a result of short-term exposures because of releases to the air, cause death, injury, or property damage due to its toxicity, reactivity, flammability, volatility, or corrosivity. EHSs include, but are not limited to, regulatory substances listed by EPA at 40 C.F.R. § 68.130 and chemicals on the list of EHSs published under Section 302 of EPCRA at 40 C.F.R. Part 355, Appendices A and B.
At all times relevant to this action, each of the facilities was a “stationary source” within the meaning of Section 112(r) of the CAA. At all times relevant to this action, each of the facilities was subject to the General Duty Clause of Section 112(r)(1) because each is a “stationary source” that produced, processed, handled, and/or stored one or more regulated substance listed under Section 112(r)(3) of the CAA and/or one or more EHS within the meaning of Section 112(r)(1) of the CAA. At all times relevant to this action, the AL and KS Facilities produced, processed, handled, and/or stored one or more regulated substance listed under Section 112(r)(3) of the CAA, above the thresholds set forth in 40 C.F.R. § 68.10, and used these substances in a “process” as defined by 40 C.F.R. § 68.3. The AL and KS Facilities are each subject to RMP Regulations applicable to “Program 3” facilities within the meaning of 40 C.F.R. §§ 68.10(d) and 68.12(d).
On or about September 10, 2015, Defendant notified the United States that there were likely certain violations of Section 112(r) of the CAA at facilities it owned and operated, and has cooperated with EPA in this matter. Defendant engaged an independent third party auditor to audit compliance with the requirements of Section 112(r)(1) and (7) at the LA, AL, and KS Facilities. Between May and August 2016, the auditor reviewed paperwork and other documentary evidence and audited the three Facilities. The violations alleged herein are based on the auditor’s investigations and the auditor’s conclusions in written reports which the auditor submitted to Defendant and the United States.
Beginning on or before June 20, 2016, Defendant failed to adequately identify, through the use of appropriate hazard assessment techniques, hazards at the AL Facility, including but not limited to the hazards associated with static electricity, lightning, stray current, and fire.
Feasible means existed by which Defendant could have eliminated or reduced the hazards, including but not limited to, by conducting an appropriate hazard
assessment and following recognized and generally accepted good engineering practices to address the hazards.
Beginning on or before June 20, 2016, Defendant failed to design and maintain a safe facility at the AL Facility by taking such steps as necessary to prevent accidental releases of regulated substances and EHS, including but not limited to the following failures to:
- install a vehicle impact barrier system,
- inspect piping,
- design adequate secondary containment for outdoor storage areas,
- have an internal/external tank inspection program, and
- implement a preventive maintenance program for tanks
Feasible means existed by which Defendant could have addressed the issues and designed and maintained a safe facility at the AL Facility.
Beginning on or before June 20, 2016, Defendant failed to minimize the consequences of potential accidental releases of regulated hazardous substances and EHS at the AL Facility by failing to have:
- adequate spill control methods and secondary containment equipment;
- sufficient radio coverage for emergency responders; and
- a fire alarm system,
- emergency lights, and
- a backup power system
Feasible means existed by which Defendant could have addressed the issues and minimized the consequences of potential accidental releases of regulated hazardous substances and EHS at the AL Facility.
Each failure by Defendant to identify and assess hazards using appropriate hazard assessment techniques, design and maintain a safe facility, and minimize the consequences of potential accidental releases of regulated hazardous substances and EHS at the AL Facility constitutes a violation of the General Duty Clause of Section 112(r)(1) of the CAA.
Failure to Comply with the Requirements of the General Duty Clause of Section 112(r)(1) of the CAA at the LA Facility
Beginning on or before May 23, 2016, Defendant failed to adequately identify, through the use of appropriate hazard assessment techniques, hazards at the LA Facility, including but not limited to the hazards associated with fire prevention, static electricity, fire control, and emergency action plans.
Feasible means existed by which Defendant could have eliminated or reduced each hazard above, including but not limited to, conducting an appropriate hazard assessment and following recognized and generally accepted good engineering practices.
Beginning on or before May 23, 2016, Defendant failed to design and maintain a safe facility at the LA Facility by taking such steps as necessary to prevent accidental releases of regulated hazardous substances and EHS, including but not limited to the following failures to:
- design an adequate sprinkler system;
- inspect, test, and maintain fire hydrants;
- have an electrical preventive maintenance program; and
- complete hydrostatic strength testing for a containment tank
Feasible means existed by which Defendant could have addressed the issues set forth in Paragraph 49 above and designed and maintained a safe facility at the LA Facility.
