Univar Solutions USA Inc. (Board decision, December 21, 2022)
In re Univar Solutions USA Inc. (EAB MM 22-01C): chemical-safety and reporting settlement approved
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Plain-English summary
EPA alleged that Univar Solutions USA Inc. violated Clean Air Act chemical accident prevention and general-duty requirements at facilities in Rhode Island, Pennsylvania, and Colorado, and failed to retain records supporting 2015 toxic-chemical release reports at its Denver facility. The alleged chemical-safety problems included inadequate labeling, storage of incompatible chemicals, emergency-egress and ventilation issues, missing or inadequate inspections, and other facility-maintenance deficiencies. Univar agreed to settle without a hearing or adjudication of the allegations. The Board ratified the Consent Agreement and Final Order on December 21, 2022, requiring a $600,000 civil penalty, at least $200,000 in emergency-response equipment through a supplemental environmental project, and compliance with the agreement's other terms.
Decision snapshot
- Cited authorities: Clean Air Act section 112(r), 42 U.S.C. § 7412(r), and section 313 of the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. § 11023, with implementing rules in 40 C.F.R. parts 68 and 372
- Outcome: The EAB ratified the Consent Agreement and Final Order, requiring a $600,000 civil penalty, at least $200,000 in supplemental environmental project costs, and compliance with the settlement terms.
- Key point: The settlement resolves EPA's civil penalty claims and requires emergency-response equipment for the Denver and Bunola communities.
Full text (EPA EAB public release)
F I L E D
Dec 21, 2022
Clerk, Environmental Appeals Board
INITIALS ________________________
ENVIRONMENTAL APPEALS BOARD
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C.
)
In re: )
) Docket Nos. CAA-HQ-2022-5005 &
Univar Solutions USA Inc. ) EPCRA-HQ-2022-5005
)
)
)
FINAL ORDER
Pursuant to 40 C.F.R. § 22.18(b)-(c) of EPA’s Consolidated Rules of Practice, the
attached Consent Agreement resolving this matter is incorporated by reference into this Final Order and is hereby ratified.
The Respondent is ORDERED to comply with all terms of the Consent Agreement,
effective immediately.
So ordered. 1
ENVIRONMENTAL APPEALS BOARD
12/21/2022
Dated: ____ ______
Kathie A. Stein
Environmental Appeals Judge
1
The three-member panel ratifying this matter is composed of Environmental Appeals
Judges Aaron P. Avila, Wendy L. Blake, and Kathie A. Stein. BEFORE THE ENVIRONMENTAL APPEALS BOARD OF THE UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY, WASHINGTON, D.C.
)
IN THE MATTER OF: )
)
Univar Solutions USA Inc. ) Docket No. CAA-HQ-2022-5005
) EPCRA-HQ-2022-5005
Respondent )
)
______)
CONSENT AGREEMENT AND FINAL ORDER
The U.S. Environmental Protection Agency (EPA or Complainant) and Univar Solutions
USA Inc. (Univar Solutions or Respondent) agreed to a settlement of this action before the filing of a complaint, and thus this action is simultaneously commenced and concluded pursuant to 40 C.F.R. §§ 22.13(b) and 22.18(b)(2) of the Consolidated Rules of Practice Governing the Administrative Assessment of Civil Penalties and the Revocation/Termination or Suspension of Permits.
PRELIMINARY STATEMENT
-
This proceeding is an administrative action for the assessment of civil penalties instituted
pursuant to sections 113(a)(3) and (d) of the Clean Air Act (CAA), 42 U.S.C.
§§ 7413(a)(3) and (d), and sections 325(b)(3) and (c)(4) of the Emergency Planning and
Community Right-to-Know Act (EPCRA), 42 U.S.C. §§ 11045(b)(3) and (c)(4). Pursuant
to section 113(d) of the CAA, 42 U.S.C. § 7413(d), the Administrator and the Attorney
General jointly determined that this matter was appropriate for administrative penalty
action. -
Complainant is the Director of the Waste and Chemical Enforcement Division, Office of
Civil Enforcement, Office of Enforcement and Compliance Assurance, EPA
Headquarters. -
Respondent is Univar Solutions, a corporation formed in the state of Washington, and
authorized to conduct business in the states of Rhode Island, Pennsylvania, and Colorado,
among other states. -
This Consent Agreement and Final Order (CAFO or Consent Agreement) asserts that
Respondent has violated the chemical accident prevention provisions in 40 C.F.R. part 68,
promulgated pursuant to section 112(r)(7) of the CAA, 42 U.S.C. § 7412(r)(7), and the1general duty clause of section 112(r)(1) of the CAA and that Respondent is therefore in
violation of sections 112(r)(7) and (r)(1) of the CAA, 42 U.S.C. §§ 7412(r)(1) and (r)(7).
This CAFO also serves as notice pursuant to section 113(d)(2)(A) of the CAA, 42 U.S.C.
§ 7413(d)(2)(A), and 40 C.F.R. § 22.34, of the EPA’s intent to issue an order assessing
penalties for these CAA section 112(r) violations. -
Furthermore, this CAFO serves as notice that the EPA asserts that Respondent has
violated section 313 of EPCRA, 42 U.S.C. § 11023, and the Toxic Chemical Release
Reporting: Community Right-to-Know regulations in 40 C.F.R. part 372, promulgated
pursuant to sections 313 and 328 of EPCRA, 42 U.S.C. §§ 11023 and 11048, and that
Respondent is therefore in violation of section 313 of EPCRA, 42 U.S.C. § 11023. -
To avoid the disruption of orderly business activities and the expense of litigation and to
effect an expeditious settlement of this matter, Respondent, for purposes of this
proceeding only, and as provided by 40 C.F.R. § 22.18(b)(2), agrees as follows:a. Respondent admits that EPA has jurisdiction over the subject matter of this Consent Agreement and over the Respondent and waives any defenses it might have as to jurisdiction. Respondent agrees not to contest EPA’s jurisdiction to enter into this Consent Agreement, Complainant’s delegated authority to execute this Consent Agreement, EPA’s authority to enforce the terms of this Consent Agreement through the executed Final Order, or the jurisdiction of the Environmental Appeals Board (EAB) to enter and ratify the Consent Agreement through the Final Order. b. Respondent consents to the assessment of the full amount of the civil penalty as provided for in paragraph 208, below, and agrees to make payment in accordance with paragraphs 209-211. c. Respondent consents to all conditions specified in this Consent Agreement. d. Respondent waives any right it might have to contest through a judicial or administrative hearing the factual allegations and violations of law as alleged. e. Respondent waives the rights it might have to obtain judicial or administrative review of the Final Order accompanying this Consent Agreement under any otherwise applicable law. -
Complainant and Respondent entered into a Tolling Agreement dated June 25, 2021, as
amended by the First Amended Tolling Agreement on November 29, 2021, by the Second
Amended Tolling Agreement, which was executed by Univar Solutions on May 28, 2022,
by the Third Amended Tolling Agreement, which was executed by Univar Solutions on
September 16, 2022, and by the Fourth Amended Tolling Agreement, which was
executed on October 19, 2022 and tolls through November 30, 2022 any applicable
statute of limitations for civil claims brought by Complainant against Respondent for2violations of EPCRA section 313, 42 U.S.C. § 11023, and CAA section 112(r), 42 U.S.C.
§ 7412(r), and their implementing regulations.STATUTORY AND REGULATORY FRAMEWORK (AUTHORITY) CLEAN AIR ACT SECTION 112(r) AND REGULATORY BACKGROUND -
On November 15, 1990, the President signed into law the CAA Amendments of 1990.
The Amendments added section 112(r) to Title I of the CAA, 42 U.S.C. § 7412(r).
Section 112(r)(7) of the CAA, 42 U.S.C. § 7412(r)(7), requires the Administrator to
promulgate regulations that address release prevention, detection, and correction
requirements for stationary sources with threshold quantities of regulated substances
listed pursuant to section 112(r)(3) of the CAA, 42 U.S.C. § 7412(r)(3). -
On June 20, 1996, EPA promulgated a final rule known as the Risk Management
Program, 40 C.F.R. Part 68 – Chemical Accident Prevention Provisions, as amended,
which implements section 112(r)(7) of the CAA, 42 U.S.C. § 7412(r)(7). -
Section 112(r)(7)(E) of the CAA, 42 U.S.C. § 7412(r)(7)(E), provides that after the
effective date of any regulation or requirement imposed under this subsection, it shall be
unlawful for any person to operate any stationary source subject to such regulation or
requirement in violation of such regulation or requirement. Each regulation or
requirement under this subsection shall for purposes of sections 7413, 7414, 7416, 7420,
7604, and 7607 of this title and other enforcement provisions of this chapter, be treated as
a standard in effect under subsection (d). -
Section 302(e) of the CAA, 42 U.S.C. § 7602(e), defines “person” to include any
individual, corporation, partnership, association, state, municipality, political subdivision
of a state, and any agency, department, or instrumentality of the United States and any
officer, agent, or employee thereof. -
Section 112(r)(2)(C) of the CAA, 42 U.S.C. § 7412(r)(2)(C), and 40 C.F.R. § 68.3 define
“stationary source,” in part, as any buildings, structures, equipment, installations, or
substance-emitting stationary activities which belong to the same industrial group, which
are located on one or more contiguous properties, which are under the control of the same
person (or persons under common control), and from which an accidental release may
occur. -
Section 112(r)(2)(A) of the CAA, 42 U.S.C. § 7412(r)(2)(A), and 40 C.F.R. § 68.3 define
“accidental release” as an unanticipated emission of a regulated substance or other
extremely hazardous substance into the ambient air from a stationary source. -
Section 112(r)(2)(B) of the CAA, 42 U.S.C. § 7412(r)(2)(B), and 40 C.F.R. § 68.3 define
“regulated substance” as any substance listed pursuant to section 112(r)(3) of the CAA, as
amended, in 40 C.F.R. § 68.130.315. Section 112(r)(5) of the CAA, 42 U.S.C. § 7412(r)(5), mandates that the Administrator
establish a threshold quantity for any substance listed pursuant to section 112(r)(3) of the
CAA, 42 U.S.C. § 7412(r)(3). “Threshold quantity” is defined at 40 C.F.R. § 68.3 as the
quantity specified for regulated substances pursuant to section 112(r)(5) of the CAA, as
amended, listed in 40 C.F.R. § 68.130 and determined to be present at a stationary source
as specified in 40 C.F.R. § 68.115. -
The list of regulated substances and their respective threshold quantities is codified at
40 C.F.R. § 68.130. -
Section 112(r)(7) of the CAA, 42 U.S.C. § 7412(r)(7), and 40 C.F.R. part 68 require the
owner and operator of a stationary source to develop and implement a Risk Management
Program at each stationary source at which a regulated substance is present in more than a
threshold quantity to detect and minimize accidental releases of such substances from the
stationary source and to provide a prompt emergency response to such releases in order to
protect human health and the environment. The Risk Management Program is described
in a Risk Management Plan (RMP) that must be submitted to the EPA. -
Pursuant to section 112(r)(7) of the CAA, 42 U.S.C. § 7412(r)(7), and 40 C.F.R. § 68.150,
an RMP must be submitted for all covered processes by the owner or operator of a
stationary source subject to 40 C.F.R. part 68 no later than June 21, 1999, or the date on
which a regulated substance is first present above the threshold quantity in a process. -
“Process” is defined at 40 C.F.R. § 68.3 as any activity involving a regulated substance
including any use, storage, manufacturing, handling or on-site movement of such
substances, or combination of these activities. For the purposes of this definition, any
group of vessels that are interconnected, or separate vessels that are located such that a
regulated substance could be involved in a potential release, shall be considered a single
process. -
“Covered process” is defined at 40 C.F.R. § 68.3 as a process that has a regulated
substance present in more than a threshold quantity as determined under 40 C.F.R.
§ 68.115. -
The regulations at 40 C.F.R. § 68.10 set forth how the Chemical Accident Prevention
Provisions of 40 C.F.R. part 68 apply to each program level of covered processes.
