Clean Air Act
Compliance
Enforcement
Policy
Compendium
1988 ed.
Volume 2
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C
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—3—
C. Section 111: Standards of Performance for New Stationary
Sources (NSPS)
1. Enforcement of NSPS Requirements 04/26/76
2. Enforcement of NSPS Requirements 05/03/76
3. Postponement of Enforcement Action During 04/22/82
NSPS Review
4. Restatement of Guidance on Emissions 05/07/82
Associated with Soot Blowing
5. Timely and Appropriate Guidance and Asphalt 07/09/85
Plants
Related documents
a. Inappropriate Issuance of Section 113(d) (4) 01/14/80
Orders to Sources Subject to NSPS
-- filed at Part E, document #3
b. Issuance of Section 113(a) Orders to NSPS 02/23/81
Sources for Failure to Conduct Performance
Tests
-- filed at Part E, document #8
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Ce,dinae
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Enforcement of NSPS Requirements
(04/26/76)
File at Part C, Document #1
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 2O 6O
April 26, 1976
SC3 ECT: forc ent of NSPS Requirements
EO: Jay Sargent, chief
Legal Branch, forc rent Division
Region I V
E& rd Reich, Chief, Enforc nt Proceedings Brx
Division of Stationary Source Enforcement
This is in response to your iriqu xy concerning the steam generator
suoj act to NSPS at the I nsanto Chemical Corpany in Decatur, Ala2 a a.
As ce iders nd the facts, Z’ nsanth piers to use low sulfur coal
to athieve cci p1iance with the emission limitation provision of 40 R
960.43. ever, I. onsanto has asked to burn a high sulfur fuel for 1B0
days after starb-up, but bef e the rfc rance test r uired by 40 CFR
£ O.8. rin this period, the ca pany will be operating at less than
the reidrr rcduction rate. Your inquiry conóerns what enforc rit
cpticns, if any, the region can pursue to prevent i onsanto fran burning
a higher sulfur coal after start- but before the perfoirrance test
required by 40 CFR 960.8.
The above circtrstances should not preclude the regional office
fran using whatever enforcement irechanism it feels will insure
ccr pliance with SPS requir rents fran the carxt r.cemerit of operation.
Enfo:c ent options include an administrative order to burn rplying
low sulfur coal or, if appropriate, a civil or criminal action.
The rationale for this approach is as follows. Section 111(e) of the
Clean Air Act provides that it shall be unlawful to operate a new source
in violation of standards of performence applicable to such s ce. Also,
40 R 6O.8(a) provides:
60.8 Performance te.,ts.
(a) Within 60 days after achieving the n dir”.uzn
pr uction rate at which the affected facility will be
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cperated, but not later than 180 days after initial
start- of such facility and at such other tirres as
rr3y be rec’ ired by the Ti istrator uncier section 114
of the ?ct,* trie o .rner or operator of such facility shall
co± ct perfcrance test Cs) and furnish the ?f rrinistrator
a written recort of the results of such rforr’ance
test(s). ( hasis added.)
The intent of 40 §60.8 w s to provide a short period of tire
after start-t during which an affected facility could adjust and
fine tire control eq iprrant before the perfor test. This
provision Irerely sets forth in regulatory form, those circi. nstences
where A will exercise its enforcer.ent disoretion to allow for
reasonable sheka-dc n tire. This forbearance on EPA’s part is
consistent with the statutory mandate of requiring use of best
adequately dercnstrated control tachnology (considering costs)
on new sources upon start-up and at the same tiire provides a reasonable
period for affected facilities to fine time control equipr.snt.
Hcwever, §60.8 was never meant th irrply that, prior to the perforrance
tests, a g ace period exists during which a source need rreka no att pt
to achieve conplianca with i’ SPS requir r.ants. In fact 40 CFR §60. 12. (d)
clearly outlines an affected facility’s obligation to miriird.ze niss ions
at all tires:
§60.11 Capliance with standards and rreixitei’.ance requirérents.
* *
(d) At all tii s, inclu .Lng pericds of start-up, hut-d n,
• and rralfunction, owners and operators shall, to the extent
practicable, maintain and operate any affected facility in—
c1ud. .ng associat air pollution control equi rent in a 1 anner
consistent with good air pollution, control practice for
minimizing emissions. Determination of whether acceptable
operating and Ira tenance procedures are being used will be
based on infornetion available to the k miriistrator which
Iray include, but is not limited to, rronithring results,
opacity observations, review of operating and tanance
• procedures, and, inspection of the source.
In s rn, the 180-day period in 40 CFR §60.8 is not a grace period
during which a source need meke no atterrpt to achieve c rpliance
with l SPS. Rather, it is a shake-down period for control equiprent
which may (as in the present case) be unnecessary. hen such a
situation arises, the regions]. office should pursue whatever enforcerent
mrechani n it feels will insur expeditious cc rpliance with NSPS
ra unxe!rents.
• Since litigation is certainly a possibility in this case, we
would suggest that you carrmriicate to Nonsarito EPA’s interpretation
of its regulations as soon as possible to lay a firm basis for
whatever fo11c -up litigation nay be necessary.
* Under this provision the thüstrathr could, presumably, require a
perforr&-ice test even earlier than would otherwise be required under
the regulations.
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Enforcement of NSPS Requirements
(05/03/76)
File at Part C, Document *2
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UNITED STATES ENViRONMENTAL PROTECTION AGENCY
/ WASHINGTON. D.C. 20460
May 3, 1976
DR INDt
SU JECT: forcement of NSPS Reguirements
forc nt Division Directors
Regions I-X
F1 4: Director, Division of Stationary Source Enforc tent
The attached me randi. n concerns an NSPS enforcement probl n which
occurred recently in Region IV.
I onsanto Chemical had planned to use 1o sulfur coal in a ste n•
g nerator subject to 1 S to achieve cc np1iance with the emission
1i: tation provision of .40 R §60.43. nsanth had asked to burn high
nli ’.r fuel for 180 days after start-up, before the perfonnance test
r qu • i by § 60.8. The issue was what enforcement options were
ava . : e to the regional office to prevent I bnsanto fra t burning a
high 1tur coal u n start-lip.
T: conclusion reached in the rr rorandun was that the 180-day period
for in 40 CTR S60. 8 is not a grace period during which a source
r. •. d no att t to achieve t liance with NSPS. Rather, it is a
r -. ke-down per...od, which may be unnecessary, to a1l i for fine tuning of
c itro1 equip ent. When a situation like the one in Region I V arises,
• the regional office slcu.ld pursue whatever e.nforcarent mechani n it feels
will insure e editious a npliance with NSPS reguiranents. Th forc nt
options incl e an a inistrative order to burn ccuç 1ying low sulfur
coal or, if appropriate, a civil or criminal action.
e have reviewed these issues with the Office of General Q,wtsel
ich concurs in the approach endorsed in the rn rcrand in. SIDu1d you
hitve any questions, please contact Barry Russell (202-755-2542) of my staff.
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Postponement of Enforcement Action During NSPS Review
(04/22/82)
File at Part C, Document *3
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tNVIRONMENTAL PROTECTION AGENCY
‘E crrDu
SUtJECT:
TO:
AP 22 9 2
Postponement 0 Fnforce ent Action t’uring NSPS Review
kathleen M. cnnett
J ssjstant Administrator for Air, Noise and
Directors, Air & ‘aste ‘anagc ent Divi jons
Regions i—iv, Vi—VIir, X
Directors, Mr ? nagement DiVISIO E
Regions V and IX
.his 1riernorandun is in response to a rec’uest from Region iv
arking for clarification of the Agency’s policy on erfcrcer nt
during a revie;j or challenge of a promulgated or test
method.
During the reriod of judicial, administrative or internei
cncy rcview, a standard or test method ren ain in effect and
forceable. Any change in a promulgated standard or test method
-can only be accomplished through rulemaking t.roccdurcs. There uay
be a point , however, here it i necessary for the Agency to delay
an enforcer ent proceeding .
Unfortunately, every dispute over an NSPS or test method pill
have unicue circumstances, so specific criteria for deferring
cnforcerrent are not generally available. Factors such ac the
nature and scope of the challenge or review, the likelihooc of
chan cs to the regulation, end whether any irreparable inj
would occur by proceeding or failing to proceed ith enforcina the
Current regulations should be considered on a case—by—case basis .
where the stanc ard
or method is likely to be changed and significant expense wou1c be
incurred in meeting the existing regulations which would not
likely be reguired under the revised regulations, Let me
reiterate that the were existence of a challenge or review is not
in itself a reason for deferring enforcement.
Any questions regarding this memo or implementation of its
content should be directed to Ed Reich, Director, DSSE at
382—2807.
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CONCURREMCES
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• OFFICIAL FILE COPY
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Ca , dint
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Restatement of Guidance on Emissions ? ssociated with Soot Blowing
(05/07/82)
File at Part C, Document *4
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCy
WASHINGTON D.C. 20460
. OFFICEOF
— I AIR. NOISE AND RADIATION
MEMORANDUM
SUBJECT: Restatement of Guidance on Emissions Associated with
Soot-blowing
FROM: Kathleen M. Bennett
Assistant AdminjstratO \sfor Air, Noise and Radiation
TO: Directors, Air & Waste Management Divisions
Regions I—iv, vI—vIII, x
Directors, Air Management Divisions
Regions V and IX
This memorandum restates EPA’s guidance on emissions
associated with soot—blowing as it relates to sources undi New
Source Performance Standards (NSPS) Subparts D and Da and State
Ij plementation Plans (SIPs) . Soot—blowers remove ash adhering o
eat transfer surfaces in boilers. In new and larger boilers
;ubjectto Subparts D and Da, automatic, semicontinuous soot—
blowers are used; while in smaller and older boilers subject to
the SIP’s, periodic soot—blowing is the dominant practice.
As required in 40 CFR 60.8(c), “performance tests shall be
conducted under such conditions as the Administrator shall specify
to the plant operator based on representative performance of the
affected facility.” Since Soot—blowing occurs at regular
intervals for each generator, these emissions cannot be discarded
as being a result of an upset condition.
Recent data obtained for periodic soot—blowing for smaller
pulverized and spreader stoker boilers show that uncontrolled
emissions increase significantly during soot—blowing, while
emissions controlled to levels of 0.1 lb/b 6 Btu or less by
fabric filters and scrubbers are unaffected by soot—blowing. This
would indicate that the fraction of very fine particles is
relatively unaffected by soot—blowing and that other control
devices such as “cold side” electrostatic precipitators should be
unaffected, while lessefficientsystems such as mechanical
collectors may be affected.
For a source which blows soot on a semi—continuous basis,
emissions can be adequately represented by three sampling runs.
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For units which do not blow soot semi—continuously, data suggest
that the source’s ability to comply using fabric filters,
high—energy scrubbers, and medium to high efficiency scold side”
ESP’s commonly used to meet design emission levels comparable to
Subparts D or Da should not be adversely affected by the inclusion
of soot—blowing. Testing should thus be done in accordance with
previous guidance issued by DSSE. A copy of this guidance, dated
March 6, 1979 and sent to all Regions, is attached for your
information.
Relative to SIP limits, demonstrations of attainment and
maintenance of National Ambient Air Quality Standards (NAAQS) are
normally based upon continuously achieving the emission levels
prescribed in State Implementation Plans, and the compliance
determinations should be based upon the performance of control
devices over the normal range of boiler operation. For fabric
filters, electrostatic precipitators, and wet scrubbers, the most
stringent test of their performance occurs at maximum boiler load.
For mechanical collectors, the most stringent test occurs at low
boiler loads. Therefore, it is recommended that SIP compliance
tests be made at both high and low loads, and include
soot—blowing per the March 6, 1979 guidance.
The attached March 12, 1979 guidance noted that it is
appropriate to interpret a never—to—exceed emission limit as
requiring control of soot—blowing emissions. This assumes that
the individual SIP does not specifically address the issue of
soot—blowing. If soot—blowing provisions are included in the SIP,
these SIP provisions will, of course, take precedence; if
provisions are not included, existing sources should be handled
using the same approach as the attached March 6, 1979
determination provides for handling new sources. (Of course,
inclusion of provisions in SIPS which provide exemptions in the
mass standard for soot—blowing presupposes a demonstration that
such exceptions will not interfere with the attainment and
maintenance of NAAQS.)
Sources which are in violation o.f emission limits during
soot—blowing operations and have not been exempted by the
applicable SIP provisions should be treated as violating sources
in accordance with other guidance. (See, for example, the
definition of a “significant violator” in my memorandum of
December 29, 1981 entitled EPA Accountability Systexn——OANR Policy
Guidance. )
Should you have any questions, please contact this office.
tachmnents
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Timely and Appropriate Guidance and Asphalt Plants
(07/09/85)
File at Part C, Document #5
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CYITED S1’ TES E\\ JRu\\II: vI U. I’It TF.C’FR
% ICL\i.;fuN. I). . 2U-U ()
j • 4 C ’
JL 9 I5
R OR D I .j%
MEMORANDUM
SUBJECT: Timely and Appropriate Guidance and Asphalt Plants
FROM: Director
Stationary Source Compliance Division
Office of Air Quality Planning and Standards
TO: William A. Spratlin, Director
Air and Toxics Division, Region VII
This is in response to your memo of April 22, 1985 concerning
the application of the timely and appropriate guidance to asphalt
concrete plants subject to NSPS. In your memo, you describe a
situation where an asphalt concrete plant ceases operation for
the year within 180 days of the initial startup without ever
achieving maximum production, and without conducting a performance
test. This results in a violation of the testing requirements
during the period of inoperation. This is compounded by the
impracticality of conducting a performance test during the winter
months. In addition, the timely and appropriate guidance would
prompt the commencement of an enforcement action including the
assessment of a cash penalty prior to the re—startup of the plant.
Your proposed resolution would require the asphalt concrete plants
to test within 30-60 days of their next initial startup which
would be enforced with a State or EPA order.
Your proposal appears reasonable where the failure to test
.s beyond the ability of the source to conduct such a test.
However, it is our understanding that most asphalt plants can
achieve zimum production within 60-90 days of initial startup.
Since the regulations provide for a maximum of 180 days to demon-
strate compliance, there is some responsibility upon the source
owner or operator to conduct the tests in a timely manner. It
appears that it should be possible, in most cases, to achieve
maximum production and conduct the necessary tests prior to
cessation of operation, but that the source owners or operators
may be choosing not to operate in that fashion in order to postpone
the need for testing. This should be investigated prior to
implementing your proposed strategy.
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Sources unable to achieve maximum production can also be tested
at a lesser rate if those tests will provide an indication of
their ability to achieve compliance under all conditions.
We have become increasingly sensitive to the application
of the NSPS to the asphalt concrete industry and in particular
the application of the testing requirements. Increasing
evidence appears to indicate that a significant percentage of
affected facilities are not meeting the NSPS emission limita-
tions or the testing requirements. In light of this situation,
it is essential that EPA take a consistent approach when
dealing with this industry, and that national guidance be
followed to the maximum extent practical.
If you have any questions regarding this memo, please
contact Rich Biondi at 382—2831.
Edward E. Reich
CC: Steve Hitte
Bob-Ajax - -• -
EaTil Salo
Tracy Gipson
Air and Waste Management Division Directors
Regions II and VI
Air Management Division Directors
Region I, III, V, and I X
Air, Pesticides, and Toxics Management Division Director
Region V
Air and Toxics Division Directors
Regions VII, VIII, and IX
Air Program Branch Chiefs, I egions I—X
Air Compliance Branch Chiefs, Regions II, III, V, IX
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D. Section 112: National Emission Standards for Hazardous Air
Pollutants (NESHAPs)
1. Guidance on NESHAP Asbestos Standards 02/25/82
2. Guidance on Determination of Asbestos 06/08/82
Content of Friable Materials
3. Enforcement of National Emissions Standard 06/28/83
for Vinyl Chloride _ZA_v
4. Benzene NESHAPs Guidance 06/01/84
5. Vinyl Chloride Enforcement strategy 07/11/84
ZPo
6. Injunctive Relief in Asbestos Demolition 07/10/85
and Renovation Cases
7. Guidance S-26: Enforcement of the Arsenic 10/01/86
NESHAP for Glass Manufacturing Plants
8. Procedures for Pre-Referral Settlement of 09/28/87
Asbestos Demolition and Renovation Cases
-- May still utilize model complaint and
consent decree; rest of document has
been partially superseded by
memorandum dated 04/13/88 entitled
“Process for Conducting Pre-Referral
Settlement Negotiations on Civil
Judicial Enforcement Cases.”
9. Revised Asbestos NESRAP Strategy 03/31/88
10. Interim Asbestos NESHAP Enforcement 04/18/89
Guidance -- “Friable asbestos” 1% by Area
or Volume vs. 1% by Weight
Note--the memorandum portion of this
guidance is confidential and may not be
made available to the public
11. Clarification of EPA NESHAP Policy - 02/23/90
Nonfriable Asbestos
12. Inclusion of CERCLA Section 103(a) Counts 06/05/90
in Asbestos NESHAP Cases
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Guidance on NESHAP Asbestos Standards
(02/25/82)
File at Part D, Document *1
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..r rvwit ..lION AGENCY
WASHINGTON 1 D.C. 20160
FEB 25 1982.
OFFICE OF
AIR. NOjt AND RADIATION
SUBJECT: Guidance on the NESHAP Asbestos S and
FROM: Kathleen 14. Bennett C½f
Assistant Administra b Air, Noise and Radiation
TO: DirectorB, Air & Waste Management Divisions
Regions I—IV, VI—VIII, X
Directors, Air Management DivisionB
Regions V and cx
The purpose of this memorandum is to offer guidance on two
aspects of the NESHAP asbestos standard for which clarification
has been requested. The first aspect çoncer.ns the_ pplicability
of the standard with regard tàspiä iing operations as specified in
40 CFR 61.22(eJ.. The second aspect of_ he a .ar&jsa.
-cThri1T ition of what constituteiibituminous or..resinous binder
forencapsulation of asbestos fibers during spraying-operations.
Since this guidance is in response to two general questions, I
would like to emphasize that specific questions concerning
spraying operations may still need to be addressed on a
case—by-case basis.
As this standard requires in 40 CFR 561.22(e):
There shall be no visible emissions to the outside
air from the spray—on application of materials
containing more than 1 percent asbestos, on a dry
weight basis, used on equipment and machinery,
except [ where an air—cleaning procedure (561.23) is
to be used].
The g.ency...amended .56l.22(e) on June 19,_1978_(43 FR 26372)
to clarify which spraying operationi Ire subject to the standard.
Because the Agency originally did not anticipate that any
application other than asbestos—containing insulation and
fireproof ing would be major sources of asbestos emissions, this
revision of the’ standard was necessary to extend the coverage of
the asbestos spraying provisions. The.amendments require that
spraying of all materials which contain more than 1 percent
asbestos be aubject to the provisions unless the asbestos fibers
are encapsulated in a bituminous or resinous binder and are not
friable after drying. In responding to comment, the Agency cited
iximples of the bituminous or resinous asbestos—containing
coatings; examples are roofing compounds, waterproofing or
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insulation exposed to weather, automobile undercoatings and
Endustrial maintenance coatings. Except for this exemption of
spraying operations using a bituminous or resinous binder, all
spraying operations with more than 1 percent asbestos must ply
with 561.22(e).
The second aspect of the asbestos standard to be c] srified is
what constitutes a bituminous or resinous binder. The r’equest for
guidance on this item asked about a list of different
encapsulation compounds examined for friability by
Dr. Robert Sayers. This list of, compounds is the result of work
contracted by the: Office of Toxic Substances for its school study.
The compounds were examined fot’ the purpose of coating walls and
ceilings which contain asbestos; this coating would be applied to
structural members already in place. They are not used for
encapsulation within the meaning of our regulations.
The compounds do not contain the asbestos, but instead act as
a sealant to cover asbestos where it is already present. If there
is question as to whether a product used for encapsulation in the
spraying operation is bituminous or resinous the question should
be referred to headquarters for review.
If you have additional questions on the spraying provisions
of the asbestos standard, please contact Ann Eastham of my staff
at 382—2876.
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Guidance on Determination of Asbestos Content
of Friable Materials
(06/08/82)
File at Part D, Document *2
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MEMORAUDUM LI
SUBJECT: Guidance on Determination of Asbestos
• Content of Friable Materials çr .... ;. ,
•
FROM: rathleen H. Bennett, Assistant Adin1nistrator
for Air, Noise and Radiation :.
Directors, Air and Waste tianagement Divisions
Regions I—IV, VI—VIII, X
Directors, Air Management Divisions,
Regions V and IX
The National Emission Standard for Hazardous Air Pollutants
(NESHAPS) for asbestos covers the operations of spraying, and
demolition and renovation with associated waste disposal, If a
friable (easily crumbled) material containing more than one percent
asbestos Is processed. The lack of a promulgated method to
evaluate the asbestos content of a friable material against this
one percent asbestos content test’ has been identified as an
impediment to enforcement of the NESHAPS for asbestos.
It is noted that the Standard is presently the subject of a
complete reevaluation aiming at approxthately October 1984 pro.
mulgatlon (for additional information contact John Copelend In
OAQPS at FTS 629—5595). Although this reevaluation is Incomplete,
there Is a likelihood that the revised NESHAPS will Include an
explicit methodology for the determination of asbestos content in
materials.
Until the analytical methodology Is designated by regulation,
the asbestos content of materials subject to the ‘one percent
asbestos content test’ should be determined by use of the
methodology described In the EPA publication, Bulk Sample Analysis
for Asbestos Content: Evaluation of the Tentative Method , released
by the Environmental Monitoring Systems Laboratory and Office of
Pesticides and Toxic Substances In 1982, as EPA Publication, EPA.
600/4.82.021. The basic analytical technique described therein is
a variation 0 f polarized light microscopy which allows for a
quantitativs • stimate 0 f the weight percentage of asbestos In a
sample. X.ftay diffraction Is suggested but only as a supportlve’
• method. Walls this general approach to asbestos quantification has
been recommended for years to EPA enforcement personnel, the
relerenced document provides an explicit standardization of sample
)r.paration and asbestos quantification. This document, and others
r lat ng to asbestos sampling, ana1ysl and sources øfp easurement
• ..)v$rI b11tty, are available from the regional asbestoscoordinatorS
‘aisociated with th Office of Toxic Substances’ •ff jt ;o Identify
asbestos in school buildings. -
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Although the methodology to quantify the asbestos content of
siarples is directly transferrable from the school asbcstoe program
to the NLS1LAPS program, it should be ernphaei ed that the strategies
to locate and sarç’le asbestos may be distinct between the prograi is.
The school program as described in EPA guidance. Asbestos
Containing Materials in School I ui1dinge, Part 1 , is oriented to
identi y a beetoe naterial which is presently friable, whereas
complianc, with the 1aESHAPS requires that sau ling incl Sd.
materials which are not presently friable but which maybe degraded
to.zelease asbestos fibers during the process of renovation or
demolition. A thorou jb background docunentation of methods to
locate and can le asbestos in structures scheduled for demolition
or renovation, not now available, will likely be developed during
the comprehensive Standard revision.
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ll Om U ’T 77TL
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Enforcement of National Emissions Standard for Vinyl Chloride
(06/28/83)
File at Part D, Document *3
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UN ITED STATES ENV IRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
NOTE: Attachment 1 of this
document is CONFIDENTIAL
JJN 2 8 and should not be made
MEMORANDUM available to the public
SUBJECT: Enforcement of National Emissions Standard for
Vinyl Chloride
FROM: Michael S. Alushin fl
Acting Associate Enforcement Counsel for Air
Edward E. Reich, Director
Stationary Source Compliance Div sion
TO: Regional Counsels, Regions 1-VI & IX
Directors, Air and Waste Management Divisions
Regions lI-IV, VI
Directors, Air Management Divisions
Regions I, V, and IX
In order to encourage consistency in enforcing the standards
governing emissions of vinyl chloride, 40 CFR Section 61.60 et
seq., this memorandum summarizes our enforcement activity to
date and sets out some general guidelines for determining when
enforcement action may be necessary.
History of Vinyl Chloride Enforcement
So far, most of the actions initiated by EPA have been to
enforce the relief valve discharge standard, Section 61.65(a).
Eleven cases have been referred to EPA HQ citing violations of
this standard, nine of which have been solely for relief valve
discharges. Of these, two have been filed and concluded by
consent decree, three are ongoing filed actions, five have been
referred to th9 Department of Justice or U.S. Attorney, and one
is under review in EPA Headquarters.
Enforcement of other portions of the vinyl chloride
regulations has been limited. Two civil actions were filed in
1979 for failure to comply with the 10 ppm exhaust gas limitation
by the end of the two-year waiver period authorized in Section
112 of the Act. These actions were concluded by consent decree.
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Four other case referrals were never filed and are no longer
active. Two of these were to enforce the 10 ppm standard, and
the other two cited various parts of the regulation, including
the stripping and reactor opening loss standards.
Guidelines for Vinyl Chloride Enforcement
We do not wish to establish a rigid standard for what degree
of violations rises to the level of an actionable claim. However,
the following factors should be considered to determine whether
action to enforce the relief valve discharge standard is warranted:
1) The frequency and size of the discharges . We encourage
you to develop and refer enforcement actions where either or
both of these factors is significant. For example, one filed
action involved a total release of only 1,100 pounds of vinyl
chloride but a large number (21) of violations. Another case
was referred for only two discharges where one of them was for
25,000 pounds.
2) Length of time elapsed since most recent discharge . This
may be an indication of whether the source has solved the problems
which were causing the discharges. We have referred in the past,
and we will continue to refer, cases seeking penalties only for
past violations. However, you should place a higher priority on
enforcement against sources which are continuing to experience
discharges.
3) Violations of the reporting requirement . Section 61 .65(a)
requires a company to report the occurrence of any relief valve
discharge within 10 days. This requirement applies even if the
company claims that the discharge was not preventable and thus
not a violation. A few of the cases have involved failures to
report, and in many instances EPA only learned of the discharges
through issuance of a Section 114 letter. We consider reporting
violations to be very serious, because our ability to enforce
the standard hinges directly on self-reporting. The existence
of reporting violations should weigh very heavily in the direction
of initiating enforcement action.
4) Need for, remedial measures . Even where the frequency and
size of discharges is relatively small, enforcement action should
be carefully considered if measures can be identified which EPA
believes will prevent future discharges due to the same causes.
5) State enforcement activity . Authority to enforce the
vinyl chloride standards has been delegated to many states. This
authority is concurrent with, and does not displace, EPA enforce-
ment authorit TFa plant is located in a state where the
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-3-
program has been delegated, an initial contact with the state
should be helpful in determining whether EPA needs to initiate
enforcement. EPA should be prepared to take action 1 however, in
any situation in which the state indicates it will not enforce
or fails to do 80 adequately and in a timely manner.
We interpret the standard to establish a presumption that
any relief valve discharge is a violation, with the company having
the burden to show that it was preventable. Nonetheless, to be
in a strong positior’ to litigate a case, the Agency should be
prepared to show that specific measures are available which
could have prevented the discharge, and that such measures were
not taken by the source.
A litigation report forwarded to Headquarters should include,
at a minimum:
1) The date and size of each relief valve discharge, including
those determined to be emergencies.
2) The Region’s determination as to whether each discharge
is preventable, i.e., a violation.
3) An analysis of the cause of each discharge. Attachment 1
is an example of the technical evaluation of a company’s discharges
which was included as an exhibit to a litigation report referred
to HQ.
4) A description of remedial measures designed to prevent
the types of discharges which have occurred at the plant. As you
can see from Attachment 1, this is a logical complement to the
analysis of the cause of each discharge.
5) A proposal for a minimum settlement penalty figure.
Attachment 2 contains the informal guideline which EPA HQ has
been using to derive a settlement penalty figure to assign to
relief valve discharges and to reporting violations. We would
appreciate your comments and suggestions, if any, of ways in
which these schemes can be improved.
Depending on the level of detail contained in the 10-day
report submitCed by the company, the Region may have to seek more
information using a Section 114 letter to properly prepare the
litigation report. Examples of records which may be useful are
logs, written maintenance procedures, inspection manuals, incident
reports, employee records (to show possible disciplinary action
or failure to take such action), strip charts, etc. This is
potentially potent evidence, because it may reveal answers to such
questions as:
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-4-
1) Was the company following its own standard operating
procedures?
2) Did the company allow a discharge to occur in order to
preserve the integrity of the product and thereby save money?
(E.g., low grade resin is less profitable than high grade resin,
and this may affect operating decisions.)
1 3) Did the operator fail to recognize upset conditions?
4) Did the company fail to replace defective equipment
despite a prior history of problems?
5) Did the company fail to analyze a recurring problem?
6) Did the company perform an engineering study (or retain a
consultant to do so) and fail to adhere to the study’s
recommendations?
Attachment 3 is a saxnple Section 114 letter which was used
to develop the litigation report in one of the cases referred to
Headquarters.
This discussion has focused so far on enforcement of the
relief valve discharge standard. We are also concerned that the
Regions be consistent in enforcing other major provisions of the
vinyl chloride standard, such as the stripping and reactor opening
loss standards. As a legal matter, a single excursion of the
stripping or reactor opening loss requirement can form the basis
of an enforcement action. Because a single plant can process
thousands of batches each year, however, it becomes a policy
determination as to whether some level of violation will be viewed
as not warranting enforcement action. At this point, EPA HQ is
not prepared to give guidance on the appropriate threshold for
initiation of enforcement of these portions of the standard,
primarily because we have very little information on the level
of compliance throughout the industry and no history of enforce-
ment. One general observation applicable to these standards is
that, as with the relief valve discharge standard, the Agency
should strongly consider enforcement action if specific remedial
measures can be dentified which will reduce or eliminate the
noncompliance.’ Also, the threshold for initiating the enforce-
ment process, e.g., issuing a Section 114 letter, should probably
be less than for referring a civil action.
We request your help in developing guidelines for enforcement
of portions of the vinyl chloride standard other than the relief
valve discharge standard. Specifically, we would appreciate
suggestions as to factors which should be used to determine when
enforcement action should be initiated. We request, from each
Region, a s nnmary for each source of the percentage and magnitude
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—5-
of violations of the stripping and reactor opening loss standards
shown in the two most recent semiannual reports. In addition,
Region I has indicated a need for the information listed in
Attachment 4. We feel that such information can be valuable to
the extent that it can be gathered from existing Agency records
without conducting plant inspections or issuing Section 114
letters. This information should be submitted to Richard Biondi
of the Stationary Source Compli’ance Division byJuly 29, 1983.
If you have any questions about this memorand , please
contact Elliott Gilberg of the Office of Enforcement Counsel (FTS
382-2864) or Mr. Biondi (FTS 382-2845).
Attachments
cc v/attachments:
NESHAP Contacts, Regions 1-VI, IX
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ATTACHMENT I
TECHNICAL EVALUATION OF VINYL CHLORIDE DISCHARGE REPORTS
FOR
SECTION I — VINYL CHLORIDE DISCHARGES IN VIOLATION OF 40 CFR 61.65 (a)
INCIDENT : 1
DATE: 4-28—77
ESTIMATED QUANTITY OF VINYL CHLORIDE DISCHARGED (LBS): 120
SOU CE OF DISCHARGE: RELIEF VALVE 6024 ON VCM PRODUCT FILTER
DE !RMINATION: PREVENTABLE
REPORTED CAUSE OF DISCHARGE MEASURES TO PREVENT DISCHARGE
OPERATOR ERROR. The relief valve (1)
discharge occurred from the VCM
product filter when, after com-
pletion of VCM product loading to a
rail tank car, the liquid—full vinyl
chloride tank car loading line and
filter were blocked in. The relief
valve discharged when the Isolated
line underwent hydrostatic condi-
tions. ‘s response to the
Section 114 letter Indicates that
the operator responsible for the tank
car loading area failed to follow the
proper operating procedures and thus
isolated a static line of liquid vinyl
chloride. Additionally, during the
plant visit on November 17, 1982,
Indicated that the operators were verbally
warned during their training period on
the dangers of blocking in a liquid—
full VCM line.
CO fl C NTIAL
PLANT
Revise operating procedures
and operator training program
to ensure that all liquid—full
vinyl chloride lines and fil-
ters are not inadvertently
blocked in.
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SECIIUN IL — VINYL CHLORIDE DISCHARGE NOT SUBJECT TO NATIONAL EMISSION
STANDARD FOR VINYL CHLORIDE
INCIDENT : 11
ATE: 7 -lO-79
STIMATED QUANTITY OF VINYL CHLORIDE DISCHARGED (LBS): 3,400
OURCE OF DISCHARGE: RELIEF VALVE ON RAIL TANK CAR UTLX 95554
DETERMINATION: NOT APPLICABLE
REPORTED CAUSE OF DISCHARGE
The r llef valve discharge
occurred from the rail tank
car wF en, during loading
operations, the rail tank car
was overfilled. The discharge
was caused by a malfunctioning
set point V 111 meter which re-
sulted in an overfilled tank
car and the lifting of the tank
car relief valve. mdi-
cates in their response to the
Section 114 letter that the
cause of the meter malfunction
could not be determined.
Additionally, in the plant
visit on November 17, 1982,
Indicated that the meters are
maintained on the basis of
bserved need. It was also in.
icated that the rail tank car
d a magnetic gauge to indicate
the liquid level in the rail car.
It was the operator’s responsibility
to check the magnetic gauge during
filling operations. Thus, he should
have known If the device was operating
properly or not.
MEASURES TO PREVENT DISCHARGE
Rail tank cars ire not subject
to 40 CFR 61, subpart F, of the
National Emission Standard for
Vinyl Chloride.
CO F E TIAL
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INCIDENT : 2
DATE: 5-6—77
ESTIMATED QUANTITY OF VINYL CHLORIDE DISCHARGED (LBS): 570
SOURCE OF DISCHARGE: RELIEF VALVE ON VCM RUNDOWN SPHERE V-6004A
DETERMINATION: PREVENTABLE
REPORTED CAUSE OF DISCHARGE
The relief valve discharge occurred
from the VCM rundown sphere when,
during filling operations the
sphere was overfilled.
Indicates In their response to the
Section 114 letter that high pressure
and high level alarms were present
on the rundown sphere to warn the
operator of high liquid levels, but
neither functioned properly at the
time of discharge. During the plant
visit on November 17, 1982,
Indicated that maintenance on the high
pressure and high level alarms was
performed on the basis of observed
need (this policy was changed to an
annual basis routine subsequent to
this discharge). Additionally,
indicated that operators, as a result
of their training, were required to
double check their instrumentation
Indications against pumping rates
to the rundown sphere.
MEASURES TO PREVENT DISCHARGE
(1) Revise Inspection/preventative
maintenance program to ensure
adequate and timely cali-
bration both of the high
pressure alarm and of the high
level alarm.
(2) Revise operating procedures
and operator training program
to ensure that operating
personnel determine vessel
liquid levels using all
available instrumentation
(including pumping rates to
rundown sphere) and double
check liquid levels when
inconsistent readings are
obtai ned.
INCIDENT : 3
DATE: 5-14-77
ESTIMATED QUANTITY OF VINYL CHLORIDE DISCHARGED (LBS): 2,550
SOURCE OF DISCHARGE: RELIEF VALVE ON HC1 STRIPPING COLUMN C—6204
DETERMINATION: PREVENTABLE
REPORTED CAUSE OF DISCHARGE
OPERATOR ERROR. The relief, valve
discharge occurred from the IC1
stripping column during a startup
sequence which includes controlled
venting of Inerts to a vent scrubber.
indicates In their response
to the Section 11 litter that the
probable cause of the discharge was
either Inerts were not removed from
the MCI column fast enough or the
the reaction rates In the cracking
furnace were increased at a faster
rate than the Inerts could be re—
MEASURES TO PREVENT DISCHARGE
(1) Revise operating procedures
and operator training program
to ensure that operators,
during startup of the VCM
purification system, maintain
control of the inerts present
in the system. This includes
both controlling the reaction
rate in the cracking furnace
and purging inerts from the
HC1 column In sufficient
quantities.
m ø?I. .f P .%a F r4
‘ ‘t V ••- . I Is :1 1
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‘ . —. -. -. -— 1 •
of Inerts in the HC1 column reduced
the efficiency of the HC1 column con-
denser, resulting In underfiow of HC1
to the VCM column and ultimately to
the HC1 stripping column. In—
Jicates in the Section 114 letter
response that the board operator
failed to take sufficient time to
remove all the (nerts, even though
proper removal of inerts is stressed
to all operators when they are trained. (3)
Additionally, Indicated in the
plant. is1t on November 17, 1982,
that pressure gauges existed on the
MCi column, the quench column, and
by a con non vapor header) which should
have warned the operator of the high
pressure in the HCI column.
INCIDENT : 4
DATE: 5-15—77
ESTIMATED QUANTITY OF VINYL
SOURCE OF DISCHARGE: RELIEF
DETERMINATION: PREVENTABLE
REPORTED CAUSE OF DISCHARGE
OPERATOR ERROR. The relief valve
discharge occurred from the V M
caustic treater. indicates
In their response to the SectIon 114
letter that the discharge resulted
when both the caustic treater Inlet
and outlet block valves were left
closed. This caused the treater
to undergo hydrostatic conditions,
resulting in the relief valve dis-
charge. also indicates that
the operator responsible for the
caustic treater failed to follow
the proper operating procedures
and isolated a vessel containing
liquid vinyl chloride.
stressing closer attention to
pressures present within the
VCM purification system and
faster response to bringing
the HC1 column to a safe
condition (blocking In feed
to column, blocking in steam
to column reboiler) during
process excursions.
Improve process design by
installation of high pressure
alarm on HCI column which
sounds In central control
room.
(1) This is the second Incident
of process lines or vessels
being inadvertently blocked
in, resulting in a relief
valve discharge.
(2) Revise operating procedures
and operator training
program to ensure that all
liquid—full vinyl chloride
vessels are not inadvertently
blocked In.
(3) Improve process design by
installation of an equali-
zation line which relieves
any high pressure build-
up back to an upstream
point in the process line.
CHLORIDE DISCHARGED (LBS): 90
VALVE 6231 ON CAUSTIC TREATER V—6209
MEASURES TO PREVENT DISCHARGE
I. ‘. I
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INCIDENT : 5
DATE: 5-23—77
ESTIMATED QUANTITY OF VINYL CHLORIDE DISCHARGED (LBS): 3,000
SOURCE OF DISCHARGE: RELIEF VALVE 6209 ON VCM COLUMN C-6203
)ETERMINATION: PREVENTABLE
REPORTED CAUSE OF DISCHARGE
The jelief valve discharge
occurred from the VCM column
when, ‘as a result of a complete
power’ failure to the VCM unit,
the cooling water pumps and the
propylene compressor shut down.
With no cooling water to control
the pressure In the VCM column,
the column pressure rose to the
point of the relief valve dis-
charging. indicates In
their response to the Section 114
letter that the cause of the power
failure was an Incorrect switch—
over of power from a temporary
feeder to the normal feeder.
This tripped the circuit breaker
for the VCM unit. The incorrect
switchover developed when, having
Installed capacitors in the circuit
as part of their own design, the
construction contractor failed to
‘emove the capacitor bank prior to
vitchlng power feeders. This
resulted in an arc, knocking out
the power. Indicated In the
Section 114 letter response that
- engineers were not aware that
the capacitors were In the circuit.
However, in the plant visit on
November 17, 1982, indicates
that all departments affected by
any change to the manufacturing
process (such as the installation of
capacitors during the feeder switch—
over) were required to sign of f on
any changes. Thus, engineers
should have been aware pf the
capacitors which wer e Installed In
the feeder circuit had standard
operating procedures been followed.
MEASURES TO PREVENT DISCHARGE
(1) Revise operating procedures
to ensure that all affected
operating personnel are
aware of any proposed changes
to the manufacturing process
(including electrical power
supply) and that they com-
pletely analyze any potential
problems which may arise as a
consequence of the proposed
procedures.
(2) Improve process design by
utilization of a secondary
cooling water supply or a
secondary electrical power
source when primary elect-
rical power is lost to the
cooling water pumps and/or
the propylene compressor
In the VCM unit. This
secondary power supply or
source of cooling water should
be sufficient to allow a safe
shutdown of the VCM column
during disruption of the main
electrical power supply.
Cflf D TfP L
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INCIDENT : 6
DATE: 6-14—77
ESTIMATED QUANTITY OF VINYL CHLORIDE DISCHARGED (IBS): 3,000
SOURCE OF DISCHARGE: RELIEF VALVE 6008 ON VCM RUNDOWN SPHERE V-6004A
DETERMINATION: PREVENTABLE
REPORTED CAUSE OF DISCHARGE
OPERATOR ERROR. The relief valve
discharge occurred from the VCM
rundpwn sphere when, as a result
of th 2 tank farm operator
neglecting to swltcti recirculating
val’ es, the VCM run..own sphere
was overfilled. This rundown
sphere, which was full at the time,
was overfilled when product from
the second rundown sphere (which
had just been put on recirculation
prior to lab analysis) was errone-
ously transferred to the first run-
down sphere. indicates in
their response to the Section 114
letter that a high level alarm was
present on the rundown sphere, but
failed to activate properly (main-
tenance was performed on basis of
observed need). Additionally,
Indicates that a high pressure
alarm did activate, but corrective
action could not be taken quickly
enough to prevent the relief valve
discharge. Finally, indicates
that the tank farm operator Improperly
lined up the circulating valves con-
trary to proper operating procedures.
P4EASURES TO PREVENT DISCHARGE
(1) This Is the second Incident of
a relief valve discharge due
to overfilling of the VCM
rundown sphere because of
malfunctions of pressure
indIcating and/or level
indicating equipment.
(2) Revise operating procedures
and operator training program
to ensure that all valves
Involved in the transfer of
VCM to and from the VCM
rundown spheres are positioned
correctly at all times.
(3) Revise inspection/preventative
maintenance program to ensure
adequate and timely cali-
bration of thehigh level
alarms present on the VCM
.rundown spheres.
r tT
I.r.. ...L 1J
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_____________: i
bATE: 10-24—77
ESTIMATED QUANTITY OF VINYL CHLORIDE DISCHARGED (LBS): 690
SOURCE OF DISCHARGE: RELIEF VALVE ON VCM RUNDOWN SPHERE V-6004A
DETERMINATION: PREVENTABLE
REPORTED CAUSE OF DiSCHARGE
The relief valve discharge
occurred from the VCM rundown
sphere when, during filling
operations, the sphere was
ove f1lled. . Indicates
ln 1 thelr response to the Section
114 letter that high pressure
and high level alarms weie
present on the rundown sphere
to warn the operator of high
liquid levels, but neither
functioned properly at the
time of the discharge.
Additionally, a level Indicator
which was present of the rundown
sphere also malfunctioned. During
the plant visit on November 17,
1982, IndIcated that It was
the responsibility of the tank
farm operator to be gauging the
rundown sphere and to be aware of
Its liquid level at all times
(including comparing tank flU
rates to the Indicated liquid
level).
INCIDENT : 8
DATE: 3—30-78
ESTIMATED QUANTITY OF
SOURCE OF DISCHARGE:
DETERM I NAT ION:
REPORTED CAUSE OF DISCHARGE
The relief valve discharge
occurred from the.VC$ tank
car loading line ‘and filter
when, after completion of
WI product loading to a rail
tank car, the liquid—full vinyl
chloride tank car loading line
MEASURES TO PREVENT DISCHARGE
(1) This is the third Incident
of a relief valve discharge
due to overfilling of the VCM
rundown sphere because of mal-
functions in the pressure
Indicating and/or level
indicating equipment.
(2) RevIse Inspection/preventative
maintenance program to ensure
adequate and timely calibra-
tion of all critical pressure
Indicating and/or level
Indicating equipment.
(3) Revise operating procedures
and operator training program
to ensure that operating
personnel determine vessel
liquid levels using all
available Instrumentation
(Including pumping rates
to rundown sphere) and double
check liquid levels when In-
consistent readings are
obtained.
12
LOADING LINE
MEASURES TO PREVENT DISCHARGE
(1) This Is the second incident of
a relief valve discharge due
to Isolating the VCM tank car
loading line and filter.
(2) Revise operating procedures
and operator training program
C O D T
VINYL CHLORIDE DISCHARGED (LBS):
RELIEF VALVE 6024 ON VCM TANK CAR
AND FILTER
PREVENTABLE
-------
I.bCI CI II . S(1
relief valve discharged when the
Isolated line underwent hydro-
static conditions. - Indi-
cates In their response to the
SectIon 114 letter that the
operator responsible for the
tank car loading area failed
to follow the proper operating
procedures and thus Isolated a
static line of liquid vinyl
chloride. Additionally,
Indicates that they recognized
prior to the relief valve
disckrge the need to reduce
the possibility of future vinyl
discharges In the tank car loading
area. Thus, they had begun an
engineering design on a closed
vent system which would route any
discharge from this relief valve
to two new storage spheres. During
the plant visit on November 17, 1982,
Indicated that the engineering
design was needed, because they felt
human error could not be completely
eliminated by stressing proper
operator training and use of proper
equipment.
DETERM I NATION:
REPORTED CAUSE OF DISCHARGE
The relief valve discharge
occurred from the V M tank
car loading line and filter
when the nitrogen supply to
the emergency shutoff valves
was blocked in to allow a
contractor’s personnel to
weld on a nitrogen line.
The emergency shuts ’f ‘valves,
which control flow In the tank
car loading line and filter,
were nitrogen-actuated and were
designed to remain open when the
nitrogen supply was disrupted.
However, after the nitrogen
b C.. UI C WI I I II4I.I I I I
vinyl chloride lines and
filters are not Inadvertently
blocked in.
(3) Improve process design by
Installation of a closed
relief system, whereby all
relief valve discharges are
vented to an applicable point
in the manufacturing process.
MEASURES TO PREVENT DISCHARGE
(1) ThIs is the third incident
of a relief valve discharge
due to isolating the VOl
tank car loading line and
filter.
(2) Improve process design by In-
stallation of a closed relief
system, whereby all relief
valve discharges are vented to
an applicable point In the
manufacturing process.
CO !D T AL
INCIDENT : 9
DATE: 11—2—78
ESTIMATED QUANTITY OF VINYL CHLORIDE DISCHARGED (LBS): 12
SOURCE OF DISCHARGE: RELIEF VALVE 6024 ON VCM TANK CAR LOADING
LINE AND FILTER
PREVENTABLE
Though
process
was In the
of installing such a
-------
supply was blocked In, rncroge.s
leaked around the block valve
(which on subsequent Investiga-
tion was revealed to have mal-
functioned) which caused the
emergency shutoff valves to
close. This resulted In
Isolation of a liquid—fufl
vinyl chloride line and the
creation of hydrostatic condi—-
tions In the line.
Indicates In their response
to the Section 114 letter that
the nttrogen supply was blocked
in tb allow the contractor to
Install a closed vent hydrostatic
relief valve system on the tank
car loading line and filter.
INCIDENT : 10
DAlE: 3—19—79
ESTIMATED QUANTITY OF
SOURCE OF DISCHARGE:
DETERMI NATION:
REPORTED CAUSE OF DISCHARGE
The relief valve discharge
occurred from the VCM product
storage sphere when the In—
strument air supply valve to
the product storage sphere was
Inadvertently closed. This valve,
which was accidently closed by
a tangled air hose when the
sphere was being painted,
supplies instrumsnt air to
allow functioning of both the
vent recovery system and
the high pressure alarm. The
relief valve discharged due to
high pressure in the sphere
C speculates that Inerts
must have been present In the
duration of time from the
first incident of a relief
valve discharge from the tank
car loading line and filter
(which occurred on 4—28—77)
to the time of this incident
was excessive. Thus, it is
i,r.naterjal to the deterr ina—
tion (as to whether this
discharge could have been
prevented or not) whether
was in the process of
installing a closed relief
system at the ti,ne of the
relief valve discharge.
(3) Revise inspection/preventative
maintenance program to ensure
that all critical valves are
maintained In a leak—free
state. This includes routine
replacement of any valve for
which it is not possible to
detect whether the valve is
leaking or not by some prac-
tical means.
MEASURES TO PREVENT DISCHARGE
(1) Improve process design
by utilization of a secon-
dary instrument air supply
to the product storage sphere
to ensure an adequate instru-
ment air supply to the vent
recovery system and the high
pressure alarm at all times.
(2) Revise operating procedures
and operator training program
to ensure that operating
personnel are aware of
pressures within the product
storage sphere at all times.
This Includes using all
avail able Instrumentation
VINYL CHLORIDE DISCHARGED (L8S): 690
RELIEF VALVE ON VCM PRODUCT STORAGE
SPHERE V—6006A
PREVENTABLE
CO t1 E1 TIAL
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hign pressure situat ion), even
though the sphere was only 77%
full. indicates In their
response to the Section 114
letter that, to prevent a
recurrence of the Instrument
air valve accidently closing,
the valve was subsequently car—
sealed open. During the plant
visit on November 17, 1982,
Indicated that a locally-mounted
pressure indicator was present
on the product storage sphere.
INCIDENT : 11
REPORTED CAUSE OF DISCHARGE
The relief valve discharge
occurred from the VCM run-
down sphere when, during
filling operations, the sphere
was overfilled. indicates
In their response to the Section
114 letter that a level Indicator,
a high level alarm, a pressure
indicator, and a high pressure
alarm were all present on the
rundown sphere, but each mal-
functioned at the time of the
relief valve discharge. During
the plant visit on November 17,
1982, indicated that they
estimate the level Indicator
showed a constant 75% full
reading for approximately two
hours prior to the relief valve
•dfscharge. . cpntends that
the operator should have noticed
that the level Indicator was
not functioning correctly during
this two hour period. Additionally,
Indicated that the high level
and high pressure sensing equipment
pressure gauy l dUU Uuubue
checking pressure indications
when Inconsistent readings are
obtained.
MEASURES TO PREVENT DISCHARGE
(1) This Is the fourth incident
of a relief valve discharge
due to overf filing of the
VCM rundown sphere because
of malfunctions In the
pressure Indicating and/or
level indicating equipment.
(2) Revise inspection/pre-
ventative maintenance
program to ensure adequate
and timely calibration of
all critical pressure
indicating and liquid level
indicating equipment.
(3) RevIse operating procedures
and operator training
program to ensure that
operating personnel determine
vessel liquid levels using all
available instrumentation (In-
cluding pumping rates to run-
down sphere) and double check
liquid levels when incon.
SEE SECTION II — VINYL CHLORIDE DISCHARGE NOT SUBJECT TO {ATIONAL EMISSION
STANDARD FOR VINYL CHLORIDE
INCIDENT : 12
DATE: 1—20—81
ESTIMATED QUANTITY OF VINYL CHLORIDE DISCHARGED (LBS): 3,100
SOURCE OF DISCHARGE: RELIEF VALVE 6009 ON VCM RUNDOWN SPHERE V—6004B
DETERMINATION: PREVENTABLE
CQE T AL
-------
r uin9 rt u eniea.
schedule (this was subsequently
changed to every three months after
• this incident), but • was not
certain when the last maintenance
as performed on these pieces of
equipment. Finally, . Indicated
that the tank farm operator was
expected to determine the liquid
level in the rundown sphere based
o pumping rates to the sphere and
to use this information to gauge the
accuracy of the level indicating devices.
INCIDENIt 13
DATE: 7—18—81
ESTIMATED QUANTITY OF VINYL CHLORIDE DISCHARGED (LBS):
SOURCE OF DISCHARGE: RELIEF -VALVE ON VCM COLUMN C—6203
DETERMINATION: PREVENTABLE
REPORTED CAUSE OF DISCHARGE
The relief valve discharge
occurred from the VCM column
when, as a result of the loss
of cooling water to the VCM
column condensers, pressure
rose in the VCM column.
Cooling water was lost due to
a total power outage In the
• • . area which
esulted In the shutdown of the
hoollng water pumps.
indicates In their response to
the SectIon 114 letter that the
shutdown 0 f the cooling water
pumps was longer than necessary
when, after restoration of power
following the Initial power outage
(estimated to have lasted 2—3
minutes), a simultaneous startup
of the cooling water pumps which
are large power consumers caused
an additional ten minute local
power outage. indicates
that the cooling water pumps
were designed to restart at ten
to fifteen second Intervals to
avoid a simultaneous startup.
At some time prior to the relief
valve discharge, the timing
sequence was inadvertently
altered, such that the cooling
water pumps were set to restart
MEASURES TO PREVENT DISCHARGE
(1) ThIs Is the second incident of
a relief valve discharge re-
sulting from the loss of
power to the VCM column
condenser cooling water pumps.
(2) Improve process design by
utilization of a secondary
cooling water pump power
supply or a secondary source
of cooling water to ensure
an adequate supply of cooling
water to the VCM column con-
densers. This secondary
power supply or source of
cooling water should be
sufficient to allow a safe
shutdown of the VCM column
during disruption to the main
electrical power supply.
(3) RevIse Inspection/preventative
maintenance program to ensure
that the timing sequence
relays are properly maintained
and are set to ensure a
staggered startup of the
cooling water pumps after a
power outage.
CONF D NTIAL
11,000
-------
dU UIu’ IG snutdown of tne com-
pressor. The high pressure alarm
.on the discharge line of the
compressor failed to operate when
the alarm set point had been
improperly set above the shutdown
point. states that It Is
unknown when the alarm point had
been Improperly set (though, as
stated by In the plant visit
on November 17, 1982. the alarm and
set, point were scheduled to be
checked just prior to the relief
valve discharge, coincident with
the scheduled plant shutdown).
also stated during the plant
visit that the compressor low
pressure alarm system, which Is
supposed to activate under low
compressor outlet pressure, did not
sound after shutdown of the com-
pressor. This was due to a design
flaw which was previously unde-
tected. Finally, stated
that operators were required to
use their experience and training
to ensure that the propylene
system was not overfilled.
critical after Initial in-
stallation of the alarm
system or after any design
modifications to determine
whether the system will
perform as designed under
actual operating conditions.
INCIDENT : 15
DATE: 7—31.81
ESTIMATED QUANTITY OF VINYL CHLORIDE DISCHARGED (185):
SOURCE OF DISCHARGE: RELIEF VALVE ON VCM COLUMN C—6203
DETERMINATION: PREVENTABLE
REPORTED CAUSE OF DISCHARGE
OPERATOR ERROR. The relief valve
discharge occurred from the VQI
column during a startup sequence
which includes controlled venting
of inerts to a vent scrubber.
• Indicates In their response
to the Section 114 letter that the
discharge resulted when Inerts present
In the system were not removed quickly
enough, thus caus1 g reduced efficiency
of the HCl column’co densers. During
the plant visit on November 17, 1982.
Indicated that they believe
the operator attempted to operate the
cracking furnace at higher conversions
than the downstream process equipment
MEASURES TO PREVENT DISCHARGE
(1) ThIs is the second
Incident of a relief valve
discharge resulting from
Improper balance between
the cracking rate from the
furnace and the removal of
Inerts from the HC1 column.
(2) RevIse operating procedures
and operator training program
to ensure that operators,
during startup of the VCN
purification system, maintain
control of the Inerts present
In the system. This Includes
both controiling the reaction
co RT Er TIAL
14,000
-------
— eIJ
when the timing sequence had been
altered or by whom. In the plant
visit on November 17, 1982,
stated that they were not certain
whether the timing sequence relays
were part of any maintenance program
at the time of the relief valve
discharge. Subsequently, however,
a check of these relays was insti-
tuted as part of the checkout
procedure performed during scheduled
shutdowns. also Indicated that,
based on their process design for the
equipment In place, a loss of cooling
water for more than several minutes
will result in a reUef valve discharge.
