EPA RMP GDC citations @ windshield wiper fluid manufacturing facility (Methanol & $197K)

PLEASE NOTE this case is significant in that many facilities in the OSHA arena will EXEMPT their “methanol” from PSM coverage using the “Atmospheric Storage Tank” exemption (e.g. 1910.119(a)(1)(ii)(B) or called the “Meer Decision”).  EPA couldn’t care less about this OSHA exemption, as is evident in this case! There is NO EPA RMP exemption for flammable liquids stored in an ATM tank that are kept below their boiling point without the aid of refrigeration/chilling… just so we are crystal clear. Methanol is a LISTED Extremely Hazardous Substance (EHS) and thus the CAA General Duty Clause can be used to enforce good engineering practices, ESPECIALLY when you have a 7,000-gallon spill!  It is TRUE that “methanol” is NOT an RMP Listed Flammable,  but it is an EHS and thus the CAA GDC can (and will be) apply.  Respondent stores and handles methanol, an extremely hazardous substance, at its windshield wiper fluid manufacturing facility. At the time of EPA ‘s 2016 and 2017 inspections of the Facility, more than 10,000 pounds of methanol were present at the Facility. The Facility ‘s 2012 Tier 2 Inventory Form stated that the Facility had an average of 300,000 pounds and a maximum of 483,000 pounds of methanol at any one time. The EPA inspection uncovered the following concerns:

1. failure to identify hazards which may result from accidental releases of extremely hazardous substances, in violation of the General Duty Clause, Section 112(r)(1) of the CAA;
2. failure to design and maintain a safe facility, taking such steps as are necessary to prevent such releases, in violation of the General Duty Clause, Section 112(r)(1) of the CAA;
3. failure to minimize the consequences of accidental releases, should they occur, in violation of the General Duty Clause, Section 112(r)(1) of the CAA; and
4. failure to timely submit hazardous chemical inventory forms to the proper authorities, in violation of Section 312(a) of EPCRA, and its implementing regulations at 40 C.F.R. Part 370.

On January 27, 2016, EPA received notice from a state Department of Environmental Protection (“XXDEP”) that there was a 7,000-gallon spill of methanol during a tanker truck to railcar product transfer at the Facility (“2016 Methanol Spill”). The rail car was located within six feet of the facility and was used as a methanol storage tank for Respondent’s WINDSHIELD WIPER FLUID MANUFACTURING PROCESS. EPA, XXDEP, and local fire department responders assisted with the response to the spill. Respondent notified its hazardous materials cleanup agent, XXXXXXXX, of the spill, and XXXXXXXXXX performed the cleanup within hours of the spill. The cleanup was completed on January 27, 2016, and Respondent performed confirmation sampling in the spill area after the cleanup to ensure that all methanol was removed. The release was caused when a delivery of methanol from a tanker truck was mistakenly pumped onto the ground through a DISCONNECTED HOSE RATHER THAN TO THE INTENDED LOCATION, a railcar.

NOTE:  A 75% water, 25% methanol mixture remains a flammable liquid.

Respondent operates a facility where it makes windshield wiper fluid (the “Facility”). Methanol is a chemical that may, as the result of short-term exposures associated with releases to the air, cause death, injury or property damage due to its toxicity or flammability. Methanol is a class 1B flammable liquid that requires special firefighting attention because it can burn with no visible flame and stays flammable even when mixed with large quantities of water. A 75% water, 25% methanol mixture remains a flammable liquid. Methanol also is toxic. A very small amount of pure methanol can cause severe injury; swallowing less than a quarter of a cup (l 0-30 ml) can kill an adult. Accordingly, it is an “extremely hazardous substance,” within the meaning of the General Duty Clause of Section 112(r)(1) of the CAA.  The unanticipated emission of methanol into the ambient air from the Facility would constitute an “accidental release,” as that term is defined by Section 112(r)(2)(A) of the CAA.