Pursuant to 40 C.F.R. § 68.10(i), a covered process is subject to Program 3 requirements
if the process does not meet the requirements of Program 1, as described in 40 C.F.R.
§ 68.10(g), and if it is in a specified North American Industrial Classification System
(NAICS) code or is subject to the Occupational Safety and Health Administration
(OSHA) process safety management standard at 29 C.F.R. § 1910.119. -
Pursuant to 40 C.F.R. § 68.65(a), the owner or operator shall complete a compilation of
written process safety information before conducting any process hazard analysis required
by the rule. The compilation of written process safety information is to enable the owner
or operator and the employees involved in operating the process to identify and4understand the hazards posed by those processes involving regulated substances. This
process safety information shall include information pertaining to the hazards of the RMP
regulated substances used or produced by the process, information pertaining to the
technology of the process, and information pertaining to the equipment in the process. -
Pursuant to 40 C.F.R. § 68.65(d)(1)(v), information pertaining to the equipment in the
process shall include the ventilation system design. -
Pursuant to 40 C.F.R § 68.65(d)(2), the owner or operator shall document that equipment
complies with recognized and generally accepted good engineering practices
(RAGAGEP). Pursuant to 40 C.F.R § 68.65(d)(3), for existing equipment designed and
constructed in accordance with codes, standards, or practices that are no longer in general
use, the owner or operator shall determine and document that the equipment is designed,
maintained, inspected, tested, and operating in a safe manner. -
Pursuant to section 112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1), owners and operators
of stationary sources producing, processing, handling, or storing substances listed
pursuant to section 112(r)(3), 42 U.S.C. § 7412(r)(3), or any other extremely hazardous
substance, have a general duty, in the same manner and to the same extent as 29 U.S.C.
§ 654, to (a) identify hazards which may result from accidental releases of such
substances using appropriate hazard techniques; (b) design and maintain a safe facility
taking such steps as are necessary to prevent releases; and (c) minimize the consequences
of accidental releases that do occur. This section of the CAA is referred to as the General
Duty Clause (GDC). -
The term “extremely hazardous substance” means an extremely hazardous substance
within the meaning of section 112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1). Such
substances include any chemical which may, as a result of short-term exposures
associated with releases to the air, cause death, injury, or property damage due to its
toxicity, reactivity, flammability or corrosivity.1 The term includes, but is not limited to,
RMP regulated substances listed in section 112(r)(3), 42 U.S.C. § 7412(r)(3), and 40
C.F.R. § 68.130, and can include chemicals on the list of extremely hazardous substances
published under section 302 of EPCRA, 42 U.S.C. § 11002, at 40 C.F.R. part 355,
appendices A and B. Also, the release of any substance that causes death or serious injury
because of its acute toxic effect or as a result of an explosion or fire or that causes
substantial property damage by blast, fire, corrosion, or other reaction would create a
presumption that such substance is extremely hazardous. 2 -
The term “have a general duty in the same manner and to the same extent as section 654,
title 29 of the United States Code” means owners and operators must comply with the
GDC in the same manner and to the same extent as employers must comply with the
Occupational Safety Health Act administered by OSHA.1 Senate Committee on Environment and Public Works, Clean Air Act Amendments of 1989, Sen. Report No. 228, 101st Congress, 1st Session 211 (1989). 2 Id. 528. The standard of care for designing and maintaining a safe facility is to: base design
considerations upon applicable design codes, federal and state regulations, and recognized
industry practices; to prevent chemical releases or minimize their impacts; and to develop
and implement standard operating procedures, preventative maintenance programs,
personnel training programs, management of change practices, incident investigation
procedures, and self-auditing procedures. Examples of design codes and recognized
industry practices applicable to Univar Solutions include, for example, the codes and
guidelines specified in paragraph 56, collectively referred to as industry standards. See
also U.S. EPA, Guidance for Implementation of the General Duty Clause Clean Air Act
Section 112(r)(1) (May 2000). EPA consults these industry standards to understand the
hazards posed by the use of various extremely hazardous substances and the standard of
care that industry, itself, has found to be appropriate for managing those hazards. -
Section 113(d) of the CAA, 42 U.S.C. § 7413(d), states that the Administrator may issue
an administrative order against any person assessing a civil administrative penalty of up
to $25,000 per day of violation whenever, on the basis of any available information, the
Administrator finds that such person has violated or is violating any requirement or
prohibition of section 112(r) of the CAA, 42 U.S.C. § 7412(r), and its implementing
regulations, limited to matters where the total penalty sought does not exceed $200,000
and the first alleged date of violation occurred no more than 12 months prior to the
initiation of the administrative action, except where the Administrator and the Attorney
General jointly determine that a matter involving a larger penalty amount or longer period
of violation is appropriate for administrative penalty action. The Department of Justice
(DOJ) concurred on such a determination on June 1, 2021. Furthermore, the
Administrator may compromise, modify, or remit, with or without conditions, any
administrative penalty which may be imposed under this subsection. The Debt Collection
Improvement Act of 1996, 31 U.S.C. § 3701, as amended, and the Federal Civil Penalties
Inflation Adjustment Act Improvements Act of 2015, 28 U.S.C. § 2461, and
implementing regulations at 40 C.F.R. part 19, increased this statutory maximum penalty
to $51,796 per day per violation for violations that occurred after November 2, 2015,
where penalties are assessed on or after January 12, 2022; the administrative penalty that
can be sought without a determination is $414,364.EPCRA SECTION 313 STATUTORY AND REGULATORY BACKGROUND
-
Sections 313(a) and (b) of EPCRA, 42 U.S.C. §§ 11023(a) and (b), and 40 C.F.R.
§§ 372.22 and 372.30, provide that the owner or operator of a facility that (i) has ten or
more full-time employees, (ii) is in Standard Industrial Classification (SIC) Codes 20
through 39, and (iii) manufactured, processed, or otherwise used one or more toxic
chemicals, listed under section 313(f) of EPCRA and 40 C.F.R. §§ 372.28 and 372.65,
above their reporting threshold must submit to EPA and the state in which the facility is
located a chemical release form published under section 313(g) of EPCRA for each such
toxic chemical. -
Pursuant to sections 313 and 328 of EPCRA, 42 U.S.C. §§ 11023 and 11048, EPA
promulgated regulations setting forth requirements for the submission of information6relating to the release of toxic chemicals under section 313. These regulations, as
amended, are presently codified at 40 C.F.R. part 372. -
“Person” as defined by EPCRA section 329(7), 42 U.S.C. § 11049(7), means any
individual, trust, firm, joint stock company, corporation (including a government
corporation), partnership, association, state, municipality, commission, political
subdivision of a state, or interstate body. -
“Facility” as defined by 40 C.F.R. § 372.3 means all buildings, equipment, structures, and
other stationary items which are located on a single site or on contiguous or adjacent sites
and which are owned or operated by the same person (or by any person which controls, is
controlled by, or under common control with such person). A facility may contain more
than one establishment. -
“Full-time employee” as defined by 40 C.F.R. § 372.3 means 2,000 hours per year of full-
time equivalent employment. A facility would calculate the number of full-time
employees by totaling the hours worked during the calendar year by all employees,
including contract employees, and dividing that total by 2,000 hours. -
“Toxic chemical” as defined by 40 C.F.R. § 372.3 means a chemical or chemical category
listed in § 372.65. -
"Process" as defined by 40 C.F.R. § 372.3, means the preparation of a toxic chemical,
after its manufacture, for distribution in commerce (1) in the same form or physical state
as, or in a different form or physical state from, that in which it was received by the
person so preparing the substance, or (2) as part of an article containing the toxic
chemical. Process also applies to the processing of a toxic chemical contained in a
mixture or trade name product. -
Pursuant to section 313(f) of EPCRA, 42 U.S.C. § 11023(f) and 40 C.F.R. § 372.25, with
respect to a toxic chemical manufactured or processed, the toxic chemical reporting
threshold for the reporting form to be submitted on or before July of the succeeding year
is 25,000 pounds of the toxic chemical per year. -
Pursuant to section 313(g) of EPCRA, 42 U.S.C. § 11023(g), EPA published a uniform
Toxic Chemical Release Inventory Form (Form R) for facilities that are subject to the
reporting requirements of section 313. -
Sections 313(a) and (b) of EPCRA, 42 U.S.C. § § 11023(a) and (b), and 40 C.F.R.
§§ 372.30(d) and 372.27(d) provide that a complete and accurate reporting form for
activities involving a toxic chemical that occurred during a calendar year must be
submitted on or before July 1 of the next year. -
Pursuant to 40 C.F.R § 372.10(a), each person subject to the reporting requirements of
this part must retain the following records for a period of 3 years from the date of the
submission of a report under § 372.30:7(1) A copy of each report submitted by the person under § 372.30.
(2) All supporting materials and documentation used by the person to make the
compliance determination that the facility or establishments is a covered facility under
§ 372.22 or § 372.45.
(3) Documentation supporting the report submitted under § 372.30 including the
following:
(i) Documentation supporting any determination that a claimed allowable
exemption under § 372.38 applies.
(ii) Data supporting the determination of whether a threshold under § 372.25
applies for each toxic chemical.
(iii) Documentation supporting the calculations of the quantity of each toxic
chemical released to the environment or transferred to an off-site location.
(iv) Documentation supporting the use indications and quantity on site reporting
for each toxic chemical, including dates of manufacturing, processing, or use.
(v) Documentation supporting the basis of estimate used in developing any release
or off-site transfer estimates for each toxic chemical.
(vi) Receipts or manifests associated with the transfer of each toxic chemical in
waste to off-site locations.
(vii) Documentation supporting reported waste treatment methods, estimates of
treatment efficiencies, ranges of influent concentration to such treatment, the
sequential nature of treatment steps, if applicable, and the actual operating
data, if applicable, to support the waste treatment efficiency estimate for each
toxic chemical. -
A certification statement (Form A) may be submitted as an appropriate EPA reporting
form in lieu of a Form R if all criteria under 40 C.F.R. § 372.27 are met, including that
total annual releases and waste management of a listed chemical do not exceed 500
pounds. -
Each owner or operator who determines that the owner or operator may apply the
alternate threshold as specified under § 372.27(a) must retain the following records for a
period of 3 years from the date of the submission of the certification statement as required
under § 372.27(b):(1) A copy of each certification statement submitted by the person under § 372.27(b).
(2) All supporting materials and documentation used by the person to make the
compliance determination that the facility or establishment is eligible to apply the
alternate threshold as specified in § 372.27.
(3) Documentation supporting the certification statement submitted under § 372.27(b),
including the following:
(i) Data supporting the determination of whether the alternate threshold specified
under § 372.27(a) applies for each toxic chemical.
(ii) Documentation supporting the calculation of annual reportable amount, as defined
in § 372.27(a), for each toxic chemical, including documentation supporting the8calculations and the calculations of each data element combined for the annual
reportable amount.
(iii) Receipts or manifests associated with the transfer of each chemical in waste to off-
site locations. -
Pursuant to 40 C.F.R § 372.10(c), records retained under this section must be maintained
at the facility to which the report applies or from which a notification was provided. Such
records must be readily available for purposes of inspection by EPA. -
Section 325(c) of EPCRA, 42 U.S.C. § 11045(c), authorizes EPA to assess a civil penalty
of up to $25,000 per day for each violation of section 313 and its implementing
regulations. The Debt Collection Improvement Act of 1996, 31 U.S.C. § 3701, as
amended, and the Federal Civil Penalties Inflation Adjustment Act Improvements Act
of 2015, 28 U.S.C. § 2461, and implementing regulations at 40 C.F.R. part 19, increased
this statutory maximum penalty to $62,689 per day per violation for violations that
occurred after November 2, 2015, where penalties are assessed on or after
January 12, 2022.GENERAL ALLEGATIONS -
Respondent is incorporated in the state of Washington and at all times referred to herein
was a “person” as defined by section 302(e) of the CAA, 42 U.S.C. § 7602(e), and
section 329(7) of EPCRA, 42 U.S.C. § 11049(7). -
Respondent is the owner and operator of the following facilities as that term is defined in
section 112(a)(9), 42 U.S.C. § 7412(a)(9), of the CAA, and within the meaning of
section 112(r) of the CAA, 42 U.S.C. § 7412(r), and section 313 of EPCRA, 42 U.S.C.