No equipment or procedures were present
at the time of the relief valve discharge
or since this time period to prevent the
occurrence of a relief valve discharge
with a loss of cooling water supply for
several minutes.
INCIDENT : 14
DATE: 7—26—81
ESTIMATED QUANTITY OF VINYL CHLORIDE DISCHARGED (LBS): 1,600
SOURCE OF DISCHARGE: RELIEF VALVE ON QUENCH COLUMN C—6201
DETERMINATION: PREVENTABLE
REPORTEOCAUSE OF DISCHARGE
OPERATOR ERROR. The relief
valve discharge occurred from
the quench column when, as a
result of refrigeration loss to
the HC1 column condensers due to
shutdown of the propylene com-
pressor, pressure rose In the MCi
column. This in turn caused
pressure to back up Into the
quench column, which is connected
to the HC1 column by a comon
header, and resulted In a relief
valve discharge from the quench
column. Indicates In their
response to the 3e.tlon 114 letter
that the relief valve discharge
resulted because of overfilling
of the propylene system prior to
startup. This overfilling created
a high pressure situation on the
discharge side of the propylene
MEASURES TO PREVENT DISCHARGE
(1) RevIse lnspectionlpreventative
maintenance program to ensure
adequate and timely main-
tenance on the high pressure
alarm on the propylene com-
pressor discharge line.
This includes ensuring that
the set point for the high
pressure alarm Is properly
positioned.
(2) RevIse operating procedures
and operator training program
to ensure that operating
personnel do not overfill the
propylene system during
charging operations.
(3) Revise inspection/preventative
maintenance program to ensure
proper operation of all alarm
CO F T1
-------
operator must operate the furnace,
m3lntalning a balance between the
cracking rate and the ability to
remove Inerts from the HCI column.
Failure to maintain this balance
leads to reduced cooling In the
HC1 column condensers which leads
to HC1 underflow from the HC1 column.
This in turns leads to reduced
cooling efficiencies in the VCM
column which results in a pressure
buiW-up tn the VCM column. If the
pressure build-up Is great enough,
the el1ef salve will discharge.
and the purging of inerts from
the HC1 column In sufficient
quantities.
(3) Revise operating procedures
and operator training program,
stressing close attention to
pressures present within the
VCM purification system and
faster response to bringing
the HC1 column to a safe
condition (blocking in feed
to column, blocking in steam
to column reboiler) during
process excursions.
INCIDENT : 16
DATE: 4—6—82
ESTIMATED QUANTITY OF VINYL CHLORIDE DISCHARGED (LBS): 1,150
SOURCE OF DISCHARGE: RELIEF VALVE ON VCM COLUMN C—6203
DETERMINATION: PREVENTABLE
REP.ORTED CAUSE OF DISCHARGE
The relief valve discharge
occurred from the VCM column
as a result of a sudden loss
of coolant to the YCM colurm
condensers. The coolant loss
was created by a total power
failure which was caused by a
tree limb falling across the
main feeder lines to the -
facility. Indicates In
their response to the Section
114 letter that the under-
growth along the electrical
feeder right—of-way was not
properly maintained by
- (owners of the
feeder system).
MEASURES TO PREVENT DISCHARGE
(1) This is the third Incident
of a relief valve discharge
resulting from the loss of
power to the VCM column
condenser cooUng water pumps.
(2) Improve process design by
utilization of a secondary
cooling water pump power
supply or a secondary source
of cooling water to ensure an
adequate supply 0 f cooling
water to the VCM column con-
densers. This secondary power
supply or source of cooling
water should be sufficient to
allow a safe shutdown of the
VCM column during disruption
to the main electrical power
supply.
t NTIAL
-------
ATTACHMENT 2
PENALTIES FOR VINYL CHLORIDE RELIEF VALVE DISCHARGES
Penalty Assessed for Each Discharge
Pounds of Vinyl Chloride Released Penalty
o — 1000 $ 1000
1 - 2000 2000
2 - 3000 3000
3 - 4000 4000
4 - 5000 5000
5 - 7500 10,000
7500 - 10,000 15,000
10 - 12,500 20,000
over 12,500 25,000
Other statutory bases for mitigation may apply -
e.g., economic impact of the penalty on the business
-------
PENALTIES FOR RELIEF VALVE DISCHARGE REPORTI! G VIOLATIONS
1) Failure to report discharges of 10 pounds or less:
$2500/discharge
2) Failure to report discharges greater than 10 pounds:
$2 000/dLscharge
Discounts for reporting voluntarily (i.e., not in
response to 114 letter):
Within 6 months 80Z
6-12 months 65%
12-24 months 50%
24 months 25%
Over 24 months 0%
Other statutory bases for mitigation may apply - e.g., the
econoi ic impact of the penalty on the business
-------
• IL _Z1I .L1.L .3
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
.. / . REGION A
5 FED RA PLAZA
MAY 20 1980 NEW YORK. NEW YORK 10007
CE MA
TURN CEIPT UES
.
fr. William Wetzel
r ’aant Manager
Hooker Chemical Cczrpany
Thico Division
P. 0. ox 1156
River Road
ir1i.ngton , ew Jersey 08016
Re: Hooker Chemical Conpany
Ruco Division
Burlington, New Jersey Plant
Dear : . Wetzel:
Section llb of the Clean Air Act, as amended, 112 U.S.C. §711111 (“the Act”),
authorizes the EPA Administrator (or’ his duly authorized dele te) to
require the submittal of certain infornation by emission sources to enable
A to detern ne their status of cor 1iance with an applicable standard
prorin l ted pursuant to Sections 111 or 112 of the Act and with any require-
ient of’ an iiplenentation plan pursuant to Section 110 of the Act.
Pursuant to Section 112 of the Act, regulations were pr’oniil ted at 10 CFR
§61.60 et . for the control of vinyl chloride emissions. These regulations,
the National Drd.ssion Standard for Viny]. Chloride, establish certain require-
z ents which apply to plants which produce polyvinyl chloride. M xe specific-
a]]y, these regulations set standards for relief’ valve discharges (110 CFR
§61.65(a)), i eriual vent valve discharges (110 CF §61.6 1 1(a)(3)), Ir2flual venting
of’ ses (110 C FR §61.65(b)(5)), and equipirent opening (110 CFR 561.65(b) (6)).
As the owner and/or operator of’ a polyvinyl chloride n2nufacturing facility
which is subject to the regulatory requirerrents of Section 112 of the Act,
the Hooker Chemical Ca pany , Ruco Division (“Hooker”) is hereby required,
pursuant to the authority of Section 1111 of’ the Act and subject to the
sanctions set out .n Section 113 of’ the Act, to submit the infonTation called
for in Attachnent I concerning relief valve discharges, irenual vent valve
• discharges, and other releases of vinyl chloride at its facility at River
Road, irlingtcn, New Jersey.
This is to Inform y z that Hooker irey, if it so desires, assert a business
confidentiality claim covering all or part of’ the Inton tion being requested.
The claim may be asserted by placing on (or attaching to) the information,
at the tiire it• is submitted to EPA, a cover sheet, stazrped or typed legend
or other suitable form of notice enp]oying language such as “trade secret,”
•1 z .Ulthr’Op/tt : x119 6 : 11/30/80
-A? 2A]] -AF 2ArR-AF 2E. ’?—CE 2Dm-GE 2LW-DD 2E 4P
i •t- CZ 1 CTACcC)IIE 1WI,’flD CI DV3RKD4 SCOUJICV.
-------
“proprietary,” or “ccr any confidential.” Allegedly confidential portions
‘ otherwise non-confidential documents should be clearly identified by
e business, and tray be au rnitted separately to facilitate identification
andlthg by EPA. If Hoak r desires confidential treatment only Until a
certain date or with the occurrence of a certain event 1 the notice should
so state. Infornation covered by such cla.ljn will be disclosed by Z! A only
to .he extent, a’d by i ans of the procedures, set forth in Subpart B, Part 2,
Cha te1’ I or Title 1 0 of the Code of Federal Fegulations ( 10 CFR 2.201
If no ‘such claim aecorrpanies the ird’oxmation when it is received by EPA, it may
be made ava.tlable to. the public by EPA ,without further notice to you.
This Information xii st be submitted within 20 days fran the receipt of this
letter to Kenneth & g, Chief, Air & ,viror ental Applications Section,
Plarr ing & Nanag rent Division, at this adth’ess. In addition, any change
In the inforn tion tn.ist be reported no later than 5 days after such change
OCCUrS. This continuing requirethent to provide notification of changes In
the information covered by this letter will r nain in effect witil expressly
terminated in writing by this office.
You may address any questions concerning this matter to Sam uel P. !‘bulthrop ,
Esq., D forc nent Division, telephone rnznber (212) 26 1-ll96.
Sincerely yours,
julio M,rales-Sanchez
kirectoz’
forcement Division
Attachment
cc: .mce L. Harrison w/attachment
Capehard & Scatthard
Edward .7. Londxes w/attachnent
Assistant Director
Bureau of Air Pollution Control
New Jersey partmerzt of ‘ivirvnnental
Protection
Mr. Raymond Abran witz w/attachrTeflt
Director of Reg LIathry Affairs
Hooker Chevdcal Ccripany
bcc: .7. ?lenczel, 2 A]B-A,F
N. Kantz, 2 A1] -AP
K. fl g, 2 PM-PA
-------
AT AC*iE2 T I
Reauest for Thfornation Pursuant to Section liii of’ the Clean Air Act
1. Please list the dates of all relief valve discharges of’ vi y chloride
cip n r (“V 1”) subsequent to C tober 21, 1978 at the Hooker Che cal
I cokar y (“Hooker”) polyvinyl chloride nanufacturing facility at Bur2iz gton,
New Jersey (hereinafter “the plant”) caused (solely or in part) by prerTature
failure of rupture di ks, and for each such incident provide the following
infoimtion:
a. The length of tli7e the rupture disk was In service prior to its
failure.
b. The i enufacturer of the disk.
c. type of disk (the riaterial out of which the disk was iTade)
d. The corrective action taken ImTlediately after the discharge in order
to prevent subsequent rupture disk failures.
2. By letter of August 111, 1979 from Ray ond Abrazi witz of Hooker to Na us
Kantz of A Hooker reported that on the weekend of August 11 and 12, 1979
all rupture disks nade of nickel at the plant were replaced with rupture
disks rt de of nickel and teflon. Prior to August 11, 1979 how frequently
and on what basis were rupture disks replaced at the plant?
3. Subsequent to August 12, 1979 how frequently and on what basis are
(or will) ruptt ’e disks (be) replaced at the plant?
I). On what date did the Hooker Chemical Conpany order the teflon and nickel
rupture disks which were substituted for the nickel rtWttu ’e disks on the
weekend of August 11 and 12, 1979?
-------
5. Please state the r es aid positions of:
a. The Hooker officials or eriployees who nade the decision to replace
the rt twe disks on August 11 aid 12, 1979.
b. The Hooker officials or enployees whose r colTrrendations r opinions
were relied upon to nake the’ decision to replace the nipt .n’e disks.
6. a. Please set forth the reasons why the nickel r t ’e disks were
replaced by the teflon aid nickel rupture disks.
b. P ’Q i what soizce did Hooker learn of these reasons?
C. C what date did the Hooker Cher ca1 Conpany first learn of these
reasons?
7. a. Are the teflon aid nickel rupture disks now being used at the plant
noze expensive than the nickel rupture disks previously used?
b. If so, how iaich rrcre expensive are the teflon aid nickel rupture
disks than the nickel rupture disks?
8. W y did Hooker not install the teflon aid nickel rupti.u’e disks at the
plant prior to August 11, 1979?
9. Has Hooker used teflon and nickel rupture disks at any other plant which
it ov’ns and which is subject to the requirements of 0 CPR §61.60 et .?
10. If the answez’t Question 19 is yes, please state the name, type, aid
1 cation of each plant which has used such disks and indicate the date on
which teflon and nickel rupture disks weze first used at each such plant.
.
U. At the Birllngton plant does Hooker use de ssing techniques to control
pressure surges in the prepolymerizers (“prepos”) and postpolynerizers (“popos”)
dw’ing reaction?
-------
3
12. If the answer to Question Ill is yes, please provide the follow1z g
infox iation:
a. Is the de .ssj.r2g a part of the i cnoirer’ recovery process7
b. If so, describe the de ssi g procedures and z thods iri:1ud1r g
the types of equipnent used.
c. Is pressw’e released to sw ge tanks as part of the procedure?
d. Ifso,hatisthecapcityofeachsurgetank?
a. Is de ssthg autonatic or varnial?
f. which pol.y erizers is de ssing used?
13. In e rd to the techniques Hooker e çloys to control or prevent w e ected
tei perature aid pressure rises in the prepos aid popos:
a. Describe the generel equi ment aid procedures used, including the
nor tal order of use.
b. Pre chemical shortstops used?
c. If chemical shortstops are used, list them and briefly describe why
they are effective and the basis of their effectiveness.
d. If chemical shortstops are not used,
‘I
i. Describe the reasons, if ary, why Hooker is prevented from doing
ii. Describe the reasons, if ary, why Hooker chooses not to use
shortstops.
1 1 L Please describe the steps which were taken 1zi diately prior to the
following discharges of ‘ 1CM ui an effort to prevent them:
-------
a. The discharge fran pcpo 33 on February 11i, 19797
b. discharge fran popo hA on March ill, 1979?
c. The discharge fran popo 3A on Jur 211, 1979?
1 . In regard to the February iii, 1979 discharge fran popo 33:
a. did Hooker charge an excess of initiator to the popo7
b. What steps were taken to insure that the proper amo r*t of initiator
was used?
i6. In regard to the March 111, 1979 discharge from popo 1A, ‘what steps were
taken to Insure that the experimantal resin batch would not result in ur con-
tro1la 1e pressure rises in the popo?
17. When experimental resins axe to be produced at the plant, what steps does
Jooker now take to insure that the proper ama. t of initiator is used?
18. By letter of February 26, 1979 fran Raymond Abrarnowitz of Hooker to
Marcus Kantz of EPA Hooker reported that on February 19, 1979 500 gallons of
vinyl chloride were released upai the opening of the outdoor gas surge tank
which feeds the incinerato ’. In regard to this release:
a. What is the capacity of the surge tank?
b. Describe In detail the purpose and use of the tank.
c. When 1iq id’norn l1y collects in the tank:
1. What is its approximate onposition?
U. Is it nor ia1ly renoved fr the tank?
iii. If so, ‘thy is it renoved from the tank?
iv. How is it nonlally removed? Is it removed to cquipment,
process, etc., or Is It nonnaliy released to the ground?
-------
d. Prior to the time of the release, had Hooker issued any written or
- verbal instructions to appropriate pers e1 cor erning these pro-.
cedures?
e. If so, please describe the instructions and provide copies of any
written instructions.
f. Had the personnel who released the VCM received the instructions
described alove?
g.. If so 1 please state when and in what tox,n (written or verbal).
h. Please state the nane and position of the personnel who released
the VCM.
i. Di these persons follow their instructions in opening the tank?
3. If they did not follow instructions, why did they not do so?
k. y did they open the tank, releasing the VCII?
1. What steps has Hooker taken to insure that such discharges do not
occur In the future?
n. Please state the names and positions of:
is. The Hooker erployees who opened the outdoor p.s surge tank.
ii. The Hooker enployees ‘iho supervised those doing SO.
19. By letter of February 26, 1979 Hooker also reported that on February 21,
1979 100 llons of vinyl chloride were released from two caustic scrubbers.
In repz I to these releases:
a. February 26, 1979 states that the scrubbers were vented to
aUow then to be used to receIve VCM flushes from the day tank.
I. Was this done to clear the blockage in the feed lines from
the rtonox r recovery system and the day tank?
-------
ii. How many flushes were required to clear the blocI ge?
iii. Please supply a eCPejTatic d.tagram showing the flow lines,
valves, and’ directions of flow involved in this flushing
process and in normal use of the equi ent (I l’.xilng the
day tank, the scrubber’s, the inonaner recovery syst n, etc.)
and explain the procedure.
b. What were the contents of the scrubbers at the tine of the release?
c. What steps, if arty, were taken to reduce the quantity of V ?•1 in
the scrubbers before they were opened?
d. What steps has Hooker taken to prevent recurrence of a sirrd.1ar
incident?
e. Please state the names and positions or:
1. The Hooker enployees ‘tho vented the two scrubber5.
ii. The Hooker errployees who supervised those doing so.
20. By letter of May 7, 1979 from Harold Dubec of Hooker to Marcus Kantz
of A Hooker reported that on May 1, 1979 500 pounds of V were released
irenually fr xn a vent valve on popo 1C. In regard to this release:
a. Had the vent filter been cleaned on that day? If not, why not?
b. Had the degassing filter which precedes the vent filter been cleaned
and inspe ed after the previous batch? It not, why not?
c. If anything unusual resulted tram the inspections •and cleanings
described in a or b, above, please describe what occurred or what
was observed.
d. What steps had Hooker taken prior to this release in order to
prevent plugging of the vent filter?
-------
7
e. at steps has Hooker taken subsequent to this release to prevent
future releases due to plugging of the vent filters at the plant?
f Please state the flames and positions of
1. The Hooker personnel who manually vented the ‘IPCM.
ii. The Hooker personnel who st.pervised those doing so.
21. In the I’Ia y 7, 1979 letter referred to in Question 20, Hooker stated
that written instructions had been given to all production supervision at
the plant that “manual vent valves are only to be used in condit ions of
e ergency when rupture disk operation has fa.tled to control reaction
pressure.”
a. Please provide a copy of these written instructions.
b. the instructions mean that manual vent valves are to be used
only after the rupture disk set pressure has been surpassed and
.
the disk has ruptured or failed to rupture? Please explain.
22. By letter of August 111, 1979 fran Raymord Abramowitz of Hooker’ to
Marcus Kantz of EPA Hooker reported that it had taken certain steps to
prevent relief valve d.ischa ges. In paragraph 12 on page 2 of the
August 111, 1979 letter (Attathnent 1(A)) Hooker asserted that it had
increased its efforts “in the areas of inspection and maintenance.” Please
describe in detail those measures to which this pa.ra&aph refers.
23. By letter of January 30, 1980 from Harold Dibec, Jr. of Hooker to
t .
Marcus Kantz of EPA Hooker reported that on January 27, 1980 300 pounds
of 11CM had been released manually frun a vent valve on popo 1 1D. In
regard to this release:
-------
a. Did the s ervisory arx1 operating personnel follow the procedures
Srcluded in their Instructions cited in Hooker’s ?‘ y 7, 1979 letter
to !7A described’ in Question #21?
b. Subsequent to the discharge what steps has Hooker taken to prevent
subsequent si lar discharges?
2 1. By letter at February 7, 1990 from Harold Dubec , Jr. of Hooker to
Marcus Karitz of PA Hooker reported that on February 1, 1980 1 9140 powxis
of V were released from the north rupture disks on popo 1A. In regard
to this discharge:
a. 1 at steps did Hooker take to Insure that the proper anow]t of
Initiator was used in the affected batch prior to char .ng the
reactor?
b. That steps has Hooker taken to prevent clog .ng of the press e
• transT ssion lines at the plant?
c. Please state the naz s and positions of Hooker persor e1 who were
operating popo 1* at the tine of the discharge.
25. Bow frequent’y does Hooker plan to clean all pressure transmission
lines at the plant?
26. By letter of March 5, 1980 from Harold Dubec, Jr. of Hooker to
Marcus Xantz of PA,)boker reported that on January 21, 1980 3000 pounds of
VCM were ITanually released from popo iD. In regard to this release:
a. Did the Hooker euployees who were present when the popo was charged
follow prescribed procedures for charging the popo?
-------
b. It the Hooker exiployees did not follow prescribed procedures, which
procedures were not followed a I x ! which person(s) tailed to follow
the procedures? Please state each person’s nazTe an position.
c. If the Hooker e ployees did follow prescribed procedures, have the
procedures been changed to prevent a ftiture discharge for the
saire or similar reasons?
d. If such procedures have been changed, describe how they have been
changed.
27. In re rd to the January 21, 1980 discharge from popo 1D:
a. Please state the nape of the foren n who instructed the control
room operator to open the i anual vent valves.
b. Please state the nasr of the control room operator who opened the
1Tarn a1 vent valves.
C. WI wasthisdischargenotrecordedinthelogbookkeptinthe
Control Room of the resin facility at the plant?
d. When did the control room operator first inform his supervisors,
other than the fthe an, of the discharge?
b. Please state the naiie(s) and position(s) of the supervisor(s)
other than the for nEn who the control room operator first
inf d.
f. When dfd khe foree n first inform his supervisors of the
discharge?
g. Please state the nan (s) and position(s) of the supervisor(s) who
the foreman first in1brir 1.
-------
h. en did the Jarlual7 21 , 1980 discharge tfrst caie to the attention
of Harold F. Dubec, ) nager virorrenta1 Conpliar e, Hooker
Q iLtca1 Co Tpal ?
1. b y did the control ro operator ard forenan dela r in reportthg
• the discharge to their st ervisora?
3. Prior to the January 21D 1980 discharge had Booker instructed all
forenan aid operators to report dl.scha.rges ijmiediate1 v?
what date(s) were these instructions given?
k. at steps has Hooker taken to insure that all future discharges axe
pro ipt1.y reported?
-------
ATTACHMENT 4
Survey of Relief Valve and Manaul Vent Valve Discharges
from PVC Plants
For each plant :
A. Equipment information
1. Number and size of reactors used (for each type
of resin, if known)
2. Number of batches per year (for each type of resin,
if known)
3. Age of plant
B. Discharge information
1. Number of discharges by year (1981 — 1983)
2. Size of each discharge
3. Frequency of three most common causes of discharges
for each plant (for each type of resin, if known) -
e.g., operator error, maintenance error, batch
thickening, overcharging the reactor, water or
VCM meter failure, power failure, premature rupture
disc failure
-------
4
-------
-------
Benzene NESHAPs Guidance
(06/01/84)
File at Part B, Document *4
-------
J1!N I
SUBJECT: Renzene NESHAPs Guidance
FROM: Director
Stationary Source Compliance Division
Office of Air Ouality Planning and Standards
TO: Air & Waste Management Division Directors
Regions II, IV, VI—VITI, and X
Air Management Division Directors
Regions I, III, V, and IX
Attached are enforcement guidelines for the benzene NESHAPs,
which is scheduled to be promulgated on June 4, 1984 and which
will regulate benzene equipment leaks from fugitive emission
sources. The guidelines summarize the regulations and address
potential enforcement problems. All Regions should work with
delegated States in identifying affected sources and ensuring
those sources are in compliance with the benzene regulations.
The Stationary Source Compliance Division and the Eirission
Standards and Engineering Division have jointly agreed to present
one day session discussing the benzene NESHAPs, if there is
sufficient interest among Regional personnel. The session is
tentatively scheduled for Washington during the week of June 18.
Please notify Robert Myers at (FTS) 382—2875 if representatives
from your Region would be interested in attending such a meeting.
C<
Edward E. Reich
Attachment
cc: Jack Farmer
Fred Dimmick
Earl Salo
NESHAPs Contacts
-------
NESHAPS Enforcement Guideline S—28 — Benzene Equipment Leaks
(Fugitive Emission Sources)
Benzene standards are being promulgated under the
National Emission Standards for Hazardous Air Pollutants,
Section 112 of the Clean Air Act. Standards under this
section have already been promulgated for asbestos, beryllium,
mercury, and vinyl chloride, and have been proposed for
arsenic and radionuclides in addition to benzene. OAQPS has
prepared this document to aid in enforcement and implementation
of the benzene NESHAPs. This summarizes the benzene equipment
being regulated and the standards to which this equipment is
subject, and provides guidance on several issues of enforce-
ment concern.
Background
On June 8, 1977 the Administrator declared benzene a
hazardous air pollutant and a carcinogenic risk to human
health. Standards were later proposed for four sources of
benzene emissions. These sources were benzene equipment
leaks (fugitive emission sources), proposed 1/5/81, 46 FR
1165, maleic anhydride plants, ethylbenzene/styrene plants,
and benzene storage vessels. Further analysis has led EPA
to conclude that both the benzene health risks (annual leu-
kemia incidence and maximum lifetime risk) to the public
from the latter three source categories and the potential
reduction in health risks achievable with available control
techniques are too small to warrant action under Section 112
for these three categories. As a result, EPA proposed on
March 6, 1984, 49 FR 8386, to withdraw the proposed standards
for these three categories. Because of the magnitude of
benzene fugitive emissions, the projected increase in emis-
sions as a result of new sources, and the estimated decrease
in risks and emissions achievable through controls, EPA
found fugitive benzene emissions posed a significant risk
and should be regulated.
Introduction
Valves, pumps, flanges and other pieces of equipment
are used extensively in the refining and organic chemical
industries to move streams of organic compounds to and from
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various process vessels. Since this type of equipment can
develop leaks, each individual piece is a potential source
of organic compound emissions whenever it handles a process
stream containing such compounds. Benzene fugitive emissions
sources are pieces of equipment handling streams that could
potentially contain benzene. These include sources that
develop leaks after some period of operation due to seal
failure as well as other sources that can emit benzene when
used in specific conditions in the production unit. The
sources that develop leaks due to seal failure are those using
a sealing mechanism to limit the escape of organic compounds
to atmosphere. These include pumps, valves, flanges, relief
valves and compressors. Other types of equipment are potential
benzene fugitive emissions sources for reasons other than
leaking seals. These types of equipment might have the poten-
tial for intermittent benzene emissions because they vent
organic materials that contain benzene to atmosphere, and
include sampling connections, open—ended valves, and product
accumulator vessels.
Scope and Applicability
The standard covers new and existing valves, pumps,
compressors, pressure relief devices, sampling connection
systems, open—ended valves or lines, pipeline flanges,
product accumulator vessels, and closed vent systems and
control devices used to comply with the standard. This
equipment is used in the production of benzene and other
chemicals and products, such as maleic anhydride, ethanol,
and pharmaceuticals.
To be covered the equipment must be in benzene service,
i.e., it must contain material with a benzene concentration
of 10 percent or more by weight. See the compliance issues
topic for a discussion of “in benzene service”.
Exempted from this standard is equipment located in
process units that produce benzene or benzene mixtures at coke
by—product plants. These will be covered by other regulations.
Additionally, plant sites designed to produce or use benzene in
quantities of 1000 Mg/yr or less are exempt from the standard.
The source owner or operator has the responsibility of demon-
strating to EPA’s satisfaction that the site is below the 1000
Mg/yr threshold level. Such a demonstration can be accomplished
by engineering analysis as well as by proof of physical limitation
of plant capacity.
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Controls for new and existing sources are the same,
In the case of an existing source or a new source which has ! p.
an initial startup date preceding the effective date, the
standard applies within 90 days of the effective date, unless)
a waiver is granted pursuant to S61.ll.
EPA estimates the standard will affect equipment located
in approximately 240 existing process units and an expected
70 new process units by 1985. Attachment ]. lists 131 plant
sites EPA has identified as having the potential to emit
benzene fugitive emissions. This list is not exhaustive and
Regions and States should seek to identify other affected
sites and confirm the accuracy of those listed.
Standards
Generic standards for equipment leaks are presented under
Subpart V of 40 CFR 61. Subpart J, standards for benzene
equipment leaks, requires that affected sources must meet the
requirements of Subpart V. Two basic control techniques are
employed by the standard to reduce benzene fugitive emissions.
These are leak detection and repair programs in which fugitive
source leaks are located and repaired at regular intervals, and
preventive programs in which potential fugitive sources are
eliminated by either retrofitting with specified controls or
replacement with leakiess equipment. A discussion of the
specific standards for each affected piece of equipment follows.
1. Valves . This is one of the most common pieces of
equipment in a refinery or organic chemical production unit.
It ordinarily is activated by a valve stem requiring a seal
to isolate the process fluid from atmosphere. Since the
potential for leaks exists, valves are subject to regulation.
A monthly leak detection and repair program is required
for valves in gas or liquid service. Gas and liquid service
are defined under S6l.l91. Quarterly monitoring will be
allowed for valves that have been found not to leak for two
successive months. Leak detection is to be performed with a
portable organic vapor analyzer, according to Reference Method
21 of 40 CFR 60, Appendix A. A leak is described as a reading
of 10,000 ppm or greater of organic material. Whenever a
leak is detected the valve must be tagged until repaired and,
at a minimum, must be monitored monthly until a leak is not
detected for two successive months.
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Initial repair of the leak must be attempted within 5
days, and the repair must be completed within 15 days.
Initial repair includes, but is not limited to, the following
best practices where practicable:
(1) tightening of bonnet bolts;
(2) replacement of bonnet bolts;
(3) tightening of packing gland nuts; and
(4) injection of lubricant into lubricated packing.
See §61.192—7(e).
An annual leak detection and repair program is required
to be developed and followed if the valves are difficult to
monitor. The description of this program must be kept in a
readily accessible location. Difficult to monitor valves
are those that would require elevating the monitoring personnel
more than two meters above any permanent available support
surface. Valves that cannot be safely monitored by the use
of step ladders could be classified as difficult to monitor.
For valves which are unsafe to monitor, an owner or
operator is required to develop and follow a plan that defines
a leak detection and repair program conforming with the
routine monitoring requirements of the standard as much as
possible, with the understanding that monitorir’g should not
occur during unsafe conditions. Unsafe to monitor valves
are defined as those that could, as demonstrated by the
owner or operator, expose monitoring personnel to imminent
hazards from temperature, pressure, or explosive process
conditions. There should be very few valves in benzene
service that are unsafe to monitor.
Two alternative standards are available for valves in
gas/vapor and liquid service. The first alternative speci-
fies a two percent limitation as the maximum percent of
valves leaking within a process unit, determined by an initial
performance test and a minimum of one performance test
annually thereafter. Process unit is defined at §61.191.
This alternative could be met by implementing any type of
program and engineering controls chosen at the discretion of
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the owner or operator. If the percentage of valves leaking
is higher than two percent, the process unit is in violation.
If owners or operators decide they no longer wish to comply
with this alternative, they must submit written notice to
EPA accepting compliance with the monthly/quarterly leak
detection and repair program.
The second alternative standard specifies two skip—period
leak detection and repair programs. Under this option an
owner or operator upon notifying EPA can skip from monthly!
quarterly monitoring to something less frequent after com-
pleting a specified number of consecutive monitoring intervals
with the percentage of valves leaking equal to or less than
2.0. Under the first program, after two consecutive quarterly
periods with fewer than two percent of valves leaking, an
owner or operator may skip to semiannual monitoring. Under
the second program after 5 consecutive quarterly periods
with fewer than two percent of valves leaking, annual inoni—
toririg may be adopted. An owner or operator cannot adopt
semiannual monitoring and then proceed directly to annual
monitoring by claiming one period of semiannual monitoring
substitutes for two quarterly periods. If the owner or
operator finds the two percent level is exceeded, he or she
must revert to monthly/quarterly leak detection and repair.
If EPA finds the two percent level is exceeded, an evaluation
of compliance should occur. This alternative differs from the
first alternative because the type of compliance program chosen
must be leak detection and repair, rather than a program at
the discretion of the owner or operator.
An owner or operator electing to comply with the provisions
of either of these options must notify the Administrator 90 days
before implementing the option.
Delay of repair for equipment for which leaks have been
detected is allowed under certain circumstances. See §61.192—
10. There are two general circumstances where repair delays
for pumps, compressors and closed—vent systems, as well as for
valves, are allowable. The first is where repair is technically
or physically infeasible without a process unit shutdown,
defined as a work practice or operational procedure stopping
production. The use of spare equipment and technically
feasible bypassing of equipment without stopping production
are not process unit shutdowns. Repair must occur before
the end of the next process unit shutdown; hence, only one
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shutdown may be passed before repair is always required.
Repair is required during scheduled shutdowns of any duration
and during unscheduled shutdowns of over 24 hours.
The second general circumstance where repair delay is
allowed is if the equipment is isolated from the process and
no longer contains benzene in concentrations greater than
ten percent.
Delay of repair specifically for valves is allowed
beyond a process unit shutdown when unforeseeable circumstances
deplete valves used for repair. The valve assembly supplies
must have been sufficiently stocked before the supplies were
depleted. In this case delay of repair beyond the next
process unit shutdown will not be allowed unless the next
process unit shutdown occurs sooner than six months after
the first shutdown. Delay of repair for valves is also
allowed if the owner or operator can show that leakage of
purged material resulting from immediate repair would be
greater than the fugitive equipment leaks likely to result
from delay of repair, and that when repairs are effected,
the purged material is destroyed or recovered in a control
device.
2. Pumps — A pump normally has a shaft that requires
a seal to isolate the process fluid from atmosphere. Packed
and mechanical shaft seals are most common. If the seal
becomes imperfect due to wear, compounds being pumped leak.
Requirements for pumps are similar to those for valves.
A monthly leak detection and repair program is required, with
detection determined by Reference Method 21. Alternatively,
dual mechanical seals may be used under conditions specified
at S61.192—2(d). Each pump must be visually inspected weekly
for indications of liquid dripping from the pump seal. A
reading of at least 10,000 ppm or indication of liquids
dripping is a leak.
Initial pump leak repair must be attempted within five
days and completed within 15. Delay of repair is allowed
for pumps that cannot be repaired without a process unit
shutdown and a delay of up to six months after leak detection
is allowed when the owner or operator determines that repair
requires use of a dual mechanical seal system with barrier
fluid system. Any pump equipped with a closed—vent system
capable of capturing and transporting any leakage from the
seal to a control device is exempt from the requirements.
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3. Compressors — Compressors have a shaft that requires
a seal to isolate the process gas from atmosphere. The
potential for a leak through this seal makes it a potential
source of benzene emissions. The standard requires the use
of seals with barrier fluid systems that prevent leakage.
The barrier fluid system must be equipped with a sensor that
will detect failure of the seal or barrier fluid system.
Sensors must be checked daily or have an alarm. If the
sensor detects a failure, a leak is detected. Leaks must be
repaired within 15 days. A compressor is exempt from the
above if it is equipped with a closed—vent system transporting
leaks to a control device, or it satisfies the no detectable
emissions provision at §61.192—3(i).
4. Pressure relief devices in gas/vapor service .
The standard requires no detectable emissions, which is a
reading of less than 500 pprnj above background based on
Reference Method 21. M riir l V foatio —t3 As
an alternative, compliance may be achieved by use of a rup-
ture disk system or closed—vent system capable of capturing
and transporting leakage from the pressure relief device to
a control device, such as a flare. This standard does not
apply to discharges during overpressure relief, but the relief
device must be returned to a no detectable emissions status
within five days of such a discharge. Additionally, relief
valve simmering (wherein the system pressure is close to
valve set pressure) is not allowed.
5. Sampling Connection Systems — Product quality and
process unit operation is checked periodically by analysis
of feedstocks, intermediates, and products. To obtain repre-
sentative samples for these analyses, sampling lines generally
are purged first. If this flushing liquid purge is not
returned to the process, it could be drained onto the ground
or into a process drain, where it would evaporate and release
benzene to atmosphere.
The standard provides for closed—purge sampling to
eliminate emissions due to purging by either returning the
purge material directly to the process or by collecting the
purge in a collection system generally closed to the atmos-
phere and disposing of it in an appropriately designed control
device. Closed—vent vacuum systems connected to a control
device and in—situ sampling systems are also allowed.
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6. Open—Ended Valves or Lines — Some valves are installed in
a system so that they function with the downstream line open
to atmosphere. A faulty valve seat or incompletely closed
valve would cause leakage through the valve. The use of caps,
plugs, or any other equipment that will effect enclosure of
the open end is required. If a second valve is used, the
standard requires the upstream valve to be closed first. This
prevents the trapping of process fluid between the two valves.
7. Product Accumulator Vessels, Flanges, Pressure Relief
Devices in Liquid Service — Product accumulator vessels
are utilized with fractionation columns, and may be vented
directly or indirectly to atmosphere. Flanges are gasket—
sealed junctions which may develop seal leaks. Pressure relief
devices are designed to release a product material from distil-
lation columns and other pressurized systems during emergency
or upset conditions.
The standard for product accumulator vessels effectively
requires venting accumulator emissions to a control device,
or use of a closed—vent system. Flanges and pressure relief
devices in liquid service are excluded from routine leak
detection and repair requirements, but if leaks are detected
by visual, audible or olfactory techniques, they are subject
to the same allowable repair interval as applies to valves
and pumps.
8. Closed—Vent Systems and Control Devices — Control devices
will be used to reduce benzene equipment leaks captured and
transported through closed—vent systems. Reference Method 21
will be used to verify that a closed—vent system has been
designed and installed properly. Method 21 requires that
closed vent systems be checked visually to ensure there are no
leaks where they would not be expected (e.g., in pipes) and
also requires the monitoring of connections that are expected
to leak occasionally.
Enclosed combustion devices, such as incinerators,
catalytic incinerators, boilers, or process heaters must be
designed to reduce emissions vented to them with an efficiency
of 95% or greater or provide a minimum residence time of
0.50 seconds at a minimum temperature of 760° C. Vapor
recovery systems such as carbon adsorbers or condensation
units must be designed and operated to recover the organic
vapors vented to them with an efficiency of 95% or greater.
As an alternative the use of smokeless flares designed
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for and operated with no visible emissions is allowed. Specific
flare conditions established at §61.192—11(d) and §61.195(e)
must be met and destruction efficiency must be over 95%.
Equipment purges from valves, pump seals, compressor seals,
pressure relief devices, sampling connection systems, and
product accumulator vessels must be vented to a system complying
with the requirements of the control device portion of the
standard.
Closed—vent systems must be designed and operated with no
detectable emissions, as indicated by an instrument reading of
below 500 ppm above background and by visual inspections. See
§61.195(c). They shall be monitored initially, annually, and
at other times requested by the Administrator. Leaks must be
repaired as soon as practicable, but not later than 15 days
after detection, with a first attempt no later than five days
after detection.
Equivalent Means of Emission Limitation
Each owner or operator may apply to the Administrator
for determination of equivalence for any means of emission
limitation that achieves a reduction at least equivalent to
the reduction achieved by the required controls. Guidelines
for the determination of equivalence are provided at §61.194(b)
and (c). Acceptance of such an equivalent method must be
approved by the Administrator and published in the Federal
Register . Such a request applies to pumps, compressors,
sampling connection systems, open—ended valves or lines,
valves, pressure relief devices, product accumulator vessels
and closed—vent systems and control devices. Such requests
should be forwarded to the Emission Standards and Engineering
Division (ESED) for review and approval.
No Detectable Emissions
Pumps pursuant to §61.192—2(e), compressors pursuant to
§61.192—3(i) and valves pursuant to §61.192—7(f) may be desig-
nated for no detectable emissions, indicated by a Method 21
instrument reading of less than 500 ppm above background.
These pieces of equipment would be exempt from other require-
ments, as specified. Pressure relief devices in gas/vapor
service and closed—vent systems must be designed for and
operated with no visible emissions, with compliance determined
by Method 21. Compliance of flares with the no visible
emissions standard, as provided at §61.192—11(d), shall be
determined by Reference Method 22.
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Peformance tests shall be conducted a minimum of once per
year, except for pressure relief devices and flares. Pressure
relief devices shall be tested no later than five calendar days
after each pressure release. Flares shall be monitored with an
appropriate heat sensor, such as a thermocouple, to ensure the
presence of a flame. Also, flares must be a smokeless operation,
as evidenced by visible emissions for a maximum of 5 minutes
in any 2—hour period.
Reporting Requirements
Reporting requirements, described under S61.197, are of
two types. The first is ‘an initial report, and the second a
series of semiannual reports. An initial report must be
submitted within 90 days of the effective date for existing
sources or new sources having an initial startup date preced-
ing the effective date. For new sources with a startup date
after the effective date, the initial report must be submitted
with the application for approval of construction, as described
in §61.07.
Receipt of the initial report is essential for ensuring
compliance with this standard. The report must specify equipment
identification number and process unit identification, type of
equipment, percent by weight benzene in the equipment fluid,
process fluid state (gas/vapor or liquid), and method of
compliance with the standard (monthly leak detection, no
detectable emissions, etc.).
Semiannual reports of leak detection and repair efforts
within a process unit are required. The reports must include
the number of leaks occurring within the process unit during
the reporting period, the number of leaks that could not be
repaired within 15 days, and the general reasons for unsuccess-
ful or delayed repair past 15 days. Reports may be photocopies
of reports under other regulations, provided the informational
requirements of S61.l97 are satisfied.
Recordkeeping Requirements
These are specified at 561.196. Each leak shall be
identified and tagged, and this must be retained until the
leak is repaired. When each leak is detected, records should
be kept of the equipment and operator identification numbers,
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dates for detection and repair, method of repair, and any reason
for delay of repair. These must be kept for two years.
Recordkeeping pertaining to the design requirements for closed—
vent systems and control devices must be recorded in a log and
kept in a readily accessible location. This recordkeeping
includes detailed schematics, design specifications, a descrip-
tion of the parameters monitored to ensure proper control device
operation and maintenance, periods when the closed—vent sytems
and control devices were not operated as designed, periods when
a flame pilot light did not have a flame, and dates of startups
and shutdowns of the systems. Additionally, records must be
kept explaining why valves have been classified as unsafe or
difficult to monitor and providing plans for monitoring such
valves. Records must be kept showing analyses demonstrating
that equipment is not in benzene service.
Compliance Issues
Compliance is determined by review of records required by
§61.196, review of performance test results, and inspections
(EPA/State leak detections) using the methods and procedures
specified in §61.195. There are, however, several potential
compliance issues for which guidance is provided here.
1. For purposes of determining the percent benzene content,
§61.195(d) provides that ASTM Method D—2267 shall be used or an
owner or operator may use engineering judgment to demonstrate
that the percent benzene content does not exceed 10 percent by
weight. In case of a dispute the ASTM method takes precedence.
It should be noted that each piece of equipment within a process
unit that can conceivably contain equipment in benzene service
is presumed to be in benzene service unless an owner or operator
demonstrates otherwise. For a piece of equipment to be considered
not in service, it must be determined that the percent benzene
content can be reasonably expected never to exceed ten percent
by weight. The burden is on the owner or operator to show
equipment is not in benzene service.
2. Several benzene equipment standards require that the owner
or operator develop, based on design considerations and
operating experience, a criterion indicating system failure.
See S61.192—2(d)(5) for pumps and §61.192—3(e)(2) for compressors.
The valve standard requires at 561.192—7(g) that the owner or
operator have written plans for monitoring unsafe—to—monitor—
valves during safe periods and at S61.192—7(h) that the owner
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or operator have written plans for monitoring difficult—to—
monitor valves at least once per year. Although none of these
plans requires EPA approval, all must be accessible to inspection
personnel. Should the plan appear inadequate, inspectors may
request development of a new plan or a performance test when
applicable to ensure compliance is being achieved. If the
plan is obviously inadequate (intentionally inadequate), a
violation should be pursued.
3. The standard for closed—vent systems and control devices
at S61.192—ll(e) requires that owners and operators of control
devices used to comply with the standard monitor their control
devices to ensure they are operated and maintained in confor-
mance with their designs. No monitoring parameters are
suggested; however, the owner or operator must achieve 95%
control and the parameter selected must indicate this.
The Synthetic Organic Chemical Manufacturing Industry
Promulgation Background Document (EPA 450/3—30—033b, June 1982,
Appendix B) provides acceptable monitoring parameters and
equipment. These include operating temperature or flowrate
of fugitive emission vent streams for incinerators, flow
recorders to verify steam flow for boilers, thermocouples or
ultraviolet beam sensors for flares, temperature and specific
gravity of the absorbing liquid for absorbers, offgas exit
temperature for condensers, and carbon bed temperature and
steam flow recorders for carbon adsorbers. See Attachment II.
Whatever parameter is chosen, the owner or operator should
be aware that EPA can require an engineering evaluation at
any time to ensure the parameter is appropriate and monitors
the operation of the control device in accordance with the
standard.
4. The general provisions at 561.10 and 61.11 allow EPA to
grant a waiver from a benzene standard for a period of up to
two years, if the owner or operator of an existing source
subject to that standard is unable to operate in compliance
with the standard. Most benzene requirements are in the form
of work practice standards, and waivers from these standards
would not be appropriate. However, certain provisions may
require retrofitting of controls. These include standards
for compressors (mechanical seals with barrier fluid systems)
pressure relief devices (rupture disk systems or closed—vent
systems to flares), and product accumulator vessels (must vent
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emissions to a control device or use a closed—vent system).
In cases where retrofit controls are necessary, requests for
waivers should be examined on a case—by—case basis. Although
ESED believes installation of controls should typically take
no more than one year, individual situations may require addi-
tional time.
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Attachment I
Table 9—1. REFINERIES AND ORGANIC
CHEMICAL MANUFACTURING SITES
WITH BENZENE FUGITIVE EJIISSION POTENTIAL 145 ’ 3233
1. Allied Chemical
2. Allied Chemical
3. American Cyanamid
4. American Cyanamid
5. Amerada Hess
6. American Hoechst
7. American Hoechst
8. American Petrofina
(of Texas)
9. American Petrofina
(Cosden Oil)
Ashland Oil
Ashland Oil
Atlantic Richfield
City/State
Geismar, LA
MoundsviIle, WV
Bound Brook, NJ
Willow Island, WV
St. Croix, VI
Baton Rouge, LA
Bayport, TX
Port Arthur, TX
Big Spring, TX
Benzene—Rel ated
Product
At Site
Et
Ni Bz
Ni 82
NiBzC
Bz
EtBz
Bz
Cyx
Bz
Cu
Cyx
MAN
Bz
St
BzC
Et (2 units)
Capaci t b
( Gg/yrj _
340
25
48
34
217
526
P l O 9
469
409
67
194
35
20
41
73
88
214
181
ND 9
27
77
200
1 07
1179
Plant
St
EtBzd
std
Bz
Bz
Cyx
E BZe
St
Et
10. American Petrofina
(Cosden Oi 1/Petrogas)
11. AmerIcan Petroflna/
Union Oil of CA
12. Ashland 011
9
13.
14.
15.
Groves, TX
Beaumont, TX
Ashland, KY
Neal, WV
North Tonawanda, NY
Beaver Valley, PA
(Kobuta)
Channelview, TX
16. Atlantic Richfield
9—2
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Table 9—1. REFINERIES AND ORGANIC
CHEMICAL MANUFACTURING SITES
WITH BENZENE FUGITIVE EMISSION POTENTIAL (CONTINUED)
Benzene-Related b
Products Capacity
Plant City/State At Site ( Gg/yr )
17. Atlantic Richfield Wilmington, CA Bz 40
Et 45
18. Atlantic Richfield Houston, TX BzC 140
(ARCO/Polymers) Et 227
EtBz 61
St 54
19. Atlantic Richfield Port Arthur, TX EtBz 114
(ARCO/Polymers)
20. Charter Houston, TX Bz 17
International EtBz 16
21. Chemetics International Geismar, LA NiBz 173
22. Chemplex Clinton, 10 Et 227
23. Cities Service Lake Charles, LA Bz 83
Et (2 units) 400
24. Clark Oil Blue Island, IL Cu 50
25. Coastal States Gas Corpus Christi, TX Bz 234
64
26. ConTnonwealth Oil Penuelas, PR Bz - 618
Cyx 117
E BZe 73
27. ContInental Oil Baltimore, MD LAB 122
28. ContInental Oil Lake Charles, LA Et 302
29. Core—Lube Danville, IL BSA ND 9
30. Corpus Christi Corpus Christi, TX Bzd 100
Petrochemicals Etd 544
31. Cos—Mar, Inc. Carrvllle, LA EtBz 690
- St 590
32. Crown Central Pasadena, TX Bz 77
33. Denka (Petrotex) Houston, TX MAN 23
34. Dow Chemical Bay City, MI Bz 100
Et 86
9—3
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Table 9—1. REFINERIES AND ORGANIC
CHEMICAL MANUFACTURING SITES
WITH BENZENE FUGITIVE EMISSION POTENTIAL (CONTINUED)
Benzene-Related
Product Capacity
Plant City/State At Site ( Gg/yr )
35. Dow Chemical Freeport, TX Bz 167
Et (5 units) 1136
EtBz 794
St 658
36. Dow Chemical Midland, MI C1Bz 129
E BZe 249
St 181
37. Dow Chemical Orange, TX Et 375
38. Dow Chemical Plaquenine, LA 200
Et (2 unIts) 545
39. Dupont Beaumont, TX NiBz 159
.40. Dupont Glbbstown, NJ NiBz 110
41. Dupont Orange, TX Et 374
42. Eastman Kodak Longview, TX Et 580
43. El Paso Natural Gas Odessa, TX Et ND 9
EtBz 125
St 68
44. El Paso Products/ Odessa, TX Et 236
Rexene Polyolefins Stc 47
45. Exxon Baton Rouge, LA Bz 234
Et 816
EtBz ND 9
St ND 9
46. Exxon Baytown, TX Bz 200
Cyx 147
Etc 36
47. First Chemical Pascagoula, MS NiBz 152
48. Georgia—PacifIc Houston, TX Cu 340
49. Getty Oil Delaware City, DE Bz 37
9—4
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Table 9—1. REFINERIES AND ORGANIC
CHEMICAL MANUFACTURING SITES
WITH BENZENE FUGITIVE EMISSION POTENTIAL (CONTINUED)
Plant
50. Getty Oil
B.F. Goodrich
Goodyear Tire & Rubber
Gulf Coast Olefins
Gulf Oil
Gulf Oil
56. Gulf Oil
57. Gulf Oil Chemicals
58. Gulf Oil Chenicals
Hercules
Howell
ICC Industries
Independent Refining
Corp.
Jim Walter Resources
Kerr-McGee Corp.
Koppers
Koppers
Koppers
Marathon Oil
69. Mobay Chemical
City/State
El Dorado, KA
Calvert City, KY
Bayport, TX
Taft, LA
Alliance, LA
Donaidsonville, LA
Philadelphia, PA
Cedar Bayou, TX
Port Arthur, TX
McGregor, TX
San Antonio, TX
Niagara Falls, NY
Winnie, TX
Birmingham, AL
Corpus Christi, TX
Bridgeville, PA
Cicero, IL
Petrolia, PA
Texas City, TX
New Martlnsville, WV
Benzene- Rela ted
Product
At Site
Bz
Cu
Et
Hqn
E c
Bz
EtBz
St
Bz
Cu
Et (2 units)
BzC
Cu
Cyx
Et (2 units)
C l
Bz
Cl Bz
Bz
BSA
Bz
MAN
MAN
Rcnol
Bz
Cue
Ni Bz
Capaci t b
(Gg/yr)
43
61
136
5
218
224
313
272
124
209
719
134
204
106
558
0.05
ND 9
11
10
ND 9
53
15
5
16
23
95
61
51.
52.
53.
54.
55.
59.
60.
61.
62.
63.
64.
65.
66.
67.
68.
9-5
-------
Table 9-1. REFINERIES AND ORGANIC
CHEMICAL MANUFACTURING SITES
WITH BENZENE FUGITIVE EMISSION POTENTIAL (CONTINUED)
Benzene-Rel ated
Products Capa
Plant City/State At Site ( Gc
70. Mobil Oil Beaumont, TX Bz
Et
71. Monsanto Alvin, TX Cu
(Chocolate Bayou) EtC
EtBz
LAB
72. Monsanto Sauget, IL ClBz
NI Bz
73. Monsanto St. Louis, MO MAN
74. Monsanto Texas City, TX Bz
Et
EtBz
St
75. Montrose Chemical Henderson, NV C1Bz
76. National Distillers Tuscola, IL Et
(U.S.I.)
77. Nease Chemical State College, PA BSAe
78. Northern Petrochemical Morris, IL Et
79. OlIn Corporation Brandenburg, KY Et
80. Oxirane Channelview, TX EtBz
St 454
81. Pennzoll (Atlas) Shreveport, LA BzC 49
82. Phillips Petroleum Borgei, TX Cyx 104
EtBz P
83. Phillips Petroleum Pasadena, TX Et
84. Phillips Petroleum Sweeny, TX Bz
Cyx
Et (3 unIts)
9-6
-------
Table 9-1. REFINERIES AND ORGANIC
CHEMICAL MANUFACTURING SITES
WITH BENZENE FUGITIVE EMISSION POTENTIAL (CONTINUED)
Plant
85. Phillips Puerto Rico
Puerto Rico Olefins
PPG
PPG
Quintana-Howell
Reichhold Chemicals
Reichhold Chemicals
Reichhold Chemicals
Rubicon
Shell Chemical
Shell Oil
96. Shell Chemical
97. Shell Oil
98. Shell Oil
99. SpecIalty
100. Standard
101. Standard
102. Standard
Chevron
103. Standard
Chevron
104. Standard Oil (CA)
Chevron
105. Standard Oil (IN)!
Amoco
Benzene—Rel ated
Product
City/State At Site
Guayama, PR Bz
CyxC
Penuelas, PR
Natrium, WV
New Martinsvllle, WV
Corpus Christi, TX
Elizabeth, NJ
Morris, IL
Tuscaloosa, AL
Geismar, LA
Houston, TX
Deer Park, TX
Norco, LA Bz
Et
Odessa, TX
Wood River, IL
Irwindale, CA
Delaware City, DE
Kearny, NJ
El Segundo, CA
Pascagoula, MS
Richmond, CA Bz
Alvin, TX Et (2 units)
Capaci tyb
(Gg/y r
357
212
454
ND 9
64
23
14
20
ND 9
170
590
301
326
681
133
681
40
150
2
125
7
77
45
ND 9
ND 9
907
86.
87.
88.
89.
90.
91.
92.
93.
94.
95.
Et
Cl Bz
Cl Bz
8 zc
MAN
MAN
BSA
Ni Bz
Et
BzC
Cu
Et
Organ I Cs
Chlorine
Chlorine
011 (CA)/
Chemical
Oil (CA)
Bz
Bz
Cl Bz
Cl Bz
Cl Bz
Bz
Cu
Bz
9-7
-------
Table 9—1. REFINERIES AND ORGANIC
CHEMICAL MANUFACTURING SITES
WITH BENZENE FUGITIVE IISSION POTENTIAL (CONTINUED)
Benzene-Related b
Products Capacity
Plant City/State At Site ( GgJyr )
106. Standard Oil (IN)/ Texas City, TX Bz 284
Amoco Cu 14
EtBz 386
St 381
107. Standard Oil (OH)/ Marcus Hook, PA 27
BP Oil
108. Stauffer Chemical Henderson, NV BSA 4
109. Sun Oil Corpus Christi, TX Si 127
Cu 113
Et 9
EtBz 61
St 54
110. Sun Oil Marcus Hook, PA Bz 97
Ill. Sun Oil Toledo, OH BzC 164
112. Sun Oil Tulsa, OK Bz 80
CyxC 83
113. Sun-Olin Claymont, DE Et 109
114. Tenneco Chalmette, LA Bz 33
EtBz 16
115. Tenneco Fords, NJ MAN 12
116. Texaco Port Arthur, TX Bz 150
CyxC 117
Et 454
117. Texaco Westvllle, NJ Si 117
Cu 64
118. Texaco/Jefferson Bellaire, TX Et 240
Chemical
119. Texaco/Jefferson Port Neches, TX Et 238
Chemical
9-8
-------
Table 9—1. REFINERIES AND ORGANIC
CHEMICAL MANUFACTURING SITES
WITH BENZENE FUGITIVE EMISSION POTENTIAL (CONTINUED)
123. Union Carbide
Union Carbide
Union Carbide
Union Oil of CA
Union Pacific/
Champlin
Penuelas, PR
Seadrift, TX
Taft, LA
Texas City, TX
Torrance, CA
Lemont, IL
Corpus Christi, TX
Benzene—Rel a ted
Products
At Site
EtBz
LAB
St
Bz
Cu
Et
Et
EtBz
St
BzC
Et
Et
Et
Bz
Bz
Cyx
MAN
Et
Cl Bz
LAB
Capac i
(Gg/yr)
ND 9
64
ND 9
290
454
546
154
136
234
500
546
73
57
33
ND 9
65
38
227
ND 9
20
aBSA
Bz
Cl Bz
Cu
Cyx
Et
EtBz
= Benzenesulfonlc Acid
= Benzene
= Chlorobenzene
= Cumene
= Cyclohexane
= Ethylene
= Ethylbenzene
Hqn
LAB
MAN
Ni Bz
Rcno 1
St
= Hydroquinone
= Linear Alkylbenzene
= Maleic Anhydride
= Nitrobenzene
= Resorcinol
= Styrene
City/State
Institute, WV
Plant
120. Union Carbide
121. Union Carbide
122. Union Carbide
124.