On February 10, 2016, an authorized representative of EPA Region 1 (the “Inspector”) conducted an inspection of the Facility (the “2016 Inspection”) pursuant to Section 114 of the CAA, and EPCRA. Officials from the Ayer Fire Department accompanied the Inspector. As more fully described in Counts 1, 2 and 3 below, during the 2016 Inspection the Inspector observed several examples of deficient chemical management practices relating to methanol, an extremely hazardous substance, at the Facility, that increased the risk of a chemical release, fire, or explosion, or that would make it difficult to mitigate the effects of such an incident, including the following: a. failure to conduct a hazard analysis or review that identifies hazards posed by the stationary source producing, processing, handling and/or storing a substance that is considered extremely hazardous; b. failure to provide written standard operating procedures; c. failure to properly store flammable liquids; d. failure to have secondary containment for flammable liquid storage; e. failure to properly label all pipes, hoses, and storage tanks; f. failure to have an emergency response plan; g. failure to properly train employees on potential hazards; and h. failure to provide fire suppression for flammable liquid storage.

During the 2016 Inspection, the Respondent was not able to provide its reporting year 2014 chemical inventory form and offered to provide the form to EPA following the inspection. EPA did not receive the 2014 form, and no form for inventory in 2014 was posted to the SERC’s Tier II manager system. 2015, 2016, and 2017 forms were submitted on time.  Forms for 2018 were due March 1, 2019. As of March 26, 2019, a 2018 chemical inventory form has not been submitted to the SERC’s Tier II manager system, but the form has been submitted to the local fire department.

On April 26, 2016, EPA issued the 2016 Inspection report along with a Notice of Potential Violations (“NOPV”) of CAA Section 112(r)(l) and EPCRA Section 312 to Respondent. This inspection report and NOPV provided Respondent with the details of the 2016 inspection, warned Respondent about the dangerous conditions listed in paragraph 27 above, and indicated EPA had not received the 2014 chemical inventory form.

On November 7, 2017, the Inspector along with additional authorized representatives of EPA, including a fire safety expert, conducted a second inspection of the Facility (the “2017 Inspection”).

As more fully described in Counts 1, 2, and 3 below, during the 2017 Inspection, the Inspector and fire safety expert observed several examples of deficient chemical management practices relating to an extremely hazardous substance at the Facility that increased the risk of a chemical release, fire, or explosion, or that would make it difficult to mitigate the effects of such an incident, including the following :

1. lack of containment in tanker truck off-loading area;
2. lack of containment or spill control in railroad tank car off-loading area and storage areas;
3. failure to properly ground and bond methanol equipment;
4. lack of emergency relief venting for the 1,000 and 2,000-gallon stainless steel storage tanks;
5. failure to use appropriate material (steel only) for connecting lines between the tank farm and the Facility;
6. failure to properly label storage tanks and supply lines;
7. improper electrical outlets adjacent to the washer fluid bottle filling machine;
8. failure to provide adequate fire suppression for rack storage of wooden pallets and cardboard boxes that are stored near a process using flammable methanol;
9. failure to provide an adequate distance or fire protection between the tank car area and the Facility;
10. failure to conduct a hazard analysis or review that identifies hazards posed by the stationary source producing, processing, handling and/or storing a substance that is considered extremely hazardous;
11. failure to provide written standard operating procedures;
12. failure to properly store flammable liquids;
13. failure to have secondary containment for flammable liquid storage;
14. failure to properly label all pipes, hoses, and storage tanks; 
15. failure to have an emergency response plan;
16. failure to properly train employees on potential hazards; and
17. failure to provide fire suppression for flammable liquid storage.

On March 16, 2018, EPA issued a second inspection report and Notice of Potential Violations of Clean Air Act Section l l 2(r)( 1) to Respondent. The 2018 inspection report and NOPV provided Respondent with the details of the 2017 inspection and warned Respondent about the dangerous conditions still present at the Facility during the 2017 Inspection, which are listed above.