Beginning on or before May 23, 2016, Defendant failed to minimize the consequences of potential accidental releases of regulated hazardous substances and EHS at the LA Facility by failing to have:
- adequate inspection and verification of integrity of secondary containment;
- backup power for emergency voice/alarm communications; and
- training for employees on emergency electrical procedures
Feasible means existed by which Defendant could have addressed the deficiencies above and minimized the consequences of potential accidental releases
of regulated hazardous substances and EHS at the LA Facility.
Each failure by Defendant to identify and assess hazards using appropriate hazard assessment techniques, design and maintain a safe facility, and minimize the consequences of potential accidental releases of regulated hazardous substances and EHS at the LA Facility constitutes a violation of the General Duty Clause of Section 112(r)(1) of the CAA.
Failure to Comply with the Requirements of the General Duty Clause of Section 112(r)(1) of the CAA at the KS Facility
Beginning on or before August 22, 2016, Defendant failed to adequately identify, through the use of appropriate hazard assessment techniques, hazards at the KS Facility, including but not limited to the hazards associated with:
- static electricity, lightning, stray current and fire;
- the potential for a flammable atmosphere inside a storage tank; and
- the potential for spark enhancement in a combustible atmosphere
Feasible means existed by which Defendant could have eliminated or reduced each hazard, including but not limited to, by conducting an appropriate hazard assessment and following recognized and generally accepted good engineering practices.
Beginning on or before August 22, 2016, Defendant failed to design and maintain a safe facility at the KS Facility by taking such steps as necessary to prevent accidental releases of regulated substances and EHS, including but not limited to the following failures to:
- maintain an internal/external tank inspection program for tank farm vessels; have proper and adequate ventilation in all areas and buildings;
- properly design and label its piping systems;
- properly restrict filling rates;
- use liquid level controls and provide sufficient equipment to prevent the overfilling of tanks; and
- document the calculation method for flow rates and chemical product flashing.
Feasible means existed by which Defendant could have addressed the issues above and designed and maintained a safe facility at the KS Facility.
Beginning on or before August 22, 2016, Defendant failed to minimize the consequences of potential accidental releases of regulated hazardous substances and EHS at the KS Facility by failing to:
- have emergency backup power, illuminated walkways, and emergency lights in the warehouse and manufacturing area;
- test and verify alarms for critical conditions once per month;
- have adequate exit signage; and
- develop a program for inspection and verification of integrity for secondary containment equipment
Feasible means existed by which Defendant could have addressed the deficiencies above and minimized the consequences of potential accidental releases of regulated hazardous and EHS associated with the storage of hazardous chemicals at the KS Facility.
Each failure by Defendant to identify and assess hazards using appropriate hazard assessment techniques, design and maintain a safe facility, and minimize the consequences of potential accidental releases of regulated hazardous substances and EHS at the KS Facility constitutes a violation of the General Duty Clause of Section 112(r)(1) of the CAA.
Failure to Implement a Risk Management Program as Required by Applicable RMP Regulations, 40 C.F.R. Part 68, at the AL Facility
Defendant is subject to the requirements of Section 112(r) of the Clean Air Act, and the RMP Regulations promulgated thereunder at 40 C.F.R. Part 68 with
respect to the AL Facility because it is the owner and/or operator of a stationary source that had more than a threshold quantity of a regulated substance and/or EHS in a process.