125.
126.
127.
128.
129.
130.
131.
U.S. Steel
USS Chemicals
Vertac/Transvaa l
Witco Chemical
Neville Island, PA
Houston, TX
Jacksonville, AR
Carson, CA
9-9
-------
Table 9-1. REFINERIES AND SYNTHETIC ORGANIC
CHEMICAL MANUFACTURING SITES
WITH BENZENE FUGITIVE EMISSION POTENTIAL (CONCLUDED)
bAnnual capacities for each product were obtained from the following
sources (effective date of capacity in parentheses):
BSA — Ref. 3 (January 1977)
Bz — Refs. 3 (January 1977), 14
C1Bz — Refs. 4 (January 1977), 13, 14
Cu — Ref. 9 (January 1979), 13, 14
Cyx — Ref. 2 (November 1976), 3 (January 1977)
Et — Refs. 5 (1977 year—end), 15 (June 1979), 11, 13, 14, 33
EtBz — Ref. 10 (January 1979)
Hqn — Capacity estimate from Industry (1979)
LAB — Ref. 8 (June 1978)
MAN — Ref. 3 (January 1977)
NiBz — Refs. 7, 32
Rcnol — Ref. 6
St — Refs. 1 (1977 year-end), 14
Cproduct unit under expansion
dProduct unit under construction
eproduct unit on standby or not currently in use
Product unit In engineering phase
9 No data available
9-10
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Attachment II
APPENDIX B
MONITORING METHODS
The standards require that some fugitive emission vent streams be
vented through a c osed vent system to a control device (that is designed
and operated for greater than 95 percent control), such as an incinerator,
flare, boiler, or process heater. The standards also require that the
control device be monitored to ensure that it is properly operated and
maintained. This appendix presents methods for monitoring control devices:
incinerators, boilers and process heaters, flares, or product recovery
quipment, such as condensers or carbon adsorbers.
mci nerators
Incinerators must be maintained and operated properly if the standard
is to be achieved on a continuous basis. The operating parameters that
affect performance are temperature, type of compound being incinerated,
residence time, inlet concentration, and flow regime. Of these variables,
the last two have the smallest effect on the performance of an incinerator.
Residence time is a design criterion and is not easily altered after the
incinerator is constructed, unless, of course, the vent stream flowrate is
changed. At temperatures above 760°C, the type of compound being burned has
little effect on the efficiency of combustion.
Continuous monitoring of the incinev ator inlet and outlet would be
preferred because it would provide a continuous, direct measurement of
actual emissions and destruction efficiency. However, EPA is aware of no
Continuous monitor being used to measure total VOC at incinerators which
control fugitive vent streams, probably because each of the many different
compounds would have to be identified separately and their concentrations
determined. Such a monitoring system would be extremely complex for the
determination of individual component concentration and mass flow rates.
Moreover, it would be relatively expensive since both inlet and outlet
monitors are required to verify that a certain destruction efficiency is
maintained.
B-i
-------
a reliable
measure of the efficiency of the incinerator in destroying organic
compounds. Both theoretical calculations and results of monitoring or
performance tests show that lower incinerator operating temperatures can
cause a significant decrease in VOC destructior efficiency. Temperature
recorders are relatively Inexpensive, costing less than $5,000 installed.
They are easily and cheaply operated. Given the large effect of temperature
on efficiency and the reasonable cost of temperature monitors, EPA believes
that temperature is clearly easy to monitor and would provide some measure
of the uniformity of the operation of the incinerator.
- Where a combustion device is used to incinerate only waste VOC streams
(and nbt multiple waste streams from the pr6cess unit), flowrate can also be
an indirect indication of changes in destruction efficiency since It relates
_______________ -- —
directly to residence time in the combustion device. Flowrates of fugitive
emission vent streams are typically small and thus would probably be ducted
with other larger streams to the same incinerator. Under these circum-
stances, the vent stream flowrate (for fugitive emissions) may not always
give a reliable indication of the residence time of the fugitive emission
vent stream in the incinerator. Simple indication of fugitive emission vent
stream flowrate to the incinerator does, however, provide verification that
VOC Is being routed to the Incinerator. Flow recorders, at an estimated
installed cost of less than $2,000, are inexpensive and require little
maintenance. Therefore, since flow recorders provide verification that
organics—laden streams are being routed to the incinerator for destruction
and they are inexpensive, flowrate is also a reasonable parameter to monitor
the constancy of performance of an incinerator. Flow recorders should be
installed, calibrated, maintained, and operated according to the
manufacturer’s specifications.
Boilers
If a fugitive emissions vent is piped to the flame zone of a boiler (or
process heater), it is only necessary to know that the boiler (or heater) is
operating and that the waste gas is flowing to the boiler (or heater).
Records presently maintained for plant operation., such as steam production ..
B-2
-------
records, would indicate operation. Flow recorders could be installed to
verify flow of the vent stream to the boiler (or heater). For smaller heat
producing units (less than 44 MW (150 million Btufhr heat input)),
combustion temperature should also be recorded to enable verification of
optimum operation. Boilers (or heaters) with heat input design capacities
greater than 44 MW would not be required to install temperature recorders.
These larger units always operate at high temperatures (>1100°C) and stable
flowrates to avoid upsets and to maximize steam generation rates. Records
that indicate onstream time would be sufficient for these larger boilers (or
heaters).
Flares
- Because flares are not enclosed combustion devices, it is not
practically feasible to measure combustion parameters continuously.
Temperatures and residence times are more variable throughout the combustion
zone for flares than for enclosed devices and, therefore, such measurements
would not necessarily provide a good indicator of flare performance even if
measurable. Monitoring of flow rate to the flare is generally unacceptable
from a safety point of view since the flow measurement would present an
obstruction in an emergency vent line. As a result, flare operation is
usually verified by examination of more prominent characteristics.
The typical method of verifying continuous operation ofafl !_is
visual inspection . However, if a flare is operating smokelessly, it can be
difficult to determine if a flame is present, and it may take several hours
to discover. The presence of a flame can be determined through the use of a
at sensing device, such as a thermocouple or ultra—violet (U—v) beam
—---. -—-
sensor on a flare’s pilot flame. e loss or absence of a flame would be
indicated by a low temperature measurement. The cost of available
thermocouple sensors ranges in price from $800 to $3,000 per pilot. (The
more expensive sensors in this price range have elabarate automatic relight
and alarm systems.) Thermocouples used on flares may, however, burn out if
not installed properly. The cost of a U-V sensor is approximately S2,000.
A U-V system is not as accurate as a thermocouple in indicating the presence
of a flame. The U—V beam is influenced by ambient infrared radiation that
8-3
-------
could affect the accuracy. Furthermore, interference between different U—V
beams makes it difficult to monitor flares with multiple pilots. By design,
U-V sensors are primarily used to verify the existence of flames within
enclosed combustion devices. Therefore, based on cost and applicability,
EPA believes thermocouples provide adequate verification of flare operation.
Product Recovery Equipment
Three types of product recovery equipment which might be used in
controlling fugitive emissions vents are absorbers, condensers, and carbon
adsorbers.
J per a tin g _ p me ters are the primary de te rmin Lproduct
recovery device operation for an absorber: the temperature and specific
it of the abs i iquid . Facilities which have Installed an
absorber to recover product which otherwise would be lost will generally
monitor a parameter which indicates the degree of saturation of the
absorbing liquid with respect to the product. Specific gravity is conrionly
used for this purpose. Devices for measuring the temperature and specific
gravity are available at reasonable cost. The estimated one—Ume combined
capital investment for such equipment is $8,000. It is considered
reasonable for an operator of a process unit to install, calibrate,
maintain, and operate according to manufacturer’s specifications the
requisite devices to monitoring continuously temperature and specific
gravity or such alternate parameters which would indicate the degree of
saturation of the absorbing liquid.
In constrast, the exit temperature of the offgas is the primary
determinant of the efficiency of a condenser. Again, suitable temperature
recorders are available at a reasonable cost. The estimated one-time
capital investment Is $3,000. A record of the outlet temperature would
verify that the condenser is properly operated and mathtained. EPA believes
an operator can install, operate, calibrate and maint’ain according to the
manufacturer’s specifications a temperature recorder to verify proper
operation of a condenser.
The operation of a carbon adsorber can be monitored by the carbon bed
— --
temperature and the amount of steam used to regenerate the bed. Steam flow
B -4
-------
meters and temperature recorders are available at reasonable cost. The
estimated one—time capital investment for such equipment is S1O,000. These
parameters could be monitored to reflect whether the carbon adsorption unit
has been consistently operated and properly maintained. Therefore, EPA
believes that an operator of a carbon adsorber used as a pollution control
or product recovere’ device could install, calibrate, maintain, and operate
according to manufacturer’s specifications an integrati steam flow.
recorder and a carbon bed temperature recorder Some operators may install
ent stream analyzers to aid in maximizing the recovery of organic com-
pounds. No widely accepted performance specifications have been developed
for such analyzers. If an analyzer is installed without a recorder, the
vent stream should be sampled at the end of the adsorption cycle (at least
once during every 4 hours of operation) and the concentration recorded as a
means of verifying that operational modes remain consistent with the
conditions under which the performance test was conducted.
B-5
-------
CardThaI
-------
ll PO T
——, ———----
-------
Vinyl Chloride Enforcement Strategy
(07/11/84)
File at Part D, Document #5
-------
UN ITED STATES ENV I RONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
LLlII98Z
M EMORANDUM
SUBJECT: Vinyl Chloride NESHAP Enforcement Strategy
FROM: Edward E. Reich, Director
Stationary Source Compliance Division
Office of Air Quality Planning and Standards
Michael S. Alushin , ‘4<’
Associate Enforcement Counsel
for Air
TO: Air and Waste Management Division Directors
Region II, IV, and VI
Air Management Division Directors
Regions I, III, V, and IX
Regional Counsels
Regions I—VT and IX
Attached is our strategy for the enforcement of the vinyl
chloride NESHAP standard. This strategy was developed as a
product of the Regional submittals we received in response to
our memoranda of June 28, 1983 and January 23, 1984.
In putting together this strategy, we have found that
most of the Regional Offices have sources which should receive
priority for enforcement action. We expect these Regions to act
on the basis of this strategy and to prepare cases expeditiously.
Although this strategy focuses primarily on stripping violations
and on reactor opening loss violations, all parts of the standard
should be examined when preparing cases.
In transmitting this information to us, several of your
offices have indicated that individual companies have asked
that some of the information be treated as confidential. This
material is contained in Table 5, “Summary of RVD Responses”,
which is being sent to you under separate cover. No Agency
-------
2
determination has been made on the confidentiality of these
requests. However, because this material has been separated
from the rest of the strategy, the bulk of the strategy may
now be circulated to State and local enforcement agencies.
We would appreciate your prompt attention to this material.
Please contact Doreen Cantor of SSCD at 382—2874, or Elliott
Gilberg of OECM at 382—2864, with any comments or questions.
Attachment
-------
Vinyl Chloride NESHAP Enforcement Strategy
In our memorandum of June 28, 1983, we addressed our
concern that the Regions be consistent in enforcing all major
provisions of the vinyl chloride standard, including those por-
tions other than the relief valve discharge regulations. In
that memorandum, we requested your help in developing guidelines
for the enforcement of the regulations for stripping and reactor
opening losses. We have compiled the Regional data submitted
to us on the percentage and magnitude of violations of the
stripping and reactor opening loss standards from the two
most recent semiannual reports for each source. These data are
summarized in Table 1. The purpose of this strategy is to
discuss the results of this compilation and its implications
for future enforcement activity by the Regional Offices.
Although we have attempted to establish a framework for
setting priorities for enforcement action, we emphasize that
this does not change the standard or the definition of a viola-
tion, and establishes no right or privilege for regulated
sources. Our recommended action levels are to be used as a
basis for prioritization only.
Because of the fairly large number of sources with
substantial violations, our prioritization effort resulted
in over two—thirds of the sources being identified initially
in the highest category of priorities. Based on available
State and Regional resources and on the additional factors for
enforcement that will be discussed, each Region and State
should feel free to take enforcement efforts beyond our
recommended levels, provided action is ongoing against the
more substantial violators. The goal for compliance remains
at 100%.
In most cases, the vinyl chloride standard has been
delegated to a State or local agency. Where this is the case,
the Regional office should look to the State to obtain a satis-
factory resolution. Where a State fails to act in a satisfactory
manner or where the State has not received delegation, the
Region should respond to ensure the fulfillment of this
responsibility.
A satisfactory State enforcement action is one which
requires expeditious installation of equipment or other
remedial measures which, in EPA’S view, are sufficient to
bring the source into compliance. In addition, the State
action must require payment of a civil penalty of sufficient
magnitude appropriate to the violation. A State does not
-------
—2—
necessarily have to assess a penalty which would suffice as a
settlement figure for a Federal action as discussed below.
If a State action is adequate in terms of remedial relief but
fails to assess an adequate penalty, the Region should consider
a separate Federal action for penalties consistent with the
recently issued Policy Framework for State Enforcement
Agreements.
When EPA action is required, this will generally mean the
commencement of a judicial action. The only administrative
authority EPA has to assess penalties is under Section 120,
which cannot be applied to discrete, intermittent violations.
The only other applicable administrative enforcement mechanism
(other than emergency powers) is an order under Section 113(a),
which does not involve penalties and which should be considered
only in instances in which the penalty assessment would be
negligible. However, where the State is the enforcing authority,
an administrative procedure may be appropriate, provided that
adequate penalties are assessed for all violations, including
those not exceeding the levels of frequency or magnitude con-
tained in Table 2.
Many factors enter into a decision on when to initiate
enforcement activity for a particular source. Factors which
we believe are most important are:
1) Frequency of violations . We have summarized data on the
percentage of noncompliance for each source. Although this
may serve as a good indication of where priorities should be
focused, it is generally recommended that the Regions go beyond
the two most recent semi—annual reports to strengthen cases or
to uncover additional histories of noncompliance. All violations
which occurred in the five—year period preceding the filing of
the complaint should be addressed, as well as each type of viola-
tion (relief valve discharge, stripping, reactor opening loss,
l0ppm). Even if a source has shut down, enforcement action for
penalties may be appropriate if it would serve an important
enforcement objective, such as creating an incentive for the
company to improve its operation of other vinyl chloride plants.
Issues which should be addressed include:
a) Is there a repeated pattern of violations?
b) Has there been an increasing (or constant) frequency
of violations?
c) Has a substantial amount of time elapsed since the
most recent violation?
-------
—3—
2) Magnitude of Violations . We have also summarized data on the
range of magnitudes of violations f r each source, and have
compared sources based on their most severe violation. Again,
although this may be a good starting point, this should be
further investigated by the Regional Offices to determine if
this type of comparison is truly representative. Other issues
which should be addressed include:
a) Has there been an increasing (or constant) trend in
the magnitude of violations?
b) Is the total combined magnitude of violations signifi-
cant? This may be a more realistic basis in some cases.
3) Available remedial measures . Issues include:
a) Can specific remedial measures be identified?
b) Has there been a lack of attempts to remedy the
problem?
C) Is there a common cause or common remedy for many
violations?
d) Has the source provided a remedy only after being
informed of the violation?
4) Comparison with other sources . The attached tables and
graphs are designed to give the Regions some idea of the
severity of noncompliance nationwide, so that individual
enforcement needs and efforts may be gauged. Each Region
should set priorities based on the following:
a) How does a source compare with other sources in
the Region?
b) How does a source compare with other sources nation-
wide?
c) What is the trend of the industry in general?
5) Source Reporting . In delegated States, sources are required
to submit reports to both EPA and the State unless the delega-
tion specifies that reporting to EPA is not required. In many
cases, we were not able to determine whether each source is
reporting on time to the State and/or Regional Office, and If
-------
—4—
these reports are complete and accurate. Because our ability
to enforce against RVD, ROL, and stripping violations hinges
on self—reporting, we consider reporting violations to be very
serious. States and/or Regions should be current with each
source’s reporting and should consider prompt action when a
source fails to report. The existence of reporting violations
should weigh heavily in the direction of initiating enforce-
ment action. Where a source refuses to submit required reports
despite notification by the State and/or EPA, the Region should
consider whether criminal enforcement action is warranted.
The attached graphs (Figures 1—8) display the data
summarized in Table 1, in an attempt to identify the most
severe violators and target them for enforcement action.
As shown in each of the graphs and in Table 2 (Enforcement
Priorities), we have chosen recommended levels of violations
to indicate the highest priority violations for which an
enforcement action should be initiated. These levels were
selected on the basis of (1) being the level closest to the
standard that a significant majority of sources were achieving,
or (2) being the level at which an identifiable break could be
located (i.e., a level at which sources could either easily
achieve o e far beyond). It is important to emphasize that
these levels are intended to be fluid. This analysis will be
done again at some point in the future, at which point we
expect these levels will have moved closer to the standard,
thus targeting a new set of sources (assuming sources presently
targeted will have achieved compliance).
Generally, either frequency or magnitude of violations is
sufficient to establish a source as high priority for enforcement
action. Thus, sources with a large number of relatively small
violations, and sources with a relatively low number of signifi-
cant violations, will be high priority sources. However,
sources exhibiting a compliance rate of 99% or greater are not
suggested for high priority status on the sole basis of magnitude
of violation. One exception to this applies to large sources
and should be determined on a Regional level. Large sources
with a significant number of violations should be prioritized
for enforcement action, even if their compliance rate is rela—
tivel.y high due to the size of the source. Sources having
continuing violations, even if these violations are individually
relatively minor, are still being accorded high priority.
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—5—
In prioritizing sources based on magnitude of violation,
sources were ranked according to the magnitude of their
largest violation. Other methods of ranking (average magni-
tude of violation, total magnitude, percent of allowable,
etc.) are possible and may be a more realistic basis in some
cases. However, in attempting to conserve Regional resources
for other activities involved in vinyl chloride enforcement,
we feel that the magnitude of the largest violation is a useful
indicator of the potential severity of a number of violations,
and can be obtained much more easily than can be averages or
totals for large numbers of violations. We prefer that the
bulk of resources be spent in enforcing against individual
sources rather than in prioritizing a large number of sources.
Assistance in determining what sources in each Region are highest
priority sources is available from SSCD.
Table 3 describes how many facilities would be targetted
for enforcement action in the highest priority category using
the present priority levels. This is then broken out by Region.
In some cases, there are large differences between the Regions
in the degree and type of enforcement action targetted by this
memo. Some of this may be due to individual sources; some may
be due to varying degrees of aggressiveness of State and Regional
enforcement efforts. Because this table is based solely on
violations of the stripping and reactor opening loss standards,
some of the targetted sources already have ongoing enforcement
actions against them for relief valve discharges.
When a case has already been filed against a source for
other types of violations and is currently in litigation, the
Government must decide on a case—by—case basis whether the
complaint should be amended to incorporate newly identified
violations into the existing case. Generally speaking, the
new violations should not be added to an ongoing case in which
a trial date has been set or a discovery cutoff date is near.
If little or no activity beyond the filing of a complaint and
answer has taken place, amending the complaint is probably
appropriate. In all instances in which a case is pending
against a source for other violations, the Region should consult
with the EPA Headquarters and Department of Justice attorneys
assigned to the case.
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—6—
Table 4 contains factors to be used to determine minimum
settlement penalty figures in preparing civil actions. The
penalty should be based on the following factors: seriousness
of the violation (gravity component), the degrees of will-
fulness or negligence, degree of cooperation or noncooperation,
history of noncompliance, ability to pay, and other unique
factors. The economic benefit of noncompliance should also be
considered in those instances in which a specific piece of
equipment can be identified as a necessary remedial measure.
See the memorandum entitled “Proposed Clean Air Act Stationary
Source Civil Penalty Policy,” which we sent to you on June 5,
1984. The vinyl chloride penalty policy will ultimately be
codified as part of the final stationary source civil penalty
policy.
The chart in Table 4 should be used to assign a number
attributable to the gravity of the violations. Penalties
escalate both by the magnitude of each individual violation,
and by the total number of violations. The penalty numbers
in Table 4 are to be assessed for each violation and are then
to be added to obtain a settlement figure for a case involving
numerous violations. Additional penalties accrue for failure
to submit timely semiannual and discharge reports. As a matter
of policy, the settlement figure is set at a total of up to
$25,000 for each failure to report, even though as a legal
matter the statutory maximum is arguably $25,000 per day for
each day the failure to report is not remedied. Penalty schemes
are included for relief valve discharges, exhaust gas violations,
stripping violations, and reactor opening loss violations.
Finally, Table 5 (being sent under separate cover) contains
a summary c the Regional responses to our request for informa-
tion on relief valve discharges. The complete responses are
available from the Stationary Source Compliance Division. In
many cases however, complete information was not available
from the Regional Offices. This information may be essential
in preparing enforcement actions and efforts should be made to
obtain this data from each source. Because Table 5 contains
material which has been claimed to be confidential by a number
of sources, it is being sent separately to allow the rest of this
strategy to be distributed to State and other non—EPA enforcement
agencies.
-------
—7—
We interpret the relief valve discharge standard to
establish a presumption that any relief valve .discharge is a
violation, with the company having the burden to show th t it
was not preventable (see Attachment I, Headquarters Policy
Memoranda on Relief Valve Discharges). Nonetheless, to litigate
a case, the Agency should be prepared to counter evidence that
the discharge was due to an Nemergencyu by showing that specific
measures are available which could have prevented the discharge,
and that such measures were not taken by the source.
For relief valve discharges, the litigation report
forwarded to Headquarters should include, at a minimum:
1) The date and size of each relief valve discharge,
including those determined to be emergencies.
2) The Region’s determination as to whether each discharge
is preventable, i.e., a violation.
3) An analysis of the cause of each discharge. Attach-
ment 2 is an example of the technical evaluation of a company’s
discharges which was included as an exhibit to a litigation
report referred to HO.
4) A description of remedial measures designed to prevent
the types of discharges which have occurred at the plant. As
you can see from Attachment 2, this is a logical complement to
the analysis of the cause of each discharge.
5) A proposal for a minimum settlement.penalty figure.
Depending on the level of detail cortained In the 10—day
report submitted by the company, the Region may have to seek
more information using a Section 114 letter to properly prepare
the litigation report. Examples of records which may be useful
are logs, written maintenance procedures, inspection manuals,
incidents reports, employee records (to show possible disciplinary
action or failure to take such action), strip charts, etc.
This is potentially potent evidence, because it may reveal
answers to such questions as:
1) Was the company following its own standard operating
procedures?
-------
—8—
2) Did the company allow a discharge to occur in order
to preserve the integrity of the product and thereby save money?
(e.g., low grade resin is less profitable than high grade resin,
and this may affect operating decisions.)
3) Did the operator fail to recognize upset conditions?
4) Did the company fail to replace defective equipment
despite a prior history of problems?
5) Did the company fail to analyze a recurring problem?
6) Did the company perform an engineering study (or
retain a consultant to do so) and fail to adhere to the study’s
recommendations?
Attachment 3 is a sample Section 114 letter which was
used to develop the litigation report in one of the cases
referred to Headquarters.
For reactor opening loss and stripping violations, the
litigation report forwarded to Headquarters should include,
at a minimum:
1) The date and amount of each exceedance. If the
number of violations makes such a listing impractical, the
litigation report shall summarize the data and cite to the
semi—annual reports so that the reader can readily identify
the violations.
2) A copy of all semi—annual reports for the period
covered by the referral.
3) A description of remedial measures designed to
prevent future violations.
4) A proposal for a minimum settlement penalty amount.
Attachment 4 is a list of Regional technical and legal
contacts involved in vinyl chloride enforcement. It is hoped
that this will encourage the exchange of general information,
and also more specific information such as the availability and
usefulness of particular remedial measures.
-------
TABLE 1: Summary of Violations of Stripping and Reactor Opening Loss Standards
Stripping
Reactor Opening Loss
Borden
BFGoodrich
Goodyear
Occidental
Pantasote
Tenneco/Burl.
Tenneco! Fle m.
Union Carbide
3 Ethyl
0
0
0
0.3
0
2.6
1.2
0
3.2
0
0
8.5
4.4
8.8
2.9
1 .0
0
0.9
4.3
2278
428—2408
4 15—422
2091
519
20 46—33 30
414.5—1430.1
2035—25 14
508
571—630
2091—2710
(400)
(400)
(400)
(2000)
(2000)
(400)
(400)
(400)
(2000)
(400)
(400)
(400)
(2000)
(400)
(2000)
(400)
(2000)
(400)
(2000)
Range ( Standard )
.045,.07 (.02)
(.02)
(.02)
(.02)
(350 p pm)
(2 l9 Oppm)
(2670ppm)
(2540ppm)
2629—2895(26 O4ppin)
(.02)
.0216—.1085( .02)
.0263 (.02)
(.02)
(.02)
Region Source
1
2
Range ( Standard )
363—422
2318
8957
Occidental/Potts.
*Occjdental/perry
Formosa
4
5
0.01
0
0
0
3.5
1.2
1.3
0
4.7
0
9.4
2.0
0
0
0
0
0
0
0
0
0.1
0
0
0
0
0.2
0.3
0
0
Conoco 3.7
Union Carbide 0
AP&C/Kentucky 0
AP&C/Pensacola 0
BFGoodrich/Louisvillefl .6
0.3
BFGoodrich/Henry 0.6
0.9
Borden 0
0
Dow 0
0
BFGoodrich/AvonLake 0
0.6
General Tire 7.6
4 11—967
456 .8—7 16 .0
641.9
432—1129
2 306—30 3 2
3051—7820
401—150
(400)
(400)
(400)
(400)
(400)
(400)
(400)
(2000)
(400)
(2000)
(400)
(2000)
(400)
(2000)
(400)
(400)
(.02)
(.02)
(.02)
(.02)
(.02)
(.02)
.022—.03 (.02)
(.02)
(.0 )
(.O2\
(.02)
.0273 (.02)
.0221—.0842( .02)
(.02)
(.02)
-------
—2—
StriDDina
Reactor Opening Loss
BFGoodrich
Certai nTeed
Conoco
* Ethyl
Georgia—Pacific
Occidental
Shintech
0
0
0.3
0
7.1
0
0.6
1.1
1.7
0.2
0.2
5.0
0
0
0
0
(400)
(400)
419 (400)
(2000)
<874.3 (400)
(400)
(400)
(400)
(400)
(400)
(400)
(400)
(400)
(400)
(400)
(400)
7.5
8.7
5.2
0
25.0
1.2
2.1
0
<0.09
<0.39
0.088
<1.62
(0.277
0.0253
(.02)
(.02)
(.02)
(.02)
(.02)
(.02)
(.02)
(.02)
(.02)
(.02)
(.02)
(.02)
(.02)
(.02)
(.02)
(.02)
Region
6
Source
Range ( Standard ) %
( Standard )
Range
0.01 unknown
unreported—S114 request
0.2 <0.37
2.0 <3.3
0
Tenneco
BFGoodrich
Del. City Plastics
Union Carbide
9 F FGoodrich
Keysor-Century
Union Carbide
<1103
(931.6
<989.5
<624.0
<606
<2166
0
0
0
* No longer conducting PVC processes
-------
Figure 1
25
Stripping (total )
— (percentage of violations)
— 49% of sources have 100% compliance
— 73% of sources have compliance >1 99%
92% of sources have compliance >/ 95%
20
a
(U
0
4 J
‘? 15_
-I-
l0_
C)
1w
0
U,
“4
0
S
*
5
4
3 I
2 .
1
0 0—1 1—2 2—3 3—4 4—5 5—6 6—7 7—8 8—9 9—10
% of violations ———>
-------
Stripping (total )
(magnitude of violations)
25
.
— No clear breaks . . separate by process
20
15
a
10_
U,
C) —
Ii
0
Co —
0 —
5_
4
3
2
1
OVE
0 0—10 10—20 20—30 30—40 40—50 50—60 60—70 70—80 80—90 90—100 1OC
% above standard (highest violation) ———>
.
-------
Figure 3
Stripping (suspension & latex )
(percentage of violations)
51% of sources have 100% compliance
82% of sources have compliance >1 98%
20_
a
. 1 -I
0
—
15_
A —
10
U ) —
w
C)
‘I
0
C l ,
1.1
0
5
4
3_
2
— . __ __ II I
0 0—1 1—2 2—3 3—4 4—5 5—6 6—7 7—8 8—9 9—10
% of violations ——>
-------
Stripping (suspension & latex )
(magnitude of violations)
56% of sources within 10% of standard
26% gross violations (over 100%)
20
a
-4
‘U —
15_
0
m —
10
U )
U —
0 —
U,
‘I 5
0 —
4_
3_
2_
1__ I I I I
ove
0 0—10 10—20 20—30 30—40 40—50 50—60 60—70 70—80 80—90 90—100 100
% above standard (highest violation)———>
-------
Figure 5
Stripping (dispersion )
(percentage of violations)
42% of sources have 100% compliance
67% of sources have compliance >1 98%
0
c 1
-4
A
U)
U
0
U) 4
l.1
0
3
2
1 0
— I I I I I I
0 0-1 1—2 2—3 3—4 4—5 5—6 6—7 7—8 8—9 9—10
% of violations ———>
-------
Figure 6
Stripping (dispersion )
(magnitude of violations)
50% of sources within 10% of standard
p - I
15
‘I
0
4J
N
p-I
A
5
a,
5 ,
C)
2
1 _• I I I
over
0 0—la 10—20 20—30 30—40 40—50 50—60 60—70 70—80 80—90 90—100 100
% above standard (highest violation) ———>
-------
25 Figure 7
Reactor Opening Loss
(percentage of violations)
56% of sources have 100% compliance
80% of sources have compliance >1 98%
2% of sources have compliance < 90%
20 2% of sources unreported (1 source)
(U
0
ifl —
15_
A
0
I
0 0—1 1—2 2—3 3—4 4—5 5—6 6—7 7—8 8—9 9—10 25
% of violations ———>
-------
Figure 8
25
— Reactor Opening Loss
— (magnitude of violations)
— 62% of sources within 25% of standard
24% gross violations (over 100%)
— 4% of sources unknown/unreported (2 sources)
20
—
0
4 J
In
-
? 15
S
lo-
U )
U) —
U
‘I
—
0
U)
0
* -
5
4
3
2
I I I I I —
over
0 0—10 10—20 20—30 30—40 40—50 50—60 60—70 70—80 80—90 90—100 100
S above standard (highest violation) ———>
-------
TABLE 2: Enforcement Priorities
Stripping
(suspension and
latex)
(400 ppm)
Stripping
(dispersion)
(2000 ppm)
Reactor
Opening
Loss
Percentage of
compliance*
<98%
<98%
<98%
Magnitude of
violations*
10% above
standard
10% above
standard
25% above
standard
Additional factors for enforcement:
1. No (or incomplete) reporting of violations
2. Repeated pattern of violations
3. Lack of attempts to remedy problem
4. Ability to remedy problem (identification of
specific remedial measures)
5. Increasing (or constant) frequency & severity of violations
6. Comparison with other sources in Region
7. Industry trends
8. Actual or potential environmental harm/population exposure
* Generally, either factor is sufficient to prioritize a
source for enforcement action. See page 4 of strategy.
-------
TABLE 3: Current % of facilities targetted for enforcement action
Stripping Stripping Reactor Total
( suspension, latex) ( dispersion) Opening Loss
Nationwide % 19% (7) 11% (4) 22% (8)
(36 facilities) Mag. 22% (8) 8% (3) 28% (10)
44%(1
Region 1 % 0% 0%
(1 facilities) Mag. 0% 0%
0%(0)
Region 2 % 14% (1) 14% (1) 29% (2)
(7 facilities) Mag. 14% (1) 0% 1.4% (1)
57%(4)
Region 3 % 50% (2) 75% (3) 25% (1)
(4 facilities) Mag. 50% (2) 75% (3) 50% (2)
75%(3)
Region 4 % 20% (1) 0%
(5 facilities) Mag. 20% (1) 0%
20%(1)
on 5 % 20% (1) 0% 0%
facilities) Mag. 20% (1) 0% 0%
20%(1)
Region 6 % 18% (2) 0% 45% (5)
(11 facilities)Mag. 27% (3) 0% 64% (7)
64%(7)
Region 9 % 0% 0%
(3 facilities) Mag. 0% 0%
0%(0)
NOTE: Facilities are only targeted under “magnitude of violation” if they
have less than 99% compliance.
-------
TABLE 4: Penalty Scheme
The following factors should be used to determine a penalty
settlement figure:
— seriousness of violation (gravity component)
— degree of willfulness or negligence
— degree of cooperation or non—cooperation
— history of non—compliance or steady improvement
— ability to pay
— economic savings of noncompliance (if a specific
piece of equipment can be identified as a necessary
remedial measure)
— other unique factors.
The chart below is to be used to assess the gravity component
of the penalty:
Relief Valve Discharges, Manual Vent Valve Discharges, Violations
of 10 ppm Standards
Violations
Pounds of VC released Penalty
0—1000 $1000
1—2000 2000
2—3000 3000
3—4000 4000
4—5000 5000
5—7500 10,000
7500—10,000 15,000
10—12,500 20,000
over 12,500 25,000
Failure to Report
Start with:
Size of Release not Reported (lbs) Penalty
0—100 2000
100—500 5000
500—1000 10,000
1000—2000 20,000
over 2000 25,000
-------
—2—
Graduated scale for late reporting (if not in response to direct
request from State or EPA) — 10—day discharge reports
Within 2 months (from discharge) 25% of penalty
2—4 months 50% “
4—6 months 75% “
over 6 months 100%
Stripping Violations and Reactor Opening Loss Violations
Stripping
Magnitude of Violation Penalty
Suspension/Latex Dispersion
400—500 ppm 2000—2500ppm $1000
500—600 2500—3000 2000
600—700 3000—3500 3000
700—800 3500—4000 4000
800—900 4000—4500 5000
900—1200 4500—6000 10000
1200—1400 6000—7000 15000
1400—1600 7000—8000 20000
Over 1600 Over 8000 25000
Reactor Opening Loss
Penalty = $1000/violation (for each reactor)
Failure to Measure
Penalty = Maximum penalty amount for each type of violation
$25000 (stripping)
$1000 (reactor opening loss)
Failure to Submit Complete Semiannual Report
Penalty $25000
Graduated scale for late reporting (If not in response to direct
request from State or EPA)
Within 2 months 25% of penalty
2—4 months 50% “
4—6 months 75% N N
Over 6 months 100% N N
Generally, this penalty scheme should be adhered to (with
relatively minor adjustments) for the majority of cases.
When a source would be subject to an unusually large
penalty (e.g. $500,000 for a single type of violation),
Regional Offices will have greater discretion in setting
penalties provided that the figure is at least $500,000.
-------
TABLE 5: Sumary of RVD Responses
This table has been omitted from this document because it
contains information which has been claimed to be confidential by
various sources. Table 5 is for EPA use only. EPA staff may obtain
it by calling Doreen Cantor of the Stationary Source Comoliance
Division at FTS 382-2874 or Tracy Gipson of the Air Enforcement
Division at FTS 382-2824.
-------
g 1IO 5?4
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
_____ WASHINGTON, D.C. 20460
i)4(
JUL I IGE- *CONFIDENTIAL*
MEMORANDUM
SUBJECT: Confidential Portions of Vinyl Chloride Enforcement
Strategy
FROM: Edward E. Reich, Director
Stationary Source Compliance Division
Office of Air Quality Planning a d S andards
Michael S. Alushin
Associate Enforcement Counsel
for Air
TO: Directors, Air and Waste Management Division
Regions II, IV, and VI
Directors, Air Management Division
Regions I, III, V and IX
Regional Counsels, Regions I—VT and IX
Attached is Table 5, “Summary of RVD Responses”, which is
part of the Vinyl Chloride Enforcement Strategy being sent to
you under separate cover. Because of numerous requests by
Regional Offices to delete all confidential material from the
strategy document itself so that it may be distributed to States
and other enforcement agencies, we have separated Table 5 from
the body of the strategy. Table 5 contains information which
has been claimed to be confidential by various sources, although
we have not resolved these claims.
For EPA use only, Table 5 should be included as part of the
Vinyl Chloride Enforcement Strategy.
Attachment
-------
*CON L I DENT IAL
TABLE 5: Summary of RVD Responses
Region 1
Borden
A. 1. Number and size of reactors
16 @ 5200 gal.
3 @ 3000 gal.
8 @ 3700 gal.
2. Number of batches per year
20857
3. Age of plant
>20
B. 1,2. Number and size of discharges by year
1981—5 70—3640 lbs.
1982—9 1200—8250 lbs.
1983—3 1775—3746 lbs.
3. Three most common cause of discharges
Overcharge (9)
Maintenance errror (4)
Operator error (1)
Region 2
BF Goodrich
A. 1. Number and size of reactors
2. Number of batches per year
3. Age of Plant
10
B. 1,2. Number and size of discharges by year
1981—1 48865 lbs.
1982—2 0.35—1188 lbs.
1983—2 1009—1192 lbs.
3. Three most common causes of discharges
-------
Goodyear
A. 1. Number and size of reactors
13
2. Number of batches per year
3. Age of plant
40
B.1,2. Number and size of discharges by year
1981—2 117—3601 lbs.
1982—0
1983—0
3. Three most common causes of discharges
Operator error
Occidental
A. 1. Number and size of reactors
4 @ 8000 lbs.
16 @ 16000 lbs.
2. Number of batches per year
5800
3. Age of plant
>20
B. 1,2. Number and size of discharges by year
1981—15 5—6800 lbs.
1982—6 400—4000 lbs.
1983—3 250—3380 lbs.
3. Three most common causes of dicharges
Condenser pluggage (3)
Abnormal pressure rise (2)
-------
Pantasote
A. 1. Number and size of reactors
20 @ 2250 gal.
2. Number of batches per year
3. Age of plant
25
B. 1,2. Number and Size of discharges by year
1981—8 83—4383 lbs.
1982—2 238—418 lbs.
1983—0
3. Three most common causes of discharges
Operator error (1)
Meter Malfunction (1)
Premature rupturing of rupture disc (1)
Tenneco/Burlington
A. 1. Number and size of reactors
6 @ 13,000 lbs.
2. Number of batches per year
3. Age of plant
>20
B. 1,2 Number and size of discharges by year
1981—1 585 lbs.
1982—0
1983—1 3830 lbs.
3. Three most common causes of discharges
Uncommon pressure rise
-------
Tenneco/FlemiflgtOfl
A. 1. Number and size of reactors
2. Number of batches per year
3. Age of plant
B. 1,2 Number and size of discharges by year
1981—2 3.5—77 lbs.
1982—1 2 lbs.
1983—1 11 lbs.
3. Three most common causes of discharges
Operator error
Premature rupture disc failure
Union Carbide
A. 1. Number and size of reactors
1
2. Number of batches per year
150
3. Age of plant
B. 1,2. Number and size of discharges by year
198 1—0
1982—1 58 lbs.
198 3—0
3. Three most common causes of discharges
Reactor temp. controllor out of calibration
-------
Region 3
Ethyl
A.1 Number and size of reactors
26 @ 2000 gal.
2 @ 5000 gal.
2 @ 7500 gal.
2. Number of batches per year
3. Age of plant
B.1,2 Number and size of discharges by year
1981—3 71.6—2148 lbs.
1982—1 72 lbs.
1983—0 lbs.
3. Three most common causes of discharges
Overcharge of reactor
Temp. sensor/instrument problems
Occidental/Pottstown
A.1. Number and siz.e of reactors
2. Number of batches per year
3. Age of plant
-------
8.1,2 Number and size of discharges by year
1981—
1982—
1983—2 10—400 lbs.
3. Three most common causes of discharges
Operator error
Occidental/Perryvi lie
A]. Number and size of reactors
2. Number of batches per year
3. Age of Plant
B.l,2 Number and size of discharges by year
1981—1 500 lbs.
1982—2 50—500 lbs.
1983—
3. Three most common causes of discharges
Operator error (2)
Rupture disc failure(l)
Formosa
A.1 Number and size of reactors
19 @ 6000 gal.
12 4000 gal.
5 @ 1200 gal.
2. Number of batches per year
3. Age of plant
17
-------
B.1,2. Number and size of discharges by year
1981—7 50—28006 lbs.
1982—4 200—6500 lbs.
1983—12 100—2408 lbs.
3. Three most conunon causes of discharges
Operator error (5)
Gauge problem (5)
Overcharging reactor (4)
Region 4
Conoco
A.1. Number and size of reactors
2 @ 30000 gal.
4 @ 18000 gal.
4 @ 22000 gal.
2. Number of batches per year
3. Age of Plant
14
B.1,2. Number and size of discharges by year
1981—1 20 lbs.
1982—3 3.7—165 lbs.
1983—2 222—1162 lbs.
3. Three most common causes of discharges
Plugged line (2)
Premature failure of rupture disc (2)
Union Carbide
A.1. Number and size of reactors
1 @ 2800 gal.
-------
2. Number of batches per year
439
3. Age of plant
10
B.1.2. Number and size of discharges by year
1981—4
1982—4 0.02—0.35 lbs.
1983—0
3. Three most common causes of discharges
Operator error
Loss of catalyst activity
Loss of catalyst temperature control
Air Products & Chemicals/Kentucky
A.1 Number and size of reactors
5
2. Number of batches per year
3338
3. Age of Plant
12
81,2. Number and size of discharges by year
1981—4 10—2350 lbs.
1982—1 77 lbs.
1983—1 300 lbs.
3. Three most common causes of discharges
Overfilling (2)
-------
BFGoodrich/Calvert City
A.1 Number and size of reactors
3
2. Number of batches per year
3. Age of plant
15
B.1.2. Number and size of discharges per year
3. Three most common causes of discharges
Air Products & Chemicals/Pensacola
A.1 Number and size of reactors
2 @ 24000 gal.
1 @ 6000 gal.
4 @ 4000 gal.
2. Number of batches per year
3. Age of plant
26
B.1,2. Number and size of discharges by year
1981—4
198 2—3
198 3—0
3. Three most common causes of discharges
Operator error
Reactor overfill
Control valve malfunction
-------
BFGoodrich/LouiSVi lie
A.l Number and size of reactors
16 @ 1650 gal.
35 @ 1100 gal.
6 @ 16,000 gal.
2. Number of batches per year
3. Age of plant
17
B.1,2. Number and size of discharges by year
1981—3 0.6—2100 lbs.
1982—1 <2 lbs.
1983—1 3.6 lbs.
3. Three most common causes of discharges
Region 5
BFGoodrich/Henry
A.1. Number and size of reactors
32 @ 3300 gal.
4 @ 4300 gal.
2. Number of batches per year
3. Age of plant
19
B.1,2. Number and size of discharges by year
1981—1 511 lbs.
198 2—0
198 3—0
3. Three most common causes of discharges
-------
Borden
A.1. Number and size of reactors
24 @ 3700 gal.
4 @ 18000 gal.
2. Number of batches per year
23924
3. Age of plant
14—23
B.1,2. Number and size of discharges by year
1981—3 155—1680 lbs.
1982—3 100—8560 lbs.
1983—2 300—1800 lbs.
3. Three most causes of discharges
Premature rupture disc failure
Dow
A.1 Number and size of reactors
6 @ 10000 gal.
13 @ 3500 gal.
2. Number of batches per year
2316
3. Age of plant
12—32
B.1,2. Number of size of discharges yer year
1981—0
1982—0
1982—0
3. Three most common causes of discharges
-------
BFGoodrich/Avon Lake
A.1. Number and size of reactors
50 @ 1100 gal.
18 @ 3300 gal.
S @ 4000 gal.
15 @ 4300 gal.
1 @ 5200 gal.
2. Number of batches per year
5963
3. Age of plant
24—3 3
B.l,2. Number and size of discharges by year
1981—6 9.5—12825 lbs.
1982—3 195—378 lbs.
1983—1 74 lbs.
3. Three most common causes of discharges
Operator error
Power Failure
‘General Tire
A.1. Number and size of reactors
17 @ 4000 gal.
1 6000 gal.
2. Number of batches per year
9437
3. Age of plant
30
B.l,2. Number and size of discharges by year
1981—6 750—2525 lbs.
1982—2 44—3740 lbs.
1983—1 4000 lbs
3. Three most common causes of discharges
Operator error
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Region 6
Occidental
A,1 Number and size of reactors
4 @ 35000 gal.
2. Number of batches per year
2000
3. Age of Plant
4
B.l,2. Number and size of discharges by year
1981—8 2—884 lbs.
1982—1 41 lbs.
1983—2 42—443 lbs.
3. Three most common causes of discharges
Operator error
Maintenance error
Equipment malfunction
Ethyl
A.1 Number and size of reactors
16 @ 36000 gal.
4 @ 7000 gal.
2. Number of batches per year
3. Age of Plant
B.1,2. Number and size of discharges by year
1981—12 1—6300 lbs.
1982—13 0.4—9600 lbs.
1983—2 368—2000 lbs.
3. Three most common causes of discharges
Equipment malfunction
Operator error
Disc failure
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Georgia -
A.1.
Pa c i f i c
Number and size of reactors
12 @ 20,000 gal.
2. Number of batches per year
3. Age of plant
and size of discharges by year
7—3450 lbs
45—12090 lbs.
19—84 lbs.
B.1,2. Number
1981—6
1982—4
198 3—2
3. Three most common causes of discharges
Operator error
Equipment malfunction
Premature rupture disc failure
B.1,2. Number and size of discharges by year
1981—9 200—8000 lbs
1982—1 9090 lbs.
1983—1 810 lbs
3. Three most common causes of discharges
Operator error
Condenser plugged
Premature rupture disk failure
9
BFGoodrich
A.1. Number and size of reactors
11
2. Number of batches per year
1750
3. Age of plant
25
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ATTACHMENT I
HEADQUARTERS P01 ICY MEtIORANDA
ON RELIEF VALVE DISCHARGES
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-
.‘ fP4
UNIT D STATES E’. .:Rc . E’ 1 T . PROTECTION AG NCv
Wr TO DC h
•1
‘ n prr’r ’c
. u S3.J © •‘ -•• —
D C 2 ;:.
S BJECT: Vir.vl Chl j,c fo elief ialve Discharges Or.E1.
.‘ !
FROM: Jeffrey C. Mi 1 iç i
ctin ss ‘o Ero”- nt
,I,I - -
.....-:rts, ssistatt Ad. str toc
for Air, noise ar d d: tior
TO: !i for:e er.t Division ire:t :s
egior.s 1—VI, IX
The rch 14, 1990, e crande f:o David a :i .s to
Rebecc irte:, Regicrul A inist: to , e :cn V, offeriflg
guidance cc er-.in control of vinyl onicride e ssio s from
relief v lvc dis : es, has ce er ted SC e cor.cern within t e
Agency’s Office of Enfor:e er.t.
We would like to clarify two of the pc n :s nade a: that
time which c-- e subjec to d — ,c ir.ter ce:ations.
First, the prev: s me orand indicated e at the “;:ii ary
intent” of the a; 1ic3b1e requla:ior. (40 CFR Section 6.65(al
is to reduce the n ber of re1 ef valve discharges f:O!T c1.y—
vinyl chloc’de -eactors. While we rec ni:e : at ce ctcrS are
potentially the laroest source of vi vL chlorLde em ssior.s, tr.
regulaticn v its terms ccvec .s relief valve discharces fcc .
any piece of ec io e t in vir.yl chlc ide service. A sig ifi-
cant oer of reltef v ve dis hj:ce r. ve occurred fron
eçui ment ot. e: t-ai re ctocs at sc-e f c.1it es. Conse—
quentlv, enf - -t efforts na:e prcc eded eased on discharg2s
from reactors as -tell as other tv es of ecui ment. We support
these efforts a ill ccr.ti ue to e .f:rce the standard as it
is currer tlv w:i:ter..
Secondly, t e earlier gu dance su g sts that the standard
is designed t: :ed ce the nu oe: of di harces “to a very s ail
r ther.” t e interpret the sa da: to t e complete prohibi-
tion of no-.—erer encv relief valve d scharces, meaning that a
sincle t reVCr.t::C SChaCC e ‘ C.!ld s :?ct a scuccc tc e fcr:e—
er 1 t act on for vio:atic-. of : v ::; cr oride rcçuat o s.
:t r y oc t :, I S tte: of ‘.fcc. :’:: t d scre’_ cn, te
A cr.cy coui : c:se not to :c cr.t action against
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—.—
a source which has expe:ienc d very few discharges, if we
deter i that the source has taker. sufficient steos to :e
future discharges. cwcver, s h ‘n ac: on S OUiO te c s r ed
as a e f rt to a11oc e ii it er.f3 ce ent r so r es, rath
than as . de r ir. ion th. t the so rc has Co 1 ed w t
recuire ents oE the viny. ch1ori e r uia:icns.
cc: h. r er
ReqLor. t1 A .r is rator
I V
Jim avcott, Atty
Raqior IV
Don C cd, 3irec or
Emission Standards and
£ ineerir ç Divisior
-------
_.t, Sal.,
, ,. \ U T:D sT;r s N’.’o: : ; AL Pr OTLCTiC:: AG CY
C U.:G3
‘ %__ .
4 , 4 1 1
‘F C.
.‘ 14r.
11 ) 1 ‘i OFFICE OF
— — AIR P1OI A,IflHAOIATI3P4
SUCJECT: Viny l Chlcric .. . ...Stanc:rd - Safcty relief \‘alvc Dis h trçcs
A f . I • •.‘.
F O 1 Msssstant Ao: n strator
.(or Air, o sc, F t iaUon
TO: Rc:a n.- r, ! cgi3n.2l .inistr tor
Region IV
This is in rcg rd to Joh( :hitc’s reçuest in the Dacer.5er Senior
an nt R rt far bettcr co: Lroi of vi y1 cl%: c
c issions fro:n safety relief valve discharges. I understand tnat the
regional of(iccr in enerol have hac! difficulti€s in enforcing section
6L6 (a) of the vinyl chl3rion sthr.dard :niCh deals with relief v a
discharç s. I also understand that tkc r u ;her of relief valve scar e
reported dur r.ç the C orc nt or the stanc;ard s t e greeter thaii r y
have been expcct d. This c n:crns e becatise c,’ the kr e a :our.t o
e issici s :hich can occurthir ng one of .the a disc: ar es.
The vinyl chloride st n rd •is s hcthded for revie ’ r. 1 31, five
years fro, the original pc lç icn d tc. :e are a1r acy eoir. u.j to
develop a work p 1 a.i f r rev c of that st rd. During tr. rev ia’ ’ o
the sUn L rd, r..y stiff pia s to fc t:s on the Nrt of t ie rec iat on
d lin with relief valve c!icchor es. n effort will be ac!e t; iz .tify
any ncw dcveicp::cnts in tcc n:loçy for c ntrol of tncse di c; rr o.
• Also, i ’y staff !ill contoc. thc &ffi es and obtain c :ta or, t ’e e cy
and causes of relief valve hich .ave occ r ed ar. ev : e
alternativo ways of writir.: this part cf the starda:-: to i ;rove i _s
• clarity and effectiveness.
The follctw r. ra’agra ’Ns provide inf rr tion or. the develC :Er t
of the rcgu ati n for reHef valve discnar es and i . ce cr 1 the
interpretation of it. -
Sectc n &l. 5(a) of the v ’ chloride s’ r c1t.rJ states that
“Except for an er r ,cn:v relief dis:r.ar e, there is to be co discharge
to the at osphere fro ; ar.y relief valve on any equip ent in vinyl
chloride servi:e.” M c er er.cy reliec c schar is .efined as “a
disch rçje whi:h could c t l:ave ecr. avoidod by takiliD :caSufCS to
prevent the discharGE. ”
Although the reguiatioii covers any relief valve on any e ui ant
hat contains at least 10 perccnt vinyl chloride, anc is located in a
-------
2
viti l chlorhi or poly:irv c ’i pl nL, th r r’ r,’ f the
iij ih’.Lic :.is to S ct n.izffly ‘•cJ’ ce the fl C: of FCMe v. dc
d ’.’5 frc.”i polyvinyl c l’j:i . i-C ctor . At the tire the re at :r .
L int devclc; ’cd, relicf :ilve disth r cs fro poly: ” l c :ri e
rc ctor . CO:::ton occt.rrCl’ce ai we were aw€irc cf spccif Ic
th. t could be i l cntc I to prevent these disc: ar es. c•iic vaive
d sch r j s fro : othc: cquip t occurred rnuch l ss fre ucr tiy ai we
dW not inclu:f in o r ba:I:;rctund nts speci fic in c a ic cr.
they C fl L. e prcv n ed. Th3y :erc iflCh!ded in the rc ul c.r, ho. er,
to i rc that c .:issions (rc: . t se relief valves die n:t oc: .r
ui c’ssari ly. C :r int ntiOri w iS that prir’ary attcr tic be
on th poiyvi .vl chloride raxter disch r c hich arc t e r t
source of c is io s a d for hich ‘ a had described specific e:a. ti e
s: stirc•s.
Thc ic :C e5t2in the dc’: ley -: ,f the
indicate•.i that the fra uency of relief valve dischar s fro pclyvi yl
chloride rc ctors “aries ce: sic ra ly ‘rc plant to plant. Sc plar ts
had l s th n c i.e dischar e cr year; others hcd L.c•r 1 ty cr r :re. On
the ovcr a, 5 3 pounds of vinyl c: lcride was e: itt d frc cr e of these
di ch r cs vthI five to tcr. inutc pericd.
F clief v lv hscharçcs frc polyv nyl chlor’ic reactors c:cur
in •or’J to p evcut cat tr:p ic r;:7t rc t:he pr s sure withth t!ie
rc ctor builds u beyond the c iHtics cf the rc2ctcr to cc tain
it. The prou :tion of polyvinyl chi r d frc vinyl chlcricie in
re cto:-s is e::oth r iC re :tio ’.. Rca:t2rs arc ec t i ac with açit r
an C \ iir. to fa :3vC t! .a.:.t e o t3 the cx th r ic rcacti .
