This case is significant as EPA used the International Fire Code as their basis for several General Duty Clause findings. They also used NFPA standards in their inspection.
Respondent owns and operates a facility that manufactures consumer and industrial products in liquid form and for pressurized containers that use aerosol propellants. Respondent’s manufacturing process uses and stores flammable gases and liquids. On February 9, 2019 and November 19, 2021, EPA conducted inspections at the Facility to determine whether Respondent was in compliance with Section 112(r)(1) and (7) of the Clean Air Act (“CAA”)and the RMP Regulations, the Chemical Accident Prevention Provisions, at 40 C.F.R. Part 68 (“Inspections”).
Based on its observations during the Inspections and its review of documents received from Respondent during the investigation, EPA determined that Respondent had the following chemicals present at its Facility, among other chemicals, in amounts exceeding 10,000 pounds each, from 2019 through the effective date of this Order: methyl ether, propane, difluoroethane, a mixture of propane/isobutane, and diethyl ether.
EPA has determined that more than a threshold quantity of regulated substances methyl ether, propane, difluoroethane, propane/isobutane mixture, and diethyl ether are present in a process at the Facility.
Based on information collected by EPA, EPA has determined that Respondent did not comply with Section 112(r)(7) of the CAA and the RMP Regulations by failing to comply with hazard assessment, process safety information, mechanical integrity, and compliance audit requirements, as set forth in more detail below.
Hazard Assessment
EPA inspectors reviewed the Facility’s hazard assessment in the February 11, 2020, risk management plan. Based on its review, EPA has determined that the Respondent incorrectly estimated the affected population of a worst-case release as zero. According to MARPLOT, the mapping software for the CAMEO software suite, developed by EPA and the National Oceanic and Atmospheric Administration and used to plan for and respond to the chemical emergencies, the affected population is 5,762 people and 2,748 housing units.
The Respondent’s failure to accurately calculate the affected population of a worst-case release is a violation of the hazard assessment requirements of the RMP Regulations. See 40 C.F.R. § 68.30.
Process Safety Information
The relevant recognized and generally accepted good engineering practices for purposes of the manufacturing process at the Facility includes the following three industry standards:
- National Fire Protection Administration (“NFPA”) 58, Liquified Petroleum Gas Code, dated May 1961 (“NFPA 58-1961); and
- NFPA 58, Liquified Petroleum Gas Code, dated 2017 (“NFPA 58-2017).
NFPA 58-1961 requires five feet of distance for tanks greater than 2,000 pounds. See NFPA 58-1961, § B.6. The 2017 version of NFPA 58 requires a five-foot distance between containers sized between 2,001 and 30,000 gallons. See NFPA 58-2017, Table 4.1.1.
EPA inspectors observed that two liquefied petroleum gas pressure vessels at the Facility, Tank A108 and Tank 152A, were not adequately separated in accordance with codes and/or standards at the time of their original installation. EPA inspectors observed that the tanks were located with only three feet of distance between the shells.
EPA inspectors reviewed the fire safety analysis performed by Respondent pursuant to Section 6.5.1.1 of NFPA 58-2017. According to the fire safety analysis, the Facility’s tanks sized between 2,001 and 30,000 gallons, must be separated by five feet, and the spacing of the tanksat the Facility does not meet this requirement. See fire safety analysis, Form 6.5.
The fire safety analysis provides that if this measure is not met, the Facility “is not in compliance with the 2008 NFPA 58 Code requirements” for safety measures, including special fire protection. See fire safety analysis, Form 9.1.
EPA inspectors observed that Tanks A108, 152A and NP70 lacked special fire protection.
Respondent’s failure to comply with the process safety information standards outlined in industry standard NFPA 58-2017 violates the requirements in the RMP Regulations to “ensure that the process is designed in compliance with recognized and generally accepted good engineering practices.” See 40 C.F.R. § 68.48(b).
Mechanical Integrity
Respondent provided tank inspection records to EPA after the second EPA Inspection. According to Respondent, these tank inspections were performed pursuant to Pennsylvania’s aboveground storage tank regulations, not the industry standards listed.
Respondent also provided to EPA with some records of pressure relief valve testing and replacement. The records indicate that the equipment inspections were completed by inspectors certified by the Pennsylvania Department of Environmental Protection, but it is not clear if the inspectors were certified under-recognized and generally accepted good engineering practices for their industry, including API 510, 570 or 653, and NFPA 30.
Respondent provided monthly inspection documents for tanks only for the year 2018, but not for 2017 or 2019-2021.
Respondent also provided to EPA a mechanical integrity program document, dated February 15, 2018, during the first Inspection. The document does not list any applicable codes or standards for the Facility’s process equipment, including tanks, piping, valves, conservation vents, and pressure relief valves.
EPA requested records for inspections of piping and valves, and maintenance records for conservation vents on atmospheric tanks containing flammable liquids. Respondent did not provide EPA with any such records.
