This is another example of how a “process” can be classified as a Program 2, based NOT on the hazards but merely because it is a public utility in a Federal OSHA state. Had this process been in a private business, it would have been a RMP Program 3 as it would have been a PSM Covered process. But since the process was located in a state covered by federal OSHA AND the process was located within a public utility, the public utility is NOT covered by OSHA and hence the process is classified as a RMP Program 2 rather than a Program 3. So much for the process being classified on “it’s off-site impact capability”!. This case also does a nice job providing a baseline cost of converting a Cl2 water treatment process to use sodium hypochlorite. The cost of this physical conversion is $230,000 – a no-brainer in my eyes. We can spend that much in a year just managing our PSM/RMP programs, especially if we have an on-site ERT!
Respondent is a municipality located in Missouri. Pursuant to 40 C.F.R. § 68.10(c), a covered process is subject to Program 2 requirements if the process does not meet the eligibility requirements of either Program 1 or Program 3, as described in 40 C.F.R. § 68.10(b) and (d), respectively. The threshold quantity for chlorine as listed in 40 C.F.R. § 68.130 is 2,500 pounds. On or about February 3, 2016, representatives of EPA conducted an inspection (the inspection) of Respondent’s Facility to determine compliance with Section 112(r) of the CAA, 42 U.S.C. § 7412, and 40 C.F.R. Part 68.
Information gathered during the EPA inspection revealed that the Facility had greater than 2,500 pounds of chlorine in a process at the Facility. From the time the Facility first had greater than 2,500 pounds of chlorine in a process, Respondent was subject to the requirements of Section 112(r) of the CAA, 42 U.S.C. § 7412(r), and 40 C.F.R. Part 68 because Respondent was an owner and operator of a stationary source that had more than a threshold quantity of a regulated substance in a process. Respondent was subject to Program 2 prevention program requirements because the process does not meet the eligibility requirements of either Program 1 or Program 3, as described in 40 C.F .R. § 68.10(b) and (d), respectively.
As a result of the EPA inspection and additional information obtained by the agency, Complainant has determined that violations of the Chemical Accident Prevention Provisions in 40 C.F.R. Part 68, occurred.
Allegations of Violation
Count 1
Pursuant to 40 C.F.R. § 68.15(a) and (b), the owner or operator of a stationary source with processes subject to Program 2 shall develop a management system to oversee the implementation of the risk management program elements and shall assign a qualified person or position that has the overall responsibility for the development, implementation, and integration of the risk management program elements.
The EPA inspection revealed that the person assigned the responsibility to develop, implement and integrate the risk management program had left employment with Respondent prior to the inspection and no person had subsequently been assigned the responsibility.
Respondent’s failure to assign a qualified person or position that has the overall responsibility for the development, implementation, and integration of the risk management
program elements and to develop a management system to oversee the risk management program elements is a violation of 40 C.F.R. 68.lS(a) and (b). Respondent, therefore, violated Section 112(r)(7) of the CAA, 42 U.S.C. § 7412(r)(7).
Count 2
Pursuant to 40 C.F.R. § 68.36(a), the owner or operator shall review and update the offsite consequence analyses at least once every five years, and as required by 40 C.F.R. § 68.39(a-e) the owner or operator shall maintain the required records on the offsite analyses.
The EPA inspection revealed the Respondent had not reviewed and updated the offsite consequence analyses from June 22, 2009 through the date of the inspection. Further, the Facility was unable to provide documentation of any completed offsite consequence analyses.
Respondent’s failure to review and update the offsite consequence analyses at least once every five years is a violation of 40 C.F.R. § 68.36(a) and Respondent’s failure to maintain the required records on the offsite consequence analyses is a violation of 40 C.F.R. § 68.39(a-e). Respondent, therefore, violated Section 112(r)(7) of the CAA, 42 U.S.C. § 7412(r)(7).
Count 3
Pursuant to 40 C.F.R. § 68.50(a) and (c)-(d), the owner or operator shall conduct a review of the hazards (hazard review) associated with the regulated substances, process and procedures, document the results of the same and ensure that problems identified are resolved in a timely manner, and update the hazard review at least once every five years.