§ 11023:Providence RI Facility (Harborside) 6 Harborside Boulevard Providence, RI 02905 Providence RI Facility (Terminal) 175 Terminal Road Providence, RI 02905 Middletown PA Facility 532 East Emaus Street Middletown, PA 17057 Bunola PA Facility 328 Bunola River Road Bunola, PA 15020 9Denver CO Facility
4300 Holly Street
Denver, CO 80216 -
Pursuant to section 114 of the CAA, 42 U.S.C. § 7414, the EPA conducted inspections of
the facilities on the following dates to determine Respondent’s compliance with
section 112(r) of the CAA, 42 U.S.C. § 7412(r), and 40 C.F.R. part 68:Providence RI Facility – Harborside – November 18, 2019 Providence RI Facility – Terminal – November 19, 2019 Middletown PA Facility – December 8, 2016 Bunola PA Facility - May 2, 2018 Denver CO Facility – March 21, 2018On August 6, 2021, EPA issued a Notice of Violation and Opportunity to Confer (NOVOC)
to Respondent, and the parties met to discuss the potential CAA section 112(r) violations. -
Pursuant to section 313 of EPCRA, 42 U.S.C. § 11023, and 40 C.F.R. part 372, the EPA
also conducted an inspection to determine Respondent’s compliance with section 313 of
EPCRA, 42 U.S.C. § 11023, and 40 C.F.R part 372 at the Denver CO facility on
March 21, 2018. On November 3, 2019, EPA issued a NOVOC to Respondent, and the
parties met to discuss the potential EPCRA section 313 violations. -
The following RMP regulated substances and their threshold quantities (TQ), listed under
40 C.F.R. § 68.130, can be found at the facilities designated below with their onsite
quantities:a. Harborside Facility (1) anhydrous ammonia (i) TQ 10,000 lbs. (ii) Onsite 363,164 lbs. in single process (2) aqueous ammonia (conc. 20% or greater) (i) TQ 20,000 lbs. (ii) Onsite 949,786 lbs. across two separate processes (3) chlorine (i) TQ 2,500 lbs. (ii) Onsite 1,426,500 lbs (4) formaldehyde (i) TQ 15,000 lbs. (ii) Onsite 16,996 lbs. in a single process b. Bunola Facility (1) sulfur dioxide (i) TQ 5,000 lbs. (ii) Onsite 38,000 lbs. in a single process 10(2) chlorine
(i) TQ 2,500 lbs.
(ii) Onsite 182,260 lbs. in a single process
(3) ammonia (conc 20% or greater)
(i) TQ 20,000 lbs.
(ii) Onsite 245,000 lbs. across two processes
c. Middletown Facility
(1) sulfur dioxide
(i) TQ 5,000 lbs.
(ii) Onsite 1,183,000 lbs. across two processes
(2) chlorine
(i) TQ 2,500 lbs.
(ii) Onsite 3,245,000 lbs. across two single processes
(3) anhydrous ammonia
(i) TQ 10,000 lbs.
(ii) Onsite 15,000 lbs. in a single process
(4) formaldehyde
(i) TQ 15,000 lbs.
(ii) Onsite 183,000 lbs. in a single process -
The RMP regulated substances listed in paragraph 49 are extremely hazardous substances
under section 112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1). -
Hydrogen chloride, hydrogen peroxide (52% or greater), nitric acid, and sulfuric acid are
listed as extremely hazardous substances under EPCRA section 302 and are extremely
hazardous substances within the meaning of the GDC of section 112(r)(1) of the CAA,
42 U.S.C. § 7412(r)(1). -
Potassium hydroxide (caustic potash 45%) is an extremely hazardous substance within the
meaning of the GDC of section 112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1). Potassium
hydroxide is a CERCLA-listed hazardous substance with a reportable quantity of 1,000
pounds. 40 C.F.R. § 302.4. It reacts exothermically with water as well as strong acids
such as nitric acid. It is corrosive to metals and causes severe skin burns and eye damage
per Univar Solutions’ safety data sheets (SDS). It also is incompatible with several
classes of materials per Univar Solutions’ SDS, including water, organic materials,
halogenated hydrocarbon, strong acids, and metals. -
Isopropanol is an extremely hazardous substance within the meaning of the GDC of
section 112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1). It is a chemical that may, as a result
of short-term exposures associated with releases to the air, cause death, injury, or property
damage due to its toxicity, flammability, or volatility. Isopropanol is a highly flammable
liquid vapor and may form explosive mixtures with air. Furthermore, vapor should not be
allowed to accumulate in low or confined areas and should not be exposed to heat or
ignition.1154. Methanol is an extremely hazardous substance within the meaning of the GDC of
section 112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1). Methanol is a chemical that may, as
a result of short-term exposures associated with releases to the air, cause death, injury, or
property damage due to its toxicity, flammability, or volatility. Methanol is a class 1B
flammable liquid that requires specialized fire suppression 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. -
Natural gas is an extremely hazardous substance within the meaning of the GDC of
section 112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1). It is a National Fire Protection
Association (NFPA) Category 4 substance (the most flammable NFPA characterization).
Natural gas is easily ignited by heat, sparks or flames and will form explosive mixtures
with air. Vapors from liquefied gas are initially heavier than air and spread along ground.
Vapors may travel to the source of ignition and flash back. -
The following key shows the acronyms for certain industry standards and RAGAGEP
referred to in this Consent Agreement.ANSI/ASME – American National Standards Institute/American Society of Mechanical Engineers ANSI/CGA – American National Standards Institute/Compressed Gas Association ANSI/ISEA – American National Standards Institute/International Safety Equipment Association ANSI/UL – American National Standards Institute/Underwriters Laboratories CGA – Compressed Gas Association IFC – International Fire Code NFPA – National Fire Protection Association EPA FINDINGS OF CAA SECTION 112(r) VIOLATIONS -
Complainant hereby states and alleges that Respondent has violated the CAA and federal
regulations promulgated thereunder as follows.HARBORSIDE FACILITY -
The Harborside facility is a chemical blending, repackaging, and distribution facility,
employing approximately 48 employees and operating a maximum of two 8-hour shifts
daily, seven days a week. Facility operations are spread across four primary site buildings
and include bulk chemical storage, bleach production and packaging, aqueous ammonia
product blending and repackaging, acid product blending and packaging, fleet and other
miscellaneous facility maintenance. -
The Harborside facility contains process equipment that produces, processes, handles,
stores, or uses anhydrous ammonia, aqueous ammonia (conc. 20% or greater), chlorine12and formaldehyde, which are RMP regulated substances under section 112(r)(3) of the
CAA, 42 U.S.C. § 7412(r)(3), and 40 C.F.R. § 68.130, and from which accidental releases
may occur. -
Respondent is the owner and operator of a “stationary source” under section 112(r)(2)(C)
of the CAA, 42 U.S.C. § 7412(r)(2)(C), and 40 C.F.R. § 68.3. -
Respondent produces, processes, handles, stores, or uses anhydrous ammonia in a single
process, aqueous ammonia (conc. 20% or greater) in two separate processes, chlorine in a
single process, and formaldehyde in a single process, at levels greater than their
respective threshold quantities as defined in 40 C.F.R. §§ 68.130 and 68.115; thus, these
processes are covered processes as defined in 40 C.F.R. § 68.3. -
From the time Respondent first had onsite a greater than a threshold quantity of an RMP
regulated substance in a process, Respondent was subject to the requirements of sections
112(r)(7) and (r)(7)(E) of the CAA, 42 U.S.C. §§ 7412(r)(7) and (r)(7)(E), and 40 C.F.R.
part 68 because it owned and operated a stationary source that had more than a threshold
quantity of the RMP regulated substances in a covered process as identified in paragraph
61. -
Thus, Respondent was required to submit a RMP pursuant to 40 C.F.R. § 68.12(a) and to
comply with the Program 3 prevention requirements pursuant to 40 C.F.R. § 68.10(i) for
the following reasons: 1) the covered processes at the facility did not meet the eligibility
requirements of Program 1; 2) the facility is specified as being in the covered NAICS
code 3251; and 3) it is subject to the OSHA process safety management standard at 29
C.F.R. § 1910.119. The Respondent submitted an RMP to EPA on May 30, 2019. -
In addition to the RMP regulated substances in covered processes listed above,
Respondent also produces, processes, handles, stores, or uses hydrogen chloride, natural
gas, and propane (propane is an RMP regulated substance below threshold quantity in a
process at the facility) that could cause accidental releases. Because of toxicity, reactivity,
flammability or corrosivity, these chemicals are extremely hazardous substances within
the meaning of section 112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1). -
As an owner or operator of a stationary source that produces, processes, handles, stores,
or uses RMP regulated substances and other extremely hazardous substances, Respondent
was, at all times relevant to the allegations herein, also subject to the GDC in section
112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1).RMP VIOLATIONS Count 1 -
Paragraphs 1-29 and 45-65 are realleged as if fully set forth herein.
-
Respondent failed to adequately label pipes associated with covered processes throughout
13the Harborside facility, specifically, on: 1) chlorine and other process chemical piping
interior to the bleach plant; 2) finished product piping between the bleach plant and the
bulk aboveground storage tank farm located immediately to the south; and 3)
aqueous/anhydrous ammonia piping exterior to the building 5-alkali area in accordance
with relevant RAGAGEP and industry standards of care that include ANSI/ASME
A13.1(2015), sections 3.2, 3.3, and 3.4. -
Respondent’s failure to adequately label pipes throughout the Harborside facility,
specifically on the processes identified in paragraph 67, and thus not complying with
RAGAGEP and industry standards of care is a violation of 40 C.F.R. §§68.65(d)(2)
and/or (d)(3) and sections 112(r)(7) and (7)(E) of the CAA, 42 U.S.C. §§ 7412(r)(7) and
7(E).Count 2 -
Paragraphs 1-29 and 45-65 are realleged as if fully set forth herein.
-
Respondent failed to adequately label tank contents and service associated with a covered
process on bulk chemical above ground storage tanks exterior to the bleach plant in
accordance with relevant RAGAGEP and industry standards of care that include 29
C.F.R. § 1910.1200(f)(6). -
Respondent’s failure to adequately label tank contents and service, specifically on the
process identified in paragraph 70, and thus not complying with RAGAGEP and industry
standards of care is a violation of 40 C.F.R §§ 68.65(d)(2) and/or (d)(3) and sections
112(r)(7) and (7)(E) of the CAA, 42 U.S.C. §§ 7412(r)(7) and 7(E).Count 3 -
Paragraphs 1-29 and 45-65 are realleged as if fully set forth herein.
-
Respondent failed to equip the ammonia railcar unloading area associated with a covered
process with any means of egress in case of emergency in the fenced areas associated
with building F5 in accordance with relevant RAGAGEP and industry standards of care
that include 29 C.F.R. § 1910.22(c). -
Respondent’s failure to equip the ammonia railcar unloading area associated with a
covered process specified in paragraph 73 with any means of egress in case of emergency
in the fenced areas associated with building F5 and thus not complying with RAGAGEP
and industry standards of care is a violation of 40 C.F.R §§ 68.65(d)(2) and/or (d)(3) and
sections 112(r)(7) and (7)(E) of the CAA, 42 U.S.C. §§ 7412(r)(7) and 7(E).Count 4 -
Paragraphs 1-29 and 45-65 are realleged as if fully set forth herein.
-
Respondent failed to label the king valve associated with a covered process on the bulk
14anhydrous ammonia storage tank identifying it as the isolation valve for the tank in
accordance with relevant RAGAGEP and industry standards of care that include
ANSI/ASME 2007 A.13.1 and NFPA 400 (2019) 23.1.4.4.1(3), referencing NFPA 55
(2016) 7.1.7.4.1. -
Respondent’s failure to label the king valve on the covered process specifically identified
in paragraph 76 and thus not complying with RAGAGEP and industry standards of care is
a violation of 40 C.F.R §§ 68.65(d)(2) and/or (d)(3) and sections 112(r)(7) and (7)(E) of
the CAA, 42 U.S.C. §§ 7412(r)(7) and (7)(E).Count 5 -
Paragraphs 1-29 and 45-65 are realleged as if fully set forth herein.