Pt r i i s in rea:tcrs c n c:c r if the ccci i; ; : r 1 ’_ d:es r. t
oi ute ç r criy; this c n h3 c., if th:re is a p ..c” : ta:a for exa pe.
It c n also c:c :r if the o er :or a c!s t:o ch vinyl cr oride cr so c
other ir. e ic. t to the reactor d r r.g f r ati;r, of batch.
jl. to pra’.ent d ch . rres, several s ’a c : ta 1 : . Fcr
cx r l 1 rcA:tors can be eq ced with t rat :r r :re s r.ç
devices. high te’ oera: ro or pro sur: is tec , cha: ;ca s ca
be r.;. n lly or auto otical l e dad to t ’.e reac: t: tr c rca:tic r..
ProvisL ns c n e r’ .do to re .o e t of the cor.tc.: cf o tact r
bo(c to another vessel Sc th : the Dressure is br u t eok d:.:n to a
satisfactory level he(ore it is necessary for t’ e re.’ f v ive to
disch:r c. 3a:k- p po •:cr so rcea can also be provi c to keep oç at:r
operating during ?.n ;o’. er o ;ta eS. c e of the fl : r piant cor .ta
C c i uleri : . d sys tes nich .itcr ati : I y fill reac tc’s with the proper
quantity of c ch in redicnt a;:d w. ich ce .- tain provisic s for aItCrin
operations !i r ovc prcss rc is c te:tcd. Ue er pia ts with cc ptit r
hod $ystc s tend to have fe e” di r :s. T!: e are several ex -. :ies
of preveutivc :e ’st rcs :hich h d bcc .n-c:::r.str tcd existi plants at
the ti c of d:vei:p ent cf the sta darc.
-------
3
U t afl re icf v 1 c d scL r cs can b r r er tc’ . The nt of
the rc ’ul io.i t:is that if a plar.t tcok Stcç s s :c as th3 c n :ad ao c
and sUU h. c1 3 relief v hre discharcie 1 that rclief ,3lvc discharge
:oulci be C nsici rcJ an e .er r.cy C3 i i n en :ould not be a vio1 t on.
W ep ctc J su:h situ3Lions to be rare.
We did not sp cific lIy r q iirc that eec!. j ant t e afl of the
pro cn ive s :r s descri cd a ’OvO f. r a coufic of rea5 ns. First,
sa:c plants t.er h .vin : ‘y fe discnar s (less than crc er
alrc y witI : t ta in afl of the 5ove na s. t oi r. ;: -
pru nL to rc uirc plants to un cce s ri y Inst?il ci’ c :’’-
bhen Lhcy i.i. pi i.vimLin.! tha dii s witnout it. Thercu ra zic:
v ri3tions pl:n s. Sc e ccnt ir nt r rau t :1ie-
rca tor , : :ile oJ rs cantai cd l irge, riore i o r.i reectors. R lic
valve d ch r cs ar r.u:h r.:ore easfly cc troflcd frc- the r.e er ar
l r r r,2:!cto:s tt.in frc: th old2r and s afler reactors. In ac:i r.,
we did rot want to preclude the dev c ent of ir:rc’.’ d teci r.: cçy
:h C y bc cvcn r re successful in nti;; disc r s than t e
te nolccy avaflu51 at the ti e veic .ed the eia: or.
the lntc t o ot the rccu at1c :as that each plar.t instail
sufficient prevc tive ui :ent to rc u: the nt cr of poly’.’ir.:.’l
chlorid rc . ctor diScharç S to a very s 1l r r. For plants :
rC2crt c sc tially no discarC s, no a i’ onal e i ent :ou1d e
required. Uo.sovcr, for plants w e d3 report ci c e : s, mcrG ar.d r :r
prcv:ntive r st:r ::.ul be rc ui rc thr: er.f rce::ar.t acti cns
tho occurror.ce of cisch r s fr c a ‘a; 1 t i rare.
I hope this infor .:t on is useful to you. If you have add ic a
quostior.s, ce ents, or su;;cstions, p1e se contact .a.
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UNITED’ ST- i’:. ! c. :Z TAL P 3 :: .. /
2D
24 APR 1979
MEMORANDUM
SUBJECT: Vinyl Chloride Relief Valve Discharges from PVC
Reactors—Borden Chemical
FROM: Director
Division of Stationary Source Enforcement
TO: La. reii e :1. Colthnan, Chief, Enforcement Branch
Region I
This is in response to your memo of March 29, 1979.
requesting guidance on what constitutes a “preventable’
relief valve discharge under 40 CFR 61.65(a) and on what
ste s a source can be expected to take in order to prevent
e -- o reUef valve discharges.
When a source reports a relief valve discharge we
should presume that the discharge was not due to ar er.er ency,
but was preventable an is therefore a violation of Section
61. 5(a). The source will then have tht opportunity to
demor.st:ate otherwise. In order for a discharge to e
cor.sidered an emergency, the source would have to der or.strate
that it could not reasonably have beer. expected to ant c c te
the discha:ge and then to prevent or c t ir. it. s a
minimum, the source would have to de or.strate that the
discharge could not have beers prever.za by i pie ientir. any
of the followjn prccedu s:
1) employee training pro : . iiclLding - t :ticr.
on e ergency pro:ed.. as,
2) equipnent ir.spectic a d nainten nce programs,
3) proper design —endo;era- on of process an
control ecuio e , a
4) installation and c e:a: o . of all contrcl
equipment needed tO co:iy w th the vir.vi
chloride standard.
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2.
One factor which should be taken into consideration in
determining whether a discharge could have been anticipated
and therefore prevented, is the plant’s prior histocy with
respect to discharges. If the source has previously experi-
enced one or more discharges, some or all of wh ich were
caused by the sa ne factor, the source is expected to have
taken corrective measures designed to prevent or contain
future discharges.
In summary, a relief valve discharge is a violation of
Section 61.65(a) if it could have been anticipated and
preventive measures could have been taken or if the discharge
could have been prevented by properly training emoloyees or
by properly operating, maintaining and inspecting equipment.
In particular, your memo requested guidance on what
constitutes a preventable operator error. As is the case
with other discharges, we should presume each discharge to
have been preventable and then provide the source with the
opportunity to demonstrate otherwise. As a minimum, the
source would have to d onstrate that C rctors ‘.z re ll—
trained initially and had received refresher training
courses, as necessary, to cover both normal and upset
condi .ions. Refresher courses should have been provided
particularly after the occurrence of.an initial relief
discharge caused by operator error. The source should be
able to provide documentation as to the dates training was
offered and the operations covered.
The final issue to be addressed in this memo concerns
the types of actions a source should be expected to take,
after experiencing a relief valve discharge, in order to
prevent future discharges. The preamble to the proposed
vinyl chloride standard lists, on page 59539, several
measures a source can reasonably be expected to take to
prevent relief valve dis:harges. 4easures which can be
taken to prevent discharges from PVC reactors include, but
are not limited to, the following:
1) properly instrumenting the reactors to detect
upset conditions,
2) injecting chemicals to stop the polymerization
reaction during upset conditions,
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3) venting the reactor contents tc c
during upset conditions and uiti atek t a recov :.
system,
4) providing employees with improved t:ain .n; or:
preventing and handling upset cond ions, and
5) maintaining a backup source of power. See 4C
FR 59539, December 24, 1975.
It is apparent from this discussion that in developing
the vinyl chloride regulations we envisioned the use
of gasholders to prevent or contain relief valve d schar;es.
Therefore, Borden Chemical and any other PVC manufacturer
can reasonably be expected to install gasho]ders to prevent
discharges if other preventive measures, implemented in
timely manner, fail. In fact some PVC manufacturers have
already installed gasholders for this purpose.
Should you have any further questions on this issue,
please contact Libby Scopino at 755—2564.
Edward E. Reich
c: Susan Wyatt, ESED
Marsha Spink, Region I
Marcus Kantz, Region II
Peter Schaul, Region III
Leon Folsom, Region IV
Bruce Varner, Region V
Martin 3rittain, Region VI
Paula Bisson, Region IX
Enforcement Division Di:ect3rs, Region —V IX
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4 s
Ji . UNITED STATES !NVIWN’. ENTAL PflOTECTIO AGENCY
WAS H ’ GTON. DC :o. co
.1 I
OFFICE OF t.hFORC ’.aEMT
!CI ORPINDW1
SUBJECT: Vinyl Chloride flelief Valve Discndrges
FROtI: Director,
Division of Stationary Source Enforcement
TO: Directors,
Enforcement Divisions
Regions I — VI, and IX
By memorandum of February 22, 1978, I outlined the
conditions under which relief valve discharges would be
considered “er er cncy” discharges. In vie.: of the con-
tinuing occurrence of non —emergency disc r es and the
upcoming close oC the statutory w3iver period (Octobcr 20,
1978), I would like to reiterate DSS’s pcsition on this
issue.
A relief discharge will be considered an eme: enc ’
discharge only if it occurs as the result of an Un—
preventable disaster (i.e., tornado, hurricane, earth uake,
flood, riot, sabotage, etc.). Discharges :hjch could have
been prevented through the use of backup cqu:p r.t r.d/or
çroper operation and maintenance procedures will be considered
violations of 5l.65(a). Some exar pie of conditicns under
which discharges will be considered violations include power
outage3, operator errors, prevenea le eç p- nt fai1 and
malfunctions, etc. In those instances, vir.yl chloride
releases could be avoided through us of b c :up powcr SUpp1L S,
backup cauipment, employee training, end prcp r operatio:
and maintenance procedures.
A non—emergency relief valve discharce of vinyl chloride
constitutes grounds for E2 enforcer.en action in the form
of im tediate compliance orders. These should then be fol]owed
for subsequent violations with C Vji or in sor e cases criminal
action. DSSE is taking the. position that, as a matter of
policy, all violations of S1 12 require r atory enforcement
action by E?A. Henceforth, all ncn— r ency diach r es, as
-------
U as other ES1i P vjolatic: , wIll r ::,.:irc action un
13 of the ct.
Through diSCUS5jO S witr. of th’ e icr 1 Offic’ ,
it has also been brou’;ht to cur . ttentior. that C rtair. Vi y1
chloride sources are fLndi ç it necessary to re7iace rup-
tured or leaking rupture thsi:s on relief valves s ar v
as 2—3 times per day. Some of these sources feel that they
are emitting more vinyl chloride during the re lacencnt of
these disks than they ou1 ernit if their relief valves
were not required to be equipped with rur ture disks. Since
the purpose of the rupture is re uireri ent ( 6l.65(b)(4))
is to minimize emissions of vinyl chloride and since i ost
sources have been able to do so, we suggest that the sources
in cuestion may be using disks that do not meet the s eci—
fications of the relief valves under which they are in-
stalled. That is, the disks may be rupturing at a much
lower pressure than the pressut-t setting of the relief
valves. Sources that are experiencing such difficulties
should be urged to look into different types and pressure
settings of rupture disks. If this problem is occurring in
your region, I would appreciate a thorough ir ve tigation
into the cause of the problem and the fornulation of a
solution.
Should you have any questions on the issues dis—
ssed in this memorandum, please contact Libby Sccpir.o
55—2564) of my staff.
4/:’
I • I
(_AJ,2v_. — 4 .
Edward E.
cc: Don Goodwin
Jack Farmer
Susan wyatt.
John Courc er
Marcus arit:
Abe Ferdas
Jim Wu
Bruce Varner
Nartin Brittain
Ray Seid
Ron N veen
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qi..
____ UNITED STATES ENVIRON C CTIC . AGENCY
, . •‘ WA5HINGTc . C C
OCT26 :::
MEMORANDUM O FICZ O NcO EMENT
SUBJECT: Vinyl Chloride NESHAPs - E ercency Relief Valve
Discharges Due tc Operator Error
FROM: Director
Division of Stationary Scurce Enforcement
TO: Enforcement Division irectors
Regions 1—VI S IX
In a memo dated May 18, 1978, I stated that a relief
valve discharge from a vinyl chloride source will be
considered an “emergency” discharge only if it occurs as
the result of an unpreventable disaster (i.e., tornado,
hurricane, earthquake, flood, riot, sabotage, etc.) s
examples of conditions under which discharges will be
considered violations of S61.65(a), I listed power outages,
preventable equip tent failures and nalfunctions, and
operator errors. The purpose of this memorandum is to
clarify that discharges resulting from op rator errors
will be considered violations only if they are determirie
to be oreventable operator errors. Examples of preventable
operator errors would be errors due to lack of training
or negliaence. See E?A—450/2—75—c09 , Standard Support
and Environmental Impact Statement Volume 2: Promulgated
Emission Standard for Vinyl Chloride, pp. 247—250.
When a company reports a relief valve d scharge due
to operator error, the Region should deterr’ine, on a
case by case basis, whether the error could have been
prevented. Prever able d sc ar e sr. ud be ccn dered
violations of 561.65(a) and b:ece to er.force er t sar cticns
under §113 of the Act.
A I F,i
-
Ed . aro .. Re. cn
I
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— ‘•_-? •. I 1 —‘ - I — — - - — —
, i ._ I . • C. ‘ % • —
-
:. 2C..::
rc-bru :y 2C, l9 3
o;r: z c :.; •i’ i. - .:
I
SU J CT: flelief Valve Disc arg2 frc
Cguip crkt in Vinyl Chlo:idc S :iicc
rRO 1: Director
Division of Stationary Sourc2 E forc nent
Director5, Enforcei ient Divi sionz
Regions I,III—VI&IX
It has recently come tc o r actcrft ;: t::: .t a r 1 .t r or
plants u ject to tho vinyl chlorici :cg : iO
ricr.cthg relief valve di char jc: ic r t c o to
“er 3 :cy” conditicns. 1 s dizcu in ar in th
to the prcposcd re ulaticr. , n .:r v” rc i f
valve c isch rcjc is a dischar c t; .ici; c h ve t• r
prevcnt , such as a discn r occ:urri . j : r .; :t
natural cis ste:
Accordin; to this stiict def .itiC; ;;-:t c:it tc.:
an “ r ency” rclief discharge, a: y pl . : ‘-iic Las
a relic c ischarg which coel La c ‘.Vc tC(
p ei - nt £: c /or proper C rat.D -- .t r cc çr: .• :: -
ha5 violated 6l.65(a). Such a :r•: _‘ -c
CP. t i1 •ple1 nt r sures de3i nc to t ’r licf
disc .: c.s.
‘ 2 atta to to r::ic: ! o ; :a i -: 1t- r—
that a’ e used to r i.: I
revc t tj:e e su:e . In ordcr t tic l c i-
ter cy in dcali with this •• -: rcc -:: tha: the
folio’: thc r cQ an ]atio outli i i• .: tt r.c- fo
requiring installation of c ui;i n: • /cr c.;t :i r•t of
Oration and aintenan:a p oc r :0 r:v• n r iir c:j —
chrgss.
Piea3e note that si’ .y :c:. ::— : .• t; i
l dcyz doo no: r ie;- . sc c : D :o .—
Zcr v:cl :ing 5(a).
-------
If. you h vc a y uc’ti3rs c co er.ts, fce. free t:
c c it ct Libby Sco ino at FTS —25 4.
1 ‘ 7 —4 1?’
E ard .
V
——s— I.
c:: SLSan wyatt
Stuart Roth (w/cut a:ta’... z’
arcuz };antz (w/c t
-------
..
— ,...—rr ‘ ‘• -: ..., ,—.. .,—.— ‘..
I. — • _ ‘i.. UI ..JU • I ,.
V/,\ H N iN C. 2 O
• •
ccFi: C: t:. :I :iT
flelief V21ve Discharnes
PPG Facility t Guayanilla, PuErto flico
Director
Division o Stationary Source Enforcei er t
Stuart cth, 1 ttorney
Enforcement Division, R gior. II
Thiz is in response to your i e o of January 10, 1 C,
rec!uesti guid nco on cntorce ent optio; available to
orevent re ef valve discharce of ‘ IC:: trc v nv1 c dori e
stora e tan :s at th G ayanilla PPC plant.
e believe that the : cst efCcctive approach to e1i ii—
tiny c issiori ca scd by relief valve dischar cs zou1d be
uirir. that P ’G take casures designed to prevent relief
valve ciischar s ir.zt ll c uip ent c1ezi ncd to contc in
discr ., shoulc they occur in spite or any prev nt tive
efforts. feel that thi3 Dosition is jus: ied by the
prea .’ le to the proposed otand rds w iich se te:, uith
rccpe t to rc.li f is:hargc5 frc cc uip •ent other than
re tctor , “...ii craasing pressure due to ii ert c es in ti-.e
ztc c:.n be relieved by nua1 venting to a as holc er or
reccv: : s .•stc . The con jtions which le:d to di ch rcc3
can co e cr; tc in i ost casco by prc : hanc l :
trzcr o vir 1 c 1cridc or ratcrial2 ccnta:r 1 ing vir.yl
c ior ”. (Sec . C FR 59 3S!, Decc;L;her 24, 1 3).
Cnc cossi 1c option .hich c lc - atisfy t c bov
re ujr ts anc ,hich c bir.es oi,ti.c: lis:cc in your r ’ :,o,
Would b in talintio of adc3ition l refriceration ur.ito
esiçne to ser’.: as bac :ups for t e existi . units ir
CO ina!_jofl ,ji h a cas holding tank ;iich C U1Q contzain any
rceasc re ultjnc ro: . total r f;i aratic faile: or frc-
cther f er.1 failures or aficiencies, inrthdin nv
d ri ; tne it to s ;itc c er
a fur’ : .n; rcri .raric. •t : . c ;er unit.
Cf rr, P Z :iU te r sponciblo Zor dcv locing C pl :. fc:
V Li reli charjc c , inc nc any n ee: ery
e: .t .c a :.:r. r:c rcc . re ’ tr ic L: :..
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In your mc io you rcquc it c1arificz ti n c
tute ; an “emergency rolicf duischarge”. As statcc ir.
c o of December 15, 1977, the pre ,le to the pro o i
viny], chloride regulation describes an e; crcjcncy dc ,: ’ c-
as one which cannot be avoided by taking prcventativa , a—
surcs, such as those caused by natural d sasters (4 EIt
59539, Decc ber 24, 1975). natural disasters incluce hurri-
canes, t c1a1 waves, carthqua es, etc. D scharge which
could hu’:e beer. prevented :ill not be con3irjcrcd “c ercj:r.cy
discharges”.
Finally, you request guidance on the enforce e t
appro3ch to be used to require installation of cquip nt
designed to isinii ize the amount and frecucncv oC cn:rç s.
As you k: c .:, an cd ini tr3tive order ( cction 113(a) or or
is an ir.appropri te method to remedy a ?1CC ;1 P violatien
unless the order requires immediate cornpliance with the
standards. In so: e circumstances, a waiver oC co olj .co
i .ay e issued which requires the installation of euuj?: ar.:
necec ’ .a:y for co: p1iancc with the standard f the 3 .r:: :
can b cs ratior.a1 and the source can be in co: Uanc b
Qcto er 2 , 197a. note that the issuance of a of
i 1iance is discretionar ’, and cc’nsi aticn s ou d e
:en to both t.hc ourcc’s good f’aith and whether e bc1i ’:c
ter s of the waiver will b co p1ic ‘ .i t-. inc: f r. 1
ccr pli. c ultimately achieved. In acdit cn to any rc j :r —
ments designed to protect public health durin the peiio f
the waiver (4C CFfl SG1.ll(b)(3)) and any c i;r rair t
ge erally aoplic ble, any such waiver should include v :ry
detailed incre enta1 dates for de iqr and in _la:ion of
the eciuip er.t. The waiver should be 3tructu:cd so that the
first ir crer snt will hecc:re due as soon a : : iss :ance as
possible. This will ensure pEOi pt action y :hc source
while still allowing EPA su ficienc time to act should 1’?G
fail to cc olv. Violation of the :ajvc-r re uirc .er.ts
could, or course, result in the cc :ence: n: o civil cr
c:i ine- ,1 action.
c ’e:er, if the source has not. re ues ted a waiver to
l1o ’.: installation of the required if the source
has not acted in good faith, or if the ic: telieves it is
I p3s ible for the equipr er .t to be inst 1le . and the 2ou:cu
to be in co ip1iance by October 21, 1978, c : acticn should
oe CO 2nced see :ing injunctive relief fo: • ditiouc
nsl:a cn cf the ne: ssary control ecu .:- :. :r. 1ic ht
Of tne ha rdo s nature of the pollutant we woui
urge cuia . : pr r.a aticn o any r :rc. c: .:r fincluding
calculations necessary to cc’. .‘- th t1•
. .t o1ic . In additi.m, we can - zs :r cu .:c
Z uI, ,‘Cr , ]jtt our rcvic : r d r forrcl o :-: n c-:: ’ c t::”
of .u:tica.
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I yc i roqui’. y fu :thcr n th±z :t c:,
icrj rcei free t cor.t ct Dourj r& or h (155—257C
1c 1 q c iO: Or Li .j Scu: r cD (7—2 C’4)
rc ir g any tcchniccd ( 1 I. e 5tiOflS.
• k),L .:.—
E. Rc cL
cc: Susan wyatt, SCD
r rc kant :, Region II
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ATTACHMENT II
PARTIAL EXAMPLE OF
LITIGATION REPORT
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TECHNICAL EVALUATION OF VINYL CHLORIDE DISCHARGE REPORTS
FOR
SECTION I — VINYL CHLORIDE DISCHARGES IN VIOLATION OF 40 CFR 61.65 (a)
INCIDENT : 1
DATE: 4-28—77
ESTIMATED QUANTITY OF VINYL CHLORIDE DISCHARGED (LBS): 120
SO(J CE OF DISCHARGE: RELIEF VALVE 6024 ON VCM PRODUCT FILTER
DEERIIINATION: PREVENTABLE
REPORTED CAUSE OF DISCHARGE MEASURES TO PREVENT DISCHARGE
OPERATOR ERROR. The relief valve
discharge occurred from the VQI
product filter when, after coin—
pletion of VCM product loading to a
rail tank car, the llquld—fufl vinyl
chloride tank car loading line and
filter were blocked In. The relief
valve discharged when the Isolated
line underwent hydrostatic condi-
tions. ‘s response to the
Section 114 letter Indicates that
the operator responsible for the tank
car loading area failed to follow the
proper operating procedures and thus
Isolated a static line of liquid vinyl
chloride. Additionally, during the
plant visit on November 17, 1982,
Indicated that the operators were verbally
warned during their training period on
the dangers of blocking in a liquid—
full VCM line.
CO flt Z TIAL
PLANT
(1) Revise operating procedures
and operator training program
to ensure that all liquid—full
vinyl chloride lines and fil-
ters are not inadvertently
blocked In.
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ATTACHMENT III
SAMPLE SECTION 114 LETTER
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ATTACHMENT 3
f 1 u rrco STATES ENVIRONMENTAL PROTECTION AGENCY
NCGION VI
1201 11. 14 STRICT
OAU.AS. TIzal 7I 7O
L::
12MAY 8l
CERTIFIED HAIL: RETURN RECEIPT REQUESTED P21 7841142
Mr. ,lohn Friend, Plant Manager ‘--
Conoco Chemicals Company
Division of Conoco, Inc.
P.O. Box 15360
Oklahoma City, Oklahoma 73155
RE: National Emission Standards for Hazardous Air Pollutants (HESHAP)
Standard for Emergency Relief Discharges of Vinyl Chloride,
40 CFR, §61.65(a)
Dear Mr. Friend:
Conoco Chemicals Company has Informed the Envirorm*ntal Protection
Agency (EPA) of certain emissions of vinyl chloride to the atmosphere
from Its polyvinyl chloride plant in Oklahoma City, Oklahoma. These
emissions were called emergency relief discharges and were reported
in Conoco’s letters of August 18 and December 1 of 1918, of July 27
and October 26 of 1979, and of AprIl 1 of 1980, pursuant to 40 CFR,
§61.65 (a).
We are In the process of determining whether or not each of the
five reported relief discharges could have been avoided by preventive
measures. To assist us in making this determination, I Invite you to
ieet with my staff in the next two to four weeks before a determination
Is made as to the nature of the dIscharges. A meeting is no.t required,
but will provide you with the opportunity to further discuss the
causes of the reported discharges of vinyl chloride and to present
additional Information that will support any preventive action which
Conoco took both before and after each of the discharges.
Unless a relief discharge of vinyl chloride can be established
as an emergency relief discharge that could not have been avoided
by taking preventive measures, it Is considered a violation of
the feder i enission standard for vinyl chlorid€ as contained In 40 CFR,
§61.65(a) of the National Emission Standards for Hazardous Air Pollutants.
Each discharge which constitutes a violation is subject to enforcement
sanctions under Section 113 of the Clean Air Act, as amended (42
U.S.C. 7413, hereafter called the Act).
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In addition, as the owner and/or operator of a polyvinyl chloride
manufacturing facility which Is subject to the regulatory requirements
of SectIon 112 of the Act, Conoco Chemicals Conpany is hereby required,
pursuant to the authority of Section 114 and Subject to the Sanctions
of Section 113 of the Act, to submit the Information described In
Enclo:sre I concerning discharges of vinyl chloride from its facility
on S.E. 59th Street in Oklahoma City, Oklahoma. This investigation
Inquiry to collect Information Is considered to be exempt from the
requirements of the Paperwork Reduction Act of 1980 as provided In
44 U.S.C. §3518(c)(1)(B). The information described In Enclosure I
must be submitted to me at the above address within forty fIve days
of your receipt of this letter. Please follow the enclosed Instructions
In responding to Enclosure I.
There is also enclosed with this letter a statement regarding Information
which Is considered to be a trade secret or confidential. In any
confidentiality claim, you should follow the guidance In the enclosure.
You may claim confidential it for part or all of the information,
other than emission data, which you submit. If a docunent contains
some Information which is not confidential, please mark the confidential
portions to aid EPA In Identifying and handling this Information.
Whether or not you regard part of the information submitted to be
a trade secret or confidential, you are required to provide It In
response to this letter.
To arrange a mutually convenient time for the proposed meeting, please
contact Ms. Rebecca Conrad at (214) 767—2760 within the next two
weeks. Any question regarding the required information In Enclosure I
should be addressed to Mr. Martin Brittain at (214) 767—2755.
çS1 Tic rely,’.
n’a Dutton, rector
Enforcement Division (6AE)
Enclosures
cc: Mr. John Gallion
O 1ef, Air Quality Service
Oklahoma State Department of Health
P.O. Box 53551
Oklahoma City, Oklahoma 73105
Mr. Llnn Wainner
Oklahoma City/County Health Cepartiient
Air Quality Section
921 N.E. 23rd Street
P.O. Box 53445
Oklahoma City, Oklahoma 73115
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Instructions for Responding to Ehclosure I
For purposes of responding to the requirements of Enclosure I, the following
Instructions apply:
S
1. Each copy of the docix ents submitted should be marked or labeled
with reference to the ninnber and subsection of the question In
response to which it is submitted.
2. In responding to questions requiring that Conoco identify a
person, the answer should include:
A. the name and business address if the ‘person’ Is a company
or other business or goverrvnental agency, and
B. a code name or nunber selected by Conoco an the functional
position and business address if the ‘persoti ’ is an individual.
3. In providing an answer to those questions requiring Infonnatlon
for more than one discharge, please Indicate clearly to which
discharge you are referring.
In responding to the requirements of Enclosure I, the following definitions
apply:
1. ‘Docunent’ means all writings, whether printed or recorded or
reproduced by any other mechanical process, or written or produced
by hand including files, records, logs, studies, working papers,
hearings and reports, correspondence, telegrams, inter— and intra-
office memoranda and cornunicatlons, siznmarles or records of
telephone conversations, sunmaries or records of personal con-
versations or interviews, graphs, reports, notebooks, note charts,
plans, drawings, sketches, maps, sunmarles or records of meetings
and conferences, sunmarles or reports of Investigations or
negotiations, opinions or reports of consultants, photographs
and letters.
2. ‘Conoco ’ means the Conoco Chemicals Company and any office
or branch thereof, any subsidiary and holding company, and any
person employed by or under contract (or any other agreement) to
Conoco Chemicals Company.
3. ‘The Plant’ means the polyvinyl chloride production facility
owned and operated by Conoco at 5200 Southeast 59th Street in
Oklahoma CIty, Oklahoma.
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4. •Person’ means an individual, finn, partnership, association,
corporation or other business or goverrmiental entity.
5. vcir means vinyl chloride monomer.
6. ‘pvc. means polyvlnyT chloride.
7. ‘Emergency relief discharge(s) of VCM has the same meaning
as defined In 40 CFR. fi6h64(a)(3) and 61.65(a).
8. ‘Relief discharge of VCM ’ means a discharge of VCM to the
atmosphere from equlpnent in vinyl chloride service that occurs
• (1) unintentIonally for any reason or (2) In any manner
which is designed or intended to relieve, reduce or
prevent pressure that is considered t 9 be excessive
within the equlpnent.
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Et tLOSURE I
onoco Chenicals Company shall submit to EPA, Region 6 the following
Information and supporting doc r entatlon regarding its PVC production
facility located at 5200 Southeast 59th Street In Oklahoma City,
Oklahoma.
1. Please provldt a list of all relief discharges of VCM which
occurred at the plant for the period beginning January 21, 1977
through Septenber 1, 1978... Data denanded in the following,
which has already been submitted, should be referenced and need
not be resubmitted. The list should Include the following in..
formation for each discharge:
A. Identification of the source and relief device(s).
B. Description of the nature and cause of the discharge.
C. Date and time (start/finish) of the discharge.
2. Please provide a list of all relief discharges of VCM which occurred
at the plant subsequent to August 1. 1978. Data d nanded In
the following, which has already been submitted or’included In the
response to Question 1, above, should be referenced and need
not be resubmitted. The list should include the following data
for each discharge:
A. Identification of source and relief device(s). Include
a process flow diagram of source relative to discharge
point and ground level.
B. Description of the nature and cause of the discharge.
C. Date and time (start/finish) of the discharge.
D. Approximate total quantity of VCN discharged and a copy
Cf the calculations of the emission estimate in sufficient
dctail to assess the validity of such calculations.
E. The date of the notification letter, reporting the discharge
to EPA. If the discharge was not reported to EPA, please
Indicate why not.
F. A description of all corrective steps taken before and during
each discharge to prevent and/or minimize the release of VCM
to the atmosphere including, but not limited to, such steps as:
(1) efforts to increase cooling rate on PVC reactor,
(2) efforts to terminate reaction in PVC reactor,
(3) efforts to vent PVC reactor to a recovery process or other
contaii ’ent, or
(4) with loss of incineration capability, efforts to reroute VCM
emission vents to a holding or collection vessel, temporarily,
until Incineration Is restcred or plant is shut down.
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C. Describe all , easures taken to prevent a future occurrence
of each dT Iharge listed Including, bu, not limited to,
corrective measures regarding equip ient changes, changes
in operating and maintenance procedures, operator training
and disciplinary actions. State the dates when each action
was Initiated and completed. Where information on the
corrective measures has not been subnltted to date, explain
why this infornation-has not been provided to EPA as requ1 ed
by 40 CFR, §61.10(c).
H. Provide a copy of all docunents relating to each discharge.
This should include all related portions of reports regarding
each discharge incident Including, but not limited to,
daily plant logs (e.g. reactor operating logs and general
plant and shift foreman logs).
I. For each discharge, state whether Conoco believes It was or was not a
violation of 40 CFR, § 61.64(a)(3) or 61.65(a) and include the
basis for that position.
3. For each relief discharge of VCM from a PVC reactor, please
provide the following additional information:
(1) Reactor tenperature and pressure •t start of discharge.
(2) Copy of reactor temperature chart and pressure chart,
at least one hour before discharge occurred and one hour
after discharge was terninated.
(3) DescrIbe the status of other PVC reactors before, during
and after each discharge Incident.
(4) DescrIbe external conditions concerning such items
as weather, utility supplies and other process upsets
requiring attention during each discharge.
3. For each VCM discharge In Question 2, above, which Involved
premature failure of rupture disk(s) or a discharge from double
rupture disks, provide the following Information to the extent
that It was not addressed In Question 2:
A. Describe the type of rupture disks and rupture disk material
being used on the affected equlpnent and explain why It
was different from rupture disks on similar equtp ent used
in the same service at the plant.
B. Do all PVC reactors at the plant now utilize the same type
•of rupture disks? If so, state the type and manufacturer
of the disk, and the date of change. If not, state the type and
kind used, and explain the reasons for use of different types of
rupture disks.
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C. For each discharge state the length of time the rupture
disk(s) was in service prior to Its failure. If this in—service
time of the affected rupture disk Is net consistant with
the currently established procedure for replacement, describe
the inconsistancy and explain why.
D. Do all of the Initial PVC reactors at the plant still
have double rupture disk assemblies as well as safety relief
valves? If not, explain why end describe their current status,
Including date that applicable revision was comlieted.
C. Based on Conoco’s Investigation, what does Conoco believe
to be the primary cause of the premature failure of respective
rupture disks that resulted In VCM discharges.
4. For each discharge listed In the response to Question 2—B
as being caused, In whole: or In part, by operator
or maintenance error, please provide the following
Information:
A. Identify each operator, maintenance person a id supervisor
responsible for the error and provide the following for
each:
1. Date and total time rked on the day of the discharge
and on each of the 7 days prior to the discharge.
2. BrlefTy Identify all duties for which responsible at
the time of each discharge.
3. Describe history of training In emergency procedures
to prevent or minimize VCM discharges. Include dates
and subject matter of all such training periods.
4. A copy of personnel records relating to all disciplinary
actions and job performance evaluations since January 21, 1977.
5. Please provide a dated copy of all doc anents or portions thereof
regarding (1) standard operating and maintenance (0 & Ii) procedures.
(2)testing and Installation procedures and (3) traIning
manuals (or other instructions) which have been employed
at the plant since January 21, 1977 which:
A. specify how frequent and on what basis rupture disks on
equlpnent in VCM service are replaced before fallurd,
B. specify procedures for pretesting, post—testing and installation
of rupture disks on PVC reactors, and
C. relate to prevention of relief discharges of VCM from
PVC reactors at the plant.
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7. Studies and Other Alternatives Considered
A. Prior to Sept iiber 1, 1978. dId Conooo , or its consultant
or Contractor, prepare any me:noranda, reports, analyses,
or docu ients other than those described In iest1on 6-A,
which related to the occurrence, cause or prevention of
releases of VCM from relief valves or other relief devices
on PVC reactors at the plant? If so, provide a dated copy
of all such docunerits.
B. State all the alternatives considered by Conoco prior to
and during the waiver period (October 21, 1976 to September 1,
1978) to achieve c npl1ance with 40 CFR, §61.64(a)(3) and
61.65(a) for manual vent valves, the relief valves and other
relief devices on the PVC reactors at the plant.
C.. At the time Conococonsidered these alternatives did Conoco
evaluate systen used in any other p ants? If so, identify
the systens evaluated, the plant, and provide a dated copy
of all relevant dociinentation for each eva uatlon.
D. Provide a dated copy of all studies regarding the efficiency
and reliability of the equipnent Conoco has installed for
avoidance of relief discharges from the PVC reactors at the
plant.
8. A. State whether Conoco’s other plants have experienced
(1) power failures, (2) premature failures of rupture disks,
and (3) operator errors similar to those reported in Conoco’s
letters of August 18 and December 1, 1978, July 27 and
October 26 of 1979 and Apr11 1 of 1980.
B. Describe any different equlpnent, procedures and methods
used at Conoco’s other plants to prevent VCM discharges.
State the reasons that such measures are not employed at
the ck1aho iia City plant.
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Enclosure 1.
STATEIIEI T Oti CLAINS OF COHFIDEIITIALITY
1. Section 114(c) of the Clean Air Act (42 U.s.c. 7414(c)) provides
that any records, reports or ir.fornatlon obtained by the Envlronmer.ta’.
Protection Agency under the authority of Section 114(a) shall be made
available to the public. However, that section further provides that,
EXCEPT FOR E 1I5SIGU DATA, access to such records, reports or ir.forr.a—
tion, or particular part thereof, will be denied to the public under
the following circumstances. If any person makes a showing satisfac-
tory to the Administrator of the Environmental Protection Agency that
therecords, reports or Information, or any particular part thereof,
would, if made public, divulge methods or processes entitled to pro-
tection as trade secrets of such person, then the Envlrona enta1 Pro—
tection Agency (EPA) is required to consider such record, report or
Information, or particular part thereof, as confidential In accoro—
ance with the purposes cf 18 U.S.C. 1905. Ilevertheless, Section 114(c)
furtner provides that even thoigh access to the public is denied, such
reccrd, report or Inforratlon may be disclosed to other officers,
erployecs, or authorized represer.tatives of the United States ccncerned
with carrying out the Clean Air Act or when relevant in any proceeding
tnder the Clean Air Act.
2. PublIc availability is also required by the Freedom of Information
Act, 5 U.S.C. sa. That Act requires public availability generally of
all documents In the possession of the goverr ent, with certain very
narrow exceptions. One of these exceptions is for trade secrets and
cotr, erciel or financial Information If ti’ ey have been obtained from a
person and If they are privileged or ccnflaential.
3. The regulations under which EPA handles requests by the publIc for
Information and requests by persons for confidential treat. ent of in’cr-
matior are found in Part 2 of Title 40 of the Code of Federal Regulations.
These regulations were pub1ishe in the Federal Register, pages 36 C2 to
36918, on Septe bar 1, 1976. Subpart B of Part 2, beginning on page
36906, speclficafly addresses Conf1denti ality of Business nfcrnat1or..”
4. If you wish, you may assert a business confidentiality claim
covering part or all of the records, re crts, or Information which you
provide to EPA. Such a claIm of confidentiality should be made at the
tlsr.e the record, report, or information Is provided to EPA. If no
clalw has been made when the material Is received by EPA, the records,
re;orts or information may be made available to the public without further
notice to you. If you do make a claim of conftder.tlality when prcvidi g
the material to EPA, the records, reports or infonr.atlon covered by the
claim will no: be disclosed to the oublic, except to the extent end by
means of the procedures set forth in Sub;art B of Part 2 of Title 43 of
the Code of Federal Rcguiations.
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5. You should give clear IOTIC! at the time you provide the material ——
(a) That you claim confidentiality and
(b) Which specific recoräs, reports or lnforuation, or part thereof,
you claim to be confidential. : o particular form of words is required as
long as it Is clear that a claim Is being made and the confidential portion
Is so iiarked; for example, each page of a document on which conf1 ential
lnforr .atlon Is found should be marked. To the extent feasible, a justifi-
cation should be provided ulth every claim of confidentiality.
6. ‘EmIssion data, which cannot be considered confidential, means, 4th
reference to any source of emissIon of any substance Into the air ——
(a) Infortiatlon necessary to deternlne,the Identity, ai ount, fre-
quency. concentration, or other characteristics (to the extent related to
air quality) of any emission which has been emitted by the source (or of
any pollutant re:ultlng from any emission by the source), or any combir.a-
tion of the foregoing;
(b) Ir.for at1on necessary to detemine the identity, air.ount, fre-
quency, concentration, or other characteristics (to the extent related to
air quality) of the emissions which, under an applicable stardaru or lir ita—
tion, tne source was authorized to emit (Including, to the extent necessary
for Such purposes, a description of the manner or rate of operation of t e
source); and
Cc) A general description of the location and/or nature of the source
to the extent necessarj to identify the source and to distinguish It fr i
other sources (including, to the extent necessary for such purposes, a
description of the device, Installation, or operation constituting the
source .
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ATTACHMENT IV
EPA TECHNICAL AND LEGAL CONTACTS
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List of Technical and Legal Contacts
Technical Legal
Region I Catherine McNair Richard Foote
223—4878 223—5767
Region II Peter Flynn David Stone
264—2611 264—4877
Region III Ron Patterson Martin Harrell
597—6550 597—1633
Region IV Wayne Aronson Jewell Harper
257—7654 257—2335
Region V Bruce Varner Art Smith
886—6793 886—6837
Region VI Martin Brittain Vicki Patton—Hulce
729—9872 729—2778
Region IX Chuck Seeley Nancy Marvel
454—8053 454—8600
HO Doreen Cantor Elliott Gilberg
382—2874 382—2864
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Enclosure 1.
STATEIIEI:T OH CLAII1S OF CO:JFIDENTIALITY
1. Section 114(c) of the Clean Air Act (42 U.S.C. 7414(c)) provides
that any records, reports or ir.forriation obtained by the Envlronmer.ta’.
Protection gency undet the authority of Section 114(a) shall be r ade
available to the public. However, that section further provides that,
EXCEPT FOR E ISS!G DATA, access to such records, reports or informa-
tion, or particular part thereof, will be denied to the public under
the following circumstances. If any person makes a showing satisfac-
tory to the Administrator of the Environmental Protection Agency that
the records, reports or Information, or any particular part thereof,
would, If made piibli:, divulge methods or processes entitled to pro-
tection as trade secrets of such person, then the Enviroru enta1 Pro-
tection Agency (EPA) is required to consider such record, report or
Information, or particular part thereof, as confidential In accora—
ance with the purposes cf 18 U.S.C. 1905. Hevertheless, Section 114(c)
further provides that even though access tothe public Is denied, such
reccrd, re crt or lnforL:ation may be disclosed to other officers,
erployecs, or authorized represer.tatives of the United States ccncerned
with carrying out the Clean Air Act or when relevant In any proceedir g
under the Clean Mr Act.
2. PublIc avellablitty Is also required by the Freedom of Information
Act, 5 U.S.C. 5 2. That Act requires ;ubllc availability generally of
all documents in the possession of the gover ent, with certain very
narrow exceptions. One of these exceptions is for trade secrets and
co,r ercial or f lnar.clal Information If they have been obtained from a
person and if they are privilegeø or ccnfiøential.
3. The regulations under which EPA handles requests by the publIc for
informatlcn and requests by persons for confidential treat.i ent of inccr_
nation are found in Part 2 of Title 40 of the Code of Federal Regulations.
These regulations were pub1ishe in the Federal Register, pages 36EC2 to
36918, on Scpta bar 1, 1976. Subpart B of Part 2, begtnnir.g on page
36906, specificafly addresses “Confidenti 1ity of Business Infcrnation.
4. If you wish, you may assert a business cor.fidentiality claim
covering part or all of the records, re crts, or information which you
provide to EPA. Such a clafm of confidentiality should be made at the
time the record, report, or information is provided to EPA. If no
cla1t i has been made when the material is received by EPA, the records,
reports or Information may be made available to the public without further
noti:e to you. If you do make a claim of confider.tlality when providi g
t e material to EPA, the records, r!ports or lnforir.ation covered by the
cl lm will not be disclcsed to the ub11c, except to the extent end by
means of the procedures set fcr h ir. Sub artB of Part 2 of Title 40 of
the Code of Federal R çuiations.
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5. You should give clear I1OTICE at the time you provide the material
(a) That you claim confidentiality and
(b) Which specific recoräs, reports or lnfonr.at lon, or part thereof,
you claim to be confidential. : o particular form of words is required as
long as it Is clear that a claim is being mace and the confidential portion
Is so iiarked; for example, each page of a doc m ent on which confi ent1al
infon at1on Is found should be marked. To the extent feasible, a justifi-
cation should be provided ,1th every claim 0 f confidentiality.
6. 1ss1on data,’ which cannot be considered confidential, means, 4th
reference to any source of e!lisslon of any substance Into the air ——
(a) Infornation necessary to determine,the Identity, ai ount, fre-
quency, concentration, or other characteristics (to the extent related to
air qt al1ty) of any emission whicn has been emitted by the source (or of
any pollutant reculting froi any emission by the source), or any cornbir.a-
tion of the foregoing;
(b) Ir.formatlon necessary to determine the Identity, alr.ount, fre-
quency, concentration, or other characteristics (to the extent related to
air qualIty of the er 1ssions which, under an applicable star.caru or lir ita—
tion, the source was authorized to emit (including, to the extent necessary
for such purposes, a description of the manner or rate of opera:lon of t e
source); and -
(c) A general description of the location and/or nature of the source
to the extent necessari to i ent1fy the source and to distinguish It frcr.i
other sources (including, to the extent necessary for such purposes, a
descri tlor. of the device, Installation, or operation constituting the
source).
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ATTACHMENT IV
EPA TECHNICAL AND LEGAL CONTACTS
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Legal
Richard Foote
223-5767
David Stone
264—4877
Martin Harrell
597—1633
Jewell Harper
257—2335
Art Smith
886—6837
Vicki Patton—Hulce
729—2778
Nancy Marvel
454—8600
Elliott Gilberg
382—2864
List of Technical and Legal Contacts
Technical
Region
I
Catherine McNair
223—4878
Region
II
Peter Flynn
264—2611
Region
III
Ron Patterson
597—6550
Region
IV
Wayne Aronson
257—7654
Region
V
Bruce Varner
886—6793
Region
VI
Martin Brittain
729—9872
Region
IX
Chuck Seeley
454—8053
HO
Doreen Cantor
382—2874
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6
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Injunctive Relief in Asbestos Demolition and Renovation Cases
(07/10/85)
File at Part D, Document #6
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UN ITED STATES ENV I RONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20410
JUL I 0 ;085
MEMORANDUM
SUBJECT: Injunctive Relief in Asbestos Demolition and
Renovation Cases
FROM: Michael S. Alushin
Associate Enforcement Counsel
Air Enforcement Division
Edward E. Reich, Director
Stationary Source Compliance Division
TO: Addressees
This memorandum sets forth a policy regarding injunctions
to enforce the National Emission Standard for Asbestos against
demolition and renovation sources. This policy will apply to
all pending and future civil actions for violations of these
regulations.
The asbestos standards, 40 C.F.R. §61.140 et seq. ,
apply to both the party performing a demolition r renovation
(usually a contractor) and the owner of the subject facility.
See the preamble to the repromulgation of the regulations, 49
Fed. Reg. 13658, 13659 (April 5, 1984). The asbestos strategy
document issued on April 6, 1984 sets forth guidance for
determining when to include the facility owner as a defendant
in a civil action to enforce these standards. Facility owners
should generally be included as members of the regulated
community to ensure that they hire qualified contractors to
remove asbestos properly. Only where the owner has acted
responsibly, for example, by hiring a reputable contractor
and attempting to monitor or supervise the contractor’s
performance, Should the Agency exercise discretion not to sue
the owner.
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—2—
In almost all civil actions to enforce asbestos regulations
against demolition and renovation sources, the action is
filed after the violations have occurred.* Injunctions are
therefore directed at future demolition and renovation activity.
Injunctive relief should be sought against contractors, since
they are likely to be handling asbestos again in the ordinary
course of business. An injunction against future violations
in a court order or consent decree vests the court with con-
tinuing jurisdiction until the termination date of the decree
to enforce the NESHAP requirements. The prospect of a contempt
action for future violations may serve as a more effective
deterrent than would otherwise exist.
Facility owners are situated differently, since they are
not ordinarily in the business of asbestos removal. In
determining whether to seek an injunction, the Agency should
consider the potential for future violations during the life
of the decree. Injunctions should be sought against facility
owners if the demolition or renovation which was the subject
of the lawsuit is part of an ongoing series of demolition or
renovation projects, e.g., a program of asbestos removal from
buildings within a school district, or if the facility owner
plans further projects involving friable asbestos. If these
factors are not present, an injunction is not necessary.
Injunctive relief need not be limited to merely a command
to comply with the regulations. Equitable relief should be
fashioned to try to prevent, at a minimum, recurrence of the
violations alleged in the complaint. If, for example, a
defendant gave incomplete notification of a demolition project,
the Agency could seek to enjoin that party to use a specific
form in submitting asbestos notifications. If the facility
owner hired as the lowest bidder a contractor unqualified to
do asbestos work, we may wish to enjoin the owner to address
NESHAP cc.-npliance in all bid specifications for jobs involving
asbestos removal. It is not possible to provide comprehensive
guidance on the form of injunctive relief to be sought in all
cases, but the specifics of an injunction can be worked out
among the litigation team as the case develops.
Questions regarding this policy should be directed to
Elliott Gilberg of the Air Enforcement Division at FTS 382—2864.
*If a civil action is filed for an ongoing violation,
injunctive relief should be sought against all defendants, to
afford the greatest chance of effectuating immediate compliance.
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—3—
Addressees:
Regional Counsels
Regions I—X
Air Management Division Directors
Regions I, III, V, and IX
Air and Waste Management Division Directors
Regions II and VI
Air and Toxics Division Directors
Regions VII, VIII, and X
Air, Pesticides, and Toxics Management Division Director
Region IV
Regional Enforcement Contacts
Regions I-X
cc: David Buente, Acting Chief
Environmental Enforcement Section
Department of Justice
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7
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1MPOII zwv;r NO 7L S
-.‘
- - - -
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Guidance S—26: Enforcement of the 7 rsenic NESHAP
for Glass Manufacturing Plants
(10/01/86)
File at Part D, Document *7
-------
IO 97 4p
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
/ WASHINGTON, D.C. 20460
‘4( Ø I
OFFICE OF•
AlE AND RADIAflON
Ocr-i i
MEMORAN DUM
SUBJECT: Guideline 5—26 — Entorcement ot the Arsenic NESHAP
tor Glass Manutacturing Plants (40 CFR Part 60 Subpart N)
FROM: Director
Stationary Source Comfrliance Division
Ottice ot Air Quality Planning and Standaras
TO: Air and Waste Management Division Director
Region U
Air Management Division Directors
Regions I, IL l, , and IX
Air, k esticides, anc Toxics Management Division Directors
Regions IV and VI
Air and Toxics Division Directors
Regions VII
The attached guideline is being forwarded to you to assist
you in the implementation and enforcement ot the arsenic National
emission Stanaards tor Hazardous Air }‘ollutants (N SNAPS) for
glass manufacturing plants (Subpart N).
If you have any questions or comments on this guideline,
please contact Doreen Cantor in the Stationary Source Compliance
Division at FTS 382— 874.
/ •11
‘\ ,.) I
bdward E. Reich
Attachment
cc: Michael Alushin Stan Cutfe
Bob Ajax zion Myers
George Walsfl Jan Myers
Jim ngel
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S—26 — GUIDELINE FOR THE ENFORCEMENT OF THE
ARSENIC NESHAP REGULATIONS
FOR GLASS MANUFACTURING PLANTS
This guideline is being issued to assist the Regional
Offices in the entorcement of one ot the NESHAP regulations tor
the control of arsenic emissions. Three types of tacililities
are required to be controlled by these regulations: (1) glass
manufacturing plants, (2) primary copper smelters, and (3) arsenic
trioxide and metallic arsenic production facilities. This
guideline addresses glass manufacturing plants only.
Arsenic was declared a hazardous air pollutant on June 5,
1980. Regulations were proposed for the control of arsenic
under Section 112 of the Clean Air Act, National Emission
Standards for Hazardous Air Pollutants (NESHAPS) 40 FR 59532,
on August 22, 1983. These regulations were promulgated on
August 4, 1986. Since this regulatory tramework has. been
previously utilized for the contrQl of asbestos, beryllium,
mercury, vinyl chloride, and benzene, additional helpzul
information is available in Guidelines 5—17 thru S—20, which
offer some general guidance relative to the procedural
requirements of the NESHAP program.
Summary of Requirements
The standard covers each glass melting turnace that uses
colitmercial aisenic as a raw material, except that pot furnaces
(refractory vessels in which glass is melted by indirect heating
and where the openings are covered with refractory sto ers
during melting) are exempted. Each owner or operator must either
1) vent all inorganic arsenic emissions from each glass melting
turnace to a control device and reduce emissions by at least
85%, the level at reduction achievable by an electrostatic
precipitator or tabric tilter (S6l.162(a)(2) and (b)(2)) , or
2) maintain u contro1led (i.e. preceeding an add—on control
device) arsenic emissions at 2.5 Mg/year (2.75 TPY) or less tor
existing plants (S61.162(a)(l)), cr at 0.4 Mg/year (0.44 TPY)
or less for new plants (S61.l62(b)(l)).
If the owner or operator intends to meet the standard by
using a control devic’ , s/he is required to continuously monitor
opacity and temperature , and to submit semiannual reports of
excess opacity. An owner or operator may bypass the control
device for a limited period of time for designated purposes such
as maintenance at the control device, upon prior approval from
the Regional Oftice.
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—2—
If the owner or operator intends to meet the standard by
limiting uncontrolled arsenic emissions, s/he is required to
calculate the uncontrolled arsenic emissions semiannually, ana
to re&,ort if the emission rate is above the applicable limit.
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—3—
A. Source Notification
The Regional Offices should notify all potentially affected
sources immediately tollowing the promulgation of the arse-nic
NESHAP regulations, or immediately upon identification of
affected sources anytime after promulgation (see guideline S—17
for example notification). A list of all known glass manufac-
turing plants using arsenic as a raw material is attached
(Table 1). This list includes 75 furnaces at 27 plants, and
includes both controlled and uncontrolled furnaces, and furnaces
emitting arsenic at levels both above and below the threshold of
2.5 Mg/yr. This regulation would require two of these furnaces
to install additional controls or reduce arsenic usage, and would
require at least six furnaces to maintain their present controls.
However, this list may not be exhaustive, and it includes many
emission estimates. bince new plants may have been constructed,
additional plants may have begun using arsenic as a raw material,
and some plants may be unidentified as of yet, additional inves-
tigation should be made to complete the l ist. Also, a number of
companies are investigating the possibility of reducing or elimi-
nating arsenic in soda—lime batch formulations, which may reduce
the number of affected facilities. Preterably, all glass plants
should be notified of the regulations, because they will become
subject if they begin using arsenic as a raw material in the
future. All affected sources should be coded into CDS.
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—4—
B. Determination of Compliance (40 CFR 61.164)
1. Initial Report (40 CFR 61.10)
The ownü or operator of each existing source is required
to submit art initial report to the Administrator by November 2,
1986. This initial report should include:
—name and address of the owner or operator,
—source location,
—brief description of the nature, size, design, and method of
operation (including capacity and emission points),
—the average weight ot arsenic processed per month over the
previous 12 months as determined by direct measure or
materials balance,
—a description of the existing control equipment (including
efficiency), and
—a statement of the teasibility ot complying with the
standard by November 2, 1986.
Ir the owner or operator is unable to comply with the standard
within the 90—day period,. s/he may apply tor a waiver of
compliance (See Guideline S—19). Sources which need to
install control equipment may be granted a waiver tor up to
two years it the time is needed for purchase and installation.
easonable compliance schedules tor installing fabric
tilters ana ESP’s areatrached (Table 2). --
For any source tor which a performance test is required,
the owner or operator must notity EPA at least 30 days before
the test and must submit the results to EP within 60 days ot
the test, as indicated in the next section.
For any source wnich can demonstrate compliance by
means of an emission calculation alone, the owner or operator
must submit to EPA by September 18, 1986 (or within 45 days ot
start—up or moditication) a written report of the calculated
estimates of arsenic emissions. (NOTE: In the proposal,
this report was required to be submitted within 90, rather
than 45, days. Sources may be unprepared for this change
and may require more time.)
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—5—
For new and modified sources (tor wtlich construction or
modification commenced after July 20, 1983, including any
existing furnace which begins to use arsenic — see following
discussion), theowner or operator must apply for approval
to construct or modify (required by S61.07) and provide
process and emission data so that EPA may determine if the
source will be able to comply with the standard. After
approval, the owner or operator is required to notifj EPA of
the anticipated and actual start—up dates as indicated in
S61.09.