VIOLATIONS

Count 1: Failure to Identify Hazards Which May Result from Accidental Releases, In Violation of the Clean Air Act’s General Duty Clause

The General Duty Clause is a performance standard with requirements that often can be achieved in a variety of ways. EPA routinely consults codes, standards, and guidance (“industry standards”) issued by trade and fire prevention associations to understand the hazards posed by the use of various extremely hazardous substances. The industry standards are also evidence of the standard of care that industry, itself, has found to be appropriate for managing those hazards. These industry standards are consistently relied upon by industry and fire prevention experts and are sometimes incorporated into state-building, fire, and mechanical codes. For facilities handling flammable and toxic liquids, EPA often consults National Fire Prevention Association (“NFPA”) standards (such as NFPA 30, Flammable and Combustible Liquids Code, and NFPA 400, Hazardous Materials Code), state fire codes, OSHA standards, and for methanol in particular, the Methanol Institute’ s Safe Handling Manual.

The first duty of the General Duty Clause is to identify hazards which may result from accidental releases of extremely hazardous substances, using appropriate hazard assessment techniques. Section 112(r)(8), of the CAA, requires EPA to develop and disseminate information on how to conduct hazard assessments. The recommended industry practice and standard of care for identifying, analyzing, and evaluating potential hazards associated with methanol is, among other things, to use (and periodically repeat) an analysis technique appropriate to the complexity of the process to identify, evaluate, and ensure that hazards arising from process, and from inventories or hazardous chemicals connected to the process, are controlled. See

• Methanol Institute’s Methanol Safe Handling Manual (4th ed.), Section 5.4.7;
• NFPA 30, Section 6.4 (“Hazards Analysis”); and NFPA 40, Section 7.2 (“Process Review and Plan Preparation”)

As described above, the EPA Inspector observed potentially dangerous conditions at the Facility that indicated a failure to identify hazards associated with processes at the Facility. This failure could substantially endanger the environment, employees, neighboring commercial operations, and first responders.

At the time of the 2016 Inspection, Respondent had not conducted a Process Hazard Analysis for its operations (involving methanol) at the Facility and lacked the information necessary to understand how to operate its Facility safely.

At the time of the 2017 Inspection, Respondent had conducted a process hazard analysis, but the process hazard analysis failed to: (a) take into account environmental hazards of releases and (b) address loss of containment or spills from tanker trucks or tanker rail cars, some of which were being used to store materials on site, and Respondent did not establish a system to address the process hazard analysis’s findings and recommendations and verify that hazards were controlled.

Accordingly, Respondent has violated the General Duty Clause’s requirement to identify hazards at the Facility using industry-recognized hazard assessment techniques, in violation of CAA Section 112(r)(1).

 

Count 2: Failure to Design and Maintain a Safe Facility, In Violation of the Clean Air Act’s General Duty Clause

Pursuant to the General Duty Clause, CAA Section 112(r)(1), owners and operators of stationary sources producing, processing, handling, or storing extremely hazardous substances have a second general duty, in the same manner, and to the same extent as section 654 of Title 29, to design and maintain a safe facility taking such steps as are necessary to prevent releases. The recommended industry practice and standard of care for designing and maintaining a safe facility is to base design considerations upon applicable design codes, federal and state regulations, and industry guidelines to prevent releases or minimize their impacts, and to develop and implement standard operating procedures, preventative maintenance programs, personnel training programs, management of change procedures, and incident investigation procedures. NFPA and the Methanol Institute have developed standards and guidelines for this purpose including those referenced above.

As mentioned above, on February 10, 2016, and/or November 7, 201 7, the Inspector observed deficient practices relating to the processing, handling, and storage of extremely hazardous substances at the Facility, including the deficiencies in subparagraphs a-h below. The hazards associated with the deficiencies are an increased risk of a chemical spill, spill spread, fire or explosion.

a. Failure to provide proper containment for chemical off-loading and storage areas.

The Inspector observed:
1) lack of containment in tanker truck off-loading area, and
2) lack of containment or spill control in railroad tank car off-loading area and storage areas.