-
Respondent allowed the tank saddle for the bulk anhydrous ammonia storage tank, that is
associated with a covered process and located in a flood plain, to show signs of having
shifted over time and failed to bolt it down to its concrete pad in accordance with relevant
RAGAGEP and industry standards of care that include ANSI/CGA G-2.1 (2014), section
6.4.3. -
Respondent’s failure in allowing the tank saddle associated with a covered process for the
bulk anhydrous ammonia storage tank specifically identified in paragraph 79 to show
signs of having shifted over time and failing to bolt it down to the concrete pad on which
it is located and thus not complying with RAGAGEP and industry standards of care is a
violation of 40 C.F.R §§ 68.65(d)(2) and/or (d)(3) and sections 112(r)(7) and (7)(E) of the
CAA, 42 U.S.C. §§ 7412(r)(7) and (7)(E).Count 6 -
Paragraphs 1-29 and 45-65 are realleged as if fully set forth herein.
-
The Harborside facility has a perimeter fence around the entire operation, including the
covered processes. Respondent failed to equip gate doors with panic hardware to allow
for egress in the event of an emergency in accordance with relevant RAGAGEP and
industry standards of care that include: NFPA 101(2018), section 7.2.1.7(1); NFPA 101
(2018), section 7.11.6; and ANSI/UL 305-2012. -
Respondent’s failure to equip gate doors with panic hardware to allow for egress in the
event of an emergency in the processes identified in paragraph 82 and thus not complying
with RAGAGEP and industry standards of care is a violation of 40 C.F.R. §§ 68.65(d)(2)
and/or (d)(3) and sections 112(r)(7) and (7)(E) of the CAA, 42 U.S.C. §§ 7412(r)(7) and
(7)(E).15GDC VIOLATIONS
Count 7 -
Paragraphs 1-29 and 45-65 are realleged as if fully set forth herein.
-
Respondent failed to use permanent electrical connections to power permanent electrical
equipment located in the process bleach plant and the maintenance areas in accordance
with relevant RAGAGEP and industry standards of care that include NFPA 1 (2018),
Section 11.1.7.6 and NFPA 70 (2017), 400.8, and used extension cords instead, creating a
fire hazard. As a result, Respondent failed to meet its general duty to design and maintain
a safe facility. -
Respondent’s failure to meet its general duty to design and maintain a safe facility, taking
such steps as are necessary to prevent releases, is a violation of the GDC of section
112(r)(1) of the CAA, 42 U.S.C. §§ 7412(r)(1).Count 8 -
Paragraphs 1-29 and 45-65 are realleged as if fully set forth herein.
-
Respondent failed to store incompatible chemicals properly by storing incompatible
chemicals adjacent to one another in the flammable storage area exterior to the main site
building in the loading area, in the above ground storage tank farm adjacent to the acid
shed and in the truck maintenance area. Respondent failed to comply with relevant
RAGAGEP and industry standards of care that include: NFPA 1 (2012) section 66.9.17
2012 ed.); NFPA 400 (2010) section 6.1.12; Separation of Incompatible Materials
(2010 ed.); for Safe Warehousing of Chemicals, chapter 2.6; and the Center for Chemical
Process Safety’s Safe Storage and Handling of Reactive Materials, chapter 5.2. As a
result, Respondent failed to meet its general duty to design and maintain a safe facility. -
Respondent’s failure to meet its general duty to design and maintain a safe facility, taking
such steps as are necessary to prevent releases, is a violation of the GDC of section
112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1).Count 9 -
Paragraphs 1-29 and 45-65 are realleged as if fully set forth herein.
-
Respondent failed to label the contents of the cage containing propane cylinders adjacent
to the ammonia above ground storage tank farms in accordance with relevant RAGAGEP
and industry standards of care that include NFPA 704 (2017), section 4.3 and NFPA 704
(2017), chapter 9. As a result, Respondent failed to meet its general duty to design and
maintain a safe facility.1692. Respondent’s failure to meet its general duty to design and maintain a safe facility, taking
such steps as are necessary to prevent releases, is a violation of the GDC of section
112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1).Count 10 -
Paragraphs 1-29 and 45-65 are realleged as if fully set forth herein.
-
Respondent failed to place NFPA diamonds on building entrances, doors, or bulk
chemical storage room entrances that lead to areas where a range of extremely hazardous
substances are stored, including entrances to the bleach plant and entrance doors to the
building 5 – alkali area, in accordance with relevant RAGAGEP and industry standards of
care that include: NFPA 1 (2018), section 63.2.11; NFPA 704 (2017), section 4.3; and
NFPA 704 (2017), chapter 9. As a result, Respondent failed to meet its general duty to
design and maintain a safe facility. -
Respondent’s failure to meet its general duty to design and maintain a safe facility, taking
such steps as are necessary to prevent releases, is a violation of the GDC of section
112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1).Count 11 -
Paragraphs 1-29 and 45-65 are realleged as if fully set forth herein.
-
Respondent failed to make signage indicating emergency egresses readily visible in the
flammables storage area (building 1) or in building 5 – alkali area in accordance with
relevant RAGAGEP and industry standards of care that include NFPA 1 (2018), sections
4.4.3.2.1 and 4.4.3.2.2. As a result, Respondent failed to meet its general duty to design
and maintain a safe facility. -
Respondent’s failure to meet its general duty to design and maintain a safe facility, taking
such steps as are necessary to prevent releases, is a violation of the GDC of section
112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1).Count 12 -
Paragraphs 1-29 and 45-65 are realleged as if fully set forth herein.
-
Respondent failed to cover adequately open chemical storage containers of flammable
liquids with ill-fitting and or missing bungs in the flammables storage area and the acid
shed in accordance with relevant RAGAGEP and industry standards of care that include
NFPA 1 (2018) 66.18.4.1. As a result, Respondent failed to meet its general duty to
design and maintain a safe facility.17101. Respondent’s failure to meet its general duty to design and maintain a safe facility, taking
such steps as are necessary to prevent releases, is a violation of the GDC of section
112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1).Count 13 -
Paragraphs 1-29 and 45-65 are realleged as if fully set forth herein.
-
Respondent failed to provide emergency lighting and sufficient aisle spacing for
flammable material storage racks in the flammables storage area (building 1) in
accordance with relevant RAGAGEP and industry standards of care that include NFPA
101 (2018), section 7.3.4.1.2 and NFPA 101 (2018), section 101. As a result, Respondent
failed to meet its general duty to design and maintain a safe facility. -
Respondent’s failure to meet its general duty to design and maintain a safe facility, taking
such steps as are necessary to prevent releases, is a violation of the GDC of Section
112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1).TERMINAL ROAD FACILITY -
The Terminal Road facility, a separate facility from the Harborside facility, is used as a
chemical storage warehouse and distribution/shipping facility. -
The Terminal Road facility contains process equipment that produces, processes, handles,
stores, or uses anhydrous ammonia, aqueous ammonia (conc. 20% or greater), chlorine
and formaldehyde, from which an accidental release may occur. These RMP regulated
substances may occur in amounts less than RMP threshold amounts and, as such, the
processes associated with these RMP regulated substances also are subject to the GDC. -
In addition to the RMP regulated substances listed above, Respondent also produces,
processes, handles, stores, or uses other extremely hazardous substances, such as
hydrogen chloride, natural gas, and propane, among other toxic, flammable, caustic, and
corrosive chemicals. -
The Terminal Road facility is an owner and operator of a “stationary source” under
section 112(r)(2)(C) of the CAA, 42 U.S.C. § 7412(r)(2)(C), and 40 C.F.R. § 68.3. -
As an owner and operator of a stationary source that produces, processes, handles, stores,
or uses RMP regulated substances and other extremely hazardous substances, Respondent
was at all times relevant to the allegations herein, also subject to the GDC in section
112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1).18GDC VIOLATIONS
Count 14 -
Paragraphs 1-29, 45-57, and 105-109 are realleged as if fully set forth herein.
-
Respondent did not provide NFPA diamonds on building entrance doors or on fenced
cages surrounding oxidizer storage areas in accordance with relevant RAGAGEP and
industry standards of care that include: NFPA 1 (2018), section 63.2.11; NFPA 704
(2017), section 4.1; NFPA 704 (2017), section 4.3; and NFPA 704 (2017), chapter 9. As a
result, Respondent failed to meet its general duty to design and maintain a safe facility. -
Respondent’s failure to meet its general duty to design and maintain a safe facility, taking
such steps as are necessary to prevent releases, is a violation of the GDC of section
112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1).Count 15 -
Paragraphs 1-29, 45-57, and 105-109 are realleged as if fully set forth herein.
-
Respondent failed to equip fenced cages surrounding the oxidizer storage areas with panic
hardware on the gate doors to allow for egress in the event of an emergency in accordance
with relevant RAGAGEP and industry standards of care that include: NFPA 101 (2018);
section 7.2.1.7.1(1); NFPA 101 (2018), section 7.11.6; and ANSI/UL 305 (2012). As a
result, Respondent failed to meet its general duty to design and maintain a safe facility. -
Respondent’s failure to meet its general duty to design and maintain a safe facility, taking
such steps as are necessary to prevent releases, is a violation of the GDC of
section 112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1).Count 16 -
Paragraphs 1-29, 45-57, and 105-109 are realleged as if fully set forth herein.
-
Respondent failed to provide signage to indicate emergency egresses and associated
emergency lighting was not readily visible in the main warehouse–combustibles area in
accordance with relevant RAGAGEP and industry standards of care that include NFPA 1
(2018), sections 4.4.3.2.1 and 4.4.3.2.2. As a result, Respondent failed to meet its general
duty to design and maintain a safe facility. -
Respondent’s failure to meet its general duty to design and maintain a safe facility, taking
such steps as are necessary to prevent release, is a violation of the GDC of section
112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1).19Count 17
-
Paragraphs 1-29, 45-57, and 105-109 are realleged as if fully set forth herein.
-
Respondent stored incompatible chemicals adjacent to one another in multiple areas of
the facility. In the corrosives loading docks, sulfuric acid was stored next to potassium
hydroxide (caustic potash 45%) and ammonium hydroxide. In the combustibles area of
the main warehouse, nitric acid was stored next to potassium permanganate, ammonium
persulfate, and hydrogen peroxide; hydrochloric acid was stored next to aluminum
sulfate. These incompatible chemicals were not stored in accordance with relevant
RAGAGEP and industry standards of care that include NFPA 400 (2016),
sections 6.1.12.1 and 6.1.12.2. As a result, Respondent failed to meet its general duty to
design and maintain a safe facility. -
Respondent’s failure to meet its general duty to design and maintain a safe facility, taking
such steps as are necessary to prevent releases, is a violation of the GDC of
section 112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1).Count 18 -
Paragraphs 1-29, 45-57, and 105-109 are realleged as if fully set forth herein.
-
Respondent’s concrete secondary containment berm enclosing the oxidizer storage area
was damaged in several areas that could lead to potential migration of liquid oxidizer
outside of the dedicated storage area in the event of releases. The state of disrepair of the
concrete secondary containment berm was not in accordance with relevant RAGAGEP
and industry standards of care that include NFPA 400 (2016), section 6.2.1.9.2.1. As a
result, Respondent failed to meet its general duty to design and maintain a safe facility. -
Respondent’s failure to meet its general duty to design and maintain a safe facility, taking
such steps as are necessary to prevent releases, is a violation of the GDC of
section 112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1).Count 19 -
Paragraphs 1-29, 45-57, and 105-109 are realleged as if fully set forth.