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—6—
Determination of Whether a Source is “Modified” based on
Arsenic Usage
Background Information
“Modification” is defined in the General Provisions,
40 CFR §61.02 as “any physical change or change in the method
of operation . . . which increases the amount of any hazardous
air pollutant . . . or which results in the emission ot any
hazardous air pollutant not previously emitted, except that
an increase of the production rate, if such increase
does not exceed the operating design capacity . . . (or) an
increase in hours of operation . . . (shall not be considered
a change in the method of operation)”.
“New source” is defined as “any stationary source, the
construction or modification ot which is commenced after
(proposal)”.
The preamble to the promulgated standards (Federal
Register Vol. 51, No. 149, August 4, 1986, p. 27997) states
“(s)ince proposal, the use ot arsenic in some glass melting
turnaces has been eliminated and the Agency believes that this
trend is like.Lj to continue. The companies that operate these
furnaces have indicated that they do not plan to’ resume using
arseniç.. The cutotf applied to new or moditied glass melting
furnaces is based on consideration ôt cost and economic tactors
and has been retained in the promulgated standard to discourage
reintroduction ot arsenic in furnaces that have recently elimi-
nated its use and to discourage future use. The Agency believes
that this is appropriate to prevent risks from increasing near
those furnaces that have recently eliminated arsenic use and
because reasonabLe alternatives to exceeding this cutoff level
are available at these tacilities. These include the use of
low—arsenic .iass recipes and the use or controlled turnaces
for ?roduction ot tnose glass types which would result in
uncontrolled emissions or arsenic of more than 0.4 Mg (0.44
ton) per jear..
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—7—
Discuss ion
Many furnaces subject to the arsenic NESHAP will ty icaI1y
melt a variety of glasses with difterent arsenic contents and
emission factàrs It is necessary to determine whether turnaces
will become modified sources, and thus sub2ect to the more
stringent emission limit, on the basis ot these changes in the
method of operation.
The above information indicates that it a furnace has
never used arsenic and starts arsenic use any time after pro—
posal, that turnace should be considered a modified source.
If a furnace has used arsenic in the past, but has ceased
its use, it becomes a modified source at any point after pro-
posal that it resumes the use of arsenic. Because arsenic
usage is to be calculated as a rolling 12—month average every
6 months, if a furnace does not us arsenic during any such
12—month period, (starting from the 12—month period immediately
preceeding proposal) that furnace should be considered a non—
arsenic furnace, and any addition of arsenic in the future will
cause this furnace to become subject to the more stringent -
standard tor new and modified turnaces.
If a turnace has continuousl 1 used arsenic since the
12—montlrperiod betöie proL? osa1, it would be a modified Source
if arsenic emissions increase above previous levels. Operating
records should be reviewed to determine if there has been any
12_month rolling average where arsenic emissions were higher
than a previous 12—month period. If so, the source should be
consiaered modified. It not, the semiannual rolling averages
calculated by the source shourd routinely be monitored to see
that emissions do not increase in the future. If emissions
do increase, the source is modified and is required to either
install controls or change operation in some way so that
uncontrolled emissions will be limited to 0.4 Mg/yr arsenic.
There are several exceptions to this:
(1) A source may argue that this period of lowest arsenic
emissions is not representative of the typical operation ot
that furnace. These claims should be evaluated on a case—by—
case basis. However, if the reason tor the low arsenic emis-
sions was that the furnace was successfully using a substitute
tor arsenic, then the lower emission rate should be considered
representative operation.
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-8—
(2) If the increase in arsenic emissions isdue solely
to an increase in production, then the furnace should not be
considered •modified”. However, this refers to the production
rate and hours of operation of the furnace, not tor the indivi-
dual glass types. Therefore, if a turrtace has increased produc-
tion of a high—arsenic glass but at the same time has decreased
production of a low—arsenic or non—arsenic glass such that
overall arsenic emissions increase but total production remains
constant, then the furnace should be consiøered modified.
In summary, for all furnaces which choose to demonstrate
compliance with the 2.5 Mg/yr uncontrolled arsenic emission
standard for existing sources, their operating records for the
period trout August 22, 1982 (12 months before proposal) to the
present, as well as all future semiannual calculations of uncon-
trolled arsenic emissions, should be reviewed to determine
whether the furnace has been modified because of these changes
in operation.
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—9—
2. Emission Test (40 CFR 61.164)
By November 2, 1986 (or within 90 days ot startup tor a
new source), the owner or operator must test emissions from
the source unless a waiver of emission testing is obtained
under S61.13-(See Guideline S—2U).
The owner or operator must provide the Regional Otf ice
at least 30 days prior notice of the emission test and
demonstration of the opacity monitoring system, if applicable.
Emission tests are to be conducted while the source
is operating under conditions that are representative of
those from which the maximum arsenic emissions will result,
as may be specitied by the Regional Office. Usually, this
will be under conditions representative of the expected
maximum (allowable) procuction rate. However, for sources
melting more than one t gie ot glass, or tor sources with
multiple rurnaces emitting to a single control device, the
emission test should be conducted while the source is operating
at the expected maximum production rates for the glass types
generating the greatest amounts ot arsenic. furnaces producing
non—arsenic glass should also oe operating during the emission
test, as would be representative of a source’s usual operation.
Another test may be required later if source operation changes
so that the original testing operating conditions are no
longer representative of “worst case” operation.
The owner or operator must furnish the Regional Oftice
with a written report of the emission test results and
associated calculations within 60 days ot the test, and must
retain records of emission test results and other data needea
to determine •emissions tor two years.
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—10—
Furnaces with Uncontrolled Arsenic Emissions Above
2.5 Mg/yr (existing) or 0.4 Mg/yr (new or modified )
(S6l.j 64(.e))
Unless an alternative test method is approved (reter
to Guideline S—18 tor procedure) 1 the owner or operator of
each furnace must demonstrate compliance with the 85% arsenic
reduction requirement in S61.162(a)(2) or (b)(2) by using
Method 108 to determine the concentration of arsenic in the
inlet and outlet gas streams to the control device. Each
emission test is to consist of three 60—minute test runs, each
consisting of simultaneous testing of the inlet and outlet gas
streams. The gas streams must contain all ot the gas exhausted
trom the gas melting furnace.
The percent reduction for each run will be computed as follows:
( Cb — C ) X 100
D.=
D = percent emission reduction
Cb = arsenic concentration in stack gas entering the
control device, as measured by Method 108
Ca = arsenic concentration in stach gas exiting the
control device, as measured by Method 108
The average percent reduction is equal to the arithmetic mean
of the results tor th three runs, and must be equal to or
greater than 85% for the source to be in compliance.
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—11—
Furnaces with Uncontrolled Arsenic Emissions Under
2.5 Mg/yr (existing) or 0.4 Mg/yr (new or modified )
(S61.164(c) ana (d))
If less than 8.0 Mg arsenic/year (8.8 TPY) is added to an
existing furnace,or less than 1.0 Mg arsenic/year (1.1 TPY)
is added to a-new or moditied furnace, the owner or operator
will usually be able to demonstrate compliance with the
uncontrolled emission limits by an emission calculation only.
A theoretical arsenic emission tactor should be calculated or
each type of glass produced during the 12—month period, as
t ollows:
= (Abi X Wbi) + (Aci X Wci) — Agj
= theoretical uncontrolled arsenic emission factor
(g/kg) for each glass type (i)
Abi = fraction by weight of arsenic in fresh batch for
eacn glass type (-i)
Wbj = weight (g) of fresh batch melted per kg of glass
roducea for each glass t pe (i)
Ac 1 fraction by weight of arsenic in cullet for each
glass type (i)
W 1 = weight (g) ot cullet melted er kg or glass produced
for each lass type Ci)
A 91 = weight (g) ot arsenic per kg glass produced for
each glass type (i)
The tneoretical uncontrolled arsenic emissions for the 12—month
k)eriod is estimated as follows:
= ( T 1 x G 1 )
1 6
11 = theoretical uncontrolled arsenic emission estimate
for the 12—month period for each glass type (Mg/yr)
= theoretical uncontrolled arsenic emission factor
for each type of glass produced during the 12—month
period (as calculated above)
= kg of each arsenic—containing glass type (1.)
produced during the 12—month period
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—12—
The total theoretical uncontrolled arsenic emissions for each
12—month period is equal to the sum of these emission estimates
(ii) for each glass type produced. If this is equal to or less
than 2.5 Mg for existing plants, or 0.4 Mg for new plants, the
source is in-compliance and no emission testing is required.
If the total is above these limits, then the source is required
to test as described below.
The following procedure is required for existing sources
using more than 8.0 Mg arsenic/year, new sources using more
than 1.0 Mg arsenic/year, and for sources using less than these
amounts but which are unable to demonstrate compliance solely
by the calculation procedure above. The theoretical uncontrolled
arsenic emission factors (Ti) and estimates (Yj) should again be
calculated for each glass type produced during the 12—month
period as described above. mission testing, using Method 108,
must then be conducted during production of the glass type with
the highest theoretical uncontrolled arsenic emissions. The
actual uncontrolled arsenic emission factor should be computed
as follows:
Ra =
P
= actual uncontrolled arsenic emission factor (g/kg)
actual uncontrolled arsenic emission rate, from
Methoa 108 (g/h)
P = rate of glass production (kg/h), determined by
dividing the weight of glass pulled from the furnace
during the emission test b the number of hours taken
to perform the test
A furnace correction factor (F) to relate the theoretical and
actual uncontrolled arsenic emission factors should be calculated
as follows (Ra and Ti should be the same glass type);
F =
Ti
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—13—
The total uncontrolled arsenic emission rate tor the
12—month period should be computed by applying this furnace
correction factor to all of the theoretical emission factors,
as follows:
n
u = CT 1 x F x G 1 )
106
U = total uncontrolled arsenic emission rate (Mg/year)
n = number ot arsenic—containing glass types.produced
during the 12—month period
If the total uncontrolled arsenic emission rate is less than 2.5
Mg/yr for an existing furnace, or 0.4 Mg/yr for a new turnace, the
source is in compliance. I the total is above these values, then
the source is in violation and must install controls. However,
the source may opt to conduct Method 108 tests on the remaining
glass types compute ty e—specitic correction factors, and
attempt to demonstrate compliance in that way.
ExampLe 1:
If the glass type produced during the Method 108 test is
the only glass type to be produced for the initial 12—month
period, then the actual arsenic emission factor can simply
be multiplied by the- amount of glass produced to calculate
total yearly arsenic emissions. (If less than 8.0 Mg or
1.0 Mg) arsenic/year were added to the furnace, a Method
108 test would be unnecessary.)
Ea = .045 lb/hr (trom Method 108)
P = 900 lb/hr
Ra = Ea = . 045 = .1 lb As/ton glass
90U
Total yearly arsenic emissions = (1 (a) (annual
productLon) = (.1 lb/ton)(4000 ton/yr)= .2 TP As
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—l 4-
Example 2:
If two or more glass types are produced, a theoretical arsenic
emission factor, based on a materials balance, should be
calculated tor every type of glass that will be produced.
This should be multiplied by the correction tactor to calculate
an actual arsenic emission tactor tor each ty e of glass.
Each actual arsenic emission factor should then be multiplied
by the amount of that glass that will be produced to calculate
yearly arsenic emissions for each glass type, and the
results summed to calculate total yearly arsenic emissions.
Assume 3 types of glass (A,B,C) are produced in one
furnace
For Glass A, from above, Ra(A)= .1 lb As/ton glass
Annual production ot Glass A = 3000 TPY
Theoretical arsenic emission factor (TA) =
.08 lb As/ton glass
Correction factor = .1 = 1.25
.08
Fo Glass B, TB = .075 lb/ton
a(B) (.07 )(1.25) = .09 lb/ton
Annual production of Glass B = 500 Tk Y
tar Glass C, T = .4 lb/ton
Ra(C) = (.4)(l.25) = .5 lb/ton
Annual production of Glass C = 750 TPY
Total ear1y arsenic emissions
annual production) + (Rab))(B’S
annual production) + (Ra(C))(C’s annual
production)
= (.1 lb/ton)(3000 TPY) + (.09 lb/ton)(500 TPY)
+ (. lb/ton)(750 TPY)
= .15 TPY + .021 TPY + .19 TP = .36 TPY
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—15-
The Test Methods in Appendix 8 of Part 61 are to be used
Unless an alternative method has been approved by the Director
of the £mission Standards and Engineerin9 Division. If the
results obtained by an alternative method are thought to be
inaccurate, the Regional Ortice may require the use of a refer-
ence method. -. Ir the results obtained by the reterence method
do not agree with those of the alternative method, the results
obtained by the reference method will prevail.
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C. Emission Monitoring (40 CFR 61.163)
An owner or operator complying with §61.162(a)(2) or (b)(2)
must install, calibrate, maintain, and operate
1) a continuous monitoring system for measuring opacity ot
the exh4uSt gas and
2) a monitoring device for tne continuous measurement of
the temperature of the gas entering the control device.
These should be installed, and their operational status yen—
tied, prior to the emissions test. A report of the CkM eval—
uatiorl should be furnished to the Regional Ott ice within 60
days of the evaluation. The purpose of the transmissometer
will be to indicate when the control device may not be operating
properly and emissions may be exceeding the ap iicable limit.
The ret rence method usec to demonstrate compliance with the
emission limitation remains Method 108. As described in the
following discussion, a sourcespecitic opacity limit is to
be derived for each individual facility, which will be based
on the opacity during an emissions test demonstrating compliance.
This level would be viewed as indicative of a properly operated
and maintained control device.
Opacity should be monitored during each of the three
runs of the emission test. During tne emission test, process
and control equipment should be operated so that o acity is
minimized, as may be specified by the Regional Ottice.
Monitoring results should be reduced to 6—minute averages,
and a source—specific opacity limit corresponding to the
97.5% upper confiaence level of a normal or lognormal (which-
ever is more representative) distribution ot the average
opacity values shoula be determined. Temperature of the gas
entering the control cevice should also be monitored during
each test run, and 15—minute temperature averages should be
determined. An owner or operator may redetermine both these
values it this procedure is repeated during each test run
ot an emission test demonstratir g com liance.
All continuous monitoring syscems should be in con-
tinuous operation as described in §61.163(f). All opacity
data should be reduced to 6—minute averages, not including
data from periods ot breakdowns, repairs, calibration checks,
and zero and span adjustments. Fifteen—minute avera jes of
temperature should also be calculated.
The Regional Ottice may approve, atter receipt and con-
sideration of written a ,plication, an alternative continuous
monitoring system (parameter—based, etc.) to replace the CEM.
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—17—
D. Recordkeeping (40 CFR 61.165)
All owners or operators of glass melting furnaces using
arsenic as a raw material are subject to recordkeeping and
reporting req.Wirements. Each owner or operator must retain tar
aininimum of two years the following information:
1) all measurements, including continuous monitoring for
opacity and temperature,
2) all calcuLations used for emission estimates and all
records of emission test data,
3) all monitoring system performance evaluations, including
calibration checks and adjustments,
4) occurrence an duration of all startups, shutdowns or
malfunctions of furnace,
5) all malfunctions ot air pollution control system,
6) all periods when any continuous monitoring system or
device is inoperative,
7) all maintenance and repairs made to each air pollution
control system, continuous monitoring system, or
monitoring device, and
8) it permission to b pass the control device is obtained,
the dates tne control device is bypassed and steps taken
to minimize arsenic emissions during that period.
daitionally, each owner or operator at a glass plant
complying with §61.l62(a)(l) or (b)(l) must determine and record
every six months:
1) the uncontrolled arsenic emission rate for the preceeding
12—month period (or 6—month period, tor the first deter-
mination) using measured or calculated arsenic emission
factors (as applicable) multiplied by each respective
glass production rate, and
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—18—
2) an estimate of the uncontrolled arsenic emission rate
tor the torthcoming 12-month period, taking into
consideration anticipated changes in production rates,
giaaLt f.pes, and other factors.
For these semiannual determinations, it would not be necessary
to conduct a Method 108 test again. The initial correction
tactor could be applied again to calculate the measured arsenic
emission factor for each glass type.
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—19—
E. Reporting (40 CFR 61.16b)
Each owner or operator complying with §61.162(a)(2) or
(b)(2) must submit Written reports to the Aaministrator semiannually
if excess opacity occurred during the preceeding six-month period.
An occurrence of excess opacity is any 6—minute period where the
average opacity exceeded the source—specitic bpacity level.
Excess opacity reports would not be used to cite a source in
violation, but would alert enforcement personnel that the
control device may not be operated and maintained properly and
to indicate that an inspection and/or emission test may be
appropriate. All semiannual reports should include:
1) magnitude of excess opacity, conversion factors usec,
dates and times of each occurrence,
2) specitic identification of excess opacity occurring
during start—ups, shutdowns, and malfunctions, and
3) dates and times or each period when the continuous
monitoring system was inoperative (except for zero and
span checks) and the nature of repairs or aajustments.
These reports must be postmarked by the 30 th day following the
end or the six—month period.
An owner or operator may apply totlii Regional Administrator
for approval to bypass the control device for limited periods,
as described previously. This application must be submitteø at
ieast 60 days berore the bypass period is to begin, and should
incluae:
.1.) name and address of owner or operator,
2) location of source,
3) description ot nature, size, design, and operation or source,
4) the reason it is necessary to b ipass the control device,
5) the length or time needed to bypass the control device,
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—20— -
6) steps that will be taken to minimize arsenic emissions
during the bypass,
7) the quantity of emissions that would be released if no
ste 5 were taken to reduce emissions,
8) the expected reduction in emissions due to steps taken
during the bypass to minimize emissions, and
9) the type of glass to be produced during the bypass and an
explanation ot why non—arsenic or lower—arsenic glass
could not be melted during the bypass period.
If an owner or operator of a source complying with the 85%
arsenic reduction requirement wishes to reduce arsenic usage and
comp1 with the uncontrolled arsenic emission limitation instead,
s/he should notiti the Regional Office of this change and include
the necessary calculations and emission test data to demonstrate
that uncontrolled emissions will remain below 2.5 (or 0.4) Mg/year.
Each owner or operator complying with §61.162 (a)(l) or
(b)(l) must report the uncontrolled arsenic emission rate it
uncontrolled arsenic emissions exceed 2.5 Mg/yr for existing
plants, or 0.4 My/yr for new plants. If estimates show that
arsenic emission have exceeded 2.5 (or 0.4) Mg/yr for the
preceediny 12—month period (or 6—month period, in a first
report following the compliance demonstration), this is a violation
anc must be reported within 10 days of the end of the 6—month
reporting period. If estimates snow that arsenic emissions will
exceed 2.5 (or 0.4) Mg/yr, the owner or operator must comply with
§61.162 (a)(2) or (b)(2) and, within 10 days, notify the
Regional Office of the anticipated date ot the emission test.
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—21—
Table 1: Emission Control for Arsenic Using Glass Plants
Expected
Number of Compliance
Plant No. Name/Location Furnaces Methodalb
1. Corning, Martinsburg, WV I PRC
2 Corning, Charleroi, PA 1 PR
Corning, Charleroi, PA 1 CU
3 Corning, Fall. Brook, NY 2 PR
Corning, ball Brook, NY 3 UEL.
4 Corning, State College, PA 1 PR
5 GTE—Sylvania, Central Falls, RI 1 PR
6 North American Phillips, Danville, KY 1 PR
7 blenko Glass, Milton, WV 1 U L
8 Brooke Glass Co., Wellsburg, WV 2 UEL
9 Corning, Corning, NY 2 UEL
10 Davis—Lynch Glass, btart City, WV 1 UEL
i i Fenton Art Glass, Williamston, WV 4 UkL
12 Fostoria Glass, Moundsville, WV 1 UEL
13 GTE, Versailles, KY I UEL.
14 Indiana Glass, Dunkirk, IN 9 UEL
15 Jeanette Shaae & Novelty, Jeanette, WV 3 (JEL
16 Nourot Glass, Benica, CA 2 UEL
17 Owens—Illinois, Shreveport, LA 3 UEL
18 Owens—Il1inois, Mt. Pleasant, PA 1 UEL
19 Owens—Illinois, k ittston, PA 2 (JEL
20 - Owens—Illinois, Toleco, OH 9 Uk.L
21 Paul Wissnach Galss, Paden City, WV 5 UEL.
22 Peltier Glass Co., Ottawa, IL 6 (JEL
23 k CA, Circieville, OH 2 ( JEL
24 Scandia Glass Works, Kenava, WV 2 UEL
25 Shott O ,tical, Duryea, PA 3 UEL
Vanderinark Merritt Glass, Flem1ngton, NJ I UEL
27 Westrnorelana Glass Co., Pittsburgh, PA 4 (JEL
a UEL = UncontrolleQ bmission Lixnt (2.5 Mg/yr)
PR = Percent Reauction (85%)
CU = Cease Arsenic Use
b borne of the turnaces. emitting under 2.5 Mg arsenic/year also
have control devices ,âiidlitay com 1y using either methoa
C Needs to install controls
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Plants that are believed to have removed arsenic after proposal
and which would be subject to 0.4 Mg arsenic/year emission
limit if arsenic is re—introduced into glass:
1. Americ h S emware Corp.
2. Anchor—Hocking, Lancaster, OH
3. Anchor—Hocking, Clarksburg, OH
4. Anchor—Hocking, baltimore, MD
5. Corning, Charleroi, PA (Soda—Lime furnace only)
6. Harvey Industries, Clarksbur , WV
7. Wheaton Industries, Mil.Lsvi].le, NJ
Plants known to have usea arsenic, but which were closed at
last report:
1. Seneca Glass Company, Morgantown, WV
2. Sloan Glass, Inc., Culloden, W v
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—23—
TABLE 2: Compliance Schedules
Fabric Filter ES?
Time (days )
Contracts awarded or purchase
orders issuea 60 60
Fabrication 270 360
Shipping 30 30
installation 240 150
Start—up 40 40
Sampling, analysis, report 9U 90
Total 730 730
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8
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ll PO 7T O7i
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Procedures for Pre—Referral Settlement of asbestos Demolition
and Renovation Cases
(09/28/87)
File at Part D, Document #8
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?tO
j UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
____ WASHINGTON, D.C. 20460
‘ L
SEP 281987
MEMORANDUM
SUBJECT: Procedures for Pre-Referra]. Settlement of Asbestos
Demolition and Renovation Cases
FROM: Thomas L. Adams, Jr. ..
Assistant Administrator for Enforcement
.and Compliance Monitoring
J. Craig Pocter /
Assistant Administrator /
for Air and Radiation
TO! See Below
We appreciate your active development of asbestos de o1ition
and renovation cases for litigation. To reinforce the litigatioi
program, we are establishing procedures designed to expand your
options for addressing the large n ber of violating asbestos
demolition and renovation sources. These procedures should enable
you, in many instances, to resolve a violation quickly and to
obtain a civil penalty without a major commitment of resources.
Introduction
Sources which violate the National Emission Standard for
Asbestos require enforcement action by EPA or a delegated State
agenry. A large n*. ber of federal court actions have been filed
against asbestos sources, particularly since the issuance of the
asbestos enforcement strategy on April 6, 1984. Nearly one-third
of all new Clean Air Act cases referred to the Department of
Justice in the last two fiscal years have involved the asbestos
regulations. These cases deal almost exclusively with demolitions
and renovations, the most prevalent sources of asbestos emissions.
Notwithstanding this effort, the vast majority of asbestos
demolition and renovation violations inevitably are addressed
without judicial enforcement. EPA and delegated State agencies
typically find violations at over 1000 sites a year, of which
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—2—
about 5% become the subject of judicial enforcement. The rest
are handled through issuance of a finding or notice of violation
or an administrative order. Although some State agencies have
administrative penalty authority, nearly all of these actions are
taken without assessment of any penalties.
To help you maintain or increase the high level of judicial
enforcement without placing an undue strain on resources, we hope
to facilitate negotiation of a judicial consent decree prior to
referral of a matter for filing in court. By adhering to these
procedures, you may enter into pre-referral. negotiations with a
high degree of confidence that settlements will be approved by
the Assistant Administrator for OECM and the Assistant Attorney
General for Land and Natural Resources. If negotiations are
successful, you will be able to refer a “pre-settled” case to the
Department of Justice (DOJ) for the simultaneous filing of a
complaint and 2 odging of a consent decree in the appropriate
district court.
Procedures
After selecting a particular matter to cry to resolve prior
to case referral, you should take the following steps prior to
initiating negotiations:
1) Deve].opa Regional position on a bottom-line civil per ai:y
settlement amount in accordance with the asbestos demolition a d
renovation civil penalty policy, issued on February 8, 1985.
2) Obtain concurrence in the bottom-line penalty and other
settlement terms from OECM and DOJ. The Region should forward
its recommendation to the Associate Enforcement Counsel in the
Air Enforcement Division (AED), as well as to the appropriate
Assistant Chief of the Environmental Enforcement Section at DOJ.
AED will forward a copy of the recommendation to the Stationary
Source Compliance Division in accordance with established proce-
dures for consultation. The recommendation should include a
brief description of the matter, including a discussion of any
prior violations and enforcement history, and should be accompanied
by a copy of the inspection report and any other doctunenration of
violations, and a work sheet showing the calculation of the penalty
settlement figure. The basis for adjustments of the preliminary
deterrence amount (sum of benefit and gravity components) must be
explained, e.g. , financial information supporting a penalty
reduction based on ability to pay.
AED and the Assistant Chief at DOJ will indicate their
concurrence or non-concurrence with the proposed action within 15
working days of receipt of the materials. Once a consensus has
been reached, the Region may begin negotiations with the prospec-
tive defendants. The Region may fully negotiate a settlement,
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—3—
subject to final approval, without further consultation with AED
and DOJ so long a8 the negotiated penalty is at least as much as
the bottom line which has been established. Reductions in the
minim*. settlement amount can only be made with the concurrence
of AED and DOJ.
If negotiations are successful, please have the prospective
defendants execute a consent decree. A mode]. consent decree is
attached and may be used as a basis for settlement without con-
sultation with OECM or DOJ. Compromises of substantive provisions
in the model decree made during the course of negotiations must
be cleared with OECM and DOJ.
The Region must forward the original decree, once signed
by the company, to EPA Headquarters for the signature of the
Assistant Administrator for Enforcement and Compliance Monitoring.
The Region sho &ld also refer directty to the Department of Justice,
with a copy to OECM, an abbreviated litigation report, including
a draft complaint, and should indicate that the complaint can be
filed upon receipt of the signed consent decree from EPA. A
model complaint and an outline of an abbreviated litigation
report are attached. The model litigation report is consistent
with the “Model Litigation Report Outline and Guidance” (GM-48)
January 30, 1986.
If a sett].Enenr in principle is not reached within 60 days
after you initiate negotiations, the Region should develop a
referral to DOJ for litigation. In such instance, the Region
should prepare a full litigation report, including a descrip:Lc:.
of the contacts between EPA and the prospective defendants.
In cases in which some but not all prospective defendants
are willing to settle, you should follow the guidance in the
asbestos civil penalty policy regarding apportionment of the
penalty among multiple defendants. If you successfully negotiate
with some parties, a consent decree with those parties should be
handled as described above and the matter should be referred to
DOJ for litigation against the remaining parties.
The success of this effort will depend to a great ext ‘nc on
adherence to the civil penalty policy and to the model consent
decree. Although the model decree provisions are intended as
guidance and not as requirements, the Region should consult with
OECM and DOJ about any significant departures from the model
provisions before making commitments regarding them. The Region
may generally negotiate independently of AED and DOJ if it stays
within the bounds of the model and the bottom line penalty figure.
All consent decrees must still be signed by the AA for OECM and
the Assistant Attorney General, who retain approval authority.
Therefore, the Region should continue to make appropriate caveats
in their settlement discussions.
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We are instituting these procedures on a trial basis. We
will reevaluate the program in approximately one year and determine
if any modifications are needed.
Questions regarding this matter should be directed to Elliott
Gilberg of the Air Enforcement Division at FTS 382-2817.
Attachments
Addressees:
Regional Administrators
Regions I-X
Regional Counsels
Regions I-X
Air and Waste Management Division Director
RegionS II
Air Management Division Directors
Regions I, III, and IX
Air and Radiation Division Director
Region V
Air Pesticides, and Toxics Management Divisior Directors
Regions IV and VI
Air and Toxics Division Directors
Regions VII, VIII, and X
CC: John S. Seitz, Director
Stationary Source Compliance Division
David Buente, Chief
Environmental Enforcement Section
Depar ent of Justice
Scc:t Fulton, Assistant Chief
Enviroz ental Enforcement Section
Department of Justice
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Out]. me
Model Abbreviated Litigation Report
Asbestos Demolition/Renovation Cases
t. Cover Page
A. Region, statute involved (Clean Air Act) , judicial
district
B. Name and address of defendants
C. Name and address of facility demolished or renovated
D. Regional. contacts (program/legal)
E. Stamp date Region refers report
II. Table of Contents
III. Description of Case
A. Indication that case has been pre-settled and that
complaint should be filed concurrently with lodging of
consent decree
B. Brief description of demolished or renovated fzcLlit--
and of each defendant, including state of incorpor t c:
and principal. place of business, agent for service o
process, legal counsel (if any), and identity of defen-
dants by role, e.g. , owner of facility, primary demoli-
tion contractor, subcontractor for asbestos removal,
etc.
C. Idencity of other potential defendants who are not parties
to consent decree
D. Brief description of alleged violations, with citations to
inspection report if useful, including dates and duration
of violation
E. Reason violations cited in inspection report are not
included (if applicable)
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IV. Statutory Bases of Referral
A. Applicable statutes and cross-media coordination (e.g.,
if asbestos waste material requires cleanup)
B. Enforcement authority; jurisdiction and venue
V. Enforcement History of Defendant and Pre-referral
Negotiations
A. Chronology of contacts with defendants regarding
violations which are subject of consent decree, including
administrative orders and findings of violations
B. S mary of pre-referral negotiations
C. Contacts with defendant by State or local agencies and
actions taken; indication of whether program is delegated
to State and, if so, why EPA is taking enforcement
action, State request, inadequate State penalty
D. Prior Enforcement History of Defendants
Discussion of any prior enforcement against any defendant
by EPA or delegated State or local agency, if known
Indication of sources consulted for information - e.g .
CDS, national contractor registry, internal Regional
tracking system
VI. Injunctive Relief
Summary of injunctive relief provisions in consent decree
VII. Civil Penalties
Indication of civil penalty provision in consent decree
(penalty worksheet should be an attachment to Litigation
report)
Basis for adjustments in preliminary deterrence amount
(or refer to worksheet if discussed there)
VIII. Major Issues
Discussion of issues of national or precedential significance
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—3—
IX. Significance of Referral
Justification for referral, e.g. , Agency priority, Regional
initiative, previous violations by defendant
X. Actachments
A. Index to attachments
B. Draft complaint
C. Signed cOnsent decree
D. Doc entation of violations - inspection report, etc.
E. Settlement penalty worksheet
F. Financial information if penalty reduced based on
ability to pay
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
UNITED STATES OF AMERICA, )
)
PLAINTIFF, )
)
v. )
)
AMALGAMATED PROPERTY OWNERS, INC., ) CIVIL ACTION NO.
)
and )
)
XYZ DEMOLITION CONTRACTORS, INC., )
)
DEFENDANTS. • )
____________________________________________________________________________________)
CO LAINT
The United States of America, by and through its undersigned
attorneys, by authority of the Attorney Ceneral of the United
States and at the request of the Administrator of the United
States Environmental Protection Agency (“EPA”) , alleges as foLLc
INTRODUCTI ON
1. This is a civil action against Defendants Amalgamated
Property Owners, Inc., and XYZ Demolition Contractors, Inc. for
injunctive relief and civil penalties pursuant to Section 113(b)
of the Clean Air Act (the “Act”), 42 U.S.C. §7413(b), for violations
by defendants of the National Emissions Standards for Hazardous
A r Pollutants (“NESHAP”) for asbestos, promulgated under Sections
112 and 114 of the Act, 42 U.S.C. § 7412 and 7414, codified at 40
C.F.R Part 61, Subpart M.
JURISDICTION AND VENUE
2. This Court has jurisdiction over the subject matter of
this action pursuant to 28 U.S.C. §S 1331, 1345, and 1355, arid
Section 113(b) of the ACt, 42 U.S.C. §7413(b).
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-2-
3. Venue is proper in this judicial district under Section
113(b) of the Act, 42 U.S.C. §7413(b), because the violations
occurred in this district (and Defendants have their principal
places of business in this district.]
4. Notice of the commencement of this action has been given
to the State of Louisiana Department of Environmental Quality as
required by 42 U.S.C.S7413(b).
DEFENDANTS
5. Defendant Amalgamated Property Owners, Inc., (APO) is a
corporation organized under the laws of the State of Delaware.
APO is authorized to do business in the State of Louisiana. APO
owns the facility where the violations took place.
6. Defendant XYZ Demolition Contractors, Inc. (XYZ) is a
corporation organized under the laws of the State of Louisiana.
Its principal place of business is Shreveport, Louisiana. XYZ is
engaged in the business of demolition and renovation of buildings
and demolished the facility where the violations took place.
7. Defendants each were, at all times relevant hereto, an
“owner or operator” of a demolition operation as that term is
defined in Sections 111(a)(5) and 112(a)(3) of the Act, 42 U.S.C.
§S 7411(a)(5) and 7412(a)(3), and 40 C.F.R. §61.02 and 61.141.
8. Each of the Defendants is a “person” within the meaning
of Section 302 of the Clean Air Act, 42 U.S.C. §7602(e).
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—3—
STATUTORY AND REGULATORY BACKGROUND
9, Section 112(b) of the Act, 42 U.S.C. 17412(b), requires
the Administrator of EPA (the “Administrator”) to publish a list
of air pollutants that he determines are hazardous (“hazardous
air pollutants”) and to prescribe an emission standard for each
such pollutant. These emission standards are known as the National
nLssions Standards for Hazardous Air Pollutants (“NESHAP”).
10. Section 114(a) of the Act, 42 U.S.C. 17414(a), authorizes
the Administrator to require any person who owns or operates any
emission source or who is subject to any provision of the Act to
provide information to the Administrator for the purpose of
determining whether any person is in violation of the Act or to
carry out any provision of the Act. (Appropriate if alleging a
notice violation.J ‘
11. Pursuant to Section 112(b) of the Act, 42 U.S.C. 17412(b),
the Administrator designated asbestos as a hazardous air pollutant
and promulgated the asbestos NESHAP. The asbestos NESHAP includes
regulations governing the emission, handling and disposal of
asbestos during demolition and renovation of asbestos-containing
facilities.
12. Pursuant to Sections 112 and 114, the Administrator has
promulgated requirements that the owner or operator of subject
demolition or renovation operations provide written notice prior
to commencing the work.
13. 40 C.F.R. 161 .141 defines “demolition” as “the wrecking
or taking out of any load-supporting structural member of a
facility together with any related handling operations.”
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-4-
14. 40 C.F.R §61.145(a) states that 40 C.F.R. § 61.146 and
61.147, apply, with exceptions not relevant to this action, to
each owner or operator of a demolition operation if the amount of
friable asbestos materials in a facility being demolished is at
least 80 linear meters (260 linear feet) on pipes or at least 15
square meters (160 square feet) on other facility components.
15. 40 C.F.R161.146 requires each owner or operator of a
demolition operation where there is the regulated amount of
asbestos to provide the Administrator of EPA with written rioti-
ficacion of intention to demolish or renovate, setting forth
specified information, at least 10 days prior to the commencement
of the operation. Timely, complete, and accurate notices of
demolition operations permit EPA to conduct efficient, unannounced
inspections to ensure that work practice standards to prevent
emissions of asbestos are being met. Such notices are particularly
important due to the short duration of most demolition opera ic s.
(If EPA has delegated NESHAPS program to State, and if chat
delegation indicates that notice is to be given to the State r :..
than EPA, add explanatory 1].
16. 40 C.F.R §61.147, in relevant part, requires each owner
or operator to comply with certain work practices to prevent
emission of particulate asbestos material to the outside air.
17. 40 C.F.R. §61.152(b) requires each owner or operator to
“discharge no visible emissions to the outside air during the
collection, processing (including incineration), packaging,
transporting or deposition of any asbestos-containing waste
material generated by the source . .
18. Section 112(c) of the Clean Air Act, 42 U.s.c. §7412(c),
prohibits the emission of any air pollutant to which a NESRAP
applies, from any stationary source, in violation of such NESH.AP.
Noncompliance with a NESHAP is a violation of Section 112(c) of
the Act.
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—5—
NESHAPS VIOLATIONS
19. At some time prior to March 17, 1987, Defendant APO
hired Defendant XYZ to demolish a scotch tape score located at
1000 Main Street, Plain Dealing, Louisiana (“the facility”).
20. On or about March 17, 1987, Defendants engaged in
demolition activities at the facility. Said activities involved
the demolition of a building containing friable asbestos material
as defined in 40 C.F.R. §61.141.
21. The building being demolished contained a quantity of
friable asbestos material in excess of 80 linear meters on pipes
or 15 square meters on other facility components, and therefore
the operation was subject to the asbestos NESHAP, 40 C.F.R.
§61.140 et seq.
FIRST CLAIM FOR RELIEF
22. Paragraphs 1 through 21 are realleged and incorporated
herein by reference.
23. Defendants failed to provide prior written notice of
intention to demolish the facility, in violation of 40 C.F.R.
§61.146 and Sections 112(c) and 114(a)(1)(B) of the Clean Air
Act, 42 U.S.C. §7412(c) and §7414(a)(1)(B).
SECOND CLAIM FOR RELIEF
- 24. Paragraphs 1 through 21 are realleged and incorporated
herein by reference.
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25. On or about March 17, 1987, Defendants failed to remove
friable asbestos materials from the facility before dismantling
or wrecking activities began, in violation of 40 C.F.R 561.147(a)
and Section 112(c) and (e) of the Clean Air Act, 42 U.S.C. 57412(c)
and (e).
THIRD CLAIM FOR RELIEF
26. Paragraphs 1 through 21 are reall.eged and incorporated
herein by reference.
27. Defendants did not ensure that the friable asbestos
material remained wet until collected for disposal, in violation
of 40 C.F.R. 561.147(e) and Section 112(c) and (e) of the Clean
Air Act, 42 U.S.C. 57412(c) and Ce).
FOURTH CLAIM FOR RELIEF
28. Paragraphs 1 through 21 are incorporated herein by
reference.
29. Defendants discharged visible emissions to the outside
air during the collection, processing, packaging, transporting,
or deposition of asbestos-containing waste material generated at
the facility. The defendants failed to use one of the disposal
methods specified in 40 C.F.R 5152(b) (1), (2), or (3), thereby
violating 40 C.F.R. 0152(b) and Section 112(c) and (e) of the
Act, 42 U.S.C. 57412(c) and (e).
RELIEF REQUESTED
30. Section 113(b) of the Clean Air Act, 42 U.S.C. 07413(b)
authorizes the Administrator of EPA to coence a civil action
for injunctive relief, or for the assessment of a civil penalty
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—7—
of not more than $25,000 per day of violation, or for both,
whenever any person violates Section 112(c), (e), and 114(a)(1)(B)
of the Clean Air Act, 42 U.S.C. S7412(c), (e), and 57414(a)(1)(B).
31. Unless restrained by an Order of this Court, Defendants
may continue to violate the Clean Air Act, 42 U.S.C. S7401 ec
egg., and the asbestos NESHAP, 40 C.F.R. Part 61, subpart M.
WHEREFORE, plaintiff, United States of America, respectfully
prays that this Court:
a. Enjoin each of the defendants from further violations of
the Clean Air Act and the asbestos NESHAP, 40 C.F.R. Part 61;
b. Assess civil penalties of $25,000 for each day of each
violation by each defendant for violations of EPA’s regulations
and the Clean Air Act;
c. Award plaintiff its costs and disbursements in this
action; and
d. Grant such other and further relief as this Court may
deem just and proper.
Respectfully submitted,
Assistant Attorney General
Land and Natural Resources Division
U.S. Deparent of Justice
Washington, D.C. 20530
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UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF LOUISIANA
UNITED STATES OF AMERICA. )
)
Plaintiff, )
)
v. )
)
AMALGAMATED PROPERTY OWNERS, ) Civil Action No.
)
INC. and )
)
XYZ DEMOLITION CONTRACTORS, )
)
INC., )
I,
Defendants )
________________________________________________).
CONSENT DECREE
Plaintiff, United States of America, on behalf of the United
States Enviror enta1 Protection Agency (“EPA”), having filed a
Complaint alleging violations of the National ission Standard
for Hazardous Air Pollutants (“NESHAP”) for asbestos, codified at
40 C.F.R. §61.140 et q., and the Clean Air Act, 42 U.S.C. 47401
!!q ., and requesting permanent injunctive relief and civil
penalties;
And Def dants having duly filed an Answer denying the claims
of the plaintiff; (if appropriate]
And Plaintiff and Defendants having agreed that settl ent of
this action is in the public interest and that entry of this
Consent Decree without further litigation is the most appropriate
means of resolving this action, avoiding protracted litigation
costs and expenses;
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-2-
And Plaintiff and Defendants having moved this Court to enter
this Consent Decree, subject to the provisions of 28 C.F.R. $50.7;
NOW THEREFORE, before the taking of any testimony, upon the
pleading., without adjudication of any issue of fact or law, and
with no finding or admission of liability against or by Defendants,
and upon consent of the parties to this Consent Decree, it is
hereby Ordered, Adjudged, and Decreed as follows:
I.
JURISDICTION
This Court has jurisdiction over the subject matter of this
action under 28 U.S.C. SS1331, 1345, and 1355, and 42 U.S.C.
57413(b) and over the parties consenting to this Consent Decree.
Venue is proper in this Court. The Complaint states a claim upon
which relief may be granted against Defendants.
S
DEFINITIONS AND PARTIES
A. “Defendants” shall mean Amalgamated Property Owners,
Inc., and XYZ Demolition Contractors, Inc.
8. “Plaintiff” shall mean the United States of America and
the ‘United States Environmental Protection Agency.
C. Terms used in this Consent Decree which are defined in
42 U.S.C. 17412(a), 42 U.S.C. 57602, 40 C.F.R. $61.02, and 40
C.F.R. 561.141 shall have the meanings contained therein.
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—3—
III.
APPLICABILITY
A. The undersigned representatives of each party to this
Consent Decree certifies that he or she is fully authorized by
each party whom he or she represents to enter into the terms and
conditions of this Decree, and to execute and legally bind that
party to it.
B. The provisions of this Consent Decree shall apply to and
be binding upon the Defendants, as well as their officers, -
directors, agents, servants, employees, successors, and assigns,
and all persons, firms and corporations having notice of this
Consent Decree and who are, or will be, acting pursuant to this
Consent Decree, or on behalf of, in concert with or in participa-
tion with the Defendant to this action in furtherance of this
Decree.
C. The provisions of this Consent Decree shall apply to all
of Defendant APO’s facilities in all states, territories, and
possessions of the United States of America.
D. The provisions of this Consent Decree shall apply to a].l.
of Defendant XYZ’s d o1itions or renovations in all states,
territories, and possessions of the United States of America.
E. Defendants shall condition any and all contracts for
demolitions or renovations subject to this Decree during its
effective period on compliance with the terms of this Decree.
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-4-
Iv.
CO1 LIANCE PROGRAM
A. Defendants shall hereafter comply with the requirements
of the National E nission Standards for Hazardous Air Pollutants
(NESHAP) for asbestos in 40 C.F.R S61.140 et seq . Defendants
shall submit written notification for demolition or renovation
operations to be poa narked or delivered at least ten (10) days
before each demolition or renovation begins if the amount of
asbestos is as stated in 40 C.F.R S61.145(a), or at least twenty
(20) days before each d olLtton or renovation begins if the
amount of asbestos is as stated in 40 C.F..R. S61.145(b).
B. In the case of an emergency renovation as defined in 40
C.F.R. S61.141, Defendants shall provide written notice to the
appropriate EPA regional offic. and the appropriate delegated
state or local air pollution control agency as early as possible
prior to the commencement of any renovation operation involving
asbestos. (Optional]
C. Defendant XYZ shall, on and after the date of entry of
the Consent Decree, implement the office procedures set forth in
Attachment 1 to this Consent Decree to ensure compliance with the
notice requirements for demolition and renovation operations
subject to the asbestos regulations, and shall use the notification
format set forth as Attachments 2 and 3 to comply with this
Consent Decree. (Optional, but suggested if there have been
notice violations. See Attachments 1-3 of PC&J decree, attached
as Exhibit 3, as modified.]
D. All notifications required by this Consent Decree shall
be sent by certified mail or hand delivery to the appropriate EPA
Regional office and the appropriate delegated state or local air
pollution control agency. Defendants shall maintain records of
said notifications together with proof of mailing by certified
mail for the duration of this Decree.
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—5—
E. This Consent Decree in no way affects 1) the Defendant’s
responsibility to comply with any State, Federal or local laws or
regulations or any Order by the Court, including compliance with
all. applicable NESHAPS requirements; and 2) enforcement of any
such NESHAP requirements made applicable by reason of any revision
of the Clean Air Act and its implementing regulations.
(Optional provIsions. Sections I..III, “Notification”,
“Asbestos Control Program”, and “Asbestos Training Program”,
attached, are recommended as targets for settlement with contrac-
tors where appropriate, such as multiple violations or situations
in which the contractor has a 1arg n ber of work crews and
inadequate centralized management of them.]
V.
CIVIL PENALTY
Defendants shall pay a total civil penalty of $ ( penalty in
accord with penalty policy) . Said payment shall be in full
satisfaction of Plaintiff’s claims against defendants for the
violation alleged in the Complaint in this action. Payment shall
be made by cashier’s or certified check payable to “Treasurer of
the United States of America” and tendered within 30 days after
final entry of this Decree to the United States Attorney for the
Middle District of Louisiana, (Address]. Defendants shall send a
copy of the check to the Office of Regional Counsel (Address],
and to the Land and Natural Resources Division, U.S. Department
of Justice (Address]. Civil penalty payments under this decree
are not tax deductible.
(Optional provisions. Sections LV-VI attached are
recommended if it is necessary to provide for an installment
schedule for payment of civil penalties. An installment approach
is appropriate only if defendants demonstrate that a Lt p s*.
payment is financially infeasible.]
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-61.
VI.
CONTRACTOR DEBARMENT AND SUSPENSION
[ Optional provision. Section VII attached, may be a useful
negotiating tool against contractors which do business with the
Federal goverrent. However, the Office of Inspector General,
Suspension and Debarment Branch (FTS 415-3960) should be consulted
prior to making any. commitments regarding suspension or debarment
proceedings.]
VII.
STIPUL TED PENALTIES
S
[ At a min , should apply to violations of specific injunctive
relief, such as training program or asbestos control program.)
A. Defendant XYZ shaU pay stipulated penalties of $______
per day per violation of any provision of Sections ____ of this
Consent Decree.
B. All payments of stipulated penalties shall be made
within thirty (30) days of the date of noncompliance by cashiers’s
or certified check made payable to the “Treasurer of the United
States” and mailed to the United States Attorney (Address] District
of Louisiana. A copy of the letter forwarding such check, together
with a brief description of the noncompliance, shall be mailed to
the Office of Regional Counsel, [ Address) and to the Land and
Natural Resources Division, U.S. Department of Justice.
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—7—
C. Nothing contained herein shall be construed to prevent
or limit the rights of the plaintiff to obtain any other remedy,
sanction, or relief which may be available to it by virtue of
Defendant’s failure to comply with this Consent Decree, the Clean
Air Act, or the asbestos NESHAP.
VIII.
FORCE MMEURE
(Optional - may be inserted if demanded by Defendants. Section
VIII attached is recommended.)
TERNI NATI ON
This Consent Decree shall terminate 3 years from the date of
i s entry, provided the Defendant has co p1ied with its terms,
including the payment of any accrued stipulated penalties. The
United States shall have the right to seek extension of this
period in the event of any violation of the Decree. The Court
will retain jurisdiction over this matter to enforce the provi-
sions of this Decree.
x.
PUBLIC NOTICE
Each party consents to entry of this Consent Decree, subject
to the public notice and comment requirements of 28 C.F.R. §50.7.
XII.
COSTS
Each party shall bear its own costs.
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-8-
For Plaintiff - United States of America:
_______________________________ Dated:
Assistant Attorney General
Land and Natural Resources Division
United States Department of Justice
____________________________ Dated:
Assistant Administrator for
Enforcement and Compliance Monitoring
United States Environmental Protection
Agency
____________________________ Dated: _______________
Assistant United States Attorr ey
Middle District of Louisiana
Dated: _________________
Trial Attorney
Land and Natural Resources Division
Environmental Enforcement Section
United States Department of Justice
________________________________ Dated: _________________
For Defendant XYZ Demolition
Contractors, Inc.
_________________________________ Dated: __________________
For Defendant Amalgamated Property
Owners, Inc.
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—9—
ENTRY OF THE COURT
Judgment entered in accordance with the foregoing Consent
Decree this ____ day of ____________ , 1987.
BY THE COURT:
United States District
Judge
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Model Consent Decree
Optional Provisions
I. NOTIFICATION
The notification provisions of this paragraph are in addition
to, and are not a substitute for, the notification provisions of
40 C.F.R. $61 .146.
A. Until the termination of this decree, XYZ Demolition
agrees to do the following regarding any demolition and/or
renovation project it undertakes, regardless of whether asbestos
material is involved, where the dollar emount of XYZ’s initial-
contract exceeds $75,000.00 in either cash or services rendered.
1. XYZ Demolition will notify the Environmental
Protection Agency (hereinafter called “EPA”) and
the corresponding or relevant State/local
environmental agency of the demolition/renovation
activity by XYZ.
2. Notifications made pursuant to Paragraph I(A)(1)
shall include the information specified in 40
C.F.R. §61.146(c) and shall be submitted at least
twenty (20) days prior to the commencement of
the renovation and/or demolition work by XYZ or
contractors hired by it to perform renovation
and/or demolition work. The notification to the
EPA shall be sent via certified mail to the
United States Environmental Protection Agency,
(Address].
3. In addition to the information required by 40
C.F.R. §61.146(c), each notification shall
include:
(1) The n e and position of the person
responsible for supervising all work
involving asbestos-containing material
(ACM).
(2) The name, address, telephone n ber
and contact person of the firm(s)
which will transport any asbestos-
containing waste from the site.
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—2—
(3) A description of the procedures and
equipment to be used to prevent
visible emissions of asbestos-con-
tainthg material, and to decontaminate
workers.
(4) A description of the location and
amount of ACM in the facility to undergo
renovation or demolition.
(5) The name of the person who determined
whether asbestos-containing material
(ACM) aa located at the site and the
basis on which such determination was made.
B. XYZ shall also include the information specified in
Paragraph I(A)(3) in notifications submitted pursuant to 40
C.F.R. S61.146 concerning renovation/demolition projects involving
asbestos where the value of the initial contract is less than
$75,000.00 in cash or services rendered.
C. The notice provisions of this Consent Decree do not
eliminate or modify any obligation of XYZ to give notice Co any
state or local agency.
II. ASBESTOS CONTROL PROGRAM
A. Within sixty (60) days after final entry of this Decree
by the Court,. XYZ shall develop or have developed an asbestos
control program (ACP). This plan will detail X’IZ’s procedures
for complying with the Asbestos NESHAP, 40 C.F.R., Part 61,
Subpart M. It also shall include procedures governing submittal
of notifications required by this Decree.
B. As part of the ACP, XYZ shall designate an Asbestos
Program Manager (APM) and an alternative APM. The APM will have
the following duties and responsibilities:
1. Managing all asbestos control program
activities, including the asbestos
training program for XYZ.
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-3-
2. Acting as the primary liaison between
X?Z and EPA and/or any state/local air
pollution control agency. The APM shall
be responsible for ensuring that EPA
and the appropriate state/local air
pollution agency receives the proper
notification.
3. Ensuring that each site is inspected
prior to submittal of the notification
discused above to determine whether
ACM is present.
4. Ensuring that decontamination facilities
are available, equipped, and used at
each job site involving r oval of ACM.
5. Maintaining any records of any landf ill
receipts and reports of analyses performed
on samples taken to determine the presence
of ACM.
C. The president of XYZ will be responsible at all times
for the APM’s performance of his duties.
D. At each d o1ition and renovation project involving ACM,
XYZ shall designate site-asbestos-supervisors who shall either be
or who shall report to the ACM. XYZ shall have the right to
designate different individuals as asbestos supervisor at a
particular site on a day-to-day basis.
1. Each s ite-asbestos-supervisor shall have
the primary responsibility for managing
all asbestos activities at the work site.
2. The site-asbestos-supervisor will be the
primary contact through which any employee
at the site involved with asbestos removal
shall receive guidance and instructions.
3. The site-asbestos-supervisor shall be the
primary liaison between EPA and/or state/
local inspectors and on-site employees.
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4. The site-asbestos-supervisor shall
immediately correct any violations of the
Asbestos NESHAP he discovers. If an
immediate remedy is not possible, the
supervisor shall stop all asbestos removal
activities until the violations are corrected.
5. The site-asbestos-supervisor shall have a
copy of the written notification for that
site in his possession while on-site.
E. XYZ shall take all reasonable steps to see that the
employees engaged in removal, handling, and transporting activities
follow all practices and procedures learned during the Asbestos
Training Program (discussed in Section IV) and any written and7or
oral instructions provided by the.APM andIor the job site asbestos
supervisor.
F. XYZ shall develop written Asbestos Policies and Procedures.
The procedures shall address all of the requirements listed in
this doc u ent and responsibilities of the APM, supervisors and
employees. The policy shall provide that workers are encouraged
to report any violations of the program or any Asbestos NESHAP
(40 C.F.R. Part 61 , Subpart M) to the Asbestos Program Manager or
the site-asbestos-supervisor. The procedures shall detail how
ACM is to be removed at a site facility and how ACM is to be
disposed of.
1. These procedures shall be given to each
employee and supervisor involved with
asbestos accivites.
2. These procedures shall be periodically
reviewed by the APM and XYZ company
officers and revised if necessary, based
upon changes in the regulations, develop-
ment of new removal techniques or any
other reason necessary to ensure that
all requirements are addressed.
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—5—
C. XYZ shall submit its ACP to EPA for review and approval
within seventy-five (75) days of the date this Decree is approved
and entered as an order of the Court. If EPA requires changes in
the ACP, EPA’s comments shall thereafter be incorporated.
III. ASBESTOS TRAINING PROGRAM
A. XYZ shall develop and implement an Asbestos Training
Program (ATP) for all, company employees engaged in actual asbestos
removal, handling, transportation and disposal activities, all.
foremen/supervisors of asbestos activities and an Asbestos Program
Manager (APM) a d an alternate as of the effective date of this
Decree.
B. XYZ has chosen and will hire [ trainer acceptable to EPA]
to provide the AT? for the persons identified in Paragraph 111(A).
The ATP offered by [ trainer] will consist of its regular “Worker
Training” course plus all. requirements of the Asbestos Control.
Program described in Paragraph II of this Decree. This course
will cover, at a minimum, information concerning the background
of asbestos; federal, state and city regulations; medical
surveillance, health effects of asbestos, worker protection, air
sampling and general and special. work practices. XYZ will ensure
that the course devotes at least three hours to actual asbestos
removal techniques required by the Asbestos NESHAP, 40 C.F.R.
Part 61, Subpart M.