At the time of the EPA inspection, the Respondent had not conducted a hazard review from March 5, 2008 through the date of the inspection.
Respondent’s failure to conduct a hazard review and document the results of the same and ensure that problems identified are resolved in a timely manner, and update the review at least once every five years is a violation of 40 C.F.R. § 68.50(a) and (c)-(d). Respondent, therefore, violated Section 112(r)(7) of the CAA, 42 U.S.C. § 7412(r)(7).
Count 4
Pursuant to 40 C.F.R. § 68.58(a) and (e), the owner or operator of a stationary source with processes subject to Program 2 shall certify that they have evaluated compliance (completed a compliance audit) at least every three years to verify that the procedures and practices developed are adequate and being followed and maintain the two (2) most recent compliance audit reports.
The EPA inspection revealed that Respondent had failed to certify completion of a compliance audit or maintain any compliance audit reports.
Respondent’s failure to certify completion of a compliance audit or maintain any compliance audit reports is a violation of 40 C.F.R. § 68.58. Respondent, therefore, violated Section 112(r)(7) of the CAA, 42 U.S.C. § 7412(r)(7).
Count 5
Pursuant to 40 C.F.R. § 68.160(b)(6), the owner or operator of a stationary source shall complete a single registration form in the RMP that includes the name, title, telephone number, and e-mail address ofthe emergency contact. Pursuant to 40 C.F.R. § 68.195(b), the owner or operator of a stationary source for which a RMP was submitted shall submit a correction to the RMP within one month of any change in the emergency contact information required under 40 C.F .R. § 68. l 60(b )(6).
The EPA inspection revealed that individual designated as the emergency contact in Respondent’s RMP had left employment with Respondent and the current emergency contact information had not been submitted within one month of the change occurring.
Respondent’s failure to submit a correction to the RMP and provide the correct emergency contact information is a violation of 40 C.F.R § 68.160(b)(6) and 68.195(b). Respondent, therefore, violated Section 112(r)(7) of the CAA, 42 U.S.C. § 7412(r)(7).
Count 6
Pursuant to 40 C.F .R. § 68.190(b)(1), the owner or operator of a stationary source shall revise and update the submitted RMP at least once every five years from the date of its initial submission.
Respondent submitted a, RMP on June 22, 2009 and had not submitted a revised and updated RMP at the time of the EPA inspection.
Respondent’s failure to submit a revised and updated RMP by June 22, 2014 is a violation of 40 C.F.R. § 68.190(b)(l). Respondent, therefore, violated Section 112(r)(7) of the CAA, 42 U.S.C. § 7412(r)(7).
CONSENT AGREEMENT
Respondent agrees that, in settlement of the claims alleged herein, Respondent shall pay a mitigated civil penalty of Ten Thousand Dollars ($10,000.00), as set forth below, and shall perform a SEP as set forth in this Consent Agreement and Final Order. The projected cost of the SEP is Two Hundred Thirty Thousand Four Hundred Dollars ($230,400). The SEP is further described below.
Supplemental Environmental Project
Respondent shall eliminate the use of chlorine gas at Respondent’s Facility by converting the process at the Facility from chlorine gas to liquid sodium hypochlorite, a less dangerous chemical substitute (Respondent’s SEP).
The converted process will consist of two (2) two thousand one hundred (2,100) gallon bulk storage tanks and related pumps and equipment. Upon installation, the existing chlorine gas tanks and related gas fed equipment will be removed and the process deregistered pursuant to 40 C.F.R. § 68.190(c).
The SEP shall cost at least Two Hundred Thirty Thousand Four Hundred Dollars ($230,400.00). Respondent agrees that the SEP shall be completed within thirty (30) days of the Effective Date of this Consent Agreement and Final Order.
Engineering- Design $ 15,600
Engineering – Construction Observation $ 19,800
Construction – Sodium Hypochlorite System $172,100
Construction – Modification of Chemical Feed Building $ 22,900
Total – $230,400