-
Respondent failed to label cages located within 25 feet of building doors exterior to the
northern building wall of the main warehouse with their contents of the facility’s propane
cylinders. This inaction was not in accordance with relevant RAGAGEP and industry
standards of care that include NFPA 55 (2016), section 7.6.2.5 and NFPA 704 (2017),
section 4.1.1. As a result, Respondent failed to meet its general duty to design and
maintain a safe facility. -
Respondent’s failure to meet its general duty to design and maintain a safe facility, taking
such steps as are necessary to prevent releases, is a violation of the GDC of
section 112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1).20Count 20
-
Paragraphs 1-29, 45-57, and 105-109 are realleged as if fully set forth herein.
-
Respondent powered permanent electrical equipment in the maintenance garage using
extension cords rather than permanent electrical connections and flammables and acids
were repackaged in this area, and some chemicals were stored in the area. These actions
were not in accordance with relevant RAGAGEP and industry standards of care that
include NFPA 400 (2016), section 6.1.8.2.2. As a result, Respondent failed to meet its
general duty to design and maintain a safe facility. -
Respondent’s failure to meet its general duty to design and maintain a safe facility, taking
such steps as are necessary to prevent releases, is a violation of the GDC of
section 112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1).Count 21 -
Paragraphs 1-29, 45-57, and 105-109 are realleged as if fully set forth herein.
-
Respondent failed to consistently label chemical storage containers throughout the
combustibles area in the main warehouse, such that storage container labels did not
consistently point outward to notify emergency response personnel of contents in the case
of an emergency in accordance with relevant RAGAGEP and industry standards of care
that include NFPA 400 (2016), section 6.1.8.2.2. As a result, Respondent failed to meet
its general duty to design and maintain a safe facility. -
Respondent’s failure to meet its general duty to design and maintain a safe facility, taking
such steps as are necessary to prevent releases, is a violation of the GDC of
section 112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1).Count 22 -
Paragraphs 1-29, 45-57, and 105-109 are realleged as if fully set forth herein.
-
Respondent failed to provide the top-most rack of materials stored in the southwestern
corner of the warm storage area with adequate clearance from ceiling level to allow for
proper sprinkler function in the event of a fire in accordance with relevant RAGAGEP
and industry standards of care that include NFPA 13 (2016), section 8.5.6.1. As a result,
Respondent failed to meet its general duty to design and maintain a safe facility. -
Respondent’s failure to meet its general duty to design and maintain a safe facility, taking
such steps as are necessary to prevent releases, is a violation of the GDC of
section 112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1).21BUNOLA FACILITY
-
The Bunola facility manages certain chemicals for warehouse, repackaging, and
distribution for its customers. The property includes a large warehouse, a caustic soda
tank farm, a corrosives tank farm with blending/filling area, a bleach tank farm with
filling area, and a solvent plant and tank farm. The warehouse stores dry products in the
main area with drum and liquid storage in the other half of the warehouse. -
The Bunola facility contains process equipment that produces, processes, handles, stores,
or uses anhydrous ammonia, aqueous ammonia (conc. 20% or greater), chlorine and
sulfur dioxide, which are RMP regulated substances under section 112(r)(3) of the CAA,
42 U.S.C. § 7412(r)(3), and 40 C.F.R. § 68.130, and from which accidental releases may
occur. -
Respondent is an owner and operator of a “stationary source” under section 112(r)(2)(C)
of the CAA, 42 U.S.C. § 7412(r)(2)(C), and 40 C.F.R. § 68.3. -
Respondent produces, processes, handles, stores, or uses anhydrous ammonia in a single
process, aqueous ammonia (conc. 20% or greater) in a single process, chlorine in a single
process, and sulfur dioxide in a single process at levels greater than their respective
threshold quantities as defined in 40 C.F.R. §§ 68.130 and 68.115; thus, these are covered
processes as defined in 40 C.F.R. § 68.3. -
From the time Respondent first had on site greater than a threshold quantity of an RMP
regulated substance in a process, Respondent was subject to the requirements of sections
112(r)(7) and (7)(E) of the CAA, 42 U.S.C. §§ 7412(r)(7) and (r)(7)(E), and 40 C.F.R.
part 68 because it was the owner and operator of a stationary source that had more than
the respective threshold quantities of the RMP regulated substances in the covered
processes identified in paragraph 140. -
Thus, Respondent was required to submit an RMP pursuant to 40 C.F.R. § 68.12(a) and to
comply with the Program 3 prevention requirements pursuant to 40 C.F.R. § 68.10(i) for
the following reasons: 1) The covered process at the facility did not meet the eligibility
requirements of Program 1; 2) the facility is specified as NAICS 32511; and 3) it is
subject to the OSHA process safety management standard at 29 C.F.R. § 1910.119. The
Respondent submitted an RMP to EPA on April 5, 2018. -
In addition to the RMP regulated substances in covered processes listed above,
Respondent also produces, processes, handles, stores, or uses isopropanol, which is an
extremely hazardous substance within the meaning of section 112(r)(1) of the Clean Air
Act, 42 U.S.C. § 7412(r)(1), and from which an accidental release may occur. -
As an owner and operator of a stationary source that produces, processes, handles, stores,
or uses RMP regulated substances and other extremely hazardous substances, Respondent
was, at all times relevant to the allegations herein, also subject to the GDC in
section 112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1).22RMP VIOLATION
Count 23 -
Paragraphs 1-29, 45-57, and 137-144 are realleged as if fully set forth herein.
-
Respondent failed to complete a compilation of written process safety information that
included the ventilation system design, to provide adequate ventilation in the chlorine
storage rooms associated with a covered process to prevent accumulation of toxic vapors
due to chlorine releases from a chlorine storage room cylinder, and to document that the
ventilation system design complied with relevant RAGAGEP and industry standards of
care that include: NFPA 55 (2005/2013) sections 7.9.2.1, 7.9.2.1.3; 6.4.1; 6.4.2; CGA P-1
2008, section 6.5.2; and IFC chapter 50 (2012/2018) section 5003.8.4.2. -
Respondent’s failure to complete a compilation of written process safety information that
included the ventilation system design, to provide adequate ventilation in the chlorine
storage rooms associated with a covered process to prevent accumulation of toxic vapors
due to chlorine releases from a chlorine storage room cylinder, and to document that the
ventilation system design complied with RAGAGEP was a violation of 40 C.F.R.
§§ 68.65(d)(1)(v) and/or (d)(2) and/or sections 112(r)(7) and (7)(E) of the CAA, 42
U.S.C. §§ 7412(r)(7) and 7(E).GDC VIOLATION Count 24 -
Paragraphs 1-29, 45-57, and 137-144 are realleged as if fully set forth herein.
-
Respondent failed to utilize the proper metal storage tote for flammable liquids, including
isopropanol, located in an outdoor location with proper weather protection in accordance
with relevant RAGAGEP and industry standards of care that include NFPA 30
(2008/2012/2015) section 4.3.1. As a result, Respondent failed meet its general duty to
design and maintain a safe facility. -
Respondent’s failure to meet its general duty to design and maintain a safe facility, taking
such steps as are necessary to prevent releases, is a violation of the GDC of section
112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1).MIDDLETOWN FACILITY -
The Middletown facility manages chemicals for warehouse, repackaging, and distribution
for its customers. Chemical storage is organized into four primary areas: (1) corrosives
loading docks, (2) bag storage, (3) main warehouse – combustibles and (4) warm storage
area.23152. The Middletown facility contains process equipment that produces, processes, handles,
stores, or uses anhydrous ammonia, chlorine, formaldehyde, and sulfur dioxide, which are
RMP regulated substances under section 112(r)(3) of the CAA and 40 C.F.R. § 68.130,
and from which an accidental release may occur. -
The Middletown facility is an owner and operator of a “stationary source” under CAA
section 112(r)(2)(C), 42 U.S.C. § 7412(r)(2)(C), and 40 C.F.R. § 68.3. -
Respondent produces, processes, handles, stores, or uses anhydrous ammonia in a single
process, chlorine in two separate processes, formaldehyde in a single process, and sulfur
dioxide in two separate processes at levels greater than their respective threshold
quantities as defined in 40 C.F.R. § 68.115; thus, these processes are covered processes as
defined in 40 C.F.R. § 68.3. -
From the time Respondent first had onsite a greater than a threshold quantity of an RMP
regulated substance in a process, Respondent was subject to the requirements of
sections 112(r)(7) and (r)(7)(E) of the CAA, 42 U.S.C. § 7412(r)(7) and (r)(7)(E), and 40
C.F.R. part 68 because it was the owner and operator of a stationary source that had more
than a threshold quantity of a regulated substance in a process. -
Thus, Respondent was required to submit an RMP pursuant to 40 C.F.R. § 68.12(a) and to
comply with the Program 3 prevention requirements. Respondent must meet the
Program 3 prevention requirements pursuant to 40 C.F.R. § 68.10(i) for the following
reasons: 1) The covered process at the facility did not meet the eligibility requirements of
Program 1; 2) the facility is specified as NAICS code 32511; and 3) it is subject to the
OSHA process safety management standard at 29 C.F.R. § 1910.119. The Respondent
submitted an RMP to EPA on December 19, 2018. -
In addition to the RMP regulated substances in covered processes listed above,
Respondent also produces, processes, handles, stores, or uses flammable liquids including
chlorine, which is an extremely hazardous substance within the meaning of
section 112(r)(1) of the Clean Air Act, 42 U.S.C. § 7412(r)(1), and from which an
accidental release may occur. -
As an owner and operator of a stationary source that produces, processes, handles, stores,
or uses RMP regulated substances, and other extremely hazardous substances,
Respondent was, at all times relevant to the allegations herein, also subject to the GDC in
section 112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1).RMP VIOLATION Count 25 -
Paragraphs 1-29, 45-57, and 151-158 are realleged as if fully set forth herein.
-
Respondent failed to complete a compilation of written process safety information that
included the ventilation system design, to document that the ventilation system design24complied with RAGAGEP, and to provide adequate ventilation in the chlorine storage
rooms associated with a covered process to prevent accumulation of toxic vapors due to
chlorine releases from a chlorine storage room cylinder were not in accordance with
relevant RAGAGEP and industry standards of care that include: NFPA 55 (2005/2013)
sections 7.9.2.1, 7.9.2.1.3; 6.4.1; 6.4.2; CGAP-1 2008, section 6.5.2; and IFC chapter 50
(2012/2018) section 5003.8.4.2. -
Respondent’s failures to complete a compilation of written process safety information that
included the ventilation system design, to document that the ventilation system design
complied with RAGAGEP, and to provide adequate ventilation in the chlorine storage
rooms associated with a covered process to prevent accumulation of toxic vapors due to
chlorine releases from a chlorine storage room cylinder and not complying with
RAGAGEP and industry standards of care is a violation of 40 C.F.R. §§ 68.65(d)(1)(v)
and/or (d)(2) and/or sections 112(r)(7) and (7)(E) of the CAA, 42 U.S.C. §§ 7412(r)(7)
and 7(E).GDC VIOLATION Count 26 -
Paragraphs 1-29, 45-57, and 151-158 are realleged as if fully set forth herein.
-
Respondent failed to utilize the proper metal storage tote for flammable liquids, including
chlorine, located in an outdoor location with proper weather protection in accordance with
relevant RAGAGEP and industry standards of care that include NFPA 30
(2008/2012/2015) section 4.3.1. As a result, Respondent failed meet its general duty to
design and maintain a safe facility, taking such steps as are necessary to prevent releases. -
Respondent’s failure to meet its general duty to design and maintain a safe facility, taking
such steps as are necessary to prevent releases, is a violation of the GDC of section
112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1).DENVER FACILITY -
The Denver facility blends, repackages, and distributes chemicals for a variety of uses.
The chemicals the Denver facility distributes are handled in several ways. The bulk
chemicals can be offloaded from railcars or tanker trucks into atmospheric storage tanks,
blended, and/or repackaged. The bulk chemicals are distributed to customers via tank
trucks, drums, or totes. Packaged chemicals are either repackaged and/or relabeled or
distributed directly to the customers in the original packaging. -
The Denver facility contains process equipment that produces, processes, handles, stores,
or uses extremely hazardous substances, including but not limited to, nitric acid, sulfuric
acid, methanol, and potassium hydroxide (caustic potash 45%). -
Respondent is an owner and operator of a “stationary source” under section112(r)(2)(C)
of the CAA, 42 U.S.C. § 7412(r)(2)(C), and 40 C.F.R. § 68.3.