C. X’CZ will implement the ATP within 45 days of the entry
of çhis Decree by the Court.
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-6-
D. One year from the effective date of this Decree, XYZ
will, provide the training program identified in Section 111(B) of
this Decree to employees engaged in actual asbestos removal,
handling, transportation and disposal activities who were hired
by XYZ after completion of the initial training program. XYZ
must complete this training program within 15 months of the
effective date of this Decree.
E. Within 15 days of the training program’s completion, xyz
must submit satisfactory evidence from the person who conducts
the training program that each employee required above to be
trained has successfully completed the ATP. The submissions
shall be sent by certified emil tø the United States Envirormiental
Protection Agency, (Address].
IV. CIVIL PENALTY
A. Defendant shall pay a total civil penalty payment of $___
_____ in ______ installments together with Interest by cashier’s
or certified check payable to “Treasurer, United States of America”
and sent by registered mail to the United States Attorney [ Address]
according to the following schedule.
1) $_________ shall be paid within ____ days
of final entry of this consent decree.
2) $_________ shall be paid within ____ days
of final entry of this consent decree,
together with accrued interest at the
specified rate.
3) Etc.
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—7..
B. Interest shall accrue upon the unpaid balance at a rate
equal to the coupon issue yield equivalent (as determined by the
Secretary of the Treasury) of the average accepted auction price
for the tast auction of 52-week U.S. Treasury bills settled
immediately prior to the time of the preceeding payment and shall
be included in each subsequent payment under the schedule of
payments set forth in sub-paragraphs A(2) and (3), above. Interest
shall be computed from [ time of first payment]. Thirty (30) days
prior to the payments described in A(2) and (3), above, the U.S.
Attorney’s Office shall send a statement of interest due and
owing for the upcoming payment.
C. The civil penalty payments made under this Consent Decree
are not tax deductible. Upon final entry of this Consent Decree,
the United States shall be deemed a judgment creditor for purposes
of enforcement of this Decree.
V. ACCELERATION OF PAYMENTS
A. If the Defendant: (1) fails to make any payment in the
time specified under this Consent Decree, or (2) files a voluntary
petition in bankruptcy under the Bankruptcy Code of the United
States, or (3) is adjudicated as bankrupt under such Code, or (4)
is the subject of a petition filed in federal or state court for
the appoine c of a trustee or receiver in bankruptcy or
insolvency, or (5) makes a general assignment for the benefit of
creditors, then on the occurrence of any such conditions, at the
option of the United States, the entire balance of the principal
amount of civil penalty, together with all accrued interest at
the rate specified above in paragraph B of Section IV of this
Consent Decree, shall become immediately due and payable.
Defendant shall also be liable for attorneys’ fees and costs
incurred by the United States as a result of the implementation
of this acceleration provision.
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-8.-
B. Within five (5) business days after Defendant becomes
aware of an occurrence of any of the events or conditions described
in subparagraph V(A)(2)-(5) above, the Defendant shall give
immediate written notice to the U.S. Environmental Protection
Agency, (Address] and to the United States Attorney (Address] by
certified first class mail, postage prepaid.
VI. GUARANTY
See Exhibit A attached hereto.
VII. CONTRACTOR DEBARMENT AND SUSPENSION
It is the policy of the Environmental Protection Agency
(EPA) to do business only with responsible contractors. EPA
contends it has the authority to debar or suspend irresponsible
contractors from EPA-assisted, indirect procur nent under 40
C.F.R. S32.100, et seq . and from direct Federal procurement under
48 C.F.R. S9.400, et of the Federal Acquisition Regulation.
EPA agrees that it will not institute debarment or suspension
proceedings against the Defendant based on th violations that
underlie this Consent Decree as long as the Defendant complies
with the terms and conditions of this Consent Decree. If EPA
determines, after appropriate notice and an opportunity for a
hearing pursuant to 40 CSF.R. S32.100, et seq . and 48 C.F.R.
S9.400 et seq., that Defendant has breached the terms and conditions
of this Consent Decree, then Defendant agrees that such breach
may constitute a cause for debarment and suspension. In such
case, if EPA initiates a debarment or suspension action, it may
cite the violations which gave rise to this Consent Decree as
causes for debarment or suspension, in addition to the violations
of the Consent Decree.
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VIII. FORCE MAJEURE
If any event occurs that causes or may cause delays in the
completion of the activities described herein, XYZ shall within
five days of its learning of such event notify the United States
in writing of the delay or anticipated delay, describing in detail
the precise cause or causes of the delay, the anticipated length
of the delay, the measures taken and to be taken by XYZ to prevent
or minimize the delay and the time-table by which these measures
will be implemented. XYZ will adopt all reasonable measures to
avoid or minimize any such delay. If the United States and XY
agree that the delay, or anticipated delay, has been or will be
caused by circi stances entirely beyond the control of XYZ and
agree on the length of the delay, the time for performance
hereunder will, with Court approval, be extended for a period
equal to the delay resulting from such circtmistances. If the
United States and XYZ do not agree that the delay, or anticipated
delay, has been or will be caused by circ stances entirely beyond
the control of XYZ, and/or do not agree on the length of the
delay, XYZ may submit the matter to the Court for resolution. In
any such proceeding, XYZ shall bear the burden of demonstrating
that the delay or anticipated delay, has been or will be caused
by circ scances entirely beyond its control and of the necessity
of the proposed length of the delay. Increased costs or expenses
associated with implementation of the activities required by this
Consent Decree and changes in economic circ stances of the
defendants shall not be considered circ stances beyond the
control of the defendants. XYZ shall be entitled to the benefits
of this paragraph only if XYZ has given the notice of the delay
or anticipated delay as set forth above in this paragraph.
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),rtIUH
Ouarantj of Payment by Indorsere
1. In consideration of the payment schedule set forth in
Sctlon VI, Part A, of the consent decree riled in United
States v. P.C.& 7. Contracting Co., Inc. , Civil Action No,
C84e—lel l (Northern District of Iowa) (“hereinafter the Decree”)
the undersigned indorsera 4ointly and severally unconditionally
guaranty the payment of a $105,000 civil penalty, together
with interest at th. rate specified in Section VI, Part B
of the Decree, and all costs, expenses, and attorney’s tees
incurred In the collection of said civil penalty.
2. As payments are made pursuant to the payment schedule set torth
in Section VI, Part A, of the Decree, the United States agrees
to reduce indorsers’ obligation and guarantee accordingly.
3. Indorsers’ liability is independent of any other guaranties
between Indorsera and any other parties’ guaranties.
. This guarantee is binding upon the Indorsers, their heirs,
personal representatives, and assigns.
5. Indorsers waive any presentment, demand, protest, and notice of
dishonor associated with this guarantee.
Xeso P. Bezmalinovic,
individually and as Vice President
of PC&J Contracting Co., Inc.
/ Nerina Bonic, wife of Kreso
P. Besmalinovic, individually,
and as President of PC&J Contracting
Co., Inc.
Sworn to and subscribed to, after presentation of
photographic identification of above—undersigned indorsers,
before me thts
L
t Pig.1 . Stmi o ‘
I
t Q.i : “
f. N 1 a 4 i .j
4.
day of
,- . ,.- , 1986.
My Commisison expires on
Exhibit A
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8
(date)
TO: ALL OFFICE PERSONNEL
E.P.A. NOTIFICATION PROCEDURE FOR ALL DEMOLITION AND RENOVATION
JOB INVOLVING
ASBESTOS REMOVAL
In order to meet strict compliance with E.P.A. notification re-
quirements, the following procedure is now in effect and is to be
followed for all demolition and renovation jobs . Note that one of
the two notification forms (see attached) must be completed prior
to beginning demolition or renovation activity. The choice of
the appropriate form will depend on the quantity of asbestos preser.
1) On a demolition or renovation job involving the stripping or
removal of less than 260 linear feet of asbestos material on pipes
and less than 160 square feet of asbestos material on ducts, boiler
tanks, reactors, turbines, furnaces, or structural members, the
TWENTY DAY NOTICE form will be used. It must be postmarked or
delivered at least twenty (20) days before demolition or renovatior
or any associated stripping or z emoval of asbestos material begins .
2) On a demolition or renovation job involving the removal of at
least 260 linear feet of asbestos material on pipes or at least 160
square feet of asbestos material on other facility components, the
TEN DAY NOTICE form will be used. It must be postmarked or
delivered at least ten (10) days before demolition or renovation or
any associated stripping or removal of asbestos material begins .
3) The original of the appropriate notification document shall be
sent to the proper state agency or local air polution control agene
A copy of the same notice shall be sent to the appropriate U.S. EPA
regional off ice• aa ) 1 rwtrs i t1L FrsBeeUen Agene-y ,
SIa-*tenary i 1i W—3 I!.), fl 4 t1 ne ‘-rn y &L
S..tL.n, Washinglen, L i i ’ A copy of each document sent shall be
kept in the job file.
ATTACH! lENT 1
Page tof i
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(date)
(To the appropriate EPA regional office and the state or de1egate
local agency)
TWENTY DAY NOTIFICATION OP ASBESTOS REMOVAL ACTIVITIES
PURSUANT TO MO C.F.R. S 61.1M6
Pursuant to the requirements of MO CFR
fication of impending asbestos removal
Contracting Co., Inc., located at ____
6l.ll 6, the following noti—
is provided by P C & J
.
FACILITY TO BE DEMOLISHED OR RENOVATED
Name of facility:
Address: ________
City: __________
Telephone: _____
State:
Zip: _______
Name or owner:
Address: _____
City: _______
Telephone: —
State:
Zip: _______
Size of facility: __________________
Age of facility: ____________________
Prior usage: _______________________
Demolition or renovation methodology:
ASBESTOS INFORMATION
Removal dates: Start
Quantity on pipes (linear feet)
Quantity on other components (square
Description of asbestos material:
Finish
feet)
Method of asbestos measurement:
Sincerely yours,
ATTACHIIENT 2
Page 1 of
Dear
-------
(date)
(To the appropriate U. S. EPA regional office, and the state or
delegated local agency)
TEN DAY NOTICE OF ASBESTOS REMOVAL ACTIVITIES
PURSUANT TO 110 C.P.R. S 61.1116
Dear __________________
Pursuant to the requirements of 110 CFR section 61.1116, the following
notification of impending asbestos removal is provided by P C & T
Contracting Co., Inc., located at ____________________________
FACILITY TO BE DEMOLISHED OR RENOVATED
Name of facility: ______________________________________________
Address: _______
City: ____________________ State: ____________ Zip:
Telephone: __________________________
Name of owner:
Address: ____
City: _____________________ State: _____________ Zip:
Telephone: _________________________
Size of facility: ___________________
Age of facility: ___________________
Prior usage: _______________________
Demolition or renovation methodology:
ASBESTOS INFORMATION
Finish
Removal dates: Start
Quantity on pipes (linear feet)
Quantity on other components (square
Description of asbestos material:
feet)
Removal emission control procedures:
ATTACH1 lENT 3
Page 1 of 2
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—2—
DISPOSAL IN ATI
Waste handling emission control procedures:
zip
ATTACI 1ENT
Page 2
3
of 2
Disposal site name:
Address: __________
City: _____________
Telephone: _______
State:
Sincerely yours,
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9
-------
II
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Revised Asbestos NESH7 P Strategy
(03/31/88)
File at Part D, Document #9
-------
_, tO S’ q,
I. MT TATE E \ IRON\IENTAL PROTECTION AGE C1
_____ HL\GTO\ D.C. 20460
4 ..
I .qO
WR3I B8
OFVICE OF
Ala MID RADIATIOt
MEMORANDUM
SUBJECT: Revised Asbestos NESHAP Strategy
FROM: John S. Seitz, Director
Stationary Source Compli Divisio
Office of Air Quality P1 ning and Standard
Michael S. Alushir j.
Associate Enforcement Coui4éel for r
TO: Air Management Division Directors
Regions I, III and IX
Air and Waste Management Division Director
Regiop II
Air, Pesticides.,. and Toxics- Management Division
Directors
Regions IV and VI
Air and Radiation Division Director
Region V
Air and Toxics Division Directors
Regions VII, VIII and X
Regional Counsels, Regions I—X
Attached is the revised strategy for the implementation
and enforcement of the asbestos demolition and renovation
requirements. The April 6, 1984 Asbestos Strategy Document
was issued concurrently with the repromulgation of the asbestos
NESHAP. The goal of the 1984 strategy was to attain 100%
compliance through the implementation of art inspection plan.
According to the 1984 strategy an inspection plan could
consist of inspecting “all sources, all contractors, or any
other program consistent with the Agency goal of 100%
compliance.” Because the annual notification rate has risen
dramatically and Is expected to be well above 50,000 for F? 88,
NOTE: For the referenced
attachments, contact OECM-AED
or OAQPS-SSCD.
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it is no longer feasible for most agencies to inspect all sites.
Inspecting all contractors may be the best alternative for an
effective inspection plan, however, the 1984 strategy did not
fully describe how such a plan would be implemented. After
auditing three Regional asbestos NESHAP enforcement programs,
the Inspector General’s office remarked that the 1984 strategy
“does not provide additional criteria for developing art
effective inspection strategy.” The revised strategy provides
the criteria for targeting inspections among a field of an
estimated 5,000 contractors as opposed to selecting inspection
sites from over 50,000 notifications. Inspection efforts
focused on contractors should result in a more resource—
effective enforcement program.
Major changes have been made to the original computer
tracking system described in the draft revised strategy. In
response to regional comments the national tracking system
will be in DBASE III format rather than CDS. This will allow
tracking of the number of notifications arid associated compli-
ance activity in each state, as opposed to workaite location
for each notification. iegions will be expected to send
quarterly reports of the data elements contained in APPENDIX A
of the revised strategy to Headquarters, preferabj.y through
electronic transmission. •The aggregated natidnwide database
information will be used to target inspections and promote -
enforcement options as described in the strategy.
A new section on outreach has been added to the strategy
describing methods of communication with the regulated com-
munity. Other additions include new appendices on identifying
non—notifiers, EPA technical assistance, generic 113(a) and
temporary restraining orders, and finalized guidance on
contractor listing. Each originally drafted section of the
revised strategy has been modified to accommodate comments
from the Regions. OTS, and ALAPCO.
Since the asbestos NESHAP program is primarily delegated
to the States, the success of this strategy depends on
implementation and cooperation from the States. It is
important that the States understand that the tracking system
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will contain a nationwide database of contractor compliance
histories, and that the States will utilize this tracking
system extensively. Any questions or comments should be
addressed to Jim Ertgel of my staff at 382—2877.
Attachment
cc: Air Compliance Branch Chiefs
Asbestos NESHAP Contacts
William Becker
Gerald Einison
John Neylan
David Kling
Sims Roy
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TABLE OF CONTENTS
Asbestos Strategy pp 1 — 19
I ritroduction . •...... pp 1 — 3
StrategyComponents . . . pp4—19
1 • Outreach •...•...... • .S.. ..s•••• p 4
2.ContractorTraining................. ....pp4—5
3. Inspector Training •.•..• ..•I. .... .... p 5
4. Inspections .....i............................. pp 5 — 8
5.InspectionTargetting........................pp8—10
6.ProgramAlternatives........................pp lO—12
7. Federal Enforcement Options ................. pp 12 — 15
8. Choosing Enforcement Option •................ pp 15 — 16
9. Assessing Pertaittes . ..... •...• ...•.•... ... •. . ., . . p 17
10. Reporting •............................. p 17
11.RegionalOversight..........................pp l7—18
12. Cross—Program Coordination .................. pp 18 — 19
APPENDIX A
TrackingAsbestosSources........................... Al—AS
APPENDIX B
Asbestos Demolition/Renovation Penalty Policy .. .. Bi
APPENDIX C
Uniform Hazardous Waste Manifest ......................... Cl
APPENDIX D
113 Compliance Order/1l4 Information Request •...... Dl — Dli
APPENDIX E
Pre—Referral Settlement Procedures •................ El — E36
APPENDIX F
IdentifyingNon—Notifiers.......................... Fl—F19
APPENDIX G
SPMS Reporting Format .. ........ .... .•..•• ••• .. Cl
APPENDIX H
Standardized Inspection Checklist ................... Hi —113
APPENDIX I
List or tat. Certification Requirements ............ Ii — 13
APPENDIX
States Covered by Worker Protection Rule •................ Ji
APPENDIX K
ContractorListingApplication.....................1C1—K 13
APPENDIX L
EPA Technical Assistance for Asbestos Control ...... Li — L12
APPENDIX M
Generic 113(a)orderandTRO.......................M1—M20
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Asbestos Demolition and Renovation Enforcement Strategy
- Introduction
Asbestos is recognized as a human and animal carcinogen
and, combined with cigarette smoking, a powerful co—carcinogen.
Malignant diseases caused by asbestos exposure include
bronchial carcinoma, lung adenocarcinoma, pleural and peritoneal
mesothelioma, alimentary tract carcinoma, and tumors of other
sites. Asbestosis, a fibrotic lung disease caused by asbestos
fibers, is also associated with long—term exposure.
These diseases are linked to ambient environmental
exposures as well as to occupational exposures. To reduce
ambient exposures and the accompanying health risk, EPA
regulated asbestos under the National Emission Standards for
Hazardous Air Pollutants (NESHAPS). This enforcement strategy
document has been prepared in order to ensure compliance with
the NESHAP standard. By specifying actions to be taken and a
procedure to follow, this strategy will provide effective and
uniform enforcement of the standard by Regions and delegated
States. This strategy document is also intended to provide
emphasis and assurances to Regional Offices and States that
asbestos occupies a high priority and that EPA Is totally
committed to a strong enforcement-posture. - -
Background
EPA first promulgated the asbestos NESHAP on April 6, 1973.
Parts of the standard were in the form of work practice
(nonnurnerical) requirements. The Supreme Court held, in
Adamo Wrecking Company v. United States , 434 U.S. 275 (1978)
that these were not emissions standards within the meaning of
the 1970 Clean Air Act. Since EPA, at the time the asbestos
regulations were promulgated, had authority to promulgate and
enforce only emissions standards, the Court upheld dismissal
of the criminal enforcement action brought against Adamo for
violations of S112(c)(1)(B) of the 1970 Act.
On August 7, 1977, S112(e) was added to the Act to
specifically authorize design, equipment, work practice,
and operational standards. Although regulations promulgated
since that time could contain work practice standards, there
was doubt as to the way of dealing with regulations promul-
gated prior to that time. EPA repromulgated many of the
asbestos work practice standards on June 19, 1978. However,
some work practices were not repromulgated, and were not
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considered enforceable by EPA. This led to confusion and
greatly hindered litigation efforts. In an attempt to end
this confusion and ensure all aspects of the asbestos NESHAP
are enforceable, EPA repromulgated the entire asbestos standard
in April of 1984.
The strategy document presented here addresses training,
inspection techniques, judicial and administrative enforcement
mechanisms, and other aspects essential for a successful
program of compliance with the repromulgated regulations.
Flexibility is provided so that the enforcing authority, be
it the EPA Regional Office or the delegated State or local
agency, may select other options, provided a high level of
compliance is achieved. The strategy also is designed to
ensure coordination between EPA Regions and their delegated
States. Since 38 States presently have asbestos enforcement
delegation, it is essential these States feel a part of the
process and have the capability and desire to successfully
enforce the standard.
An EPA Compliance Data System analysis showed that the
number of demolition and renovation sources is greater than
that of all other asbestos source categories combined, and
the compliance status much worse. The strategy is thus
limited to the renovation and demolition category. An
additional reason for this limitation is that since renovations
and demolitions are transitory operations, they are more
difficult to inspect and require specific enforcement guidance.
This limitation does not mean other asbestos sources should
be ignored, but means rather that EPA believes the States
have sufficient knowledge of these other sources to do a
satisfactory job without additional guidance.
Summary of Regulations
Before discussing the components of an effective strategy,
it is necessary to briefly outline the requirements of the
demolition and renovation provisions. These provisions are
found at 40 CFR Part 61 Subpart M. The owner/operator of a
demolition or renovation is exempt, pursuant to §61.145(b) and
(d), from emission reduction requirements If less than 80 linear
meters (260 linear feeti of frla le asbestos materials covering
pipes or less than 15 m’ (160 ft’) of friable asbestos material
covering other facility components is involved, and notification
provisions of S61.146(a),(b), and (c)(l)—(5) are met for
demol it ions.
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Section 61.147 concerns the wetting, stripping and removal
of friable asbestos. It provides that friable asbestos
materials used on any pipe, duct, boiler, tank, reactor,
turbine, furnace or structural member shall be adequately
wetted during stripping, and then removed from the building.
When prior authorization is obtained from EPA upon the
appropriate demonstration made pursuant to §61.l47(c)(1)
and (2) of unavoidable equipment damage, a local exhaust
ventilation and collection system may be used to prevent
emissions to the outside air. Section 61.147(e) requires
that stripped or removed asbestos materials be wet during all
stages of demolition or renovation and related handling
operations, and §61.147(f) allows alternatives to wetting
during freezing temperatures. Section 61.145(c) exempts
demolition operations, pursuant to a State or local order, on
structurally unsound buildings from all requirements except
those enumerated in the -subsection.
In addition, §61.152 prohibits any visible emission from
the collection, packaging, transporting, or depositing of
asbestos from any demolition or renovation, and requires that
asbestos waste be deposited at acceptable waste disposal
sites. S61.156 prohibits visible emissions from an active
waste disposal site except under specified and limited
conditions. Because of regulatory limitations this strategy
Qoncentrates onãsbestos removal operations as opposed to
asbestos waste transportation and disposal. When the asbestos
NESHAP is revised to allow for more attention to asbestos
waste disposal requirements, Regions and states should increase
their oversight of those requirements. In the Interim
the strategy should Include a program of inspecting each
disposal site to determine what are the usual practices with
respect to waste handling. After these initial Inspections,
perform random multi—day inspections to observe the actual
disposa]. of waste at each site, and determine who put waste
into the landfill during the period of surveillance so that
responsibility could be assigned to contractors if improper
disposal practices are noted at the landfill.
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Strategy Components
1. Outreach — EPA and the delegated agencies could
approach enforcement of the asbestos JESHAP by devoting
resources entirely to catching owners/operators in the act
of violating IESHAP requirements and taking appropriate
enforcement measures. However, enforcement of the NESHAP
could be easier and more effective if it is directed towards
a regulated community aware of EPA requirements rather than
a regulated community unsure of those requirements. By now
owners/operators should be familiar with the NESHAP, but
sometimes the ’ could benefit from £PA guidance such as
past EPA applicability determinations.
There are many methods of developing a compliance
assistance component to an enforcement program. A pamphlet
containing easy—to—understand explanations of the regula-
tions and phone numbers of appropriate agency personnel
who can provide further assistance can be distributed to
removal contractors and anyone else concerned with the
hazards involved with asbestos removal. Another way for
EPA and delegated agencies to provide compliance assistance
is to. meet the regulated community in person. Seminars
and demonstration workshop presented to contractors and
owners and managers of commercial buildings can- be greatly
effective. In addition, discussion forums with school
district administrators, architects, lenders, real estate
groups, and insurance agency representatives can create
a general public awareness of asbestos hazards and EPA
regulatory requirements. Radio talk shows concerning
asbestos hazards will produce the same effect. EPA’S
Hazard Abatement Assistance Branch (HAAB), formerly Asbestos
Action Program, of the Office of Toxic Substances (OTS)
offers technical assistance to the public through training
seminars, telephone contact with the public, guidance
documents, and other means which are all described
in APPENDIX L. EPA and the delegated agencies should make
a significant commitment to public education and outreach
to create increased awareness and understanding of the
regulations among the regulated community and an atmosphere
of agency—contractor cooperation.
2. Contractor Training — Most states have established
some type of contractor certification or training program for
asbestos removal. Further, the Model Accreditation Plan under
the Asbestos Hazard Emergency Response Act (A.HERA) requires
that all states establish accreditation programs for persons
who inspect, develop management plans, or design or conduct
response actions in schools. APPENDIX I lists the status of
the state certification requirements for all states. States
which have not yet adopted certification requirements for
asbestos removal workers may have to make greater use of the
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outreach methods described in Section 1 to educate contractors
as to what inspectors expect to find at a removal site in
order to verify compliance with the NESHAP. HAAB asbestos
removal training is provided by the Office of Toxic Substances
COTS) in response to legislation enacted for the Asbestos in
Schools program. The HAAB training centers and the training
they provide are discussed on pages 4 — 6 of Appendix I.. In
addition to providing training on campus, some of these
institutions schedule training sessions at other locations
nationwide.
Regions should encourage states to adopt contractor
certification requirements for NESHAP removal activity.
Considering that contractors already need to be certified for
removal work under the Asbestos Hazard Emergency Response Act
(AHERA), a logical way for states to require certification
under the NESHAP is by expanding the AHERA certification
requirement to all demolition/renovation contractors.
3. Inspector Training — Inspector effectiveness at
finding violations and documenting evidence at subject
demolition and renovation sources is the basis for EPA’s
asbestos NESHAP enforcement program. The only way to
ensure this effectiveness is to provide inspectors with
-- training on inspectionprocedures and safety, and to
familiarize them with the NESHAP and other pertinent
regulations. To help accomplish this, SSCD has established
the Asbestos NESHAP Inspection Workshop — a classroom
training program available to the Regions and states.
In light of the many changes in EPA asbestos enforcement
since the Inspection Workshop began, SSCD is currently
revising the Workshop Manual and will periodically review
and update the revised manual in the future. This manual
should be published in April 1988 for distribution to the
Regions and delegated agencies.
Agencies should also consider sending their asbestos
inspectors to one of the HAAB training centers identified
in APPENDIX I. so that their inspectors will be aware of what
certified removal contractors are being taught about complying
with the asbestos NESHAP. Because most asbestos NESHAP
inspections are conducted by state and local inspectors, it
is important to encourage the delegated agencies to send
their inspectors to both the SSCD and HAAB training, as well
as any contractor certification training provided at the
state level.
4. Inspections — Inspections provide the foundation for
all asbestos NESHAP enforcement actions for substantive vio-
lations, and are therefore of primary importance in enforcing
the NESHAP. In most cases, it is necessary for the inspector
to enter active removal areas both to determine compliance
and to collect evidence of any non—compliance.
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The following is a list of positive inspection
techniques:
o Bring copies of the NESHAP regulations to the inspection
site to leave with owner/operators and for the inspector’s
own reference ;
o To the extent possible assess the site to be inspected,
in compliance with Section 114 and 4th Amendment require-
ments, prior to making your presence known;
Along with presenting credentials, provide a calling
card for future reference by the facility owner/contractor;
o Clearly identity the line of authority between all parties
involved, i.e., subcontractor, oversight contractor,
general contractor, owner, etc.;
0 Use a standard checklist and complete as much information
as possible before tering a contaminated area in order
to minimize the time in the contaminated area;
0 In.addition to asking the appropriate representative if
he or she is aware of the regulations, ask them to verbali(
describe their understanding of the regulation;
• Carry only essential items into the contaminated area,
items such as a clipboard can be left outside;
O Samples should be taken at every site inspected.
When samples are taken, label immediately and log number
onto the inspection checklist and log onto a chain—of—
custody form;
• Photograph with waterproof automatic cameras;
o Estimate the amount of asbestos in linear or square feet
by pacing off or using a tape measure;
o Always conduct a quick to—the—point wrap—up meeting and
inform the owner/operator of findings, but do not interpret
the regulation or make compliance determinations;
° To the extent possible reference all discussions to
specific requirements in the regulation being enforced;
Always wear appropriate safety gear.
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The inspection techniques referred to three items
which are especially important equipment for asbestos NESHAP
inspectors — checklist, camera, and safety gear. This
equipment, described below, is considered standard
inspection gear.
a) Checklist — In order to reliably document evidence
of compliance status at each subject workslte, the
inspector must enter all pertinent information onto
a reasonably detailed checklist while the findings
of the inspection are fresh in memory. The inspector
should complete as much of the checklist as possible
prior to entering the worksite. So as not to make
the checklist an item requiring decontamination, the
inspector should not bring the checklist inside the
removal area, but instead complete the rest of the
checklist entries immediately after conducting the
inspection. A good checklist such as the example
shown in Appendix H will provide the inspector an
outline of what to look for during the inspection.
In order to complete the checklist the inspector
must enter the removal area. This reflects EPA’s
policy that Inspectors should, whenever possible,
observe asbestos work practices in progress in order
-to assess compliance. When the barrier to a contain-
ment area is transparent or when asbestos fibers are
released outside the containment area, it may not be
necessary to enter the removal area to observe work
practices. However, because samples are to be taken
during each inspection, It may still be necessary to
enter such a site to collect samples.
If an inspection reveals NESHAP violations, the
inspector should write a report summarizing the
inspection and specifying the conditions unique to
the work site which could not be entered onto the
standardized checklist.
b) Camera — Photographing removal activity can provide
some of the strongest evidence of non—compliance.
Supplying inspectors with reliable cameras is necessary
to ensure that photographic evidence will contribute
to the agency’s cause should a civil action become
necessary. Waterproof automatic cameras are especially
useful in the wet environment found at many removal
sites, and will endure decontamination showers.
c) Safety Gear — EPA’S most recent guidance concerning
safety gear for asbestos inspectors is contained in the
May 1987 “Interim Health and Safety Guidelines for EPA
Asbestos Inspectors.” These guidelines should be
referenced to ensure inspector protection.
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Inspections reported in the computer tracking system
outlined in APPENDIX A and subsequently reported into SPMS
must consist of sample collection and observation of work
practices whenever possible. Regional and delegated agency
inspectors should be attentive to the positive inspection
techniques and implement them whenever possible as well.
Of course, if an inspector arrives at an unfinished
removal site when no removal activity is occurring, the
inspector will be unable to present credentials and questions
to the appropriate representative, observe work practices,
and conduct a “wrap—up” meeting to inform the owner/operator
of specific violations found, but will still be able to
take samples and photographs and complete a standardized
checklist as much as possible. It may still be possible
to make a compliance determination based on the evidence
presented.
5. Inspection Targeting — The number of notifications
received by EPA and the delegated agencies has risen from
20,537 in 1985 to 29,087 in 1986, and in 1987 this figure
rose to 43,496. Because of this tremendous increase, Regions
and their delegated agencies must make more efficient use of
inspectors’ time by implementing a targeting system which
strategically identifies which notifications or contractors
to follow up with inspections.
The computer tracking system described in Appendix A
is designed to assist agencies in targeting their inspections.
The instructions contained in Appendix A establishes conventions
for the input and retrieval of contractor records, and because
the entire inspector targeting method which follows is based
on the use of the computer tracking program, these instruc-
tions should be reviewed carefully. It will be required of
all delegated enforcement agencies to use the tracking program
for inspection targeting. Prioritizing inspections by
identifying removal sites where violations are most likely
to occur will enable Regions and their delegated agencies
to make more efficient use of resources. Inspection priority
should be based on a simple evaluation of computer tracking
data involving the assessment of contractor compliance history.
Tables 1 and 2 illustrate this sort of evaluation. Table 1
lists criteria discerned from the computer system, and
criteria found on individual notifications to be prioritized,
and gives numerical ratings for each criteria. By assigning
numerical ratings to the tracking and notification criteria
identified in Table 1, the inspection priority pertaining to
each notification received can be determined by comparing the
summation of the ratings to the rankings listed in Table 2.
This evaluation, or a comparable method of evaluation, should
be done for each removal activity to determine the need for
inspecting each work site.
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TABLE 1 Tracking Criteria Rating
Contractor is Listed as Described
in Section 7 of this Document ....... 10
Contractor Violated at Least Once
During 3 Most Recent Inspections .... 10
Contractor has Not Been
Inspected for Two Years ............. 10
Contractor has Not
Been Inspected in past year ......... 7
Contractor is Not Certified
by an Approved Accredited Program ... 3
Contractor has a Recent
Trend of Notification Violations .... 7
Notification Criteria
No Notification Received .............. 8
LateNoticeReceived....... ..... 6
Notice Missing Location,
Dates and/or Amount of Asbestos ..... 6
Notice Missing Other Items ............ 4
Worksite in Occupied Building or
Area of High Population Density ..... 5
TABLE 2 Priority Ranking .
TOP Priority 10 or above
HIGH Priority 5 — 9
LOW Priority 0 — 4
An Inspection targeting evaluation establishes inspection
priority based on computer tracking data. It does not limit
Inspections to the criteria listed in Table 1. Citizen
complaints cannot be recorded in the computer tracking system,
but they should be followed up with inspections based on agency
judgment.
Non—Notifiers
In addition to the criteria listed in Table 1, special
attention should be given to removal jobs for which no
notification was received. As documented in the Inspector—=-
General’s asbestos NESHAP audit report, efforts to identify
non—notifiers should include:
0 Checking building permits or public works files;
• Reviewing waste disposal site records;
* Discussing consistent underbidders with national
demolition contractors:
* Coordinating with state, county, and city departments
of building and health, and with Federal offices such
as OSHA and Department of Education;
0 Reviewing publications such as National Wrecking and
Salvage Journal, newspapers, and magazines.
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Region 3 has researched the problem of identifying
non—notifiers and has documented their findings in a
report which has been incorporated as APPENDIX F. Seven
licensing and permitting agencies and several landfills
in Philadelphia, PA and Richmond, VA were visited and
record/file reviews were conducted. In these two cities
Region 3 found that reviewing records (e.g., manifests,
contracts) at the landfills was the most productive method
of identifying non—notifiers.
Because of differing levels of asbestos NESHAP enforce-
ment funding among delegated agencies, some agencies will be
capable of inspecting HIGH and TOP priority work sites as
well as some LOW priority sites, while other agencies may
be limited to inspecting mostly TOP priority sites. When
delegated agencies are finding it increasingly difficult to
maintain a high level of asbestos NESHAP inspections due to
funding limitations, they should adopt cost effective altern-
ative enforcement mechanisms which when combined with modest
inspection levels, will allow these agencies to maintain or
enhance their present enforcement posture. Such alternatives
are discussed in the following section.
6. Program Alternatives . — Some states have remarked
that maintaining their established ini I ion levels is
difficult because of many changing demands being placed on
the program. In order to accomodate these states while
maintaining or enhancing their established enforcement posture,
Regions should seek an agreement which includes the incorpora-
tion of either of the following optional requirements into
their state enforcement program coupled with the inspection
targeting program outlined previously. When combined with a
penalty policy of sufficient stringency for each violation
type, the adoption of such requirements would be an acceptable
state asbestos NESHAP enforcement program modification.
I. Certification
This alternative entails the adoption of a state—wide
contractor certification program, where the following
minimum requirements would apply:
At least one supervisor certified in asbestos removal
shall be present at each affected NESHAP removal site when
removal work is ongoing. Certification shall be attained
only by satisfactory completion of training at a state—
approved training program, one of the EPA—approved courses
identified in APPENDIX L, or any equivalent course. Any
state employing this enforcement alternative shall exercise
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the authority to revoke the certification of any removal
contractor found to be in violation of NESHAP
requirements. When a contractor becomes listed as described
in Section 6 of this document, certification should be revoked
automatically. Certification requirements developed under
AHERA, and expanded for all demolition and renovation
activities, would meet this requirement. Each certification
training course must include the following:
a) Education about the hazards of asbestos exposure,
b) Clarification of NESHAP requirements,
c) Training in removal procedures,
d) Training in transportation and disposal procedures,
e) Safety training.
II. Asbestos lanifest
Delegated agencies can implement this alternative by requir-
ing waste shipment manifests for all asbestos waste shipments
from affected sources. The manifest should be similar in
detail and implementation as the Uniform Hazardous Waste
Shipment Manifest (Appendix C), but specifically designated
for asbestos containing waste. An asbestos manifest is a
waste tracking form used to verify that asbestos waste is
deposited at an approved waste site. Each removal operator
enters information onto the manifest pertaining to the
amount of asbestos waste, and the designated disposal
site, for each waste shipment from a removal site. The
transporter of the waste then acknowledges on the manifest
that he has received the indicated amount of asbestos
waste for shipment to the designated disposal site.
Before the transporter hauls the waste, the removal operator
keeps a copy of the manifest indicating that the transporter
has received the waste for shipment to a NESHAP approved
disposal site. When the transporter arrives at the disposal
site, the disposal site operator acknowledges on the
manifest that the asbestos as described by the generator
was disposed of at the designated disposal site. At this
point the manifest form is complete. Now, the original
is sent to the delegated agency informing enforcement
personnel that the waste was properly disposed, one copy
is sent to the removal operator in’dtea-t ing regulatory
compliance, and the other two copies are maintained by
the transporter and the disposal site operator.
III. Notification Fees
This alternative would require the owner/operator of a
removal site to submit notification wi•th a notification
fee in an amount determined by the amount of asbestos
containing material involved in the removal operation.
For instance, if removal entails over 1000 linear feet
or 5000 square feet of asbestos containing material, a
$500 notification fee may be required. For removals
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involving less than 1000 linear feet or 5000 square feet
but greater than 260 linear feet or 160 square feet a
notification fee of $250 may be required. If the delegated
agency’s asbestos removal regulation covers removal acti-
vities that involve levels of asbestos containing material
less than that of EPA’s threshhold (260 linear feet or 160
square feet), a different fee would be required. By
implementing this alternative delegated agencies can fund
a significant level of their enforcement program depending
on the level of fees required.
While these alternatives are not required as a mandatory
part of an acceptable asbestos demolition and renovation
enforcement program, they do represent examples of how state
and local agencies can improve their knowledge of the regulated
community. Although these options may have their own resource
demands, implementation of these kinds of activities should
ultimately allow state and local agencies to improve their
compliance rates while maintaining a reasonable resource
commitment.
Concurrent with the implementation of one of the above
requirements, states must employ a penalty policy with fines
of sufficient stringency for each violation type in order to
achieve an acceptable enforcement alternative for maintaining
enforcement posture when. inspection levels suffer from budgetary
restrictions. Enfo cement alternatives are to be aggressively
implemented by states seeking cost effective enforcement
methods, and should not have the effect of diminishing the
state enforcement posture. A penalty policy change without
Implementation is not acceptable. EPA and stateá must agree
on a minimum acceptable level of state inspections and vigorous
pursuance of violators.
7. Federal Enforcement Options — EPA has the authority
to use administrative and/or judicial enforcement against
asbestos NESHAP violators. Administrative actions may be
taken when EPA has the opportunity to stop noncompliance and
establish NESHAP practices. EPA cannot collect penalties
administratively, although several states have that authority.
Regions should encourage states which are able to collect
administrative penalties to do so liberally.
The only way EPA can collect penalties is through judicial
action. Considering that EPA and the delegated states are
uncovering increasingly high numbers of violations, judicial
actions taken against violators should be expected to increase
also. However, nationwide, this has not been the case. The
rate of asbestos NESHAP referrals has been relatively stagnant
as the rate of violations uncovered continues to rise substan-
tially. An intended effect of this strategy is to induce an
increased rate of referrals from the Regions and delegated
agencies.
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— 13 —
Figure 1 on page 14 illustrates the various enforcement
options. Choosing the- appropriate option for each demolition/
renovation source in violation, for which EPA takes the
enforcement prerogative, means using administrative and/or
judicial enforcement action, unless the matter can be resolved
informally or should be referred to OS IA or another EPA
program office.
I. Administrative Actipns
EPA can pursue administrative actions through Section
113(a)(3) orders or Section 303 orders, although Section 303
of the Act is seldom used in asbestos NESHAP enforcement.
Notices of Violation (NOV) 1 are often issued by EPA to
NESMAP violators, although NOVs issued by EPA have legal
significance only when issued to violators of State Imple-
mentation Plans (SIP). Because the CAA does not require the
use of NOV8 for L’IESHAP sources, an NOV issued to a NESHAP
source is nothing more than an informal warning.
Section 1l3(a)(3) orders may be issued to violators
when they are found Out of compliance with substantive
requirements while removal work is ongoing. In order to
assist the Regions in this procedure, a generic 1l3(a)(3)
order which can be issued in one day is presented In APPENDIX
Nt. . Also included in APP IDIX M is a generic temporary
restraining- order which can be used if the situation is
considered serious--enough. Section 113(a)(3) orders can
require immediate compliance, and although EPA cannot collect
penalties with the order, the issuance of a §113(a)(3) order
subjects the source to penalty liability in a judicial action
under §113(b). Section 113(a)(3) orders should also be
issued to sources which continuously submit deficient
notifications. Such an order prohibits further submittal of
deficient notifications, and makes the contractor liable for
penalties pursuant to the order as well as the NESHAP itself.
Issuing n NOV in this situation does comparatively little.
Art example of a combined Section 113(a)(3) order/Section 114
Information Request is shown in Appendix D.
II. Judicial Actions
Judicial action under the asbestos NESHAP can take
the form of a civil action as provided for in Section 113(b),
or a criminal actio &s rovided for in Section 113(c).
EPA can also pursue a civil action under Section 303, however,
no Region has done this to date. The September 28, 1987
memorandum entitled “Procedures for Pre—Referral Settlement
of Asbestos Demolition and Renovation Cases” (Appendix E)
outlines procedures for negotiated settlement through judicial
consent decree. These procedures are designed to facilitate
1 NOV is used here as a generic term to include letter of
violation, finding of violation, notice of deficiency, etc.
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FIGURE 1
Informal
Conference
with Source
— - 303 Region Develop. HQ
— Formal Judicial - 113(b) — Litltgation — Review Referral — Court
________ ________ - 113(c) Report _________ to DOJ Order
- 1 13a
Administrative
_______________- 303
_____________-JOSIIAI
Cross Program - 17003 o [ RCRAI
Rleaent. ___________________________
______________ - 1104 .106(a) 1 107 of CERCI.AI
- ITOSCAI
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— 15 —
the settlement process and enable Regions to increase
judicial enforcement without straining resources.
EPA may bring a S113(b) civil action for injunctive
relief requiting compliance with the regulations. EPA may
also seek civil penalties of up to $25,000 per day of
violation. EPA’S present asbestos NESKAP penalty policy
is shown in Appendix B. Although civil actions under
113(b) do not ordinarily seek immediate injunctive relief,
the broad grant of authority to “commence a civil action
for a permanent or temporary injunction” encompasses
temporary restraining orders and preliminary injunctions.
In other words, the Government could proceed under 113(b)
to seek immediate compliance with the asbestos standards,
as well as civil penalties, provided it can satisfy the
legal standard for immediate injunctive relief.
EPA can initiate a Section 113(c) criminal enforcement
proceeding when there is evidence that a person knowingly
violated the asbestos demolition and renovation requirements.
A conviction under the criminal provision of the Clean Air
Act can result in imprisonment of up to one year and/or a
penalty of up to $25,000 per day of violation, and greater
sanctions are faced for a subsequent conviction. The effective
use of the criminal provisions can provide a strong message
Eâ the regulated community that EPA does not tolerate blatant
disregard for the asbestos NESHAP.
III. Contractor Listing
Another useful er forcement option is contractor listing
as descibed in 40 CFR S15.10 — 16. When EPA lists a contractor
that contractor cannot be awarded any contract to perform work
where Federal funds are involved. Also, a listed contractor
cannot be subcontracted to remove asbestos by another contractor
under contract with the federal government to perform asbestos
removal. Contractors convicted of criminal NESHAP violations
under CAA Section 113(c) are automatically listed as provided
in §15.10 (Mandatory Listing). Under §15.11 (Discretionary
Listing) EPA can list contractors which have violated a
SU3(a) administrative order, received any form of civil
r.u.ljog from any court, or are the subject of a civil enforcement
action from EPA. Additionally, if any person who owns or
supervises a contractor firm is convicted of a criminal offense
by any court, that contractor firm can be listed. Appendix I C
is intended to clarify the application of contractor listing.
State certification requirements should require that state
certification will be revoked if a contractor becomes listed.
8. Choosing Enforcement Option — When detected, each
violation should be entered into the computer tracking system
described in Appendix A so as to provide a record of viola-
tions listed by contractor. In order to assist in deciding
when these records indicate that a particular enforcement
action is appropriate, the following tables were constructed.
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TABL E 1
Notification Violation Response
No notification 113(a) order
Submittal of late notification 113(a) order
which is not received in time
to schedule inspection
Submittal of notification which 113(a) order
is missing dates, location and/or
amounts of asbestos
Submittal of an incomplete notice *Enter deficiency
of removal (Minor violations) on tracking system
Continued submittal of incomplete 113(a) order
notifications (Minor violations)
Violation of Order Civil Action
* As stated previously, this is done for every violation type.
TABLE 2
Substantive Violations*
Detected during early stages 113(a) Order
of removal
i) Violation subsequently Consider Civil Action
corrected
ii) Violation Civil Action
continues
Iii) Unsure whether or not Issue 114 Information
violation corrected Request and Consider
Civil Action
Detected after removal or during Issue 113(a) Order
final stages of removal while writing civil
referral package
* Substantive violation is a work practice violation
detected during inspection or from a S114 information
request response.
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—17—
9. Assessing Penalties — The Asbestos Demolition/Renovation
Penalty Policy (Appendix B) provides the framework for
assessing penalties for settlement purposes under the asbestos
NESHAP. Consistent with the comprehensive penalty policy,
the Region should determine a “preliminary deterence amount”
by assessing an economic benefit component and a gravity
component. This amount may then be adjusted upward or downward
by consideration of other factors, such as degree of willfulness
and/or negligence, history of noncompliance, and ability to pay.
As stated by the Inspector General’s office, when resolving
litigated cases contractors should be required whenever
appropriate to provide a list of asbestos removal jobs for
which the contractor did not get the bid, and the names of
the successful contractors. Also, delegated agencies should
be required to document any mitigating factors that result in
penalty waivers or reductions.
10. Reporting — The format for SPMS reporting has been
revised. The SPMS form shown in Appendix G provides the
format which will now be required for SPMS reporting.
Violations will be reported in terms of substantive violations
(work practice violations dicovered during inspection or from a
S114 information request response) and notification violations
(late notices, notices lacking dates, location and/or amount
of asbestos in proper units). Also, the number of sources
inspected will be reported. When reporting the number of
referrals, include only those civil and criminal litigation
actions initiated in the same Quarter as the SPMS report
indicates. Collection referrals are not to be included.
Regions must ensure that there is no double—counting
of notifications. The practice of reporting two notifications
(one reported by the Region, and the other by the delegated
agency) for one removal activity makes it impossible to correctly
assess the number of removal jobs for which notification
was submitted. The number of inspections reported from the
delegated agencies should consist of only those inspections
meeting the criteria for a reportable compliance inspection
as described in Section 4 of this document.
11. Regional Oversight — Regional Offices should
implement an oversight program to ensure that the delegated
agencies are performing acceptable compliance inspections,
and resolving violations appropriately. Performing joint
EPA—state Inspections is the best method to review delegated
agency inspections and establish the criteria which constitute
an acceptable compliance inspection. Each delegated state’s
program should be evaluated to assess inspector training and
safety as well. For Regions with both delegated and undele—
gated states, Regional inspections should be concentrated
In the undelegated states. Regions should construct written
reviewable inspection programs which incorporate the Inspection
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—18—
criteria documented in Section 4 of this document as well as
the targeting system established in Section 5 of this document.
Regions should also ensure that delegated states do likewise.
A written assessment of each delegated agency’s compliance
with grant conditions including the verification of program
results should be made semi—annually by the Regions.
12. Cross—Program Coordination — In addition to being
regulated under the NESHAP program, asbestos is regulated
under OSHA provisions, the EPA Toxic Substances Control
Act (TSCA) Title I, and TSCA Title II. Under TSCA Title I,
the TSCA Worker Protection Rule regulates any asbestos
abatement work (removal, encapsulation, or enclosure)
performed by persons employed by state, county, or local
government in those states withoub an OSHA delegated program
or an EPA approved exempt program. These states are listed
in Appendix J. The Office of Toxic Substances expects to
extend coverage of its Worker Protection Rule to service
personnel who, in the course of operations and maintenance
activities, receive exposures comparable to those experienced
by private sector service workers performing work subject
to OSHA.
The OSHA provisions require an 8—hour time—weighted
average airborne employee exposure of not greater than 0.2
fibers per cubic centimeter of air. Engineering coAtrols,
wet methods, respirators and special clothing are required.
The Worker Protection Rule Imposes the same major require-
ments of the OSHA provisions, but differs in that the Worker
Protection Rule applies solely to activities involved in
asbestos abatement, in contrast to the OSHA standard which
applies generally to any construction activity involving
exposure to asbestos. NESHAP Inspectors can help OSHA’s
enforcement efforts by reporting the absence of required OSHA
safety measures at inspected NESHAP removal sites. To help
implement such an effort the standardized NESHAP inspection
checklist (Appendix H) has a section for recording the
presence or absence of required OSHA measures. When the
negligence of OSHA requirements are noted by NESHAP inspectors,
OSHA should be notified as soon as possible. When the negli-
gence of OSHA requirements are observed at a NESHAP site
where removal work Is being done by state or local government
employees at one of the states listed in Appendix J, in
addition to notifying OSHA, the inspector should ensure that
the TSCA Regional Asbestos Coordinator (RAC) is notified as
well for possible violations of the Worker Protection Rule.
Under TSCA Title II, the Asbestos Hazard Emergency Response
Act (AHERA) requires local educational agencies (LEAs) to
inspect school buildings for asbestos containing material,
and develop and implement managerial plans. Persons designing
and conducting response actions (i.e., removal, encapsulation,
enclosure, or repair) In a school building must be accredited
under AHERA for that activity.
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—19—
EPA NESHAP and TSCA programs in the Regions should be
coordinated to maximize information collection and sharing,
consolidate compliance assistance efforts, and unify enforce-
ment activities among all the Agency’s asbestos programs.
Pilot programs should be initiated to formally or informally
coordinate NESHAP and TSCA activities in the field. In Region
VII, a full—time technical assistant under the Senior Environ-
mental Employment program of the American Association of
Retired Persons (AARP) acts as liason between NESHAP and
TSCA efforts. In Region X, the NESHAP coordinator and the
TSCA RAC voluntarily coordinate program activities to
maximize resources and provide a more unified presence to
the affected public.
When a NESHAP inspector inspects a renovation taking
place at a school, the inspector should ascertain whether or
not site supervisors and removal workers are accredited under
the EPA Model Plan required by AHERA. If AHERA accredidation
requirements have not been met, this should be reported to
the TSCA RAC. Considering that most TSCA inspections are
performed by AARP personnel who are restricted from entering
removal sites when work is ongoing, TSCA can benefit greatly
from any pertinent information obtained by the observations
of NESHAP inspectors inside the removal area. If the TSCA
program develops a pamphlet describing AHERA record—keeping
and clearing response action requirements, NESHAP inspectors
can hand these out at schools they inspect. NESHAP Inspectors
can also verify if transportation and disposal of asbestos
wastes from these schools is in accordance with NESHAP/DOT
requirements. Also, NESHAP personnel should inform the TSCA
section when a notification is received from a school.
EPA TSCA inspectors should notify the NESHAP Regional
Asbestos Coordinator (RAC) whenever apparent violations of
wetting, bagging, no visible emissions, and/or disposal
requirements at NESHAP removal sites are observed by their
Inspectors. TSCA inspectors can also provide the NESHAP
RAC with a list of known removals based on records inspec-
tions. OSHA inspectors should also notify the NESHAP RAC
when potential NESHAP violations are observed.
As members of the Federal Asbestos Task Force established
in June 1983, EPA and OSHA are mandated to develop a unified
federal approach for the regulation of asbestos. The preceed—
Ing coordination recommendations are examples of objectives
which should be agreed to in writing by the EPA offices and
OSHA to memorialize that this type of cooperation will take
place.
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10
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II / OL ff 77
•; .
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,v/O
Vz 5 //J;-’ ; fti t /c
U 1JLLa4L L1 6 -i t Zfk / 7 - &4 ’C i 1,c1 )
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71
A’ ,
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Interim Asbestos NESHAP Enforcement Guidance -—
“Friable asbestos” 1% by Area or Volume
vs. 1% by Weight
(04/18/89)
Part D, document #10
Note -- the memorandum portion of this guidance is
confidential and may not be made available to the
public
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J. tD I mJ
j UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
(SSW) WASHINGTON. D.C. 20460
1 Q C %
APR I8US
ATTORNEY-CLIENT PRIVILEGE
MEMORANDUM
SUBJECT: Interim Asbestos NESHAP Enforcement Guidance -
“Friable a bestos” 1% by Area or Volume v% .% by
Weigh
FROM: T • Hunt
Associate Enforcement Counsel
Air Enforcement Division OE
John S. Seitz, Director
Stationary Source Compl a Division
TO: Addressees
The purpos. of this memorandum is to inform you of a study
and methodology which should assist you in enforcing the asbestos
NESMAP where issues ar. raised concerning the percentage of
asbestos contained in samples used to support a case. This
methodology should be referenced until revisions to the asbestos
NESHAP are promulgated in final form, and should be used in
ongoing cases.
There is a discrepancy between the current definition of the
term “friable asbestos” contained in the asbestos NESMAP
regulations, at 40 C.F.R. Section 61.141 C”. • • material
containing mere than one percent asbestos ky.. . jjg . • •“), and
the test results produced by polarized light microscopy (PLM),
the method most frequently used by microscopists in the United
States when conducting asbestos bulk sample analyses.
Specifically, Pill results in a percentage measurement by area or
volume using the point counting or visual estimation method of
quantification. ( g Purple Book). Proposed revisions to the
asb.st 1AP were published at 54 Fed. Req. 912, on January
10, 19S$ vbich express the percentage in the definition of
“Triabl• embestos” at 40 C.F.R. 61.141 as a percentage by “area”.
This t, when promulgated, will conform the regulatory
definition of friable asbestos to the prevailing analytical
methods.
The intent of the 1% requirement Is to ensure broad coverage
of the asbestos HESHAP to include all cases where the regu1at ry
threshold amount of asbestos is present, and is not intended t
prescribe an exclusive analytical approach to establishing t e
presence of asbestos. Furthermore, most knowledgeable
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- Interim Asbestos NESHAP Enforcement Guidance -
“Friable asbestos” 1% by Area or Volume vs. 1% by Weight
- (04/18/89)
The memorandum portion of this document, signed by Terrell E.
Hunt, Associate Enforcement Counsel for Air Enforcement and John
S. Seitz, Director of the Stationary Source Compliance Division,
is confidential and cannot be released to the public. The
attachment to the memorandum is releasable and is attached
hereto.
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—2—
technicians consider that weight and arsa or volume p.rc.r.tages
are equivalent for asbestos samples. Defendants may, however,
try to defend against our use of asbestos bulk sampl. lab
analyses where the percentage is not expressed by weight. We
should, therefore, be prepared to make an additional shoving in
our cases of a correlation between percentages by weight and
percentages by area or by volume.
To facilitate this analysis, we hay, attached a peer-
reviewed study, entitled “Asb.ctos Content in Bulk Insulation
Samples,” which reflects the work of a number of Agency and
outside experts who examined this issue during th. past year.
The study confirms the general tenet that percentage by weight
and area or volume are roughly equivalent and provides assistance
in converting area or volume msasuremsnts to weight measurements.
Whenever the issue is raised by defendant, we suggest that the
procedures in this study be used to demonstrate th. correlation
between weight and area or volume measurements. Additionally, we
recommend that this analysis be performed and included in the
litigation report in all cases whers samples contain less than
10% by area or volume. Wi intend this purely as a precaution and
are not establishing a regulatory trigger for further analysis.