Industry standards of care require containment of flammable liquid spills. For example, NFPA 30 (2012 ed.) (hereinafter “NFPA 30”), Section 28.9 requires that unloading facilities have a means to contain spills. The Annex note to this code section explains the intent as being able to control the spill from the volume of the tanker or rail car being offloaded. Section 3.2 of the Methanol Institute’s Methanol Safe Handling Manual (4th ed.) (hereinafter the “MSHM”), requires berming for storage.

b. Failure to provide adequate fire suppression for product storage.

To reduce the chance that methanol vapor could ignite, industry standards of care call for protection from heat and ignition sources. Respondent did not protect the methanol from ignition by failing to provide adequate fire suppression for rack storage of wooden pallets and cardboard boxes. For example, NFPA’s standard for the Installation of Sprinkler Systems, NFPA 13 (2016 ed.), Section 5.6.3.4 and the Annex note A.5.6.3.4 defines cardboard boxes and polyethylene plastics as a Class IV commodity. Some of the pallets at the Facility are wrapped in plastic which is defined as an encapsulated product. NFPA 13, Table 16.2.1.3.2 defines the type of protection required for this type of storage. Class IV products stored 22 feet to 25 feet high require in-rack sprinklers. Encapsulated products stored up to 20 feet high require in-rack sprinkler protection. A fire involving the pallets and boxes could cause a bigger incident involving the nearby methanol process. Also, NFPA 30, Section 6.5.1 requires precautions to control ignition sources, as does Section 6.6.2 of the MSHM.

c. Lack of emergency relief venting for the 1,000 and 2,000-gallon stainless steel storage tanks.

To prevent a buildup of explosive vapors, the industry standard of care for storage containers is to have proper emergency relief venting. For example, NFPA 30, Section 22.7.1.1 requires emergency relief venting for every above-ground flammable liquid storage tank, and Section 3.2 of the MSHM requires that storage containers have adequate ventilation.

d. Improper electrical outlets are adjacent to the washer fluid bottle filling machine.

To reduce the chance that methanol vapor could ignite, industry standards of care call for protection from heat and ignition sources. For example, the bottle filling area is a Class I, Division 2 electrical classification area based on NFPA 30, Table 7.3.3, and NFPA 30, Section 7.3.2 requires electrical utilization equipment and wiring to be of a type specified by and installed in accordance with NFPA 70, National Electric Code. Likewise, Section 6.2.2 of the MSHM calls for removing potential ignition sources from areas where fuel vapor may be present.

e. Failure to properly ground and bond methanol equipment and use appropriate material (steel) for connecting lines between the tank farm and the Facility.

Industry standards of care for flammable liquids require grounding and bonding to reduce the risk of explosion or fire from static discharge. For example, NFPA 30, Section 27.9 requires bonding and grounding of all piping systems. Section 3.2.5 of the MSHM calls for grounding lighting systems, pipe racks, pumps, vessels, fillers, hoses, and all equipment near methane vapor. Also, the MSHM states that methanol transfer operations should be grounded and bonded and that metal containers and associated equipment should be bonded together and grounded during transfers. Fill pipes or hoses should be conductive and bonded to the filling system. Finally, OHSA Standard 1910.106, Flammable Liquids, requires materials for piping, valves, or fittings shall be steel, nodular iron, or malleable iron unless certain exceptions apply.

f. Failure to maintain an adequate distance between methanol storage and the Facility.

To prevent fires, industry standards of care call for storing flammable liquids away from buildings. The railcars containing methanol were located within six feet of the building exterior. For example, NFPA 30, Section 28.4.1 requires a minimum separation distance of 25 feet.

g. Lack of ventilation in the washer fluid bottle and drum filing area.

Ventilation prevents a buildup of explosive vapors, so industry standards require ventilation in areas where flammable liquids are managed. For example, NFPA 30, Section 17.11 requires ventilation in enclosed processing areas handling or using Class I liquids (methanol is a Class 1B flammable liquid), and Section 4.2.1 of the MSHM recommends that ventilation is sufficient to ensure that methanol concentrations in the air do not exceed 200 parts per million.

h. Failure to properly label storage tanks and supply lines.

