On or about August 22-23, 2017, EPA conducted an inspection (the inspection) of the Facility to determine compliance with Section 112(r) of the CAA and 40 C.F.R. Part 68. Information collected as a result of the inspection revealed that Respondent failed to implement the risk management program at the Facility. The following substances are a “regulated substance” according to 40 C.F.R. § 68.3, with a threshold quantity of 10,000 pounds, as listed in 40 C.F.R. § 68.130:
- Propane;
- Ethyl ether; and
- Isobutane
Information gathered during the inspection revealed that Respondent had greater than 10,000 pounds of flammable mixtures comprised of ethyl ether (CAS # 60-29-7), propane (CAS # 74-98-6), and isobutane (propane, 2-methyl- CAS # 75-28-5) (the flammable mixtures) in a process at the Facility.
From the time Respondent first had on site greater than 10,000 pounds of the flammable mixtures in a process, Respondent was subject to Program 3 prevention program requirements pursuant to 40 C.F.R. § 68.1O(d) because the covered process at the Facility does not meet the eligibility requirements of Program 1 and is subject to the OSHA process safety management standard 29 C.F.R. § 1910.119.
FINDINGS OF VIOLATIONS
Pursuant to 40 C.F.R. § 68.12(a), the owner or operator of a stationary source shall submit a single RMP, as provided in 40 C.F.R. §§ 68.150 to 68.185.
40 C.F.R. § 68.150(a) requires that the owner or operator shall submit a single RMP that includes the information required by 40 C.F.R. §§ 68.155 through 68.185.
40 C.F.R. § 68.150(d) dictates that RMPs submitted by the owner or operator of a stationary source shall be updated and corrected in accordance with 40 C.F.R. §§ 68.190 and 68.195.
40 C.F.R. § 68.190(b)(1) requires that the owner or operator of a stationary source shall revise and update the RMP submitted under 40 C.F.R. § 68.150 at least once every five years from the date of its initial submission or most recent update.
The EPA RMP Reporting Center database revealed that Respondent failed to revise and update the RMP for the Facility at least once every five years from the date of the most recent update in that Respondent submitted an updated RMP on December 9, 2010, and again on October 3, 2016.
40 C.F.R. § 68.195(a) requires that the owner or operator of a stationary source for which an RMP was submitted shall submit the data required under 40 C.F.R. §§ 68.168, 68.170(j), and 68.175(1) for any accidental release meeting the five-year accident history reporting criteria of 40 C.F.R. § 68.42 and occurring after April 9, 2004 within six (6) months of the release or by the time the RMP is updated under 40 C.F .R. § 68.190, whichever is earlier.
40 C.F.R. § 68.42 requires that the owner or operator shall include in the five-year accident history all accidental releases from covered processes that resulted in deaths, injuries, or significant property damage on site, or known offsite deaths, injuries, evacuations, sheltering in place, property damage, or environmental damage.
An accidental release, as defined by Section 112(r)(2)(A) of the CAA, 42 U.S.C. § 7412(r)(2)(A), and 40 C.F.R. § 68.3, occurred at the Facility on November 22, 2016, resulting in employee injuries, impacts to the public water system, significant damage to the Facility, an issued shelter in place to the surrounding community, and the closure of nearby roads and railroad.
The EPA RMP Reporting Center database revealed that Respondent failed to revise and update the RMP to include accidental release information resulting from November 22, 2016, accidental release by May 23, 2017.
Respondent’s failure to comply with the RMP requirements of 40 C.F.R. § 68.12(a), as described above, is a violation of Section 112(r) of the CAA, 42 U.S.C. § 7412(r).
Management System
According to 40 C.F.R. § 68.12(d)(1), the owner or operator of a stationary source with a process subject to Program 3 shall develop and implement a management system as provided in 40 C.F.R. § 68.15.
40 C.F.R. § 68.12(a) requires that the owner or operator shall develop a management system to oversee the implementation of the risk management program elements.
The inspection revealed that Respondent had not developed a management system.
Respondent’s failure to comply with the management system requirement of 40 C.F.R. § 68.12(d)(1), as described above, is a violation of Section 112(r) of the CAA, 42 U.S.C. § 7412(r).
Hazard Assessment
According to 40 C.F.R. § 68.12(d)(2), the owner or operator of a stationary source with a process subject to Program 3 shall conduct a hazard assessment as provided in 40 C.F.R. §§ 68.20 through 68.42.
40 C.F.R. § 68.36(a) requires that the owner or operator shall review and update the offsite consequence analysis every five (5) years.
The inspection revealed that Respondent had not reviewed nor updated the offsite consequence analysis since approximately late 1999, early 2000.
40 C.F.R. § 68.39(e) requires that the owner or operator shall maintain records of the data used to estimate population and environmental receptors potentially affected for the offsite consequence analyses.
The inspection revealed that Respondent failed to maintain the data used to estimate population and environmental receptors potentially affected for the offsite consequence analyses.
Respondent’s failure to comply with the hazard assessment requirements of 40 C.F.R. § 68.12(d)(2), as described above, is a violation of Section 112(r) of the CAA, 42 U.S.C. § 7412(r).
According to 40 C.F.R. § 68.12(d)(3), the owner or operator of a stationary source with a process subject to Program 3 shall implement the prevention requirements of 40 C.F.R. §§ 68.65 through 68.87.
40 C.F.R. § 68.65(a) requires that the owner or operator shall complete a compilation of written process safety information including information pertaining to the technology of the process, as provided in 40 C.F.R. § 68.65(c), and information pertaining to the equipment in the process, as provided in 40 C.F.R. § 68.65(d).
The inspection revealed that Respondent failed to have written information on the technology of the process and pertaining to the equipment in the process.