25
168. As an owner and operator of a stationary source that produces, processes, handles, stores,
or uses extremely hazardous substances, Respondent was, at all times relevant to the
allegations herein, also subject to the GDC in section 112(r)(1) of the CAA, 42 U.S.C.
§ 7412(r)(1).GDC COUNTS Count 27 -
Paragraphs 1-29, 45-57, and 165-168 are realleged as if fully set forth herein.
-
Respondent failed to perform any formal external or internal inspections of the
approximately 50 above-ground tanks in service for 23-24 years, which contained nitric
acid, sulfuric acid, and methanol, among other chemical substances in accordance with
relevant RAGAGEP and industry standards of care that include Univar’s Operating
Standards Manual (OSM) 3.17 Tank Inspection Program and Steel Tank Institute
Standard and American Petroleum Institute Standard 653 Tank Inspection, Repair,
Alteration and Reconstruction. As a result, Respondent failed to meet its general duty to
design and maintain a safe facility. -
Respondent’s failure to meet its general duty to design and maintain a safe facility, taking
such steps as are necessary to prevent releases, is a violation of the GDC of
section 112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1).Count 28 -
Paragraphs 1-29, 45-57, and 165-168 are realleged as if fully set forth herein.
-
Respondent failed to maintain records confirming monthly and annual tank inspections
were performed on tanks that included nitric acid, sulfuric acid and methanol, and to keep
the records on site for three years in accordance with relevant RAGAGEP and industry
standards of care that include Univar’s OSM 3.17 Tank Inspection Program. As a result,
Respondent failed to meet its general duty to design and maintain a safe facility. -
Respondent’s failure to meet its general duty to design and maintain a safe facility, taking
such steps as are necessary to prevent releases, is a violation of the GDC of
section 112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1).Count 29 -
Paragraphs 1-29, 45-57, and 165-168 are realleged as if fully set forth herein.
-
Respondent failed to maintain labeling on a storage tank that contained potassium
hydroxide (caustic potash 45%) in accordance with relevant RAGAGEP and industry
standards of care that include Univar’s OSM 3.17 Tank Inspection Program. As a result,26Respondent failed to meet its general duty to design and maintain a safe facility, taking
such steps as are necessary to prevent releases. -
Respondent’s failure to meet its general duty to design and maintain a safe facility, taking
such steps as are necessary to prevent releases, is a violation of the GDC of section
112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1).Count 30 -
Paragraphs 1-29, 45-57, and 165-168 are realleged as if fully set forth herein.
-
Respondent failed to inspect and provide documentation that monthly inspections of fixed
piping, valves and flexible hoses containing nitric acid, sulfuric acid and methanol,
among other chemical substances, were performed in 2016 and 2017 in accordance with
relevant RAGAGEP and industry standards of care that include Univar OMS 3.20
Repacking, Personal & Environmental Safety Procedure. As a result, Respondent failed to
meet its general duty to design and maintain a safe facility. -
Respondent’s failure to meet its general duty to design and maintain a safe facility, taking
such steps as are necessary to prevent releases, is a violation of the GDC of section
112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1).Count 31 -
Paragraphs 1-29, 45-57, and 165-168 are realleged as if fully set forth herein.
-
Responded failed to ensure annual pressure testing of flexible hoses containing nitric acid,
sulfuric acid and methanol, among other chemical substances in accordance with relevant
RAGAGEP and industry standards of care that include Univar OMS 3.20 Repacking,
Personal & Environmental Safety Procedure. As a result, Respondent failed to meet its
general duty to design and maintain a safe facility. -
Respondent’s failure to meet its general duty to design and maintain a safe facility, taking
such steps as are necessary to prevent releases, is a violation of the GDC of section
112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1).EPA FINDINGS OF EPCRA SECTION 313 VIOLATIONS -
At all times relevant to this matter, Respondent owned and operated, and continues to
own and operate, a facility, as that term is defined in section 329(4) of EPCRA, 42 U.S.C.
§ 11049(4) and 40 CFR § 372.3, located at 4300 Holly Street, in Denver, Colorado
80216. -
At all times relevant to this matter, the Denver facility had 10 or more full-time
employees, as that term is defined at 40 C.F.R. § 372.3. -
At all times relevant to this matter, the Denver facility was in NAICS 424690, which is a
27listed SIC/NAICS code in 40 C.F.R. § 372.23.
-
Ethylene glycol, methanol, nitric acid, 1,2,4-trimethylbenzene, naphthalene, and formic
acid are “toxic chemicals” listed under 40 C.F.R § 372.65. -
The threshold for reporting “processed” ethylene glycol, methanol, nitric acid,
1,2,4trimethylbenzene, naphthalene, and formic acid at the facility is 25,000 pounds for
each toxic chemical, as established under section 313(f) of EPCRA, 42 U.S.C. § 11023(f),
and 40 C.F.R § 372.25. -
During the reporting year 2015, Respondent “processed,” as that term is defined in
40 C.F.R. § 372.3, over 25,000 pounds each of ethylene glycol, methanol, nitric acid,
1,2,4-trimethylbenzene, naphthalene, and formic acid at the facility. -
As a person, and owner and operator of a facility with 10 or more full-time employees in
a covered SIC/NAICs code, processing more than the 25,000 pounds of TRI-covered
toxic chemicals of ethylene glycol, methanol, nitric acid, 1,2,4-trimethylbenzene,
naphthalene, and formic acid at the facility, Respondent was subject to section 313 of
EPCRA and its implementing regulations. -
EPA notified the Respondent of an upcoming inspection on March 21, 2018, and
requested the Respondent have calculations and supporting documents used to determine
threshold quantities, releases, transfers, and waste management for TRI chemicals for
each reporting year being reviewed, including reporting year 2015, as required by
40 C.F.R. § 372.10. -
Respondent received this inspection notification on March 2, 2018, as noted on the
certified mail return receipt. -
EPA inspected the facility on March 21, 2018, and requested the records related to the
Respondent’s submissions of the 2015 TRI Forms R and Forms A for ethylene glycol,
methanol, nitric acid, 1,2,4-trimethylbenzene, naphthalene, and formic acid. -
The only document the Respondent supplied to EPA was sent several months after the
inspection. On June 11, 2020, the Respondent supplied a half-page document titled “TRI
Report 2015 Master Data Table” that included a summary number of the pounds
processed for ethylene glycol, methanol, nitric acid, 1,2,4-trimethylbenzene, and pounds
otherwise used for formic acid without any of the required underlying documentation. -
Complainant hereby states and alleges that Respondent has violated section 313 of
EPCRA and its federal regulations promulgated thereunder as follows.28DENVER FACILITY
Counts 32-34 -
Paragraphs 1-7, 30-48, and 184-195 are realleged as if fully set forth herein.
-
Respondent timely filed separate Form Rs for ethylene glycol, methanol, and nitric acid
for reporting year 2015 on June 22, 2016. -
Respondent was unable to provide any of the requested records to the inspector on March
21, 2018, the date of the inspection, for reporting year 2015 for ethylene glycol, methanol,
and nitric acid. -
Respondent failed to retain complete records for ethylene glycol, methanol, and nitric
acid for a period of three years from the date of submission of its Form R reports under
40 C.F.R. § 372.30 as required by section 313 of EPCRA, 42 U.S.C. § 11023, and
40 C.F.R. § 372.10(a). -
Respondent failed to maintain such retained records at the facility to which the reports
applied and failed to make such records readily available for purposes of inspection by
EPA as required by section 313 of EPCRA, 42 U.S.C. § 11023, and 40 C.F.R. §372.10(c). -
Respondent’s failure to retain complete records for ethylene glycol, methanol, and nitric
acid for a period of three years from the date of submission of its reports under 40 C.F.R
§ 372.30, to maintain such retained records at the facility to which the reports applied,
and to make such records readily available for purposes of inspection by EPA for
ethylene glycol, methanol, and nitric acid constitutes three violations of section 313 of
EPCRA, 42 U.S.C. § 11023, and 40 C.F.R. §§ 372.10(a) and (c).Counts 35–37 -
Paragraphs 1-7, 30-48, and 184-195 are realleged as if fully set forth herein.
-
Respondent timely filed separate Form As for 1,2,4-trimethylbenzene, naphthalene and
formic acid for reporting year 2015 on June 22, 2016. -
Respondent was unable to provide any of the requested records to the inspector on March
21, 2018, the date of the inspection, for reporting year 2015 for 1,2,4-trimethylbenzene,
naphthalene and formic acid. -
Respondent failed to retain complete records for 1,2,4-trimethylbenzene, naphthalene and
formic acid for a period of three years from the date of submission of its Form R reports
under 40 C.F.R § 372.30 as required by section 313 of EPCRA, 42 U.S.C. § 11023, and
40 C.F.R. § 372.10(d). -
Respondent failed to maintain such retained records at the facility to which the Form A
29applies and to make such records readily available for purposes of inspection by EPA as
required by section 313 of EPCRA, 42 U.S.C. § 11023, and 40 C.F.R. § 372.10(c). -
Respondent’s failure to retain complete 1,2,4-trimethylbenzene records, naphthalene and
formic acid for a period of three years from the date of submission of the Form A reports
under 40 C.F.R § 372.30, Respondent’s failure to maintain such retained records for
1,2,4-trimethylbenzene, naphthalene and formic acid at the facility to which the reports
apply, and to make such records for 1,2,4-trimethylbenzene, naphthalene and formic acid
readily available for purposes of inspection by EPA constitutes three violations of section
313 of EPCRA, 42 U.S.C. § 11023, and 40 C.F.R. §§ 372.10(d) and (c).Penalty Payment -
Respondent agrees that in settlement of the claims alleged herein, Respondent shall pay a
civil penalty of Six Hundred Thousand Dollars ($600,000) as set forth below. -
Not more than thirty (30) calendar days after the effective date of the Final Order,
Respondent shallEither:
-
Dispatch a cashier’s or certified check in the amount of Six Hundred Thousand Dollars
($600,000) made payable to the order of the "Treasurer of the United States of America,"
and bearing the case docket numbers CAA-HQ-2022-5005 and EPCRA-HQ-2022-5005,
to the following address:U.S. Environmental Protection Agency Fines and Penalties Cincinnati Finance Center PO Box 979077 St. Louis, Missouri 63197-9000Or
-
Effect a wire transfer in the amount of Six Hundred Thousand Dollars ($600,000) with
the notation “Univar Solutions USA Inc., Civil Penalty Docket Numbers CAA-HQ-2022-
5005 and EPCRA-HQ-2022-5005,” by using the following instructions:Federal Reserve Bank of New York ABA = 02103000 Account = 68010727 SWIFT address = FRNYUS33 33 Liberty Street New York, NY 10045 [Field Tag 4200 of the Fedwire message should read “D 68010727 Environmental Protection Agency.”] 30212. Respondent shall forward a copy of the check or documentation of a wire transfer to:
Philip Milton, Chemical Engineer Waste and Chemical Enforcement Division (2249A) U.S. Environmental Protection Agency 1200 Pennsylvania Ave., NW Washington, DC 20460 (202) 564-5029Or as a PDF attachment in an email to: [email protected]
-
Respondent understands that its failure to timely pay any portion of the civil penalty may
result in the commencement of a civil action in Federal District Court to recover the full
remaining balance, along with penalties and accumulated interest. In such case, interest
shall begin to accrue on a civil or stipulated penalty from the date of delinquency until
such civil or stipulated penalty and any accrued interest are paid in full. 31 C.F.R.