If you have any questions concerning thi. study and
procedure, please contact OECM-Air attorneys Rachel 11. Hopp (FTS-
382-2859) or Charles Garlow (FTS—475—7088), or Ken Malmberg tn
SSCD (FTS—382—2870).
Attachment
Addressees: Regional Counsels
Regions X-X
Air Division Directors
Regions I-X
Air Compliance Branch Chiefs
Regions I -X
Asbestos NESMAP Coordinators
Pgions Z-x
lack Far .r, Director
Emission Standards Division, OAQPS
David?. Busnte, chief
Environmental Enforcement Section, DOJ
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Seoie’Ce
as ” ç o” )C 2 46C
Toi, SuoStarCes
Asbestos Content In Bulk
Insulation Samples:
Visual Estimates and
Weight Composition
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EPA 560/548.011
September, 1988
ASBESTOS CONTENT IN BULK INSULATION SAMPLES:
Visual Estimates and Weight Composi
By
Ian M. Slwart
RJ Li. Group
Monroeville, PA 15146
Prepared f.r
Midwest Rue rck Insitute
Ka”u City, MO 64110
EPA Contract No. 6$.02.4252
Work Auipm.at 43
MEl Project $$61 .A43
Field Studies Brand
Exposure Evaluation Division
omcs of Toxic Substances
U.S. Environmental Protection Agency
WsAiagtos, DC 20440
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DISCLAIMER
This iepcrt wu pTepazed under connact to an agency of the United States Goveniment.
Neither the United States Government nor any of their employees makes any warranty,
expressed or implied. or assumes any legal liability for any thUd party’s use of or the
results of such use of any information, apparatus, product, or process disclosed in this
report, or tepreserns that its use by such third party would not infringe on pnvately owned
rights. Mention of trade names or commeicial products does not consdnaie endorsement
for use.
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JYrRODUCrION:
In April 1973, the U.S. Environmental Protection Agency (EPA) issued the National
Emissi Standaids for Hazardous Air PoUutani (NESHAp) for asbestos (38 FR 8820).
The NESHAP regulation governs the removal, demolition, and disposal of asbestos-
containing bulk wastes. An asbestos-containing product, as stated by the regulation, was
defined for the first tine to be a product with greaser than 1% asbestos, by weighL The
irneni of the 1% liunitwas:
...to ban the use of materials which contain significant
quantities of asbestos, but to allow the use of materials
which woul& (I) contain nice amounts of asbestos which
ocew in numerons naniral substances, and (2) include v y
small quantities of asbestos (less than 1 pacent) ed to
enhance the material’s effectiveness. (38 FR 8821)
It must be clearly understood that the EPA NESHAP definition of 1% by weight was not
established to be a health-bs,ed swidart
In May 1982, EPA issued a regulation which required schools to inspect and sample
suspect friable swfacing materials for their asbestos content. EPA miintained consistency
in its definition of an asbestos-containing material (ACM) by defining it U 1% by weight.
At that time, the Agency investigated the available methodologies for measurement of
asbestos fibers. 1 regulation incl”ded an interim methodo entitled Interim Method
for the Determination of Asbestos in Bulk Insulation Sanrples (47 FR 23376). The
polari light czosa,pe (PLM) protocol issued by tite Agency wan papered by expert
mieeralo ste and has been generally accepted by th. analytical coarmunity as the
appropriate ly l tool nraw.u . It of ube “ ‘ in bulk “n les
The iu14 1 m1 Includes a description of its quantitatk n procedure. This procedure
ernplo i a ue culled ‘paint counting’ to provide a de ation of the area percent
of asb in içle 8a on a nva uenwu made by paint co nng. the 1982 rule
steen ‘. ellible conversion of asea percent to thy weight ii not treiiLly feasible unless
the mci& pavides and reliths vohajias al the material ma u.’ EPA w Ird this
in a a*sendon to tite regulation in September 19*2(47 FR 3*535). EPA altered
paip th 1.7.2.4 of Appendla A of the rule by stating, “Perqmph 1.7.2.4 of Appendix A
of the rule was intended to provide for a point conting procedure or an equivalent
evu’- 4 m mathod for d5twjmining the amaunt of aibestee in balk iampks. This
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correction, acknowledged the practical and economic limitations of the poiru countIng
method and permitted the use of the visual estimation methodology. Visual esumation
methodology is employed by most PLM laboratories and gives results which are very
5irnil . a voIiw percentage.
In the following discussion, the validity of the assumptions that are made in exwapolating
an area/volume percentage estimation to a weight percentage estimation of the asbestos
content of insulation and other building materials will be examined. The reader should note
that this discussion considers only the expected variation from the ue weight percentage as
is found when applying the visual estimate technique to determine the asbestos content in a
bulk sample. The questions of laborarosy/analyst variability of such visual estimations axe
not considered in this discussion.
RELATIONSHIPS BETWEEN ARL4, VOLUME, AND WEIGHT PERCEHTAGE
The principles of stereology are well documented (see. for example, “Quantitative
Scereology,’ Underwood) and will not be reiterated here other than to state that in
classical stereology, with the assumption of a homogeneous disthbution of phases within a
solid, there is a direct relationship between the volume fraction of a phase present in the
solid and the area fraction of that phase observed in a section taken through the solid.
That is to say,
V A
where VP refers to the volume of the phase p present in the total volume V and A
represents theareaprojecnonofthacphaseinaplanarsectionofthatsolidoftoial areaA.
It should be noted that, for the classical rules of stereology to apply in a nansmission
sample, the section through the sample should be no thicker than the thickness or diameter
of the smallest
The point cuw dng method has been cxitici d as a technique for observing AOl because it
does not take into consideration the fact that the asbestos fibers present may be
comparatively thin in the Z direction relative to the other conq,owus present. Thus, if the
volume percentage of asbestos present is ex apolated frwu the projected area obtained by
the point counting technique. the volume percent of asbestos present will generally be
Underwood, LE., Quapi aa v S e’eoiogy, Mthi i .Wesisy Publishing Compesy, (1970)
2
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•,i_ i.
majority cC isboratcrics analyzing ACM have adapted a
visual w” which allows a cctain ameunt of Latitixie on the pm i _____- si
ccaipens for this thickness factor when e imniig sançles on the micnja ,e slide. In
most instaiwti . the visual estimation of asbestos consent is tiw I on a s1es microscope
with which the microscopist may mote readily esumale the third dimension. Therefore,
these esuniales may be mote readily eztrapoI ”d to a volume p nsege than those from
the point count method This technique is essentially that which is avpo.M in the Interim
American Society for Testing and Materials (ASTh) Method. Currently, this method is
being considered for adoption by the National Institote of Standards and Technology
(formerly the National Bureau of Standards) as part of its National Voluntary Laboratory
Accreditation Program for the determination of bulk asbestos in wnples This pmculuxe
will provide a measurement of the asbestos in the sançk which may be easily extrapolated
to a volume measwement.
CURREJ ITLY ACCEPTED WERIMF .WFAL METHOD
The currently accepted and most generally used methodology for the identification of
asbestos in building materials is compatible with both the EPA interim method and the
proposed ASTM method. Identification of the asbestos type present using polarized light
microscopy follows accepted mineralogical practices. The quantification of the asbestos
content by visual estimation which ii used is acceptable under the antendnrnl to the 1982
Regulation published in the Federal Reaister and is substantially the same as that
recommended in the ASThI method. It can be seen that thee is coinuily of ap osch and
direct correlation between existing data and that which may be vA..r d un& the ASTM
While the visual e” ’ procedure is generally called the polarized light microscopy
method, the edanscopiat, in fw uses a combination of a low mignilication stereo-
mi .Q.ope pe y examination and WL.-’ . of the psce ge of each fiber type.
followed detailed examination, using tbe polarized light microscope, of individual
fiber, ie d from belk materiaL 1 procedure has been on’ 11 ’ d in a draft to
ASThI C tsee D22. dated January 14, 198$— .isendard t. bod of Testing for
Asbesais- e rdig Manelals by POlari light M omopy.
3
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The method calls for bulk samples of building materials tb be first examined with a low
power binocular microscope . By use of such a microscope, the following observations can
beTn2A .
(1) The fibers can be detected.
(2) The homogeneity of the material can be determined.
(3) A preliminary identifIcation of the fibers present can be made.
(4) An estimate of fiber content by volume can be m ti
(5) Fibers may be separated from the mamx for more detailed
analysis of subsamples with the polarized light microscope.
The method has been used, essentially in its present form, by the majority of the
participants in the EPA Bulk Sample Analysis Round Robin pro am. These results
indicate generally good reproducibility and good accuracy in assessing the volume
percentage of an asbestos mineral present in an insulating material. The accuracy of such
an analysis does not differ very eatly ( torn the expected inhomogeneity (or homogeneity)
of the material being analyzed (manufacturers’ specifications generally show a range of
composition for anyone product which frequemly was additionally modified at the point of
application). In the ASTM technique, quantification of asbestos content is discussed in the
following terms: “A quantitative estimate of the amount of asbestos present is most readily
obtained by visual comparison of the bulk sample in slide preparations to other slide
preparations and bulk samples with known amounts of asbestos present in them.” The
document goes on to stare that estimates of the quantity of asbestos obtained by the method
are neither volume nor weight percent estimates, but are based on estimating the projected
area, from observation, of the distribution of particles over the two dimensional surface of
the glass slide, and on an observation of bulk material, and that a basis for c arecting to a
weight or volume percent has nor been established. It is this latter aspect which will be
discussed more fully in this document. The ASTM method, however, provides for the
percentage to be first assessed from the bulk material as observed on the stereomicroscope;
it would seem, therefote, that this percentage is a closer approximation to a volume
percentage tarI r than a projected area one. In addition the ASTM document states,
“However, the eiTo ’ inu’oduced by assuming that the estimates are equivalent to weight
percent is probably within the precision of the visual estimate rechnlqte.”
4
-------
CORREI..4T!ON OF WEIGh7 PERCENTAGE WtTH VOLUME PERCENTAGE
To correlate weight fraction of the phase to its area or volume fraction, it is necessary,
as is pointed out in dte EPA. Test Methc4 that the specific gravities and relative volume
fractions of all the phases present in the material are known. 1
In any multicomponent system consisting of n components, the weight percent of
component i is given by the following focmulL
P 1 xVjx 100
i=n (1)
.EP 1 xV 1
i —i
where P 1 is the specific gravity of the liii component and Vj is the volume of the ith
component. Fnxn this formula, it is clear that if the volume nt and the density of each
individual element in a bulk insulation sample is known, it would be possible to obtain a
weight percentage for any parncular component and specifically far chose components
which are classed as asbestos. To determine this information experimentally would,
however, be extremely time consuming. requiring the separate identification of each
component in the matrix, determining its specific gravity f reference tables, and
applying these f tors in the formula.
An alternative conversion is therefore suggested in which an average density is assumed for
the nonasbestos mamx. In this model, the weight percentage, Wa, of a particular asbestos
type present at a y 0 hn i pesuntage of V 1 and having a density of P 1 present in a marnx of
density Pin is gswn by formula
P 1 XVZ100 (2)
(100-V) a P + (V 5 a P)
The density value a Ibed to the nonasbestos maMa should be selected t frbig into
consideados major oussasuents of the mama but, for a large range of commonly
encountead l pa1c man 4 ’ ’ , $ value of 2.5 gftm 3 may be au jmNL
I lu f I Ths . ü’ a l A v i 8a ‘ ‘‘‘
A 6OWMA-*2 . O. Ds , 19*2.
S
-------
PRACTICAL APPLICATION
These formulas will be applied to a range of samples. In applying formula 1 to determine
actual weight percentages, published values for the several components were used. To
determine the weight percentages using the model described by formula 2, a mathx density
of 2.5 gfcm 3 was assumed.
Sample 1 Acoustical Material
Sample 1 is a sample of an acousñcal material taken (torn an actual ceiling tieannent.
Vol% Wt% ( Actual) Wc% ( Model )
Chiysodie 15.0 15.12 15.51
Glass Fiber 60.0 60.47
Catbonase 10.0 10.85
Cement 3.0 3.26
Clay 10.0 8.53
Gypsum 2.0 1.78
(Appendix I shows in detail how these weight percentages we calculated.)
Sample 2 Round Robin Sample from Independent QC Ring
Sample 2 is from an independent round robin sample series in which four laboratories
participated. Reported values for amosite content were 30%, 30.40%, 45%, and 15.20%.
The results from the second laboratory were taken using the midpoint of the reported
compositional range (the midpoint of the reported range for sample two was selected as
most probably representing the actual composition, lying between the reported values of
one and three, with four regarded as an outher).
Comportent Vol% Wt% ( Actual) W4 ( Model )
Amosite 35.0 38.82 41.55
Carbonate 35.0 32.94
Cement 30.0 28.24
Sample 3 Sample A EPA Bulk Sample Analysis Round Robin No. 16
Sample 31s sample A from iM EPA Bulk Sample Analysis Round Robin series, Round
number 16.
•.T. , ii
Wt% ( Actual )
Wt% ( Model )
3.0
87.0
10.0
4.04
92.29
3.67
Amosie
Glass
Cellulose
Volume paternage dale (or samples 3.4.5 and 6 we avaiges & ea from EPA Round Robin
teports and would not normally be repeited to ilus level of siptha ace.
3.92
6
-------
Sample 4 Sample D EPA Bulk Sample Analysts Round Robin No. 16
Sample 4 ii Sample D from the EPA Bulk Sample Analysis Round Robin series, Round
Number 16
rIwLn flj VoL% Wt% ( Acniafl Wt% Mn fl
Chrysosile 3.0 3.53 3.12
aay 97.0 96.47
Sample S Sample D EPA Bulk Sample Analysts Round Robin No. 17
Sample 5 is Sample D from the EPA Bulk Sample Analysis Round Robin sales, Round
Number 17.
ço nt Vo I% Wt% ( Aetuafl Wr% Mo&fl
Chiy,osile 2.9 2.56 3.01
30.7 34.40 36.90
C nw1L 66.3 63.04
Sample 6 Sample A EPA Bulk Sample Analysis Round Robin No. 17
Sample 613 Sample A from the EPA Bulk Sample Analysis Round Robin series, Round
Number 17.
Vol% Wt% ( Aem fl Wt% ( Modefl
crocidolite 97.0 97.52 97.78
3.0 2.48
ft is clear from these data that, for most samples, the weight puc utage of the asbestos
con nc is not substantially different from the luma pesvcnta which ii tiuiuilly repixted
and is within the eapected variation both of the analytical procedwe and the sample
homogeneity. A close esdmar of the weight percema can be derived from a simple
medel which Uiiiu I an average matrix density of 2.5 g6¼m 3 .
Plots of the ffesence between observed voluma per eatage and calculated weight
pereentage y.adla, density 2.6 gft&. (Flguse 1) and aocidoliss, density 3.4 g(cm 3 ’
(Figwe 2) — u calculated using this modeL The insliIIli..m deviadcs between the
numarical vales of weight and voluma pes ntap cws near the 50% iesk and, in the
worst c ane (auciloilte), Is less than 10%.
Exceptions will be found in sanpics whose matrices have sipiflcaady hi r or lower
densities than the asbestes obssrved. Figwe 3 presses ex cue of crocidolite
(density 3.4 gtm 3 ) in a u terla of cellulose with an jthv 4 avesage “ isirg of 09 glcm 3 .
7
-------
The magnitude of the discrepancy in the cruical region near 1% is shown in figure 4. If
only the volume percentage estimate is used, mass percentages as high as 3% would be
reported as below the definition of ACM. In this case, a conversion to weight percentage is
necessary if the weight percentage is not to be ossIy underes mated.
SAMPLE TREATMENT
Some samples, far example floor tiles, roofing felts, and some cementitious products, may
require special ueamient (ashing, solvent or acid cxti acnon) to separate the asbestos from
other materials in onler to facilitate analysis. In such cases, the resulting weight loss of the
sample due to ueam nt must be recorded and any volume to weight percentage correction
applied to the remaining material must be further corrected to take this weight loss into
consideration. For example, if 30% asbestos is detected in a sample after processing which
resulted in a 25% weight loss, then the corrected asbestos content is 0.75 a 30—22.5%
CONCLUSIONS AND RECOMMENDATIONS
An assessment has been made of the validity of exwapolaDng to a weight percentage the
area or volume percentage of asbestos present in a sample as determined by polarized light
microscopy. A model has been presented which can be applied to area or volume
percentage data to give a more accurate estimation of the weight percentage. With the
exception of asbestos-containing materials having a substantial density differential berween
matrix and asbestos generally low density cellulosic orperlitic matrices, the magnitude of
this correction is smaller than the expected variability imposed by both the analytical
variation and the inhomogeneity of the sample. As a resist:, the weight percentage of
asbestos present can generally be equated with the observed area or voLi me percentage.
The following recommendations e made:
1) For samples whose approxima average ma ix density is close to that of the
asbesto. species observed (within 0.5 g/cm 3 ), assume equivalence of weight
and or vokmte percentage.
2) For samples whose approximate average manu density differs 1 *m that of
the asbestos species present by mote than 0.5 gfcm 3 , convert the observed
area or volume percentage to weight percentage using formula 2, using a
matnx density consistent with the principal matiix components.
8
-------
TABLE I
Ca1cI1I2r’dreIa onship between weight percentage and volume percentage of cttxyso 1e
(density 2.6 gkm 3 ) in mawix of average density of 2.5 g/cm 3 .
DIFFERENTIAL
VOLUME % WEIGHT % (WEIGHT%-VOLIJME %)
0 0.00 0.00
5 5.17 0.19.
10 10.36 0.36
15 15.51 0.51
20.63 0.63
25 25.74 0.74
30 30.83 0.83
35 35.90 0.90
40 40.94 0.94
45 45.97 0.97
50 50.98 0.98
55 55.97 0.97
60 60.94 0.94
65 65.89 0.89
70 70.82 0.82
75 75.73 0.73
80 80.62 0.62
85 85.49 0.49
90 90.35 0.35
95 95.1$ 0.1$
100 100.00 00.00
1 sk IUL d ,US 1.
,
-------
TABLE II
Calculated rela onship between weight percentage and volume peiventage of cmcidolite
(density 3.4 g/cth 3 ) in a rnau x of average density 2.5 g/cm 3 .
DIFFERENTIAL
VOLUME % WEIGHT % WEIGHT %.VOLUME%
0 . 0.00 0.00
5 6.68 1.68
10 13.13 3.13
15 19.35 4.35
20 25.37 5.37
25 31.19 6.19
30 36.82 6.82
35 42.27 ‘7.27
40 47.55 7.55
45 52.67 7.67
50 57.63 7.63
55 62.44 7.44
60 67.11 7.11
65 71.64 6.64
70 76.04 6.04
75 80.31 5.31
80 84.47 4.47
85 88.51 3.51
90 22.45 2.40
95 96.27 1.27
100 100.00 0.00
These vah s se p1 d i* thace the ci g re 2.
—
-------
TABLE HI
Calculated ith onship between weight percentage and volume percentage of cmcidoljte
(density 3.4 g4 m 3 ) in a mamz of avetige density 0.9 g/cm 3 .
DIFFERENTIAL
VOLUME % WEIGHT % WEIGHT % .VOLUME%
0 0.00 0.00
5 16.59 11.59
10 29.57 19.57
15 40.00 25.00
20 48.57 28.57
25 55.74 30.74
30 61.82 31.82
35 67.04 32.04
40 71.58 31.58
45 75.56 30.56
50 79.07 29.07
55 82.20 27.20
6 1) 85.00 25.00
65 87.52 22.52
70 89.81 19.81
75 91.89 16.89
80 93.79 13.79
85 95.54 10.54
90 97.14 7.14
95 98.63 3.63
— 100.00 0.00
e — E d Rg 3.
11
-------
TABLE IV
Calculated relationship between weight percentage and volume percentage of cmcidoire
(density 3.4 g/crn 3 ) in a matrix of average density 0.9 g/czx1 3 over the range 0 to 2
volume%.
DIFFERENTIAL
VOLUME % WEIGHT % WEIGHT %.VOLUME%
00 0.00 0.00
0.1 0.38 0.2*
0.2 0.75 0.55
0.3 1.12 0.82
0.4 1.49 1.09
0.5 1.86 1.36
0.6 2.23 1.63
0.7 2.59 1.89
0.8 2.96 2.16
0.9 3.32 2.42
1.0 3.68 2.68
1.1 4.03 2.93
1.2 4.39 3.19
1.3 4.74 3.44
1.4 5.09 3.69
1.5 544 3.94
1.6 5.79 4.19
1.7 6.13 4.43
1.8 6.4$ 4.6$
1.9 6.82 4.92
2.0 7.16 £16
‘Thus vulsu s pkA d ±e cve Plgas 4.
12
-------
Mass. Volume Percent Differential
Chrysotile In Matrix Of SG. = 2.5
10
9.
8’
0 7
S
C
6
I
Observed Volume P.rc.ntag.
Figure 1.
-------
Mass Volume Percent Differential
Crocidollie In Matrix Of S.G. = 2.5
0 10 20 30 40 50 60 70 80 90 100
Observed Volume Percentage
Ftguts 2.
5
S
C
I ,
S
S
C
S
S
a
14
-------
Mass. Volume Percentaqe Differential
Crocidolite In Matrix Of S.G. = 0.9
Observed Volume Percntags
36
32
28
24
20
16
0
0
0
0.
0
0
12
0 10 20 30 40 50 60 70 80 90 100
Figure 3.
-------
Crocidolite In Cellulose MaUix
Obsrv.d Volume Percentage
Figut 4.
7
6
5
4
S
a
S
S
U
S
£
a
S
3
2
1
0
0.2 0.4 0.6 0.8 1.0 1.2 1.4 1.6 1.8 2.0
16
-------
APPENDIX 1
Examples of Calculations
) Actual Weight Percentages
Sample #1
Wt. %
Density ReL WI x 100
Compound Vol. % (g/cm 3 ) Relative Wei kt Total Rel. W i.
Chrvcoile 15.0 .5 5 x 2.6 39.0 15.12
Glass Fiber 60.0 2. at) x 2.6 156.0 60.47
C . ,bonare O.O 2. 10 x 2.8 28.0 10.85
C ..ment .0 2.8 3.0x2.8=8.4 .26
Clay 10.0 2.2 10.0 x 2.2 2?.0 3.53
2.0 2.3 2.0 x 2.3 a4.6 .78
TOTALS 100.0 253
b) Appmximare weight pei entages based on a model with assun 23 g/cm 3 dei sity.
Sample #1
Vol. % Ret. Wk Appwsx.Wt. %
ch! sodre ___ 15.0 IixZ.6—39.O 13.51
Non-asbestosmauix 85.0 83x2.5.212J
TOTAL& 100.0 2513
Sai,p& #S
Sample 5 contains both cluys*xile an f amusitc. The ap imai wei I pei ntage is
calcnI I sepers ly f e h asbestos type as follows:
Vol. % Ret. Wt. Approx. Wi. %
Cbi, ls (density 2.6 g/cm 3 ) 2.9 2.9 z 2.6 7.54 3.01
Non .cloysotile marnx 97.1 94.1 x 2.5 — 242.75
Chrysoille totals 100.0 250.29
.mosite (density 3.3 g/cm 3 ) 0 7 101.31
on-chrvsonle mathx . I 73.25
rrc,sice tr rals 274.56
Li
-------
,
PAGE j E A 560/5-88-011
4. — —
Asbestos Content in Bulk Insulation Saiples: Visual Estimates
and Weight rir vsjtjon
— -
. .___
I
SeptRn r 1988
a.
p. i)
Ian M. Stewart
& rs,k _.L. C .Nu
.
I. F4 i O!Mi S L._
a. RJ Lee Group, Pbnroeville, PA 15146
b. Midwest Research Institute, Kansas City, P0 64110
68-02-4252,
Proj&t No. 8861-A43
U. $..iwhrq O A I s Nsi s u. A .si
U.S. Eiwiror,nental Prot tion Agency
Office of Toxic Substances/Exposure Evaluation Division
401 M Street, SW
Washington, DC 20460
3
II. $ MIy N s
I L A MP a (Ut -
This document discusses the validity of the assuiTptions that are made in extrapolating
and area/volume percentage estimation to a weight percentage estimation of the asbestos
content of insulation and other building materials. The doc*.mant provides reccmznendations
for deter nining the asbestos content in bilk insulation sanples.
Il. Oes, A Is a. 0. _ iL.. .
Polarized Ught Ptcroscopy
Asbestos Analysis
Mbestos
&ilk Insulation S ip1e Analysis
S. CO$*fl I,A I0.wi•
II. m.* ..
Avaii . ..L :o Public
(Si. ANS4—ZJS II ’
I( TIS—fl
ga
-------
1 1
-------
T 2 i’)
/
-------
‘i i “I \IE’i F\’IR )\ IF\I \I IL IIII I IIH\ \Lt \
\% -% HI\( ro . D C 204ht1
•.. .c 1 _•t_
FEB 2 3 1990
)FHCF • -
. ‘‘I,. _,L,
%l .
MEMORANDUM
SUBJECT: Clarification of EPA NESHAP Policy - Nonfriable
Asbestos
FROM: Michael S. Alushin<,4/ ii .
Associate Enforcement Counsel
for Air
John S. Seitz,
Stationary Source Comp1I nce Division
Office of Air Quality Planning and Standards
TO: Addressees
Attached please find a discussion of our current
interpretation of how nonfriable asbestos containing materials
should be handled pursuant to the asbestos NESHAP, 40 C.F.R. Part
61, Subpa t M (Section 61.140 . . Please file the attached
document in Part D (Section 112) of your Policy Compendium as
Document 11.
Addressees: Gerald Emison
Office of Air Quality Planning and Standards
James Strock
Assistant Administrator
for Enforcement
Alan W. Eckert
Associate General Counsel
Air and Radiation Division
Air and Waste Management Division Director
Region II
Air Management Division Directors
Regions III and IX
Air and Radiation Division Director
Region V
-------
—2—
Air, Pesticides and Toxics Management Division
Directors
Regions I, IV, and VI
Air and Toxics Division Directors
Regions VII, VIII, and X
Regional Counsels
Regions I - X
Air Branch Chiefs/Team Leaders
Office of Regional Counsel
Regions I - X
Air Division Branch Chiefs
Regions I - X
David Buente, Chief
Environmental Enforcement Section
U.S. Department of Justice
Attachment
-------
a.’
Nii: I) ‘t _\ IR(,\\IF\I \i i )I! (;\ \‘J \t
_____ - HI\(,ro\.D( (J4 li
FEB 2 3 1990
UFFIrF .1-
• fl’.( ‘p
¼1 ‘.. 141 ’.
MEMORANDUM
SUBJECT: Clarification of EPA NESHAP Policy — Nonfriable
Asbestos
FROM: Michael S. Alushin ,4/ 2_ _
Associate Enforcement Counsel
for Air
Stationary Source Comp nce Division
Office of Air Quality Planning and Standards
TO: Addressees
Attached please find a discussion of our current
interpretation of how nonfriable asbestos containing materials
should be handled pursuant to the asbestos NESHAP, 40 C.F.R. Part
61, Subpa t M (Section 61.140 . . Please file the attached
document in Part D (Section 112) of your Policy Compendium as
Document 11.
Addressees: Gerald Emison
Office of Air Quality Planning and Standards
James Strock
Assistant Administrator
for Enforcement
Alan W. Eckert
Associate General Counsel
Air and Radiation Division
Air and Waste Management Division Director
Region II
Air Management Division Directors
Regions III and IX
Air and Radiation Division Director
Region V
-------
—2—
Air, Pesticides and Toxics Management Division
Directors
Regions I, IV, and VI
Air and Toxics Division Directors
Regions VII, VIII, and X
Regional Counsels
Regions I - X
Air Branch Chiefs/Team Leaders
Office of Regional Counsel
Regions I - X
Air Division Branch Chiefs
Regions I - X
David Buente, Chief
Environmental Enforcement Section
U.S. Department of Justice
Attachment
-------
MEMORANDUM
- ‘_
.eSe3r1n Tr;angie Par Nor r in . 2 .
FEB 2 3 i o
SUBJECT: Clarification of EPA NESHAP Policy -
FROM:
TO:
Jack R. Farmer, Director
Emission Standards Division
John S. Seitz, Director
Stationary Source Compliance
Michael S. Alushin
Associate Enforcement Counsel for Air
See Below
This memorandum clarifies the requirements of the Asbestos NESHAP
regarding nonfriable asbestos containing material (ACM), such as floor tile,
roofing material, packing, and gaskets.
BACKGROUND
The issue of friability and the intent of the original standards for
demolition and renovation activities have been the source of many questions
and comments. In recent months, we have spent considerable time discussing
this issue and reviewing subsequent interpretations of the standards. The
rulemaking proposed on January 10, 1989 only addresses administrative changes
or clarifications to the original standards. Thus, the final rulemaking can
not result in a change that would affect the stringency of the original
standards.
In the original rule, published in 1973, a distinction was made between
building materials that would release a significant amount of asbestos fibers
and materials that would not. Floor tile, roofing material, packings, and
gaskets wei Identified as materials that would not release significant
amounts of fiber when disturbed. The term “friable” was used to make this
distinctloe. In December 1985, we issued a determination which stated that if
nonfriable ACM could be damaged to the extent that it would be crumbled,
pulverized, or reduced to powder, it should be removed prior to demolition.
The 1985 determination was intended to affect only practices and ACM that
could result in the release of significant quantities of asbestos. While it
was unclear whether this determination was intended to affect ACM such as
floor tile, roofing material, packings and gaskets that are not friable, some
delegated enforcement agencies were inferring this material must be removed
prior to demolition to ensure compliance with the NESHAP.
Enforcement (LE-134A)
-------
2
Although no research has been conducted on the conditions which will
cause rionfrjable materials to become friable, it is considered probable that
some conditions (e.g. severe weathering, prolonged exposure to harsh
chemicals) will cause this effect. Furthermore, certain practices such as
burning, sanding, or grinding could crumble, pulverize, or reduce to powder
nonfriable ACM.
POLICY
Therefore, we recommend the following approach:
- Floor tile, roofing material, packing, and gaskets (normally
nonfriable ACM) must be inspected before demolition to determine if the ACM is
in poor condition, indicated by peeling, cracking, or crumbling of the
material. If normally nonfriable ACM is in poor condition, then the material
must be tested for friability. If the ACM is friable, it must be handled in
accordance with the NESHAP. The above four nonfriable ACM should be removed
before demolition only if they are in poor condition and are friable.
- If the nonfriable ACM is subjected to sanding, grinding, or abrading
as part of demolition or renovation, then the nonfriable ACM must be handled
in accordance with the NESHAP. If a building is demolished by burning, all
ACM must be removed prior to the demolition.
We believe that this approach is consistent with the original rule and the
1985 interpretation.
PLANNED FUTURE ACTION
After passage of Title III of the new Clean Air Act amendments we
intend to review the asbestos NESHAP. This will allow us to further consider
appropriate changes to this NESHAP.
ADDRESSEES:
Kent Anderson, OSW (WH-565E)
Mike Beard, ORD (MD-77)
Jim Crowder, ESD (MO-13)
Fred Dimick, (SD (110-13)
Stan Durkee, ORD (EN-340F)
Pat Embry O , (LE-132A)
Robert Feq1 , OPPE (P14-221)
Charlie GarPN, OECM (LE-134A)
Charles Gregg, OW (WH-556)
Bob Jordan OTS (TS-788A)
Asbestos NESHAP Coordinator, Regions I-X
cc: Bob Ajax (MD-13)
Robert Bronstrup, EPA-OIG - Chicago
Regional Counsels, Regions I -
Kathy Kaufman, OPAR (ANR-443)
Bob Kellam, ESU (MD-13)
Dennis Kotchmar, ECAO (140-52)
Gary I lcAlister, ESD (110-19)
Bruce Moore, ESD (MD-13)
Brenda Riddle, ESD (140-13)
Sims Roy, ESD (140-13)
Ron Shafer, SSCD (EN-341)
Al Vervaert, ESD (140-13)
Dave Wagner, OTS (TS-794)
Roger Wilmoth, AEERL, Cincinnati
Gil Wood, EMS (MD-14)
Ron Campbell (140-10)
gional Cotu s l kir Branc 1 i chiefs
-------
- .• .
r ese3’cfl T ang, Par.:. Nor : — CarD n 2 ’
4 L
FEB 2 3 1990
MEMORANDUM
SUBJECT: Clarification of EPA NESHAP Policy - Nonfriab
a4
Stationary Soirce Camp] lance
Michael S. Alushin
Associate Enforcement Counsel for Air Enforcement (LE.134A)
TO: See Below
This memorandum clarifies the requirements of the Asbestos NESHAP
regarding nonfriable asbestos containing material (ACM), such as floor tile,
roofing material, packing, and gaskets.
BACKGROUND
The issue of friability and the intent of the original standards for
demolition and renovation activities have been the source of many questions
and comments. In recent months, we have spent considerable time discussing
this issue and reviewing subsequent interpretations of the standards. The
rulemaking proposed on January 10, 1989 only addresses administrative changes
or clarifications to the original standards. Thus, the final rulemaking can
not result in a change that would affect the stringency of the original
standards.
In the original rule, published in 1973, a distinction was made between
building aterials that would release a significant amount of asbestos fibers
and materials that would not. Floor tile, roofing material, packings, and
gaskets ii Identified as materials that would not release significant
amounts of fther when disturbed. The term “friable” was used to make this
distinctiogi. In December 1985, we issued a determination which stated that
nonfriable A M could be damaged to the extent that it would be crumbled,
pulverized, or reduced to powder, it should be removed prior to demolition.
The 1985 determination was intended to affect only practices and ACM that
could result in the release of significant quantities of asbestos. While it
was unclear whether this determination was intended to affect ACM such as
floor tile, roofing material, packings and gaskets that are not friable, some
delegated enforcement agencies were inferring this material must be removed
prior to demolition to ensure compliance with the NESHAP.
FROM:
Jack R. Farmer, Director
Emission Standards Division
if
-------
2
Although no research has been conducted on the conditions which will
cause nonfriable materials to become friable, it is considered probable that
some conditions (e.g. severe weathering, prolonged exposure to harsh
chemicals) will cause this effect. Furthermore, certain practices such as
burning, sanding, or grinding could crumble, pulverize, or reduce to powder
nonfriable ACM.
POLICY
Therefore, we recomend the following approach:
- Floor tile, roofing material, packing, and gaskets (normally
nonfriable ACM) must be inspected before demolition to determine if the ACM is
in poor condition, indicated by peeling, cracking, or crumbling of the
material. If normally nonfriable ACM is in poor condition, then the material
must be tested for friability. If the ACM is friable, it must be handled in
accordance with the NESHAP. The above four nonfriable ACM should be removed
before demolition only if they are in poor condition and are friable.
- If the nonfriable ACM is subjected to sanding, grinding, or abrading
as part of demolition or renovation, then the nonfriable ACM must be handled
in accordance with the NESHAP. If a building is demolished by burning, all
ACM must be removed prior to the demolition.
We believe that this approach is consistent with the original rule and the
1985 interpretation.
PLANNED FUTURE ACTION
After passage of Title III of the new Clean Air Act amendments we
intend to review the asbestos NESHAP. This will allow us to further consider
appropriate changes to this NESHAP.
ADDRESSEES:
Kent Anderson, 05W (WH-565E)
Mike Beard, ORD (MD-77)
Jim Crowder, ESO (MD-13)
Fred Dimick, ESD (M - 3)
Stan Durkee, ORD (EN-340F)
Pat Embry O , (LE-132A)
Robert FegI ,OPPE (P11-221)
Charlie Garhw, OECM (LE-134A)
Charles Gregg, OW (WH-556)
Bob Jordan OTS (TS-788A)
Asbestos NESHAP Coordinator, Regions I-X
cc: Bob Ajax (MD-13)
Robert Bronstrup, EPA-OIG - Chicago
egional Counsels, egions I - X
Kathy Kaufman, OPAR (ANR-443)
Bob Kellam, ESD (MD-13)
Dennis Kotchmar, ECAO (MD-52)
Gary McAlister, ESD (110-19)
Bruce Moore, ESO (110-13)
Brenda Riddle, (SD (110-13)
Sims Roy, ESD (110-13)
Ron Shafer, SSCD (EN-341)
Al Vervaert, (SD (I -13)
Dave Wagner, OTS (TS-794)
Roger Wilmoth, AEERI, Cincinnati
Gil Wood, (MB ( 14D-14)
Ron Campbell (MD-b)
qional Counssl kir Branc’-i üefs
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2 1/0 (‘
( / /9d)
/
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
/AS 4iNGT3N. D.C 20460
-5S90
MEMORANDUM
SUBJECT: Inclusion of CERCLA Section 103(a) Counts in Asbestos
NESHAP Cases
FROM: Michael S. Alushin 0
Associate Enforcement Counsel
for Air
Glenn L. Unterberger . .
Associate Enforcement Counsel
for Superfund
TO: Regional Counsels
Regions I-X
I. INTRODUCTION
The Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA) requires notification to the National
Response Center immediately following the release of a hazardous
substance in an amount that exceeds its reportable quantity.
42 U.S.C. § 9603. Asbestos is a CERCLA hazardous substance.
42 U.S.C. § 9601(14); 40 C.F.R. § 302.4. Accordingly, we
encourage regions to review asbestos NESHAP referrals for
determination of whether CERCLA causes of action also exist. The
purpose of this memorandum is to assist that effort by
identifying the elements necessary to establish a CERCLA Section
103(a) claim and providing a legal analysis of relevant statutes
and regulations. In addition, this memorandum discusses criteria
for selecting cases to add CERCLA counts and suggests a $15,000
minimum settlement penalty amount for each violation.’
A draft CERCLA Section 103 p e 1 policy currently exists.
Regions should apply that po1icyJ h n it becomes final (to be
issued as OSWER Dir. No. 9841.2).’ “- .“
PmmdonRe:,.’e 3 ae’
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We recommend that CERCLA Section 103(a) violations be alleged
when prima facie evidence exists. 2
II. ELEMENTS FOR A SECTION 103(a) CLAIM
Pursuant to Section 103(a) of CERCLA, a person in charge of
a facility is required to notify the National Response Center as
soon as he or she has knowledge of a release of a hazardous
substance from such facility in an amount equal to or greater
than the reportable quantity for that substance. The failure to
report the release subjects the non-reporting party to judicial
or administrative proceedings and penalties of up to $25,000 per
day of the violation. 42 U.S.C. § 9609(a),(b) and (C).
Penalties of up to $75,000 per day may be imposed in the case of
a second violation.
Thus, in order to prevail on a CERCLA Section 103(a) count
the United States must establish that a) the defendant is a
person; b) the defendant was in charge of a facility from which
there was a release of a hazardous substance; C) the quantity of
the substance released was equal to or exceeded the reportable
quantity for that substance; and d) the defendant did not notify
the National Response Center as soon as it had knowledge of the
2 The Emergency Planning and Community Right-to-Know Act of
1986 (EPCRA) similarly demands that a release of a reportable
quantity of an “extremely hazardous substance” or CERCLA
“hazardous substance” be reported to the local Emergency Planning
Committee and the State Emergency Response Commission for the
area likely to be affected by the release. 42 U.S.C. § 11.004.
In contrast to the CERCLA Section 103(a) reporting requirements,
which apply to any facility, the EPCRA Section 304 conditions
apply solely to a facility that “produces,” “uses” or “stores”
hazardous substances or chemicals. Thus, asbestos demolition or
renovation operations are not universally subject to Section 304
reporting requirements. Cases may exist, however, where it is
appropriate to allege both EPCRA and CERCLA counts.
3 CERCLA also authorizes criminal sanctions for the failure
to report the release of hazardous substances. 42 U.S.C.
§9603(b). While the elements of a Section 103(b) claim are
substantially the same as a Section 103(a) claim, the United
States’ burden of proof would be higher in a Section 103(b)
criminal prosecution. Because the Air Enforcement Division
docket consists of civil referrals, this memorandum discusses
exclusively Section 103(a) (civil) liability. Regions are
nevertheless reminded of the availability of including Section.
103(b) counts in criminal asbestos NESMAP cases filed under
Section 113(c) of the Clean Air Act.
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release. The CERCLA definitions of key terms follow next.
A. Defined Terms .
1. Person -- the term includes individuals, firms, corporations,
associations and other entities, such as federal, state and local
government units. 42 U.S.C. § 9601(21).
2. Facility -— the term includes any building, structure,
installation, impoundment, landfill or site where a hazardous
substance is located. 42 U.S.C. § 9601(9).
3. Release -- the term covers virtually any contact with the
environment, including any spilling, leaking, pumping, pouring,
emitting, discharging, injecting, escaping, leaching, dumping or
disposing into the environment. The term also includes the
abandonment or discarding of barrels or other closed receptacles
that contain hazardous substances. Expressly excluded from the
definition of release is any release which results in exposure to
persons solely within a workplace. 42 U.S.C. § 9601(22).
4. Environment -- the term includes navigable waters, ocean
waters, surface waters, the drinking water supply, groundwater,
land surface or subsurface strata, or ambient air. 42 U.S.C.
§9601(8). The preamble to the reportable quantity regulations
makes clear that the notification requirements do not apply to
releases within wholly enclosed structures. 50 . . 13456,
13462 (April 4, 1985). Several court rulings further indicate
that a building interior is not the “environment” for CERCLA
purposes. Covalt v. Carey Canada. Inc. , 860 F.2d 1434 (7th Cir.
1988); First United Methodist Church of Hyattsville v. United
States Gypsum Co. , No. J’H—88—2030, slip op. at 11 (D.Md. Oct. 13,
1988). However, a release “into the environment” occurs if the
discharge remains on grounds controlled by the facility owner or
operator. 50 . R . at 13462.
5. Hazardous Substance -— the term is defined to incorporate
substances and chemicals regulated under environmental statutes
other than C CLA, including the Clean Air Act. 42 U.S.C. §
9601(1.4). As noted before, asbestos is a CERCLA hazardous
substance. ; 40 C.F.R. § 302.4
6. Reportable Quantity -— the reportable quantity for asbestos
is one pound. 40 C.F.R. § 302.4. Importantly, the reportable
quantity is limited to the friable form of the mineral. 1g.
Even though CERCLA regulations do not define the term “friable
asbestos,” the reportable quantity should not be interpreted to
include one pound of “any material containing more than 1 percent
asbestos by weight that hand pressure can crumble....” 40 C.F.R.
§ 61.141 (definition of friable asbestos’undër Clean Air Act).
Because the reportable quantity is rest 1cte4J .the hazardous
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substance component of a solution or mixture, 40 C.F.R. § 302.6,
one or more pounds of pure friable asbestos must be released for
Section 103(a) to apply. Liability is further conditioned on the
release of the reportable quantity within one twenty-four hour
period. 40 C.F.R. § 302.6.
B. Undefined Terms .
As indicated, CERCLA provides definitions for most of the
per inent Section 103(a) terms. Neither the statute nor the
regulations, however, give meaning to the phrase “in charge...of
Ca] facility.” For the purpose of alleging CERCLA violations in
asbestos NESHAP cases, it may be assumed generally that the
“owners” and “operators” liable for asbestos NESHAP violations
are similarly liable for violations of Section 103(a). A person
“in charge” of the facility could fairly be construed as the one
who “owns, leases, operates, controls, or supervises” the
demolition operation. 40 C.F.R. § 61.02 (NESHAP definition for
owner or operator). Moreover, one court has ruled that the
reporting requirements extend to any person able to discover,
prevent and abate the release of a hazardous substance. United
States v. Carr , 880 F.2d 1550 (2nd. Cir. 1989).
Although Section 103(a) liability requires that a person
have “knowledge of any release...of any hazardous substance,”
CERCLA does not define the knowledge requirement. Case law
interpreting provisions of other environmental statutes may
provide guidance.
In United States v. Hayes Intern Corp. , 786 F.2d 1499 (11th
Cir. 1986), the Eleventh Circuit Court of Appeals considered the
meaning of “knowingly” in Section 3008(d) of the Resource
Conservation and Recovery Act, 42 U.S.C. § 6928(d) (RCRA), which
authorizes criminal sanctions for “(a]ny person who knowingly
transports... any hazardous waste... to a facility that does not
have a permit....” The tj Court rejected the defendant’s
defenses that it was ignorant of the permit requirement and the
RCRA hazardous waste status of the material transported. at
1503. The court concluded that the United States met its burden
of proof by demonstrating that a) the defendant knew what the
waste was (in that case, a mixture of paint and solvent) and b)
the defendant knew that the disposal facility was not permitted.
‘The preamble to the CERCLA reportable quantity regulations
only states that the term “person in charge” is defined on a case
• specific basis, depending on the specific operation involved and
other considerations. 50 g. . at 13460.
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. at 1505. The court further noted that the United States may
prove knowledge with circumstantial evidence. 1g.
To the extent an analogy can be drawn between the RCRA
definition of “knowingly” and the CERCLA definition of
“knowledge,” application of Hayes suggests the following
conclusions: First, liability attaches notwithstanding the
defendant’s failure to know of the reporting requirements or
failure to know that asbestos is a CERCLA hazardous substance.
Second, the United States must establish that the defendant knew
or should have known of the release and that the material was
asbestos. Third, the United States’ burden of proving “knowledge
of any release” should be less than the burden imposed in the
Hayes case. As a general proposition, the burden of proof in a
civil case is less than the burden of proof in a criminal case.
Because the Hayes Court interpreted RCRA Section 3008(d) (a
criminal provision), the United States’ burden of proof under
CERCLA Section 103(a) (a civil provision) should therefore entail
a lower standard than required in Hayes .
C. Exempted Releases .
It is important to note that discharges in accordance with
federal permits are exempt from the CERCLA reporting
requirements. 42 U.S.C. § 9601(10) and 9603(a). Also exempt
are continuous releases which are stable in size and quantity.
42 U.S.C. § 9603(f). Neither of these two exemptions or any
other CERCLA Section 103 exemptions apply to asbestos NESHAP
renovation and demolition cases. This memorandum thus addresses
criteria for including CERCLA counts.
III. CRITERIA FOR INCLUSION OF CERCLA SECTION 103(a) COUNTS IN
ASBESTOS NESHAP CASES
As stated previously, the CERCLA definition of release
includes any “dumping, or disposing into the environment” and
“the abandonment or discarding of barrels. . . or other closed
receptacles containing hazardous substances....” 42 U.S.C. §
9601(22). Consequently, particular attention should be paid to
cases that allege violations of the asbestos disposal
requirements. g 40 C.F.R. § 61.151(a) and 61.156.
A Section 103(a) claim may be particularly appropriate if
the evidence indicates that a) asbestos waste material remained
on site after the completion of the demolition in violation of 40
C.F.R. § 61.152(a) and 61.156 or b) asbestos waste was
transported to or deposited at a location not qualified as an
“active waste disposal site” within the meaning of 40 C.F.R. §
61.156. Assuming, for example, that the waste material weighed
at least ten pounds, the reportable quantity is satisfied
provided the waste consisted of tan percent friable asbestos.
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Moreover, if a large quantity of asbestos was present, there is
circumstantial evidence that the release occurred within one
twenty-four hour period. Liability may arise even if the
asbestos was stored in sealed containers; the definition of
release covers the abandonment of receptacles.
CERCLA claims should not be limited to cases that involve
conduct prohibited by the asbestos NESMAP disposal provisions.
Because of the unique circumstances of each referral, the
question whether to allege a Section 103(a) violation must be
decided on a case-by-case basis. Given the prospect of obtaining
significant penalties and further deterring violations, we
encourage adding CERCLA counts when prima facie Section 103(a)
evidence exists. Also, we presently recommend a bottom-line
settlement figure of $15,000 for each Section 103(a) violation.
The proposed figure is consistent with the Clean Air Act Civil
Penalty Policy provision that sets the minimum penalty amount for
reporting violations at $15,000. When the CERCLA Section 103
penalty policy becomes effective, regions should calculate
settlement penalties in accordance with that guidance.
Finally, we note that a number of criminal indictments have
charged violations of the CERCLA reporting requirements. United
States v. Charles A. Donohoo,. Jr. , Cr. 89—00057, W.D.Ky.; United
States v. Cuyahoqa Wrecking Co. , Cr. 88—497, C.D. Ca.: United
States v. DAR Construction. Inc. , Cr. 88-65, S.D.N.Y.; United
States v. Fineman. Boone and D’Avocato , Cr. 88-543, E.D.Pa. In
each of these asbestos NESMAP cases, violations of 40 C.F.R. §
61.152(a) gave rise to the CERCLA Section 103 counts. In all
cases litigated to judgment, the defendants pled guilty or were
acquitted on the CERCLA charges. Attached for your information
is a copy of an indictment.
If you have any questions about this memorandum, please call
Karen Schapiro of the Air Enforcement Division (FTS 382—6240).
Attachment
cc: Regional Counsel Air and Superfund Branch Chiefs
Regions I-X
Air Compliance Branch Chiefs
Regions I-X
NESHAP Regional Counsel Contacts
Regions I-X
NESMAP Regional Coordinators
Regions I-X
AED Attorneys
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John Seitz, Director
Stationary Source Compliance Division
Omayra Salgado
Stationary Source Compliance Division
Bruce Diamond, Director
Off ice of Waste Programs Enforcement
Scott Fulton, Director
Office of Civil Enforcement
Paul Thomson, Director
Office of Criminal Enforcement
David Buente
Chief, Environmental Enforcement Section
Land and Natural Resources Division
U.S. Department of Justice
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- UNITED STATES DISTRICT COURT F I L o
WESTERN DISTRICT OF KENTUCKY JFSSE W.
AT LOUISVILLE
JUNE j
UNITED STATES OF AMERICA
U. S. 0IST CT ‘
INDICTMEN’IWESTN y
vs .-.‘
NO. _______________
(18 U.S.C. § 1001; 42 U.S.C.
§ 7412(c) & (e), 7413(c)
and 9603(b))
CHARLES A. DONAHOO, JR.
D/B/A CHARLIE WRECKING cLg:;i:L)
tJ. S. Dtstrtct Court
Louisville K y.
The Grand Jury charges: D&%eL ‘ ‘
GENERAL ALLEGATIONS By*. / L& (c.,
‘ eeputy Clerk
At all times relevant to this Indictment:
1. Defendant CHARLES A. DONAHOO, JR., D/B/A CHARLIE WRECKING,
was engaged in the business of wrecking and demolition in Jefferson
County, Kentucky.
2. Defendant CHARLES A. DONAHOO, JR., D/B/A CHARLIE WRECKING,
contracted with Tuscarora Plastics, 816 South Eleventh Street, to
demolish and wreck a building on Tuscarora Plastics property, 831
South Twelfth Street, Louisville, Kentucky. The building, or
facility, to be demolished contained at least 260 linear feet of
friable asbestos materials on pipes or 160 square feet on other
facility components. Friable asbestos materials means any material
containing more than one percent asbestos by weight that hand
pressure can crumble, pulverize or reduce to powder when dry. The
materials are adequately wetted when sufficiently mixed or united
with water or an aqueous solution to prevent dust emissions. Title
42, United States Code, Section 7412. 40 C.F.R. Section 61.141.
1
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Asbestos was formerly used as insulation material for pipes, tanks,
ducts, walls, arid other structural components of buildings.
CLEAN AIR ACT PROVISIONS
3. The Clean Air Act authorizes the United States
Environmental Protection Agency (hereinafter EPA) to establish
emission standards for hazardous air pollutants. An air pollutant
is hazardous if, in the judgment of the Administrator of EPA, it
causes or contributes to air pollution which may reasonably be
anticipated to result in an increase in mortality, or an increase
in serious irreversible or incapacitating reversible illness.
Title 42, United States Code, Section 7412(a) (1).
4. The Clean Air Act banned the emission of any hazardous air
pollutant in violation of any en ission standard set by EPA. Title
42, United States Code, Section 7412(c)(1)(S), (e).
5. Asbestos is a hazardous air pollutant. 40 C.F.R. Section
61.01(a). Title 42, United States Code, Section 741.2(a) (1).
6. Where the Administrator determines it is not feasible to
prescribe or enforce an emission standard for control of a
hazardous air pollutant, the Administrator may promulgate a design,
equipment, work practice or operational standard, or a combination
thereof, which in the Administrator’s judgment is adequate to
protect the public health with an ample margin of safety. Any such
design, equipment, work practice or operational standard shall be
treated as an emission standard. Title 42, United States Code,
Section 74l2(e)(5). In conformity with the Clean Air Act, the EPA
established emission standards for asbestos in the form of work
2
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practice standards. 40 C.F.R. Section 61.140 through 61.156.
7. The emission of asbestos, a hazardous air pollutant, from
any stationary source is prohibited. A stationary source is any
building or structure which emits or may emit a hazardous air
pollutant such as asbestos. 40 C.F.R. Section 61.02.
8. The demolition operation conducted by defendant CHARLES
- A. DONAI400, JR., D/B/A CHARLIE WRECKING, is a stationary source
under the Clean Air Act and CHARLES A. DONAHOO, JR., D/B/A CHARLIE
WRECKING, is an operator of that stationary source. Title 42,
United States Code, Section 7411(a)(3) and (a)(5), 40 C.F.R.
Section 61.02.
9. The work practice or operational standards applicable to
each owner or operator of a demolition operation involving the
requisite amount of friable asbestos material require notification
as follows:
(a) Each owner or operator shall provide the
Administrator with written notice of intention
to demolish or renovate;
(b) Provide such notice at least ten days
before the demolition operation is began;
(C) Identify the name and address of the owner
or operator;
(d) List the scheduled starting and completion
dates of demolition;
Ce) State the nature of the planned demolition
and the methods to be used;
(f) State the procedures to be used to comply
with the safety requirements and work practice
requirements of the regulations;
(g) Estimate the approximate amount of friable
asbestos material present in the facility in
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terms of linear feet of pipe and the surface
area on other facility components of friable
asbestos material; and
(h) List the waste disposal site where the
friable asbestos waste material will be
deposited. 40 C.F.R. Section 61.146.
10. Additional work practice requirements for the prevention
of emissions of asbestos-containing materials to the outside air
mandate:
(a) That friable asbestos materials be removed
from the facility being demolished before any
wrecking or dismantling that would break up the
asbestos materials or preclude access to the
asbestos materials for subsequent removal; or
(b) That any friable asbestos materials are
adequately wetted when they are being stripped
from the facility;
(C) That friable asbestos materials that have
been removed or stripped from the building are
adequately wetted in order to ensure that they
remain wet until collected for proper disposal;
(d) Make certain that friable asbestos
materials that have been removed or stripped
be carefully lowered to the ground and not
dropped or thrown to the ground or a lower
floor; and
(e) That all asbestos-containing waste
material is properly deposited at waste
disposal sites operated in accordance with EPA
regulations.
Title 42, United States Code, Section 7412. 40 C.F.R. Section
61.141,
11. Each state may develop and submit to the EPA Administrator
the procedure for implementing and enforcing emission standards for
hazardous air pollutants for stationary sources located in the
state. If the Administrator finds the state procedure is adequate,
4
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he shall delegate to such state any authority he has under this
chapter to implement and enforce such standards. Title 42, United
States Code, Section 7412(d)(l). Nothing in this subsection shall
prohibit the EPA Administrator from enforcing any applicable
emission standard under this section. Title 42, United States
Code, Section 7412(d)(2). Kentucky has been delegated such
authority and the Jefferson County Air Pollution Control District
has concurrent authority with Kentucky under K.R.S. 77. The
Jefferson County Air Pollution Control District (hereinafter APCD)
has promulgated regulations identical to 40 C.F.R. Section 140
through 156 under Regulation 5.04, Emission standard for asbestos.