Beginning on or before June 20, 2016, Defendant failed to timely and adequately comply with the following RMP Regulations at the AL facility:
a. Failure to follow the parameters for the off-site consequence analysis by failing to specifically address humidity, height of release, dense or neutrally buoyant gases, and temperature of the released substance, as required by 40 C.F.R. §§ 68.22(c)-(d) & (f)-(g);
b. Failure to review and update the off-site consequence analysis every five years, as required by 40 C.F.R. § 68.36;
c. Failure to compile written process safety information prior to conducting process hazard analyses, and to include piping and instrument diagrams, ventilation designs, and safety system information in the process safety information procedure, as required by 40 C.F.R. §§ 68.65(c)-(d);
d. Failure to complete an appropriate process hazard analysis; to use an appropriate methodology to determine and evaluate hazards; to address regulatory factors, including: previous incidents, engineering and administrative controls, consequences of the failure of controls, stationary source siting, human factors, and the qualitative range of possible safety and health effects of failure of controls in the process hazard analysis procedure; to implement an adequate corrective action plan that addresses findings and recommendations; to review and update the process hazard analysis every five years; and to retain process hazard analysis life of process updates, as required by 40 C.F.R. §§ 68.67(a)-(c), (e)-(g);
e. Failure to ensure that operating procedures are readily accessible to the employees who work in or maintain the process, and to review and certify operating procedures annually as required by 40 C.F.R. §§ 68.69(b)-(c);
f. Failure to document the means used to verify that employees understand trainings, as required by 40 C.F.R. § 68.71(c);
g. Failure to establish procedures to address changes to process chemicals or technology and modifications to operating procedures, to specifically identify the need to inform and train contractors of changes prior to start-up of a process, and to indicate the need to document changes to process safety information and changes in operating procedures as required by 40 C.F.R. §§ 68.75(a)-(e);
h. Failure of pre-startup safety review to confirm that prior to the introduction of regulated substances to a process that (1) construction and equipment are in accordance with design specifications; (2) adequate safety, operating, maintenance, and emergency procedures are in place; (3) process hazard analyses have been performed and resolved for new stationary sources; and (4) training of each employee involved in operating a process has been completed, as required by 40 C.F.R. § 68.77(b);
i. Failure to conduct a compliance audit at least every three years, to develop and retain formal reports of the Facility’s two most recent audits, and to promptly determine and document an appropriate response to each finding of a compliance evaluation and document that deficiencies have been corrected, as required by 40 C.F.R. Part 68.79(a)-(e);
j. Failure in corporate procedures to specifically address incident investigation requirements and to require that investigations begin within 48 hours of the incident; to include at least one person knowledgeable in the process on the investigating team; to specifically address preparing incident investigation reports and maintaining a system to promptly resolve and document resolution of report findings; to require that incident investigation reports be reviewed with affected contractors; and to specifically require incident investigation reports or records be kept for a minimum of five years, as required by 40 C.F.R. Part 68.81(a)-(g);
k. Failure of Hot Work Permit procedures to specifically address the definition of hot work and that the procedures comply with the fire prevention and protection requirements in 29 C.F.R. § 1910.252(a), as required by 40 C.F.R. § 68.85(b); and
l. Failure of the corporate contractor safety procedure to specifically require that contractor safety performance be evaluated; to require the owner and/or operator to inform contractors about potential process hazards and about the emergency response program; to specifically address contractor training, including having a method to determine if contract employees have understood the training; to require that contractors follow safe work rules while on Defendant’s property; to requiring contractors to inform Defendant of any unique hazards that might be caused by the contractor’s work; and to specifically address instructing contractors on known potential fire, explosion, or toxic release hazards or applicable provisions of the emergency action plan, as required by 40 C.F.R. §§ 68.87(b)(1)-(3); (c)(1)-(5).
Each failure by Defendant to comply with the RMP Regulations, 40 C.F.R. Part 68, as set forth in Paragraph 69 a-l above, constitutes a violation of Section 112(r)(7) of the CAA.
Failure to Implement a Risk Management Program as Required by Applicable RMP Regulations, 40 C.F.R. Part 68, at the KS Facility
Defendant is subject to the requirements of Section 112(r) of the Clean Air Act, and the RMP Regulations promulgated thereunder at 40 C.F.R. Part 68 with respect to the KS Facility because it is the owner and/or operator of a stationary source with more than a threshold quantity of a regulated substance in a process.
Beginning on or before August 22, 2016, Defendant failed to timely and adequately comply with the following requirements in the RMP Regulations at the KS Facility:
a. Failure of written operating procedures to address specific personal protective equipment requirements and safety systems and their functions, as required by 40 C.F.R. § 68.69(a)(3)(ii) & (4);
b. Failure to include a formal process for the contractor to advise the facility of unique hazards posed or found by the contract work, as required by 40 C.F.R. § 68.87(c)(5);
c. Failure of the emergency response plan to specifically address other Federal contingency plan regulations, as required by 40 C.F.R. § 68.95(b); and
d. Failure to maintain all required records for five years unless otherwise specified, as required by 40 C.F.R. § 68.200.
Each failure by Defendant to comply with the RMP Regulations, 40 C.F.R. Part 68, set forth above, constitutes a violation of Section 112(r)(7) of the CAA.
CLICK HERE for more
CLICK HERE for the Complaint and Consent Decree