§ 901.9(b)(1). Interest will be assessed at a rate of the United States Treasury tax and loan
rates in accordance with 31 U.S.C. § 3717. Additionally, a charge will be assessed to
cover the costs of debt collection including processing and handling costs, and a non-
payment penalty charge of six percent (6%) per year compounded annually will be
assessed on any portion of the debt which remains delinquent more than ninety (90) days
after payment is due. 31 U.S.C. § 3717(e)(2).Supplemental Environmental Project -
Respondent must implement an agreed-to Supplemental Environmental Project (SEP) in
accordance with all provisions of this Consent Agreement and the schedule set forth in
Appendix A. -
In implementing the SEP, Respondent shall provide the emergency response equipment
specified in Appendix A to the identified emergency response organizations to assist them
in responding to emergencies in the communities where Respondent operates and where
chemical processes are undertaken that are regulated by the CAA and EPCRA. The
parties agree that the SEP is consistent with EPA’s 2015 SEP Policy and is intended to
secure significant environmental and public health protection and benefits by enhancing
the hazardous material incident response capabilities of first responders in the areas by
providing equipment and training that is necessary to respond to emergency releases of
hazardous chemicals. Respondent is obligated to expend no less than Two Hundred
Thousand dollars ($200,000) associated with implementing the SEP which Respondent
has chosen, and costs incurred by contractors and other third-parties selected by
Respondent to develop, implement, maintain and administer the SEP. -
Respondent is responsible for the satisfactory completion of the SEP in accordance with
the requirements of this Consent Agreement. “Satisfactory completion” means
completing the SEP in accordance with the requirements and schedules set forth in
Appendix A. Respondent may use contractors or consultants in planning and
implementing the SEP.31217. With regard to the SEP, Respondent certifies the truth and accuracy of each of the
following:a. All cost information provided to EPA in connection with EPA's approval of the SEP is complete and accurate, and Respondent, in good faith, estimates the cost to implement the SEP is Two Hundred Thousand Dollars ($200,000). b. As of the date of executing this CAFO, Respondent is not required to perform or develop the SEP by any federal, state, or local law or regulation, and is not required to perform or develop the SEP by agreement, grant, or as injunctive relief awarded in any other action in any forum. c. The SEP is not a project that Respondent was planning or intending to construct, perform, or implement other than in settlement of the claims resolved in this CAFO. d. Respondent has not received and will not receive credit for the SEP in any other enforcement action. e. Respondent will not receive any reimbursement for any portion of the SEP from any other person. f. For federal income tax purposes, Respondent agrees that it will neither capitalize into inventory or basis nor deduct any costs or expenditures incurred in performing the SEP. g. Respondent is not a party to any open federal financial assistance transaction that is funding or could be used to fund the same activity as the SEP. h. Respondent has inquired of the SEP recipients whether each is a party to an open federal financial assistance transaction that is funding or could fund the same activity as the SEP and has been informed by each of the SEP recipients that it is not a party to such a transaction. -
For the purposes of this certification, the term “open federal financial assistance
transaction” refers to a grant, cooperative agreement loan, federally guaranteed loan
guarantee, or other mechanism for providing federal financial assistance whose
performance period has not yet expired. -
Respondent hereby waives any confidentiality rights it has under 26 U.S.C. § 6103 with
respect to SEP costs on its tax returns and on the information supporting its tax returns.
This waiver of confidentiality is solely as to EPA and the DOJ and solely for the purpose
of ensuring the accuracy of Respondent’s SEP cost certification. -
Respondent shall send a confirmation email to EPA within ten (10) days of completing
the purchase of the emergency equipment for the SEP recipients. Within thirty (30) days32after completion of the SEP, Respondent shall submit a SEP Completion Report to EPA.
The SEP Completion Report shall contain the following information:a. a detailed description of the SEP as implemented, b. a description of any material problems encountered in completing the SEP and the solutions thereto; c. itemized costs, documented by copies of invoices, purchase orders, receipts, canceled checks, and/or wire transfer records that specifically identify and itemize the individual costs associated with the SEP. Where the SEP Completion Report includes costs not eligible for SEP credit, those costs must be clearly identified as such; d. certification that each SEP has been fully implemented pursuant to the provisions of this CAFO; and e. a description of the environmental and public health benefits resulting from the implementation of the SEP; f. a statement that no tax returns filed or to be filed by Respondent will contain deductions or depreciations for any expense associated with the SEPs; and g. the following statement, signed by Respondent's officer or authorized representative of Respondent with knowledge of the SEP, under penalty of law, attesting that the information contained in the SEP Completion Report is true, accurate, and not misleading: I certify under penalty of law that I have examined and am familiar with the information submitted in this document and all attachments and that, based on my inquiry of those individuals immediately responsible for obtaining the information, I believe that the information is true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fines and imprisonment. -
Respondent shall maintain, for a period of three (3) years from the date of submission of
the SEP Completion Report, legible copies of all research, data, and other information
upon which the Respondent relied to write the SEP Completion Report and shall provide
such documentation within fourteen (14) days of a request from EPA. -
Respondent agrees that failure to submit the confirmation email and/or the SEP
Completion Report shall be deemed a violation of this CAFO, and the Respondent shall
become liable for stipulated penalties in accordance with paragraph 232. -
After receipt of the SEP Completion Report, EPA, after a reasonable opportunity for
review, will notify Respondent in writing: (i) the project has been completed33satisfactorily; (ii) identify any deficiencies in the SEP Completion Report itself and grant
Respondent an additional thirty (30) days to correct any deficiencies; or (iii) determine
the project has not been completed satisfactorily. -
If EPA elects to exercise options (ii) or (iii) in paragraph 223 above, Respondent may
object in writing to the notice of deficiency within ten (10) days of receipt of such notice,
except that this right to object shall not be available if EPA found that the project was not
completed satisfactorily because Respondent failed to implement or abandoned the
project. EPA and Respondent shall have an additional thirty (30) days from the receipt by
EPA of Respondent’s objection to reach agreement on changes necessary to the SEP or
SEP Completion Report. If agreement cannot be reached on any such issue within this
thirty (30) day period, which may be extended by the written agreement of both EPA and
Respondent, EPA shall provide a written statement of its decision on the adequacy of the
completion of the SEP to Respondent, which decision shall be final and binding upon
Respondent. Respondent agrees to comply with any reasonable requirements imposed by
EPA that are consistent with this CAFO as a result of any failure to comply with the terms
of this CAFO. -
Respondent agrees that any public statement, oral or written, in print, film, or other
media, made by Respondent, its contractors, or third party implementers making
reference to a SEP shall include the following language: “This project was undertaken in
connection with the settlement of an enforcement action, In the Matter of Univar
Solutions USA Inc., taken by the U.S. Environmental Protection Agency to enforce
federal environmental laws.” -
If Respondent’s purchase of the emergency response equipment identified in Appendix A
does not expend the full amount set forth in paragraph 217, and if EPA determines that
the amount remaining reasonably could be applied toward the purchase of additional
emergency response equipment, Respondent will identify, purchase and provide
additional emergency response equipment to one or more of the emergency response
organizations identified in Appendix A.Notifications -
Submissions required by this SEP Agreement shall be in writing and shall be mailed to
the following addresses with a copy also sent by electronic mail:Philip L. Milton, Chemical Engineer U.S. Environmental Protection Agency Waste and Chemical Enforcement Division 1200 Pennsylvania Avenue, NW, Mail Code: 2249A (WJC South Bldg. Rm 3151-E) Washington, DC 20460 [email protected] Phone: 202-564-5029 Fax: 202-564-0010 34228. EPA will send all written communications, including electronic mail, to the following
representative(s) for Respondent:Julie Halperin – V.P. - Assistant General Counsel Univar Solutions USA Inc. 3075 Highland Parkway, Suite 200 Downers Grove, IL 60515 [email protected] Phone: 331-777-6185 Fax: (425) 889-4136 -
All documents submitted to EPA in the course of implementing this SEP Agreement shall
be available to the public unless identified as confidential by Respondent pursuant
to 40 C.F.R. part 2 subpart B and determined by EPA to merit treatment as confidential
business information in accordance with applicable law.Stipulated Penalties -
In the event that Respondent fails to satisfactorily complete the SEP as outlined above in
paragraphs 214-229 and Appendix A, Respondent shall be liable for stipulated penalties
in accordance with the provisions set forth below. The determination of whether the SEP
has been satisfactorily completed shall be in the sole discretion of EPA. -
If EPA determines that Respondent completely or substantially failed to implement the
Purchase of Emergency Equipment SEP in accordance with this Agreement, Respondent
shall pay a stipulated penalty in the amount of 110% of the estimated cost for each such
project, as set forth in Appendix A. -
After giving effect to any extensions of time granted by EPA, Respondent shall pay a
stipulated penalty in the amount of Two Hundred Dollars ($200) for each day the
following submissions are late: (a) each email message and (b) the SEP Completion
Report required by paragraph 220.Force Majeure and Excusable Delay -
“Force majeure and excusable delay,” for purposes of this CAFO, is defined as any event
arising from causes beyond the control of Respondent, of any entity controlled by
Respondent, or of Respondent’s contractors, that delays or prevents the performance of
any obligation under this Consent Agreement despite Respondent’s best efforts to fulfill
the obligation. Excusable delay in this CAFO specifically occurs in reference to supply
chain issues or lack of product availability in connection with the SEP when Respondent
has ordered the emergency equipment within the sixty-day (60) time frame from the
Effective Date specified in Appendix A. The requirement that Respondent exercise “best
efforts to fulfill the obligation” includes using best efforts to anticipate any potential force
majeure or excusable delay event and best efforts to address the effects of any potential35force majeure or excusable delay event (a) as it is occurring and (b) following the
potential force majeure or excusable delay, such that the delay and any adverse effects of
the delay are minimized. “Force majeure or excusable delay” does not include
Respondent’s financial inability to perform any obligation under this Consent Agreement. -
If any event occurs or has occurred that may delay the performance of any obligation
under this Consent Agreement, as to which Respondent intends to assert a claim of force
majeure or excusable delay, Respondent will provide notice orally or by electronic
transmission to EPA within ten (10) days of when Respondent first knew, or by the
exercise of due diligence should have known, that the event would cause a delay. Within
thirty (30) days thereafter, Respondent will provide in writing to EPA: an explanation and
description of the reasons for the delay; the anticipated duration of the delay; all actions
taken or to be taken to prevent or minimize the delay; a schedule for implementation of
any measures to be taken to prevent or mitigate the delay or the effect of the delay;
Respondent’s rationale for attributing such delay to force majeure or excusable delay; and
a statement as to whether, in the opinion of Respondent, the delay in performance of an
obligation under this Consent Agreement resulting from such event may cause or
contribute to an endangerment to public health, welfare, or the environment (30-Day
Force Majeure or Excusable Delay Notice). Respondent will include with any 30-Day
Force Majeure or Excusable Delay Notice documentation supporting the claim that the
delay was attributable to force majeure or excusable delay. Failure to substantially
comply with the above requirements will preclude Respondent from asserting any claim
of force majeure or excusable delay for that event for the period of time in which
Respondent has failed to comply with the notice requirements, and for any additional
delay caused by such failure. Respondent will be deemed to know of any circumstances
of which Respondent, any entity controlled by Respondent, or Respondent’s contractors
knew or should have known. -
If EPA, after a reasonable opportunity for review, agrees that the delay or anticipated
delay is attributable to force majeure or excusable delay, it will notify Respondent in
writing, and the time for performance of the obligations under this Consent Agreement
that are affected by force majeure or excusable delay will be extended by EPA, for such
time as is necessary to complete those obligations. An extension of the time for
performance of the obligations affected by force majeure or excusable delay will not, of
itself, extend the time for performance of any other obligation. EPA will notify
Respondent in writing of the length of the extension, if any, for performance of the
obligations affected by force majeure or excusable delay. -
If EPA, after a reasonable opportunity for review if applicable, does not agree that the
delay or anticipated delay has been or will be caused by force majeure or excusable delay,
EPA will notify Respondent in writing of its decision. If EPA does not provide a response
within thirty (30) days after receipt of Respondent’s 30-Day Force Majeure or Excusable
Delay Notice, Respondent will treat the absence of a response as a denial of the 30-Day
Force Majeure or Excusable Delay Notice.36Enhanced Compliance Project
-
To ensure enhanced compliance, Respondent certifies it has started design work to
reconfigure storage of incompatible chemicals at the Harborside and Terminal Road
facilities. In both instances, the process of completing design, obtaining permits, and
completing construction may take 2‐3 years.Effect of Settlement and Reservation of Rights -
Full payment of the penalty proposed in this Consent Agreement shall only resolve
Respondent’s liability for federal civil penalties for the violations alleged
herein. Complainant reserves the right to take any enforcement action with respect to any
other violations of the CAA, EPCRA, or any other applicable law. -
The effect of settlement described in paragraph 238 is conditioned upon the accuracy of
Respondent’s representations to the EPA, as memorialized in paragraph 240. -
Respondent certifies by the signing of this Consent Agreement that it is presently in
compliance with all requirements of section 112(r) of the CAA, 42 U.S.C. § 7412(r), and
section 313 of the EPCRA, 42 U.S.C § 11023, related to the counts set forth in this
Consent Agreement, as qualified by subparagraphs a-b, below.a. Respondent certifies certain flange repairs will be completed at the Denver Facility within 60 days of the effective date of the Final Order. b. Pursuant to EPA’s information request authority in 42 U.S.C. § 7414, within 60 days of the effective date of this CAFO, Respondent shall update EPA at [email protected] with the results of the work described in subparagraph (a) above. -
Full payment of the penalty proposed in this Consent Agreement shall not in any case
affect the right of the Agency or the United States to pursue appropriate injunctive or
other equitable relief or criminal sanctions for any violations of law. This Consent
Agreement and Final Order does not waive, extinguish, or otherwise affect Respondent’s
obligation to comply with all applicable provisions of the CAA and the EPCRA and
regulations promulgated thereunder. -
Complainant reserves the right to enforce the terms and conditions of this Consent
Agreement and Final Order.