40 C.F.R. § 68.67(a) requires that the owner or operator shall perform an initial process hazard analysis (hazard evaluation) on the procedures covered by 40 C.F.R. Part 68.
The inspection revealed that Respondent had not completed an initial process hazard analysis.
40 C.F.R. § 68.7l(c) requires that the owner or operator shall ascertain that each employee involved in operating a process has received and understood the training required by 40 C.F.R. §§ 68.71(a) and (b) and shall prepare a record which contains the identity of the employee, the date of the training, and the means used to verify that the employee understood the training.
The inspection revealed that Respondent had no documentation or record verifying employee training as required by 40 C.F.R. § 68.71(c).
40 C.F.R. § 68.73(b) requires that the owner or operator shall establish and implement written procedures to maintain the ongoing integrity of process equipment.
The inspection revealed that Respondent had failed to establish and implement a written procedure for maintaining process equipment.
40 C.F.R. § 68.75(a) requires that the owner or operator shall establish and implement written procedures to manage changes ( except for “replacements in kind”) to process chemicals, technology, equipment, and procedures; and, change to stationary sources that affect a covered process.
The inspection revealed that Respondent had not established nor implemented written procedures to manage changes that affect the covered process.
40 C.F.R. § 68.79(a) requires that the owner or operator shall certify that they have evaluated compliance with the provisions of 40 C.F.R. Part 68, Subpart D, at least every three years to verify that procedures and practices developed under Subpart D are adequate and are being followed.
The inspection revealed that Respondent failed to conduct any compliance audits to evaluate compliance with Subpart D.
40 C.F.R. § 68.81(d) requires that the owner or operator shall prepare an incident investigation report for each incident which resulted in or could reasonably have resulted in a catastrophic release of a regulated substance that includes at a minimum: (1) date of incident; (2) date investigation began; (3) a description of the incident; (4) the factors that contributed to the incident; and (5) any recommendations resulting from the investigation.
40 C.F.R. § 68.8l(e) requires that the owner or operator shall establish a system to address and resolve the incident report findings and recommendations promptly and that the resolutions and corrective actions be documented.
The inspection revealed that Respondent completed an incident investigation report for the fire occurring at the Facility on November 22, 2016, that did not include all the minimum components. Specifically, the incident investigation report did not include the date the investigation began and any recommendations resulting from the investigation. Further, the inspection revealed that Respondent did not document any resolutions or corrective actions.
40 C.F.R. § 68.83(a) requires that the owner or operator shall develop a written plan of action regarding the implementation of the employee participation required by 40 C.F.R. §§ 68.83(b) and (c).
The inspection revealed that Respondent failed to develop a written plan regarding employee participation.
40 C.F.R. § 68.87(b) requires that the owner or operator shall evaluate contractor safety and performance services as well as assuring that each contract employee is informed of the known and potential hazards related to the contractor’s work and the process, and all the applicable provisions of 40 C.F.R. Part 68, Subpart E.
The inspection revealed that Respondent failed to evaluate contractor safety and performance services and failed to assure that each contract employee was informed of the known and potential hazards related to the contractor’s work and the process, and all the applicable provisions of 40 C.F .R. Part 68, Subpart E.
Respondent’s failure to implement the Program 3 prevention requirements of 40 C.F.R. § 68.12(d)(3), as described above, is a violation of Section l 12(r) of the CAA, 42 U.S.C. § 7412(r).
Based upon the Findings of Fact and Conclusion of Law, and Findings of Violations set forth above, and under the authority of Section 113(a)(3)(B) of the CAA, 42 U.S.C. § 7413(a)(3)(B), it is at this moment ordered and agreed that Respondent shall comply with the requirements of Section 112(r) of the CAA, 42 U.S.C. § 7412(r), and the regulations promulgated thereunder and codified at 40 C.F.R. Part 68.
Specifically, EPA and Respondent agree that Respondent shall, as expeditiously as possible, but in no event later than sixty (60) days after the effective date of this Order, complete the following compliance actions:
- If the Facility will, from the effective date of this Order, continue to have present more than the threshold quantity of any regulated substance, Respondent shall develop a Risk Management Program that complies with the appropriate Program level, as set out in the eligibility requirements in 40 C.F.R. § 68.10; submit an RMP to the EPA RMP Reporting Center that includes the infonnation required by 40 C.F.R. § § 68.155 through 68.185; maintain records supporting the implementation of the Risk Management Program in accordance with 40 C.F.R. § 68.200; and submit documentation to EPA demonstrating corrective actions taken to address the violations listed in paragraphs 30 through 70.
- If the Facility will, from the effective date of this Order, limit the presence of all regulated substances to less than the threshold quantity, Respondent must complete the following:
- Submit a plan to EPA that utilizes administrative or engineering controls to maintain the amount of the flammable mixture below the threshold quantity. The plan must include a description, basis for design, implementation schedule and a statement, certified according to Paragraph 73, stating that the Facility is no longer subject to the requirements of developing a Risk Management Program and submitting an RMP based on recognized and generally accepted good engineering practices. EPA will review and may comment on the plan.
- Submit a de-registration to EPA within six (6) months as required according to 40 C.F .R. § 68 .190(c).
- Submit a statement describing how the facility intends to comply with the obligations of CAA§ 112(r)(1)’s General Duty Clause. The statement must specifically identify hazards which could result from a release of the chemicals used at the facility and specify the hazard assessment technique(s) used to identify those hazards; describe how facility is designed and maintained to be safe, including the measures the facility takes to prevent releases; and describe the agencies the facility exerts to minimize the consequences of accidental releases which do occur.
CLICK HERE for the CAFO