EPA has determined that Respondent did not perform inspections or tests to maintain the on-going integrity of process equipment in accordance with recognized and generally accepted good engineering practices for the industry, as required by Section 68.73(a), or maintain records of such inspections or tests, as required by Section 68.73(d) of the RMP Regulations.
Respondent’s failure to perform inspections or tests to maintain the on-going integrity of process equipment in accordance with recognized and generally accepted good engineering practices for their industry, is a violation of Section 68.73(a)(2) of the RMP Regulations.
Respondent’s failure to comply with the written documentation obligations of the RMP Regulations is a violation of Section 68.73(d)(4) of the RMP Regulations.
Compliance Audits
EPA inspectors determined that the 2016, 2018 and 2020 compliance audits were not certified as required.
Respondent’s failure to comply with the certification requirements is a violation of Section 68.79(a) of the RMP Regulations.
General Duty Clause
Respondent also manufactures and/or stores flammable and combustible chemicals at the Facility. These flammables and combustible chemicals are stored outside and to the south of the warehouse at the Facility and, at the time of the second Inspection, included the following:
- One tanker-trailer of NP-46, a flammable mixture of propane and n-butane;
- Sixty-two (62) 275-gallon totes and (739) 55-gallon drums of various flammable and combustible chemicals; and
- Twenty-one (21) various size aboveground storage tanks containing flammable liquids located in a tank farm on the south end of the Facility west of the flammable gas tank farm (containing Tanks A108, NP-70 and 152A).
Based on its observations of Respondent’s storage of flammable and combustible chemicals at the Facility, EPA has determined that the operator is required to comply with Section 112(r)(1) of the CAA.
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.
The applicable industry codes include the following, among others: the International Fire Code (2018 edition) (“IFC”), NFPA 30, API 653, API 570, API 574, and NFPA 70.
EPA inspectors noted several instances in which Respondent’s storage practices at the Facility for flammable liquids are not consistent with the protection provided by industry codes and standards.
Section 5704.2.9.2.3 of the IFC requires that “supports or pilings for above-ground tanks storing Class I, II or IIIA liquids elevated more than 12 inches (305 mm) above grade shall have a fire-resistance rating of not less than 2 hours in accordance with the fire exposure criteria specified in ASTM E1529” with certain exceptions, including tanks located outside buildings protected by an approved water-spray system.
EPA inspectors observed that the vertical tank legs of Tank #28, containing a blend of flammable chemicals, were not protected from fire. The maximum allowable quantity (“MAQ”) of flammable liquids is 1,100 gallons for Class IA chemicals stored greater than five feet apart and less than seven feet high in drums, according to Section 5704.4 of the IFC.
EPA inspectors observed that the quantity of flammable liquids stored in drums and totes far exceeded the 1,100-gallon threshold. Section 5704.4.3 of the IFC requires spill control and secondary containment for flammable liquids stored in excess of the MAQ. EPA inspectors observed that Respondent did not have spill control and secondary containment for the flammable and combustible chemicals stored in totes and drums located outside the Facility.
Industry standard NFPA 70 provides that specified equipment must be included in the electrical classification drawing. EPA inspectors observed that the NP-46 trailer unloading location was not identified on the electrical classification drawing. The electrical classification drawing provided by Respondent did not include all required areas in accordance with NFPA 70.
Industry standard NFPA 30 requires that owners and operators of atmospheric tanks containing flammable and combustible liquid tanks maintain conservation vents according to an inspection and operation manual. Such tanks are supposed to be inspected at least every other year, according to typical manufacturers’ recommendations.
EPA inspectors requested inspection records for conservation vents on the atmospheric tanks containing flammable and combustible liquids. Respondent did not provide any inspection records for the conservation vents. Respondent was unable to provide the make and model of the conservation vents.
Industry standard Section 5303.7.5 of the IFC states that “Compressed gas containers, cylinders, tanks and systems shall not be placed in areas where they are capable of being damaged by falling objects.” IFC, § 5303.7.5. EPA inspectors observed compressed gas tanks and their piping installed within the range of several large trees on the adjacent property that could damage the process equipment.
The IFC also states that “Combustible waste, vegetation and similar materials shall be kept not less than 10 feet (3048 mm) from compressed gas containers, cylinders, tanks and systems.” IFC, § 5303.7.2 (Combustible waste, vegetation and similar materials). EPA inspectors observed vegetation less than 10 feet from the trailer containing NP-46.
Respondent’s multiple failures to protect tank legs from fire, to store flammable liquids in amounts exceeding the MAQ while not providing fire protection, to not provide spill control and secondary containment for flammable liquids, to not list all necessary equipment on electrical classification drawings, to not maintain conservation vents, and to maintain vegetation near tanks — violate the requirements of the General Duty Clause to design and maintain a safe facility, at 42 U.S.C. § 7412(r)(1).
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