General Provisions -
By signing this Consent Agreement, the undersigned representative of Respondent
certifies that it is fully authorized to execute and enter into the terms and conditions of
this Consent Agreement and has the legal capacity to bind the party it represents to this
Consent Agreement.37244. This Consent Agreement shall not dispose of the proceeding without a Final Order from
the Environmental Appeals Board ratifying the terms of this Consent Agreement. This
Consent Agreement and Final Order shall be effective upon filing of the Final Order by
the U.S. EPA Environmental Appeals Board. Unless otherwise stated, all time periods
stated herein shall be calculated in calendar days from such date. -
The penalty specified herein shall represent civil penalties assessed by EPA and shall not
be deductible for purposes of federal, state, and local taxes. -
This Consent Agreement and Final Order shall apply to and be binding upon Respondent
and Respondent’s agents, successors and assigns. Respondent shall ensure that all
contractors, employees, consultants, firms, or other persons or entities acting for
Respondent with respect to matters included herein comply with the terms of this Consent
Agreement and Final Order. -
The EPA and Respondent agree to the use of electronic signatures for this matter pursuant
to 40 C.F.R. § 22.6. The EPA and Respondent further agree to electronic service of this
Consent Agreement and Final Order by email to the following:To EPA: [email protected] [email protected] To Respondent : [email protected] 38In the Matter of Univar Solutions USA Inc.
Docket Nos. CAA-HQ-2022-5005 and EPCRA-HQ-2022-5005
RESPONDENT:
UNIVAR SOLUTIONS USA INC.
11/23/2022
Date: ___ _________
Julie Halperin
V.P. – Assistant General Counsel
Univar Solutions USA Inc.
COMPLAINANT:
U.S. ENVIRONMENTAL PROTECTION AGENCY
GREGORY SULLIVAN Digitally signed by GREGORY SULLIVAN
Date: 2022.11.29 11:40:15 -05'00'
Date: ___ ____
Gregory Sullivan
Director
Waste and Chemical Enforcement Division
Office of Civil Enforcement
U.S. EPA
Digitally signed by KATHERINE
KATHERINE CLARK CLARK
Date: __ _______
Date: 2022.11.28 17:33:17 -05'00'
Katherine M. Clark
Attorney-Advisor
Waste and Chemical Enforcement Division
Office of Civil Enforcement
U.S. EPA
39
APPENDIX A
SUPPLEMENTAL ENVIRONMENTAL PROJECT
Project Description – Overview
This Supplemental Environmental Project (SEP) consists of emergency response equipment to be purchased and donated by Univar Solutions USA Inc. (Univar Solutions) to emergency response organizations local to Univar Solutions facilities. Univar Solutions has selected the Denver Fire Department in Colorado and the Bunola Fire Department in Pennsylvania to own and use the donated equipment. Univar Solutions will order the equipment described below within sixty (60) days following the Effective Date. Dependent on supplier capabilities, Univar Solutions expects delivery within a reasonable time after the orders are placed. The SEP will be considered complete when each piece of equipment described below, or substantially similar equipment in the event the equipment listed below is not available, is delivered to the Denver and Bunola Fire Departments. If necessary due to product availability or supply chain issues, substantially similar equipment will be purchased by Univar Solutions after consultation with the impacted fire department. Univar Solutions shall complete this SEP no later than six (6) months after the Effective Date.
Respondent alone selected the SEP recipients and specific equipment identified herein. This CAFO shall not be construed to constitute EPA approval or endorsement of the equipment or technology donated by Respondent in connection with the SEP undertaken pursuant to this Agreement.
A. Nexus to the Clean Air Act (CAA), Section 112(r), and the Emergency Planning and Community Right-to- Know Act (EPCRA), Section 313
This SEP enhances the capabilities of emergency responders, facilitates quick and efficient responses to actual and threatened releases associated with emergency events, and provides tangible environmental and public health benefits primarily for local communities located near Univar Solutions’ facilities. Adequate nexus is deemed to exist between this SEP and alleged violations of section 112(r) of the CAA and section 113 of EPCRA as set forth in the Complaint in accordance with Category G (Emergency Planning and Preparedness) of EPA’s SEP Policy (2015 Update to the 1998 SEP Policy). SEP Category G furthers the ability of emergency response organizations to assess the dangers of hazardous chemicals that are present, develop emergency response plans to better respond to chemical incidents, and fulfill their obligations under EPCRA and the CAA within the same emergency planning district or state affected by the alleged violations and for which no federal financial assistance is available for the purchased materials funded by this SEP.
B. Nexus to Communities with Environmental Justice Concerns
The EPA has identified Colorado's Commerce City – North Denver area as an environmental justice community whose residents are overburdened by environmental pollution. The community is located next to major highways, large numbers of regulated facilities, and areas with legacy pollution, leading community members to express continued concerns about their
1
health, environment, and community. Data from the EPA ’s Environmental Justice (EJ) screening and mapping tool EJScreen suggest a significant potential for EJ concerns in the area due to a combination of high pollution burden and population vulnerability. This SEP will mitigate potential damage or reduce potential risks to local communities in with environmental justice concerns in the Commerce City – North Denver area.
C. Planned Purchases by Location
The following describes the purchase of emergency response equipment Respondent has chosen to make for the Denver and Bunola Fire Departments.
- Description of Project -- Denver Fire Department
The listed emergency response equipment, selected by Respondent in consultation with the Denver Fire Department, will be purchased for the Denver Fire Department.*
Description Quantity Unit Cost Subtotal Grand Total
Kappler DuraChem® 500 NFPA Multi-Threat Hazmat Protection Suits
Small/Medium 6 $1,136.39 $6,818.34 Large/Extra Large 12 $1,136.39 $13,636.68 XXL/XXXL 6 $1,250.03 $7,500.18 Pressure Test Adapter 1 $362.73 $362.73 $28,317.93
Kappler Zytron® 500 Level A Chemical Protection Suits
Small/Medium 4 $961.84 $3,847.36 Large/Extra Large 10 $961.84 $9,618.40 XXL/XXXL 4 $1,058.0 $4,232.12 $17,697.88
Miscellaneous
ERK Multi-Purpose Railcar Kit 1 $8,932.69 $8,932.69 ECA2 – Oversized Surface Plug Kit 1 $296 $296 Teledyne FLIR Griffin™ G510 1 $137,475 $137,475 Field Ready Kit – Portable Gas Chromatograph/Mass Spectrometer (GC/MS) with integrated Heated Sample Probe and Liquid Injector Kit-B Conversion Package Dev12 1 $1,196 $1,196 “OFFSET” Drum Patching & 1 $1,188 $1,188 Plugging Kit with Ladder Patch and Twin T-Patch Non-Sparking
$151,970
Grand Total $195,103.50
- Any applicable tax to be paid will be in addition to the amounts noted in these charts.
22. Description of Project -- Bunola Fire Department
The listed emergency response equipment selected by Respondent in consultation with the Bunola Fire Department, will be purchased for the Bunola Fire Department.*
Description Quantity Unit Cost Subtotal Grand Total
DJI Aerial Drone
Mavic 3 Cine Premium 1 $4,999 $4,999 Combo $5,598 plus tax Care Refresh 2-Year Plan 1 $599 $599 Grand Total $5,598 plus tax
- Any applicable tax to be paid will be in addition to the amounts noted in these charts.
GRAND TOTAL SEP EQUIPMENT COST (EXCLUDING TAX): Approximately $200,000.
3
____
)
IN THE MATTER OF: )
)
Univar Solutions USA Inc. ) Docket No. CAA-HQ-2022-5005
) EPCRA-HQ-2022-5005
Respondent )
)
____)
FINAL ORDER
Pursuant to 40 C.F.R. § 22.18(b)–(c) of EPA’s Consolidated Rules of Practice, the
attached Consent Agreement resolving this matter is incorporated by reference into this Final
Order and is hereby ratified.
The Respondent is ORDERED to comply with all terms of the Consent Agreement,
effective immediately.
So ordered3
ENVIRONMENTAL APPEALS BOARD
Dated:____ By: ________
3
The three-member panel ratifying this matter is composed of Environmental Appeals Judges
_____________________, ____________________, and ______________.
CERTIFICATE OF SERVICE
I certify that copies of the foregoing “Consent Agreement” and “Final Order,” in the matter of Univar Solutions USA Inc., Docket No. CAA-HQ-2022-5005 and EPCRA-HQ-5005 were sent to the following persons in the manner indicated:
By E-mail:
Julie Halperin, V.P – Assistant General Counsel
Univar Solutions USA Inc.
3075 Highland Pkwy Ste 200
Downers Grove, IL, 60515-5560
Email: julie.halperin@UnivarSolutions
Direct Dial: (331) 777-6185
Katherine M. Clark, Attorney
Philip Milton, Chemical Engineer
U.S. Environmental Protection Agency
Waste and Chemical Enforcement Division
1200 Pennsylvania Ave., NW
Mail Code: 2249A
Washington, DC 20460
Email: clark.katherine @epa.gov
Email: [email protected]
Direct Dial: (202) 564-4164
Direct Dial: (202) 564-5029
Dated: _____
_________
Emilio Cortes
Clerk of the Board
2
CERTIFICATE OF SERVICE
I certify that copies of the foregoing “Consent Agreement” and “Final Order,” in the
matter of Univar Solutions USA Inc., Docket Nos. CAA-HQ-2022-5005 & EPCRA-HQ-2022- 5005, were sent to the following persons in the manner indicated:
By Email:
Julie Halperin, V.P – Assistant General Counsel
Univar Solutions USA Inc.
3075 Highland Pkwy Ste 200
Downers Grove, IL 60515-5560
Email: [email protected]
Direct Dial: (331) 777-6185
Katherine M. Clark, Attorney
Philip Milton, Chemical Engineer
Waste and Chemical Enforcement Division
Office of Enforcement and Compliance Assurance
U.S. Environmental Protection Agency
1200 Pennsylvania Ave., NW
Mail Code: 2249A
Washington, DC 20460
Email: [email protected]
Email: [email protected]
Direct Dial: (202) 564-4164
Direct Dial: (202) 564-5029
Dated: ____
Dec 21, 2022 ______
Emilio Cortes
Clerk of the Board
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