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February 28, 2022
Hazardous chemical compliance in storage and distribution facilities

Based on inspections over the last several years, the EPA has found many chemical storage and distribution facilities “are not developing safety precautions; instituting maintenance, monitoring, and employee training measures and preparing risk management plans to remain in compliance with Clean Air Act (CAA) and Emergency Planning and Community Right to Know Act (EPCRA) requirements,” according to an Enforcement Alert issued by the Agency.

The alert was issued to remind “chemical warehouse and distribution facilities that they must ensure that their chemicals are managed safely, securely, and in compliance with the federal laws enforced by EPA, Occupational Safety and Health Administration (OSHA), and Department of Homeland Security (DHS).”

Common compliance errors

  • Failure to account for the chemicals in all containers (including aerosol cans, cylinders, storage tanks, etc.) that could be affected by an emergency event, such as a fire.
  • Failure to file and implement a risk management plan (RMP), often because insufficient facility management systems failed to provide notice that chemical inventories have exceeded regulatory thresholds.
  • Failure to include the entire weight of a flammable mixture with a National Fire Protection Association (NFPA) flammability rating of 4 in threshold calculations, not just the amounts of RMP-listed chemicals.
  • Failure to submit a Tier II form, safety data sheet (SDS), or Toxics Release Inventory (TRI) Form R, in violation of EPCRA.
  • Storage of incompatible chemicals near each other, creating a risk of fire, explosion, or release of toxic gases and fumes.
  • Storage of flammable chemicals in buildings that are not structurally appropriate for such chemicals or that are not equipped with proper fire protection.
  • Inadequate aisle space, hindering access by facility staff or emergency responders in the event of an accidental release.
  • Inadequate secondary containment for chemicals to contain spills or leaks.
  • Failure to periodically inspect tank systems and ensure their integrity.
  • Failure to sufficiently coordinate with local emergency responders. Local fire departments had safety concerns about some facilities.
  • Failure to complete a DHS Chemical Facility Anti-Terrorism Standards (CFATS) Top-Screen, as well as not utilizing predictive filing to determine all reportable chemicals of interest.

Regulated industry should take note that Section 112(r)(7) of the CAA and the implementing regulations at 40 Code of Federal Regulations (CFR) Part 68 RMP require facilities that use certain extremely hazardous substances above a specified quantity in a process to develop an RMP that includes a hazard assessment; a prevention program that includes safety precautions and maintenance, monitoring, and employee training measures; and an emergency response program should an accident occur.

“Section 112(r)(1) of the CAA, the General Duty Clause requires owners and operators of facilities that have any extremely hazardous substances to manage their chemicals safely,” states the EPA Enforcement Alert. “Facilities must identify hazards which may result from accidental releases of such substances; design and maintain a safe facility, taking such steps as are necessary to prevent releases; and minimize the consequences of accidental releases that do occur. EPCRA requires chemical warehouse and distribution facilities to report on the storage, use and releases of hazardous substances to federal, state, and local governments.”

Lessons learned

The Agency alert includes a list of “lessons learned” from chemical warehouse CAA 112(r) and EPCRA cases:

  • A lack of good inventory management leads to RMP and EPCRA violations for having chemicals present over regulatory thresholds.
  • A lack of attention to solutions or mixtures leads to incorrect calculations of threshold quantities for reporting.
  • Employees need clear information on how to avoid co-location of incompatible chemicals.
  • Facilities should ensure their buildings are structurally appropriate for the storage of chemicals and equipped with proper fire protection (e.g., alarms and sprinklers, etc.).
  • Awareness is needed for when RMP requirements apply.
  • Facilities need to coordinate with local emergency responders.
  • A maintenance and prevention program for pipes, valves, and tanks is needed. The program should include how to achieve appropriate tank integrity and secondary containment.
  • Facilities need to address the storage of chemicals with appropriate aisle space and segregate incompatible chemicals appropriately.
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