A PVC line from the outdoor tanker railcar area into the storage warehouse is labeled “100% Methanol” inside the warehouse and “Propylene Glycol” outside the warehouse. i. Failure to have operating procedures to prevent a release. The failures listed above constitute a failure by Respondent to design and maintain a safe facility, in violation of the General Duty Clause, CAA Section 112(r)(1).

 

Count 3: Failure to Minimize Consequence of Releases, In Violation of the Clean Air Act’s General Duty Clause

In addition to identifying hazards, and designing and maintaining a safe facility, the GDC requires Respondent to minimize the consequences of releases that do occur. Industry standards call for measures to minimize the consequences of releases. For example, MHSM Section 5.4.16 and 5.4.12 call for employee training, a site-specific emergency plan, emergency response drills, and mitigation design measures such as sprinkler/deluge systems, early warning devices, and alarms. Section 4.2.5 of the MHSM lists extensive safety gear requirements for incidents with a high risk of vapor, such as chemical resistant suits, gloves, respiratory protection, and rubber boots. Section 5.4.8 of the MHSM explains operators must know how and when to perform specific tasks associated with equipment operation and process control during normal operations, as well as in the event of abnormal circumstances. This is done by the development and implementation of standard operating procedures for a facility. Section 5.4.8 of the MHSM recommends that the standard operating procedures should address normal and emergency operations, clearly state safe operating limits for process conditions such as temperature and pressure and should be reviewed and updated at least every three years.

The conditions listed above are both failures to prevent a release, fire or explosion from occurring (Count 2) and failures to minimize the consequence of any release, fire or explosion that does occur (Count 3), as those conditions could make the incident more dangerous or hamper emergency response.

In addition, as described above, on February 10, 2016, and/or on November 7, 2017, the Inspector observed deficient practices at the Facility, including the following:

• no emergency response plan,
• failure to properly train employees on potential hazards, 
• lack of operating procedures to minimize the effects of the spill,
• lack of coordination with local/state emergency planners, and
• lack of safety gear for employees

These failures prevented the Respondent from minimizing the consequences of an accidental release. After the 2016 Methanol Spill, Respondent’s employees responded to the spill without adequate training or equipment, and local responders and emergency planners reported to the Facility without knowing the type and quantity of hazardous substances at the facility due to the Respondent’s failure to adequately coordinate with local and state emergency planners.

The six-step operating procedure for disconnecting rail car hoses did not address:

• emergency shutdown,
• consequences of and steps to avoid deviations,
• hazards of the chemicals,
• precautions to prevent exposure (such as personal protective equipment),
• control measures to be taken if exposure occurs, or
• safety systems and their function.

The failures listed above constitute a failure by Respondent to minimize the consequences of releases, in violation of Section 112(r)(1) of the CAA.

 

Count 4: Failure to Submit Chemical Inventory Forms in Compliance With EPCRA Section 312 The Facility’s 2012 Tier 2 Inventory Form stated that an average of 300,000 pounds and a maximum of 483,000 pounds of methanol was at the Facility. At the time of the 2016 and 2018 inspections, there was more than 10,000 pounds of methanol (the minimum reporting threshold) present at the Facility, and the Tier 2 form for 2017 states 623,220 pounds of methanol were present at the Facility.

Respondent failed to submit required Inventory Forms to the appropriate LEPC, the SERC, and the fire department with jurisdiction over the Facility, at least on or before March 1, 2015, for reporting the year 2014.

Pursuant to EPCRA Section 325(c)(3), 42 U.S.C. § l 1045(c)(3), each day that Defendant failed to timely submit an Inventory Form for methanol to the appropriate LEPC, SERC, and fire department with jurisdiction over the Facility constitutes a separate violation of Section 312 of EPCRA, 42 U.S.C. § 11022.

Accordingly, Respondent’s failure to submit the required Inventory Forms for reporting the year 2014 violated Section 312 of EPCRA.

 

TERMS OF SETTLEMENT

The penalty shall be apportioned in the following manner: $184,074 for the alleged CAA violations and $13,001 for the alleged EPCRA violation. (Total $197,075)

 

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