This Consent Agreement and Final Order serves as notice that the EPA has reason to believe that Respondent violated the General Duty Clause set forth in Section 112(r)(1) of the CAA and the Chemical Accident Prevention Provisions in 40 C.F.R. Part 68 and that Respondent violated Section 112(r) of the CAA. Respondent’s Facility has ceased all operations. On or about May 15 -17, 2017, the EPA conducted an inspection of the Facility to determine Respondent’s compliance with Section 112(r) of the CAA and 40 C.F.R. Part 68.
The following substances are extremely hazardous substances and/or regulated substances (herein the Extremely Hazardous Substances):
- Anhydrous Ammonia;
- Chlorine;
- Diborane;
- Dichlorosilane;
- Hydrofluoric Acid;
- Hydrogen;
- Hydrogen Chloride: Hydrochloric Acid and Anhydrous Hydrogen Chloride;
- Nitric Acid;
- Phosphine;
- Phosphorus Oxychloride;
- Silane; and
- Trichlorosilane
Information gathered during the EPA inspection revealed that the Respondent processed, handled, and/or stored the Extremely Hazardous Substances at the Facility. Anhydrous hydrogen chloride is a regulated substance with a threshold quantity of 5,000 pounds. Information gathered during the EPA inspection revealed that in 2014 and 2015, Respondent had greater than 5,000 pounds of anhydrous hydrogen chloride in a process at the Facility.
From the time Respondent first had on site greater than 5,000 pounds of anhydrous hydrogen chloride in a process, Complainant alleges that Respondent was subject to Program 3 prevention program requirements because pursuant to 40 C.F.R. § 68.10(d), the covered process at its facility did not meet the eligibility requirements of Program 1 and was subject to the OSHA process safety management standard, 29 C.F.R. § 1910.119.
From the time Respondent first had on site greater than 5,000 pounds of anhydrous hydrogen chloride in a process, Complainant alleges that Respondent was required under Section 112(r)(7) of the CAA to submit an RMP pursuant to 40 C.F.R. §68.12(a) and comply with the Program 3 requirements provided at 40 C.F.R. § 68.12(d).
Complainant alleges that Respondent was subject to the requirements of 40 C.F.R. Part 68, pursuant to Section 112(r)(7) of the CAA, because it was an operator of a stationary source that had more than a threshold quantity of a regulated substance in a process.
From the time Respondent first had onsite any of the Extremely Hazardous Substances at the Facility, Complainant alleges that Respondent was subject to the requirements of Section 112(r)(1) of the CAA because it was the operator of a stationary source that was producing, processing, handling or storing extremely hazardous substances listed pursuant to Section 112(r)(3).
Allegations of Violation:
Count 1
The regulation at 40 C.F.R. § 68.12(d) requires that the owner or operator of a stationary source with a process subject to Program 3 shall submit a single RMP, develop a management plan, conduct a hazard assessment, implement the Program 3 prevention requirements, develop and implement an emergency response program, and submit as part of the RMP the data on prevention program elements for the Program 3 processes.
Information gathered as a result of the EPA inspection revealed that Respondent was subject to the OSHA process safety management standard, 29 C.F.R. § 1910.199, and in 2014 and 2015 Respondent had more than a threshold quantity of anhydrous hydrogen chloride in a process at the Facility.
Information gathered as a result of the inspection revealed that Respondent failed to implement a risk management program by failing to submit an RMP, develop a management plan, conduct a hazard assessment, implement the Program 3 prevention requirements, develop and implement an emergency response program, and submit as part of the RMP the data on prevention program elements for the Program 3 processes.
Complainant alleges Respondent’s failure to implement a Program 3 risk management program, as required by 40 C.F.R. § 68.12(d), violates Section 112(r)(7) of the CAA.
Count 2
At the time of the inspection, Complainant alleges Respondent was unable to demonstrate it had taken any steps to identify hazards for all but one chemical. For example, Respondent was unable to provide any hazard identification information for the Extremely Hazardous Substances, except for trichlorosilane; develop release scenarios for any of the regulated substances, except for trichlorosilane; or identify population and environmental receptors that would be impacted from a release of any of the Extremely Hazardous Substances.
As a result, Complainant alleges Respondent failed to meet its general duty to identify hazards which may result from accidental releases using appropriate hazard assessment techniques.
Complainant alleges Respondent’s failure to meet its general duty to identify hazards which may result from accidental releases using appropriate hazard assessment techniques, violates Section 112(r)(1) of the CAA.
Count 3
Complainant alleges that, at the time of the inspection, the Facility lacked certain safety elements. Specifically, Respondent had not identified nor implemented any design codes and standards for the Facility, had not defined upper and lower operating limits, had not conducted self-audits, had not evaluated procedures for temporary operations, and had not adequately designed the Facility to minimize the risk of exposure from the regulated substances to other tenants located in the same building as the Facility. As a result, Respondent failed to meet its general duty to design and maintain a safe facility, taking such steps as are necessary to prevent releases.
Complainant alleges Respondent’s failure to meet its general duty to design and maintain a safe facility, taking such steps as are necessary to prevent releases, violates Section 112(r)(1) of the CAA.
Count 4
At the time of the inspection, Complainant alleges that Respondent did not have procedures for informing the public and other tenants located in the same building as the Facility of a release, did not have procedures for first aid, had not conducted any emergency response coordination with other building tenants or management, and had not kept the contacts in the emergency response plan that was shared with local responders up-to-date. As a result, Respondent failed to meet its general duty to minimize the consequences of accidental releases which do occur.
Complainant alleges Respondent’s failure to meet its general duty to minimize the consequences of accidental releases which do occur, violates Section 112(r)(1) of the CAA.
Penalty Payment
Respondent agrees that, in settlement of the claims alleged herein, Respondent shall pay a civil penalty of Two Hundred Twenty-Nine Thousand Four Hundred Fifty-Six Dollars ($229,456).
Respondent certifies by the signing of this Consent Agreement that it is presently in compliance with all requirements of the CAA and its implementing regulations at the Facility, which is now closed for operations.
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