CERCLA (“SUPERFUND”
12. The Comprehensive Environmental Response Compensation and
Liability Act (“CERCLA”), also known as “Super und” addresses the
release and threatened releases of hazardous substances. Title 42,
United States Code, Section 9601, et. sea . Asbestos is a hazardous
substance under CERCLA. Title 42, United States Code, Section
9601(14). 40 C.F.R. Part 302.
13. Under CERCLA, any person in charge of a facility from
which more than one pound of asbestos is released into the
environment, without federal permit, must immediately report, and
cause the report of this release to the appropriate agency of the
United States Government, as soon as he has knowledge of said
release. Title 42, United States Code, Section 9603(a) and (b).
Title 42, United States Code, Section 9602. 40 C.F.R. Section 302.
5
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14. A facility includes any building. Title 42, United States
Code, Section 9601(9). 40 C.F.R. Section 302.
15. A release into the environment includes any emitting,
escaping or disposing into the environment including dumping,
discarding and abandoning. Title 42, United States Code, Section
9601(22), (29). Title 42, United States Code, Section 9603. Title
42, United States Code, Section 9602. 40 C.F.R. Section 302.
CONDUCT OF THE DEMOLITION AND WRECKING OPERATION
16. On or about November 26, 1986, the defendant, CHARLES A.
DONAHOO, JR., D/B/A CHARLIE WRECKING, did enter into a contract to
wreck the building “call Reynolds at corner of 12th & Garlad.”
17. On or about January 7, 1987, Robert S. Sterritt, owner of
Tuscarora Plastics, did authorize CHARLES A. DQNAHOO, JR., CHARLIE
WRECKING, to secure a wrecking permit to wreck the structure on the
property located at 831 South Twelfth. The applicant’s signature
was CHARLES A. DONAHOO, JR.
18. On January 22, 1987, Jack Baldwin, Inspector, Jefferson
County Air Pollution Control District, inspected the demolition
site at 831 South Twelfth Street. Portions of the upper floors had
been demolished and had fallen, causing insulation to be knocked
from pipes in the building. Insulation had fallen and was lying
under pipes. There was exposure to the outside air of asbestos and
deterioration of the building from the wrecking. Samples were
taken of materials that scientifically tested to be asbestos
containing materials.
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19. Inspector Baldwin advised defendant CHARLES DONAHOO, JR.,
D/B/A CHARLIE WRECKING that asbestos was believed to be present in
the building and that defendant CHARLES A. DONAHOO, JR., D/B/A
CHARLIE WRECKING, must stop work. Baldwin advised defendant
CHARLES A. OONAflOO, JR., D/B/A CHARLIE WRECKING, of the
notification and work practice requirements of APCD Regulation 5.04
- — Emission Standard For Asbestos.
20. On January 22, 1987, the City of Louisville, Department
of Building Inspection, at APCD Inspector Baldwin’s request, posted
a stop work order on the premises at 8)1 South Twelfth for “failure
to comply with air pollution standards.” The notice stated “You
are hereby ordered to immediately stop all wrecking work at the
above-named property until these violations have been corrected.”
21. As of January 22, 1987, defendant CHARLES A. DONAHOO, JR.,
D/B/A CHARLIE WRECKING had failed to provide any written
notification of intention to demolish or renovate to APCD.
Defendant CHARLES A. DONAHOO, JR., D/B/A CHARLIE WRECKING, had
failed to provide notice of such demolition at least ten days
before it was begun. CHARLES A. DONAHOO, JR., D/B/A CHARLIE
WRECKING, further failed to list the scheduled starting and
completion date of the demolition, to state the nature of the
planned demolition and the methods to be used. Further, DONAIIOO
did fail to estimate the approximate amount of friable asbestos-
containing material present in the facility in terms of linear feet
on pipes and square footage of friable asbestos-containing material
on other facility components. Further, DONM(OO had failed to state
7
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the name and location of the waste disposal site where the friable
asbestos-containing waste material would be deposited.
22. On January 26, 1987, defendant CHARLES A. DONAHOO, JR.,
D/B/A CHARLIE WRECKING, visited the APCD offices at 914 East
Broadway, Louisville, Kentucky, requested asbestos removal
requirements, asked about potential contractors certified to remove
asbestos and received a copy of the EPA publication “Guidelines for
controlling Asbestos-Containing Materials in Buildings.”
23. On February 1]., 1987, defendant CHARLES A. DONAHOO, JR.,
D/B/A CHARLIE WRECKING, again visited the APCD offices at 914 East
Broadway, Louisville, Kentucky, and received a form entitled
Asbestos Removal Notification. CHARLES A. DONAROO, JR., D/B/A
CHARLIE WRECKING, also received a listing of current approved
asbestos removal contractors.
24. On February 17, 1987, APCD sent, by certified mail, to
defendant CHARLES A. DONAHOO, JR., D/B/A CHARLIE WRECKING,
Violation Notice No. 87—0012 for violations observed January 22,
1987. The notice read, in pertinent part, “any removal site shall
be sealed in a manner to prevent asbestos ambient air
contamination. Load supporting structures were being demolished
in a building at 831 South Twelfth Street without required prior
notification and without required use of procedures for asbestos
emission control.”
25. On February 19, 1987, defendant CHARLES A. DONAHOO, JR.,
D/B/A CHARLIE WRECKING, visited the APCD offices at 914 East
Broadway, Louisville, Kentucky, and presented an Asbestos Removal
B
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Notification form dated February 17, 1987. The notification form
submitted by defendant CHARLES A. DONAHOO, JR., DIE/A CHARLIE
WRECKING, listed the scheduled starting date for asbestos removal
of February 22, 1987, and a scheduled completion date for asbestos
removal of February 23, 1.987. The defendant, CHARLES A. DONAHOO,
JR., DIE/A CHARLIE WRECKING, estimated the amount of friable
asbestos material to be removed at “370 feet on a pipe and a tank.”
The defendant CHARLES A. DONAHOO, JR., D/B/A CHARLIE WRECKING,
advised APCD personnel that he would prepare a plan for removal and
bring it to the APCD office on February 20, 1987.
26. On the morning of February 20, 1987, APCD Inspector Jack
Baldwin visited the demolition site at 831 South Twelfth Street and
discovered that the previously identified asbestos-containing
material had been removed from pipes and other plastic surfaces.
OS co t ma teril. had been placed in open p1 as
bags. There was no indication of adequate wetting or other
e s y containi es re ired by law. Samples were
a en of materials that scientifically tested as asbestos-
containing materials.
27. On the afternoon of February 20, 1987, defendant CHARLES
A. DONAHOO, JR., D/B/A CHARLIE WRECKING, arrived at the offices of
the APCD at 914 East Broadway, Louisville, Kentucky. Mr. DONAHOO
at that time presented his removal plan by letter dated
February 20, 1987.
28. On February 27, 1987, the APCD sent Violation Notices
No. 87-0015 and 87-0016 to CHARLES A. DONAHOO, JR., D/B/A CHARLIE
9
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WRECKING, for Violations observed February 20, 1987. Violation
Notice No. 87—0015 stated, in pertinent part, “friable asbestos
material had been removed from a building under demolition at 831
South Twelfth Street without required prior notification and
without required use of procedures for asbestos emission control.
Violation Notice No. 87-0016, in pertinent part “wrecking of load
bearing structural members and stripping of friable asbestos
material had taken place at 831 South Twelfth Street without the
required permit having been issued by the district.”
The Grand Jury charges:
COUNT 1
1. Each of the allegations contained in paragraphs 1 through
28 of this Indictment is realleged and incorporated herein by
reference as though fully set forth at length verbatim.
2. On or about and between January 9, 1987 and January 22,
1987, the exact dates being unknown to members of the Grand Jury,
in the Western District of Kentucky at Louisville, Jefferson
County, Kentucky, defendant CHARLES A. DONAHOO, JR., D/B/A CHARLIE
WRECKING, operator of a stationary source in Louisville, Kentucky,
containing at least 260 linear feet of friable asbestos material
on pipes or 160 square feet on other facility components, did
knowingly demolish and cause to be demolished this stationary
source in violation of any of the emission, design, equipment, work
practice or operational standards for asbestos and knowingly caused
10
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asbestos to be emitted from this stationary source in violation of
these standards.
In violation of Title 42, United States Code, Section 74l2(c
and (e), and Title 42, United States Code, Section 7413(c).
The Grand Jury further charges:
COUNT 2
1. Each of the allegations contained in paragraphs 1 through
28 of this Indictment is realleged and incorporated herein by
reference as though fully set forth at length verbatim.
2. From on or about and between January 7, 1987 and January
22, 1987, the exact dates being unknown to members of the Grand
Jury, defendant CHARLES A. DONAHOO, JR., D/B/A CHARLIE WRECKING,
did, being a person in charge of a facility from which a reportable
quantity of a hazardous substance, asbestos, is released without
a permit did fail to immediately notify the appropriate agency of
the United States Government of the release of the hazardous
substance as soon as he had knowledge of such release at 831 South
Twelfth Street, Louisville, Kentucky.
In violation of Title 42, United States Code, Section 9603(b).
The Grand Jury further charges:
COUNT 3
1. Each of the allegations contained in paragraphs 1 through
28 of this Indictment is realleged and incorporated herein by
reference as though fully set forth at length verbatim.
11
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2. on or about and between February 17, 1987 through
February 20, 1987, defendant CHARLES A. DONAHOO, JR., D/B/A CHARLIE
WRECKING, did, in the Western District of Kentucky at Louisville,
Jefferson County, Kentucky, on a matter within the jurisdiction of
an agency of the United States, knowingly and willfully make or use
any false writing or document, knowing the same to contain a false,
fictitious or fraudulent statement, as he did submit Asbestos
Removal Notification Form to APCD, 914 East Broadway, Louisville,
Kentucky, stating the scheduled starting date for asbestos removal
notification to be February 22, 1987, and a scheduled completion
date for asbestos removal to be February 23, 1987, when the
defendant CHARLES A. DONAHOC, JR., D/B/A CHARLIE WRECKING, did know
that asbestos removal work had been started again on a date between
January 22, 1987 and February 20, 1987.
In violation of Title 18, United States Code, Section 1001.
The Grand Jury further charges:
COUNT 4
1. Each of the allegations contained in paragraphs 1 through
28 of this Indictment is realleged and incorporated herein by
reference as though fully set forth at length verbatim.
2. On or about and between January 22, 1987 and February 20,
1987, the exact dates being unknown to members of the Grand Jury,
in the Western District of Kentucky at Louisville, Jefferson
County, Kentucky, defendant CHARLES A. DONAHOO, JR., D/B/A CHARLIE
WRECKING, operator of a stationary source in Louisville, Kentucky,
12
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containing at least 260 linear feet of friable asbestos material
on pipes or 160 square feet on other facility components, did
knowingly demolish and cause to be demolished this stationary
source in violation of any of the emission, design, equipment, work
practice or operational standards for asbestos and knowingly caused
asbestos to be emitted front this stationary source in violation of
these standards.
In violation of Title 42, United States Code, Section 7412(c)
and (e), and Title 42, United States Code, Section 7413(c).
The Grand Jury further charges:
COUNT 5
1. Each of the allegations contained in paragraphs 1 through
28 of this Indictment is realleged and incorporated herein by
reference as though fully set forth at length verbatim.
2. From on or about and between January 22, 1987 and
February 20, 1987, the exact dates being unknown to members of the
Grand Jury, defendant CHARLES A. DONAHOO, JR., D/B/A CHARLIE
WRECKING, did, being a person in charge of a facility from which
a reportable quantity of a hazardous substance, asbestos, is
released without a permit did fail to immediately notify the
appropriate agency of the United States Government of the release
13
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of the hazardous substance as soon as he had knowledge of such
release at 831 South Twelfth Street, Louisville, Kentucky.
In violation of Title 42, United States Code, Section 9603(b).
A TRUE BILL.
FOR!MAN -
JOS !PM M. WHITT
UNITED STATES AT El
JMW:RAD:kfs:890601
14
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Clarification of Policy on Enforcement of
Visible Emission Violations for SIP Sources
Meeting Applicable Mass Emission Standards
(06/24/91)
File at Part B, Document #13
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0 5T 4
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
_____ WASHE 4GTON, D.C. 20460
2_ 1991
OFBCE OF
AIR AND RADIATION
MEMORANDUX
SUBJECT: Clarification of Policy on Enforcement of Visible
Emission Violations for SIP Sources Meeting Applicable
Mass Emission Standards
FROM: William G. Rosenberg, Assist 1 ,a t A9mi, tj tor
Office of Air and Radiation, ’- /L.
TO: Regional Administrators, Regions I—X
The purpose of this memorandum is to clarify previous EPA
policy (May 4, 1982, Kathleen Bennett Memorandum) relative to
existing sources in compliance with applicable mass emission
standards but in violation of visible emission standards.
Compliance with a mass emission standard does not exempt a
source from the visible emission standard established in the SIP
for that source. Unless otherwise stated in the SIP, EPA
considers the visible emission and the mass emission standards as
independently enforceable limitations. In other words, a source
must demonstrate compliance with both standards using the
approved test methods (i.e. the SIP or EPA reference methods,
whichever is applicable). Failure to do so may result in EPA or
the State bringing an enforcement action. against the source.
Some situations may exist when a SIP source demonstrates and
documents its compliance with the mass emission standard on a
consistent basis using the approved test method and provides the
required data to indicate that it has taken every step to achieve
compliance, but continues to exceed the opacity standard. In
these special cases, and only if the State agency and Regional
Office agree that no further improvements can be made in the
control and. process equipment for that source, the regulating
agency may choose to revise the visible emission standard in the
SIP. Pending EPA approval of any SIP revision, the existing
visible emission standard will remain in effect and continue to
be Federally enforceable.
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cc: John Seitz, Director, OAQPS
John Calcagni, Director, AQMD
Air Ma nagement Division Directors,
Regions I, III and IX
Air and Waste Management Division Director,
Region II
Air, Pesticides and Toxics Management Division Directors,
Regions IV and VI
Air and Radiation Division Director,
Region V -
Air and Toxics Division Directors,
Regions, VII, VIII and X
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§
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UNITED STATES ENVIRONMENTAL PROTECTION AGEI CY
WASHINGTON. D.C. 20460
f WV 29
OFFICE OF
ENFORCEMF.NT AND
MEMORANDUM COMPLIANr MONITORIhC
SUBJECT: AHERA Compliance Monitoring Strategy
FROM: Frederick F.
Associate Enforcemer Counsel for
Pesticides and Toxic Substances
TO: Regional Counsel Branch Chiefs I—X
Attached is a copy of the final Compliance Monitoring Strategy
(CMS) for AHER.A. The CMS was issued by the Office of Compliance
Monitoring, Office of Pesticides and Toxic Substances, on November
10. I have designated Jon Silberman as the Toxics Litigation
Division contact person for AHERA—related inquiries. Jon may be
reached at FTS—475—8694.
Attachment
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—3—
If it is found that the “other person” has comnitted
serious violations at other LEAs, civil penalties should be
issued for those violations. Additionally, Regions snould
take steps to notify the remaining LEAs that were cl ents of
the “other person” that similar violations may exist at their
LEA. The other LEAs should also be advised to take corrective
action if necessary. Please note, Reglons may choose to
require the violative “other person” to conduct the LEA
notification or take corrective action in the context of the
settlement agreement. If the contractor does not or cannot
correct the violation (e.g., they are out of business), the LEA
is still responsible for assuring prompt compliance and may
need to be placed on a compliance schedule.
Additionally, as resources allow, the Regions and States
with Asbestos Compliance Cooperative Agreements, are to
randomly conduct inspections at LEAs to assure “other persons”
have complied with AHERA. To accomplish this, Regions/States
should identify “other persons” and obtain records from these
persons t identify the LEAs at which they performed AHERA
related activities. Regions should attempt to inspect at least
one LEA at which each “other person” worked.
Rec ons may obtain “other person” records by:
(1) requesting the “other person” to submit the records to the
Regional Office, (2) obtaining the records through a subpoena
under section 11 of the Toxic Substances Control Act (TSCA), or
(3) conducting an on-site inspection of the “other persons”
establishment. Please note, inspections of “other persons”
establishments must be conducted with the permission of the
“other person.”
Development of a Data Base
There are several resources that Regions/States should use
in order to effectively target inspections.
Identification of LEAs
LEAs, schools within LEAs, and student population size of
LEAs may be identified through the Quality Education Data
(QED) School Guide. The QED School Guide lists all public and
private LEAs arid schools by State. The QED School Guide for
each State located in the Region is sent to the Regional
Asbestos Coordinators each year by the Office of Toxic
Substances (OTS). LEAs may also be identified through the
records that are required to be submitted to EPA by the States
(see below).
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—4—
Determinina the Status of LEA Management Plan
and Deferral Reaiiest Submissions
Pursuant to section 205(e) of AHERA as amended (the AHERA
Extension Bill), all States are required to submit to EPA, by
December 31, 1988, a written statement which reports those LEAs
that: (1) have submitted a management plan by October 12,
1988; (2) have submitted a “request for deferral” which was
approved; (3) have failed to submit a management plan and whose
deferral was disapproved; (4) have failed to submit a
management plan by October 12, 1988 and did not submit a
deferral request. This list is required to be revised by the
States and resubmitted to EPA by December 31, 1989, and will
contain information which reports LEAs: (1) whose management
plan was submitted and not disapproved as of October 9, 1989;
(2) whose management plan was submitted and disapproved, and
remains disapproved, as of October 9, 1989; (3) whose
management plan was submitted after May 9, 1989, and before
October 10, 1989; and (4) who failed to submit a management
plan as of October 9, 1989.
Regions and States with Compliance Cooperative Agreements
are to use the records submitted by the States to identify LEAs
that have violated AHERA by failing to submit a management plan
or a deferral request by October 12, 1988. Regions are to take
enforcement action, in accordance with the AHERA Enforcement
Response Policy (ERP), against those LEAs that have failed to
submit timely plans or deferral requests. An LEA site visit
will not be necessary to verify compliance with these
requirements. The goal of this approach is to ensure that the
management plan is sent to the State for review .
Additionally, Regions and States with Compliance
Cooperative Agreements are to use the records submitted by the
States to identify and target inspections at LEAS that have
requested deferrals. The purpose of these inspections are to
assure that the LEAs that have requested a deferral have
complied with the provisions of the AHERA Extension Bill.
Identification of LEAs Conducting
Response Actions
Regions and States with Compliance Cooperative Agreements
are to conduct inspections at LEA5 for which they have
knowledge that an abatement or response action project is
occurring (i.e., enclosure, encapsulation, repair, or removal
of friable asbestos—containing building material (ACBM)).
Regions/States can identify these LEAS by using:
1) The list of LEAS that have been awarded monies under
the Asbestos School Hazard Abatement Act (ASHAA).
This list is provided to the Regional Asbestos
Coordinators by OTS following each award cycle.
2) Referrals from the NESHAPs program based on their
notifications that an asbestos abatement project will
occur at an LEA.
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ATTACHMENT II
ASBESTOS RELATED PROGRAM ACTIVITIES
Office of Air Quality Planning arid Standards (Contact
z :n Biondi, 382—2 26 )
National Emission Standard for Hazardous Air Pollutants
(NESriAP) — requires contractors and ouilding owners to notify
of any asoestos removal activity arid to follow specific
aoatement practices.
NESHAP Enforcement Strategy — provides a framework for
inpiementing and enforcing the asbestos demolition and
renovation requirements.
Compliance Inspector Training — The Asbestos Demolition and
Renovation Inspection Workshop and the Asbestos Safety Inspec-
tion workshop are available for inspector training. They can
oe presented alone or can be cornoined into one three—day
workshop. A Demolition and Renovation Inspection Manual is
u& der development and should e available in FY 89.
Performance Improvement Project — An evaluation of seven
State/local asbestos inspection programs was conducted in
order to identify work practices that are most effective in
implementing a superior inspection progro in. Information
ootained was summarized in a “model” asbestos enforcement
prograLu for use by Regional, State, and local offices.
Office of Toxic Suostances (Contact John Me].one 382—3749 )
Ban and Phase Down Rule — This final rule, due to be
puolished in January 1989, will complete the Agency’s review
of the costs arid oenefits of regulatory alternatives to
prohibit or control exposures from asbestos—containing com-
mercial products, to include the alternatives of a ban on
oroad categories of products.
Worker Protection Rule — The Worker Protection Rule is
currently being revised to include protective requirements for
all operation and maintenance activities in addition to exist-
ing requiriasnts covering abatement activities. This newly
revised rul• is expected to be final shortly after finalizing
trie Ban and Phase Down Rule.
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?.•(
Mr.MORjtNDUM
bu J cr:
Fz O&1:
UNITED STATZS Z VIRONMEN7AL RGTECTICN AGENC’!
SEP 2 9 I 8
Integration of A;ericy Asbestos Activities
Don R. Clay, A 3 Assistant Administrator 1
i at io n -
for Air and
Victor J. i nin, Acting Afts
for ‘esticides and t ic Suostances
Thomds L. Adams, Jr.
Assistant Administrato’ for Enforcement
and Co:r1 l1dnce Monitoring
TO:
Re :cnal Admin strators
In response to a requirement of the Asoestos dazard
E.ciergency tesponse Act (AHERA) in Feuruary L9ø , the Administrator
forwarded to the Congress the findings of a study conducted
to deter.-nine the extent of danger to human nealtn posed by
asuestos in public and commercial ouildings. Those findings
indicated that asoestos is present in approximately 730,000
puofic and commercial ouildtngs and represents a potential
nealth hazard which deserves our careful attention. This is
in addit on to the 35,000 school ouildings which contain
friaole asoestos.
In his recommendation, the Administrator indicated the
need for an improved integration of activities across EPA
programs to reduce imminent hazards from asoestos exposures.
Therefore, we believe it is necessary to put into place in
each Regional Office a plan that addresses the multiple
aspects of asbestos activities and integrates them in a
comprehensive, coordinated way. We are requesting that
implementation plans (as described oe].ow) be suomitted to
the stationary Source Compliance Division (SSCD) in OAR oy
Novemoer ia, 1988.
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—2—
Technical Assistance Materials — Several guidance documents
have been developed to provide technical assistance on various
asoestos issues. These documents include: Guidance for
Controlling Asbestos—Containing Materials in Buildings (the
“?urple Booi ’) — summer £935. Asoestos—in—Schools: A Guide
to new Federal Requirements for Local Education Agencies —
Fe.ruary 1983. the “White nook”, tne “Ye.m.i.ow Booa’, the
“Green Book”, and the “Silver Book”, covering topics from
preventing asoestos disease among auto mechanics to measuring
airoorne asbestos following an aoate nent action. Two other
guidance documents, intended to amplify asoestos control
sections of the Purple Book, are currently in draft: Special
Operations and Maintenance Program . and Assessing and Managing
Exposure to Asoestos .
Asbestos Information and Training Centers — In the spring
of 1985. three asoestos information and training centers were
opened to provide information concerning the identification
and aoatement of asoestos hazards and to train people in
proper asoestos control and abatement techniques. Two additional
centers were opened in 1986. The centers sponsor technical
symposia, conferences and, primarily, offer EPA—approved
training courses for AHERA accreditation of building inspectors.
,nanagement plan developers, asbestos abatement contractors,
school officials, engineers, architects, maintenance personnel
and abatement workers.
Air Monitoring Study — A major field study was conducted
to compare airoorne asoestos fiber concentrations in outdoor
a!n )ient air with those prevailing in Federal buildings which
contain asbestos materials. This study. Assessing Asoestos
Exposure in Public buildings was specified in FY 1986 ASHAA
Congressional appropriations. It is available from OTS and NTIS.
Feder. l Asbestos Program — For some time. EPA has sponsored
the Federal Asoestos Task Force (FATF), a working group of
Federal agencies, such as the Occupational Safety and Health
Administration (OSHA) and the Consumer Product Safety Commission
(CPSc), with asbestos control program responsibilities. This
group meets regularly and coordinates Federal regulatory and
technical assistance programs. A new initiative was begun last
year with G8A. This project has two immediate goals:
(I) identifying the problems posed by asbestos to Federal
ouilding managers and (2) improving the asbestos awareness
and control capabilities of these managers. Seminars are
oeing held around the country to bring GSA and EPA facilities
and program staff together to coordinate the two programs.
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—3—
Office of Compliance Monitoring (J?TS) (Contact
‘hyllis Fiaherty, 382—7825 )
Worker Protection Rule — The worker Protection Rule is
currently operating under an Intarim Enforce nent Response
PoLicy, issued July 9, l98 , and a Compliance Monitoring
Strateg , issued Septemoer 9, 198o. A r nal Compliance Moni-
toring Strategy and Enforcenent Response Policy will oe
issued in the near future to reflect tne Final Worker Protec-
tion Rule issued Feoruary 2i, 1987.
AHERA Transition Policy - The AHERA trensitiun policy
provides guidance for targeting the 1982 (471R23360) Asbestos
in School Rule (hIS) compliance monitoring inspections oetween
January 29, 1988, and Octooer 1.2, 1988. The final policy
Limits AIS inspections to investigating tips and complaints
and following up on hIS . ettlement with Conditions agreements
(SWC). EPA inspectors will also include AHERA education
during these inspections. The transition policy also provides
guidance to the Regions for determining the appropriate
enforcement response for AIS violations. Generally, the
appropriate enforcement response for Local Education Agencies
(LEAs) found in violation of AIS prior to October 12, 1988,
is the issuance of a Notice of Noncompliance (NON).
The NON is to include a notification that the LEA will be
targeted for early AHERA inspection. I SWC conditions are
not met from previous civil complaints, the Region is to
collect the fuLl penalty if no conditions are met and a
prorated penalty if some conditions are met. Regions are to
a. nend SWCs which are inconsistent with AHERA. Regions are to
proceed with civil complaints already issued, but settle for
minimal penalty if tne LEA agrees to comply with AHERA.
Inform the LEA they will be targeted for early AHERA inspection.
Regions are to issue NONs for on—going AIS cases where the
civil complaint has not yet been issued. Press releases are
at the discretion of the Region.
Enforcement Response Policy for violations of the Immediately
Enforceable Provisions of AHERA issued as interim final on
January 29, 1988. There are several provisions of the Asbestos
Hazard Emergency Response Act (AHERA) that must be complied
with beginning on December 14, 1987, the effective date of
tne AHERA regulations. The Interim Final Enforcement Response
Policy (ERP) outlines the criteria for determining the level
of response for each of the immediately enforceable AMERA
requirements.
For previous guidance on coordination activities between
OAR and OPTS, please refer to the November 30, 1984 memorandum
from Edward Reich and A.E. Conroy.
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—4—
Office o n orcement and Co n l.iance Mcn zor nc (Cor.:act
M.Lke Aiusr.in, 3a2—2820 a : reu 3 2—4544
Asoest s Demolition and Renovation Civil Penalty Policy -
i’his policy establishes how EPA determines the oottom—1 ne
c vi penalty settlement amount in as est s demol tion/renova—
tiun . r.AP cases.
Procedures for Pre—Referra]. Settlenent of Asoestos
Demolitton and Renovation Cases — This establishes procedures
to enable Re ional Offices to resolve asoestos demolition and
renovat .on violations oy negotiating settlement prior to
referral of a matter to tne De ,art:nent of Justice.
Listing Asoestos Demolition and Renovation Companies
Pursuant to Section 306 of the Clean Air Act — This policy
encourages Regions to consider listing under Section 306 of
the Clean Air Act asbestos demolition and renovation contrac-
tors who have violated the NEStIAP, thus preventing them from
contracting with Federal agencies or with any other entity
which has received Federal grants or loans.
Civil Enforcement
Section 113(o) of the clean Air Act provides EPA the authority
to oring a civil judicial action for injunctive relief and for
civil penalties of up to $25,000 per day of violation of the
asoestos NESUAP.
bectien 3(o) of AHE1 amended section 15 of TSCA to state that
it is unlawful for any person to fail or refuse to comply with
the requirements of AHERA. This amendment to TSCA §15 provides
nu.nerous tools for enforcing AHERA requirements. These tools
include c vi1 and criminal penalties, injunctive relief, and
su poena authority. For instance, TSCA 16 provtdes for
c v l penalt. .as of up to $25,000 per day per violation of
l5.
Crim nai. Enforcement
Section 113(c) of the Clean Air Act provides EPA the authority
to initiate a criminal judicial action against anyone who
knowingly violates the asbestos NESHAP.
The Section 3(b) AHERA amendment noted above also triggers the
criminal enforcement provisions of TSCA §16. Section 16(b) of
TSCA provides for fines of not more than $25,000 per day per
violation, or imprisonment for not more than one year, or both.
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—5—
Administrative Orders/Injunctive Relief
Section 113(a)(3) of the Clean Air Act provides E?A the
authority to require jmmedidte cornpli nce wlt.i1 tne Asoestos
NE riAP. AHERA provides EPA with consideraoLe authority to
o tain injunctive relie±. The Section 3(a) AhEF A ame Unent
noted aoove triggers the injun .:ive reLief provisions of TSCA
l7, whicn provides the U. . uistrict courts with the jurisdic-
tion to: restrain violations of AHERA. and to compel the
taking of action required oy AHEz A. Section 208 of AH .RA
autziorizes EPA and the States to seek injunctive relief in
the U.S. district courts when certain conditions give rise to
imminent and suostantial endangerment to human health or the
environment. Section 208 also authorizes the U.S. district
courts to grant such relief.
Section 7 of TSCA also provides EPA with injunctive relief
in situations which give rise to an imminent hazard. One of
the major differences oetween §7 of TSCA and §208 of AHERA is
that the Later section deals with iziuninent hazards present in
a school ouilding. In those cases where asbestos presents an
imminent hazard outside the jurisdiction of §208, EPA should
Look to TSCA §7 to provide the needed remedy.
Suopoena Authority
The Section 3 MERA amendments to TSCA trigger the subpoenak.-
authority provision of TSCA l1 . Section 11(c) of TSCA
authorizes EPA to issues suopoenas which may require the
attendance and testimony of witnesses and the production of
reports, papers, documents, answers to questions, and other
information that EPA deems necessary to carry out this Act.
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Nui1
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INr RIM FINAL
IFORCEMENT RESPONSE POLICY
FOR THE ASBESTOS HAZARD k IERGENCY RESPONSE ACT
OFFICE OF COMPLIANCE MONITORING
OFFICE OF PESTICIDES AND TOXIC SUBSTANCES
U.S. ENVIRONMENTAL PROTECTION AGENCY
JAN 3 I 989
p/it
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—1—
TABLE OF CONTENTS
I NTRODUCTION
Regulated CommI inity 1
DETERMINING THE LEVEL OF ACTION
Administrative Civil Penalties 2
Concurrence 3
Notices of Noncompliance 3
InjunctiveRelief 5
Criminal Penalties 6
Press Releases 6
NotificationofStateGovernors 7
ReferralstoHeadquarters 7
Liability 7
Assessing Administrative Civil Penalties Against an LEA
Violations 8
Failure to Conduct an Inspection Pursuant to
Regulations 8
Knowingly Submits False Information Regarding the
Inspection . . . . . . . . . . . . . . . 8
Failure To Develop a Management Plan Pursuant to
the Regulations . . . . . 9
Carries Out Any Activity Prohibited by Section 215
of A}IER.A as Amended . . . . . . . . . . . . . . . 9
Knowingly Submits False Information Regarding the
Deferral Request 9
Multiple Violations 10
One Day or Per Day Assessments . 10
calculating the Administrative Civil Penalty for the LEA..10
Base Penalty For LEA (TABLE A) . 11
Nature . . . . . . . . . . . . . 12
C ircunistances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
E ctent ..........-.... 12
Adjust.alat Factors . . . . . . . . . . . . . . . . . . 13
Culpsbility •..........• •••••• . 13
Hiatoryof Previous Violations • ..........;.....14
Ability to Pay . . . . . . . . . . . . . . . . . . . . . . . 14
Voluntary Disclosure. . . . . . . . . . . . . . . . . . . . . . . . . . . .15
Attitude .... ............................15
How Civil Penalties Will Be Collected From the LEA........15
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—11—
Assessing Administrative Civil Penalties Aaainst Persons Other
Than the LEA
Calculating the Administrative Civil Penalty for
“OtherPersons” 17
Base Penalty (TABLE B) 17
Nature 18
Circumstances 18
Extent 18
Multiple Violations 18
One Day or Per Day Assessments 19
Adjustment Factors 19
Settlement With Conditions 19
LEA Employees as “Other Persons” 20
Assessing Administrative Civil Penalties Against Private
Non-Prof it Schools
21
APPENDIX A
Circumstance Levels For LEA A}IERA Violations 22
APPENDIX B
Circumstance Levels For Other Persons Violations of AHERA . .32
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, I
- INTERIM FINAL
ENFORCEMENT RESPONSE POLICY
FOR THE ASBESTOS. HAZMD EMERGENCY RESPONSE ACT
I NTRODUCTI ON
On October 22, 1986, the President signed into law the
Asbestos Hazard Emergency Response Act (AHERA) of 1986, also
known as title II of the Toxic Substances Control Act (TSCA).
Under AHERA, the Environmental Protection Agency (EPA) was
directed to promulgate regulations which would require Local
Education Agencies (LEAs) to address asbestos problems in
their school buildings. In accordance with the statute, and
the regulations issued on October 30, 1987 (52 FR 41826), LEAs
are required to inspect school buildings for asbestos-
containing building materials (ACBM), develop management plans,
and implement response actions. The statute also requires
persons other than LEAs to comply with the requirements of
A1IERA or any rule or order issued .Lnder AHERA. -
This Enforcement Response Policy (ERP) for AHERA calls for
the issuance of civil complaints, Notices of Noncompliance
(NONs), and criminal actions to LEAs and other persons that do
not comply with AHERA. This ER? also calls for the use of
in]unCtive relief under section 208 of ANERA or under section
17 of the Toxic Substances Control Act (TSCA) to respond to
hazards which pose an imminent and substantial danger to human
health and the environment, or to compel an LEA or other person
to comply with any requirement of AHERA. Except as otherwise
indicated in this policy, NONs will not be an appropriate
enforcement response for violations of AI1ERA by persons other
than the LEA (“other persons”).
Re u1ated Community
Local Education Aaencies (LEAs)
Under AHERA,ak LEA means:
1) Any LEA as defined in section 198 of the Elementary
and Secondary Education Act of 1965 (20 U.S.C. 3381).
Essentially, this means that an LEA is an LEA if it
is 4sf med as such under State Law.
2) Thsi-’ g of any nonpublic, nonprofit elementary or
secondary school building .
3) The governing authority of schools operated under the
defense dependents’ education system provided under
the Defense Dependents’ Education Act of 1978 (20
U.S.C. 921, et seq.).
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—2—
Persons Other Than the LEA (“Other Persons”)
For the purposes of this ERP, “persons other than the LEA”
or “other persons” means persons who:
1) Inspect LEAs for ACBM for the purpose of the LEA’s
AHERA inspection requirements.
2) Prepare management plans for the purpose of the LEA’s
AHERA management plan requirements.
3) Design and/or conduct response actions at LEAs.
4) Analyze bulk samples and/or air samples for the
purpose of the LEAS AHERA requirements (i.e.,
laboratories).
5) Contract with the LEA to perform any other A}!ERA
related function (i.e., to be the LEA designated
person, to conduct operations and maintenance
activities, etc.).
DETERMINING THE LEVEL OF ACTION
EPA Fm y issue civil penalties to LEAs of up to $5,000 per
day per violation of AHERA as identified in AHERA sectio ZU1 —
The Agency may also pursue criminal sanctions against LEAs r
knowing or willful violations of AHERA under TSCA title I.
Under AHERA section 208, the Agency may pursue injunctive
relief in order to respond to hazards that pose an imminent and
substantial endangerment to human health or the environment.
Finally, the Agency may use the authority of TSCA section 17 to
compel LEAs to comply with any requirement of AHERA.
Generally, willalso notify the State Governor and the
pub 1 icof an LEA’ s violation of AHERA .
Under TSCA title I, as amended by section 3(b) of AHERA,
EPA may utilize all enforcement remedies provided under TSCA
title I against “other persons” who violate the provisions of
AHERA and its regulations (e.g.. persons who design or conduct
response actions that are not accredited under AHERA and
laboratories that are not accredited to perform air monitoring
or do not follow the protocol stipulated in Appendix A),
including civil penalties of up to $25,000 per day per violation.
Adininistrativ Civil Penalties
In general, this ERP calls for administrative civil
penalties to’be issued to LEAS for violations identified in
AHERA séction 207(a) . AaGitionally, administrative civil
penames are the appropriate enforcement response for
violations of AHERA by persons other than the LEA (“other
persons”), except as otherwise specified in this policy.
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—3—
Concurrence
Administrative civil penalties are to be assessed according
to this policy. Pursuant to the Delegations Manual, regional
enforcement personnel must obtain written concurrenc T the
Officeot Compliance Monitoring (0CM) of the Office of PestJ ides
and Toxic Substances (OPTS 1 prior to-i-M-t i ing an adini ff trat-ive
civil peTaIWfor violations of AHERA . A
relaxation of the concurrence requirements for civil actions taken
against LEA5 once three administrative civil Complaints have been
successfully issued to an LEA and closed out. A region may
separately request relaxation of concurrence for civil actions
taicen against “other persons” once three administrative civil
complaints have been successfully issued to an “other person” and
closed out. Regions must also obtain 0CM concurrence for the
first three administrative civil complaints that are successfully
issued to LEA employees and successfully closed. For the civil
actions to be considered successful, regional cases must have been
supported by adequate evidence of the violation, and the proposed
penalties and final assessments must conform to this AHERA
enforcement response policy.
Finally, Regions must obtain 0CM concurrence for each
administrative civil complaint that is issued to an LEA or “other
person” which is calculated on a per day basis, or per violation
basis other th ,fl in accordance with Appendix A or B of this ER?
(See the “One or Per Day Assessments” section of this ERP on page
10 and 19, and the “Multiple Violations” section of this ER? on
page 18).
Notices of Noncomoliance (NON)
EX gp as otherwise indicated in this policy (see “LEA
Employees as ‘Other Persons” section of this ERP on page 20), it
is not appropriate to issue NONS for violations of AHERA by
pei ons othei than the LEA (“other persons”) . Such violatTöI sM’
will u tiäT1y warrant a civil complaint.
Notices_of_Noncompliance are to be issued to LEA /for all
violatioiiS of H RAThnd/or the AKERA regulations _ aX are not
respondi to by other enforceme echanisms. / hiyinclude all
man ment plan up ementation violations, or Ot k on-going
implementation violations for which an administrative civil
complaint caz t be issued or injunctive relief is not obtained.
Additionally, Ns are to be issued to L s for the LEA’s first
citation for iy Level 6 violation or Level 3, 4, or 5 minor
extent violation, regardless of the number of school buildings
involved. Civil complaints are to be issued for the LEA’S second
citation of a Level 6 v [ Olation or a Level 3. 4, or 5 minor-extent
violation ari —are-tabe—car UTAt ising the Pe iItMãtri T
LEAs foundin Table A.
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—4—
Notices of Noncompliance y also be used in certain
circwnstances as the initial enforcement respcnse to LEAs that
have failed to conduct an asbe tos inspection a submit a
manageme -rtpTãñto the State . Tfle A}iERA extension D1lJ. reqvires
State ubmit to EPA by December 31, 1988. a written statement
reporting those LEAs that have submitted a management plan and
those who have submitted a request to defer submission of the
management plan until May 9, 1989. States must update this list
and submit it to EPA by December 3]., 1989. Regions may use the
information obtained from these lists to issue NON5 to LEAs that
have not had an on-site inspection by an EPA compliance inspector,
and appear on the list as not submitting a management plan by the
statutory deadlines (October 12, 1988, or May 9, 1989, if the LEA
has received a deferral from the State). That NON shall require
LEAS to submit documentation within 60 days to the EPA Regional
Office that they completed the inspection and submitted the
management plan to the State. The NON shall further state that if
the LEA does not submit this documentation within 60 days after
receipt of the NON, the Agency will issue an administrative civil
penalty to the LEA for its failure to conduct the inspection
and/or submit the management plan. Local Education Agencies that
did submit a management plan in response to the initial NON gill
not be issued a civil complaint for failing to conduct the
inspection or submit the plan, as long as the LEA submits
documentation of compliance within the 60 days.
The advantage to this approach is that if records
incorrectly show that an LEA has not submitted a management plan,
the LEA will be able to notify the Agency of the error before an
unjustified and resource intensive civil complaint is issued.
Further, the NON with a pending civil complaint within 60 days
may provide enough incentive for an LEA to submit a management
plan to the State without EPA having to invest resources issuing
an administrative civil complaint.
Civil complaints which are to be issued to LEAS that do not
submit documentation that an inspection was completed and a
management plan was submitted to the State will not be subject to
the 180-day target in the Agency’s Strategic Planning and
Management System (SPMS), and 0CM does not expect the Regions to
follow-up on all of those NONs with civil complaints at once.
The number of civil complaints that will immediately follow-up
NONs which arissued as the initial response for Rfailure to
submit a management planN will vary in each Region depending on
the resources available in each Region. Therefore, Regions should
prioritize the issuance of the follow-up civil complaints.
Regions should consider LEAs that contain the most students
(therefore the most potential exposure) and have a history of
violating asbestos regulations, as having the highest priority to
receive follow-up civil complaints. Regions may also consider
other appropriate criteria for determining which LEAS wi ] . ] receive
priority follow-up civil complaints.
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—5—
Local Education Ager cies that have not conducted the asbestos
inspection and/or submitted a management plan by the statutory
deadline and have had an on-site EPA compliance inspection to
verify noncompliance, may be issued an administrative civil
complaint as the initial enforcement response.
Notices of Noncompliance, other than NONs issued to an LEA
for the first citation of a Level 6 violation or a Level 3, 4, or
5 minor extent violation, are to state that repeat violations of
AHERA may be considered knowing or willful violations of TSCA, and
therefore, may be subject to additional enforcement actions
including criminal penalties and court injunctions. All NONS
issued to an LEA should be copied to the State Governor, S ãte
AHERA Designated Agency/Person, or State Boar QL iiur tionin
whicff the_LEA is located. Additionally, all NONs issued to an LE
Ifor substá tVe ANERA violations are to require the LEA to submit
-9 documentation to the EPA Regional Office within 30 days that the
\AHER.A violation has been corrected. Regions are to pursue
further action (i.e., press releases, notification of the State
Governor, injunctive relief, or criminal referrals) if the LEA has
not corrected the violation.
Injunctive Relief
The Agency may obtain injunctive relief under AHERA section
208(b), as well as under section 17 of TSCA title I. The decision
regarding the appropriate section under which to proceed will
depend on the particular facts of the case.
AHERA section 208(b) authorizes injunctive relief in cases
where “the presence of airborne asbestos or the condition of
friable asbestos-containing material in a school building
governed by a local education agency poses an imminent and
substantial endangerment to human health or the environment.” As
these conditions correspond roughly to the “imminent hazards” of
section 7 of TSCA title I, AHERA section 208(b) should be utilized
in a similar manner as that section. For example, where a
situation presents a serious and immediate risk of injury such
that a Temporary Restraining Order (TRO) or preliminary injunction
is appropriate, the injunctive relief should be sought under
AHERA section 208(b). However, until the EPA completes the
delegation authority under the AHERA statute for determining
“imminent has d and commencing imminent hazard action in an
appropriate U.$,. District Court, the determination that an
imminent hazar( exists and that injunctive relief under N1ERA
section 208(b) may be sought must be made on a case-by-case basis
by the Administrator.
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—6—
Section 17 of TSCA title I authorizes injunctive relief to
restrain violation ot TSCA section 15, including violations
of AHERA, or to compel the taking of y action under AHERA.
This authority is very broad and can support a wide range of
injunctive actions, including actions to compel courpliance by
LEAs where it is not possible to obtain administrative civil
penalties for violations of MERA. The Agency does not have to
use “imminent hazard” as a criteria for seeking injunctive relief
under TSCA section 17. However, in general, Regions should
consider seeking injunctive relief in situations where LEA
noncompliance with AHERA will significantly undermine the intent
of AHERA. These types of violations include, but are not limited
to, failure or refusal to make the management plan available to
the public without cost or restriction, failure or refusal to
conduct legally sufficient air monitoring following a response
action, or the initiation of a response action without the use of
accredited personnel. The decision to seek injunctive relief
under TSCA section 17 should be made on a case-by-case basis and
in accordance with the Delegations Manual for TSCA. Regions
should consider seeking injunctive relief under TSCA section 17
against LEAs for the violations indicated in Appendix A.
Generally, Regions should attempt other enforcement mechanisms to
generate LEA compliance with AHERA, such as press releases and
notification of the State. before injunctive relief under TSCA
section 17 is pursued.
All cases for which injunctive relief is sought are to be
referred to the Department of Justice (DOJ) in accordance with
the most recent guidance from the Office of Enforcement and
Compliance Monitoring (OECM).
Criminal Penalties
Knowing or willful violations of the N4ERA regulation
committed by any person, including contractors, LEAS, LEA
employees, can result in the issuance of criminal penalties.
Criminal referrals should be considered in cases where an LEA or
“other person” has been warned repeatedly by EPA that a violation
is on-going and has been requested to cease or correct the
violation, but have refused to do so. Criminal referrals are
also appropriate against an LEA if that LEA knowingly or willfully
continued a violation of AHERA for which an NON had previously
been issued (e discussion of this in the NON section of this
strategy). Ms* quarters will consider this potential enforcement
response on a case-by-case basis.
Press Releases
Regions may, at their discretion, issue a press release to
notify the public of an LEA’S or other person’s violation of
AHEP This option serves to notify the community ot an L!A’-s- or
t11 person’s nojj.-gompliance I.,iP)1 PMflAand also educat the
put!orrTffr7 quirements of AHERA. EPA Headquarters
recommends issuing press releases for m It violat [ i bf ANERA .
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—7—
Notification of State Governors
In situations where LEA compliance is not forthcoming,
Regions should contact the State Governor, state PIHERA Designated
Agency/Person, or State Board of Education in which a violative
LEA is located, to inform those State offices of an LEA’s non-
compliance with AHERA or recalcitrance. This enforcement response
may be particularly useful for violations where the EPA does not
have civil penalty authority, and NONs and press releases are
ineffective in generating compliance.
Referrals to Headquarters
If the Regions encounter egregious situations where LEA
compliance cannot be generated from the enforcement mechanisms
described above, Regions may submit the cases to the Compliance
Division of 0CM for consideration of other enforcement responses.
Li ab iii t v
Civil penalties issued for violations of some of the
provisions of AHERA could be issued to both the LEA under AHERA
and other persons under TSCA title I. For instance, the use of
persons not accredited under AHERA for conducting asbestos
inspections may result in two separate administrative civil
complaints, one against the LEA under MERA section 207(a)Il),
and another under TSCA title I against the unaccredited person
who conducted the inspection. Similarly, civil penalties could
be issued to the LEA and the laboratory, under AHERA and title I
respectively, if the laboratory did not conduct the bulk sample
analysis in accordance with the AHERA regulations.
Generally, when both the LEA and “other persons” have
violated AHERA, administrative civil penalties should be issued
separately to each. However, a civil complaint should not be
issued to the LEA in a situation where the LEA can document that
it made a reasonable effort to assure that the contracted “other
person” complied with MERA (e.g., the contractors or
laboratories falsified statements about accreditation or provided
false credentials). Similarly, a civil complaint should not be
issued to a laboratory if the laboratory can demonstrate that they
did not knov or have -reason to know that the bulk sample analysis
was to.be uasd.by an LEA to comply with the requirements of AHERA.
In such a situation 1 the administrative civil complaint would be
issued to the LEA.
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—8—
ASSESSING ADMINISTRATIVE CIVIL PENALTIES AGAINST AN LEA
VIOLATIONS
Pursuant to AHERA section 207(a) 1 administrative civil
penalties may only be assessed against LEAs that: 1) fail to
conduct an inspection pursuant to the regulations under MERA
section 203(b); 2) knowingly submit false information to the
Governor regarding any inspection pursuant to the regulations;
3) fail to develop a management plan pursuant to the regulations
under AHERA section 203(i); 4) carry out any activity prohibited
by section 215 of AHERA as amended; or 5) knowingly submit false
information to the Governor regarding a deferral request under
section 205(d) of AHERA as amended. Therefore,_LEc.AP’ ’1iangg
with any requirement of the AHERA regulátions-im.ist f ul unri r
of these five statutory violation categories for an administrative
civil compraflitto De lssueø . iease note, the statutory
vi 1at ion for- wnicn the regulatory violation is derive must 1.e
cited—In trre awninistrative civil corn laint. The statutory
viol c each regulatory violation corresponds is
listed in Appendix A of this ERP.
Failure to Conduct an Inspection Pursuant to Regulations
Regulatory violations of AHERA section 207(a)(l), “failure
to conduct an inspection pursuant to regulations issued under
ANERA section 203(b),” include all the requirements associated
with the inspection of a school building in order to identify the
presence and condition of asbestos-containing building material
(ACBM). These requirements include the use of personnel
accredited under MERA section 206(b) or 206(c), and laboratories
accredited under IiBERA section 206(d). Also included are
violations of the assessment requirements and the bulk sample
analysis requirements.
Knowingly Submits False Information Regarding an Inspect ion
Regulatory violations of AHERA section 207(a)(2), I.e.,
“knowingly au i-ts false Information to the Governor regarding
any inspectiOn pursuant to the regulations issued under AHERA
section 203ej?,’ are limited to false information regarding the
inspection that is actually submitted to the Governor as part of
the LEA’s management plan. This includes falsified laboratory
reports and false representation of an inspector’s or laboratory’s
accreditation.
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—9—
ilure to Develoo a Management Plan Pursuant to the Regulations
“Failure tO develop a management plan pursuant to the
regulations under N4ERA section 203(i)” refers to violations of
AJIERA which relate to the process of preparing a complete
management plan document for submission to the State Governor. An
LEA’S development of the management plan continues to the point
where the State Governor can no longer disapprove the plan and
recommend changes to that plan. Additionally, since the final
result of the management plan process is the public availability
of the management plan, violations of the AHERA statute and
regulations relating toptiBlic av i1aD1ilty or tne mAn g fltent plan
are c onslde-red “xalLure to develop a management plan. ” Violatiójj
0rAHERA that are considered “failure to develop a management
plan” are listed in Appendix A of this ERP. These violations
include, but are not limited to: using an unaccredited person to
prepare the plan; having a management plan that does not contain
all the elements required to be in the plan that is submitted to
the State Governor; not submitting the plan to the State; failing
to notify the public of the management plans availability; and
failing to make the plan available to the public without cost orL.
restriction. Please note that an LEA may be liable for “failetre [
to develop a management plan” if the plan is not complete or notl
developed by an accredited person, even if the LEA’s management
plan was not disapproved by the State.
Carries Out Any Activity Prohibited BY Section 215 of N1ERA as Amended
Section 215 of the AHERA extension bill amends section 205 of
AHERA to state that as of October 12, 1988, renovations or removals
of any building material, with the exception of emergency repairs,
are prohibited in schools whose management plans have not completed
the NiERA State review process, unless (1) the school is carrying
out work with a grant under EPA’S Asbestos School Hazard Abatement
Act (ASHAA) award program, or (2) an inspection which complies with
AHERA has been completed in the school and the LEA complies with
paragraphs (g), (h), and (i) of 40 CFR 763.90 (response actions).
In addition, all operations and maintenance (0&M ) activities in
the school must be conducted in accordance with the 0&M and
training requirements of NiERA (40 CFR 763.91 and 763.92 (a)(2)).
Local Education Agencies that carry out any of the activities
prohibited by section 215 of AHERA as amended, are subject to
administrative civil penalties under N1ERA section 207(a)(4).
Knowinalv Su its False Information Recardina the Deferral Recuest
Local Education Agencies are subject to administrative civil
penalties, under 1IERA section 207(a)(5) if any of the information
or statements submitted to the State with their deferral request
are knowingly false. This includes the submission of a false
statement that the LEA has carried out the notification of parent,
teacher, and employee organizations of the LEA’s intent to
request the deferral, and in the case of public LEA8, that the LEA
has conducted the required public meeting of the school board to
discuss the deferral request with the affected gToUpS.
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—10—
Multiple Violations
Section 207(a) of AHERA states that LEAs are liable for
adii inistrative civil penalties of not more than $5,000 per day per
violation. Under AHERA, a “violation” is defined as failure to
comply with the provisions of section 207(a) with respect to a
single school building. Therefore, the maximum penalty that may
be assessed against an LEA for any and al olations in a single
school building under AHERA is $5,00 _ Total penalties
for a single school building which exceed $5,000 per day are to be
reduced to $5,000 per day.
Please note, since under AHERA a violation means failure of
the LEA to comply with respect to a single school building, the
total civil penalty assessed against an LEA will include the total
civil penalties calculated for each schQol building in that LEA
(i.e., if an LEA has six school buildings that are in violation
of AHERA, the total civil penalty assessed against that LEA could
be as high as $30,000 per day).
One Day or Per Day Assessments
Generally, violations of AHERA by an LEA will be considered
as one day violations (except as specified in Appendix A).
However, in those cases where an LEA violates the requirements of
AHERA after a civil complaint has already been issued, it may be
appropriate to amend the civil complaint or file a second
complaint to seek additional civil penalties on a per day basis.
Regions should also contact the State to inform them of an LEA’s
recalcitrance. Regions may also consider seeking injunctive
relief or pursuing criminal penalties, depending on the facts of
the case.
If the Regions encounter any other cases where per day
penalties to an LEA are more appropriate then the one day
assessments which are indicated in Appendix A, an administrative
civil complaint, which is calculated on a per day basis, may be
issued provided the civil compliant has been concurred on by 0CM
prior to its issuance.
Calculatina qm 7 1niinistrative Civil PenaltY For the LEA
In det.z*I ting the amount of a civil penalty assessed
against an L for violations of AHERA, the Agency must consider:
A) the significance of the violation.,
B) the culpability of the violator, including any
history of non-compliance;
C) the ability of the violator to pay the penalty; and
D) the ability of the violator to continue to provide
educational services to the community.
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Since NIERA limits the civil penalty that can be assessed
against an LEA for each school building to a maximum of $5,000
per day per violation, the standard TSCA Civil Penalty matrix
(45 FR 59770; September 10, 1980) cannot be used to determine
the base penalty. However, section 207 of AHERA requires that
any civil penalties issued under AHERA be assessed and
collected in the same manner, and subject to the same
provisions, as those under TSCA section 16. Therefore, a
gravity based penalty (GBP) matrix shall be used for
determining the initial or “base penalty,” which, like the
standard TSCA Civil Penalty matrix, determines the significance
of the violation by addressing the nature, the circumstances,
and the extent of the violation (see Table A below). Since the
maximum penalty that can be assessed against an LEA for
violations of AHERA is one fifth of the maximum penalty that
can be assessed against persons for violations of TSCA title I,
the matrix on Table A divides each cell of the Standard TSCA -
penalty matrix by five. As appropriate, the penalty determin d
from the matrix found on Table A may be further adjusted based
on the culpability of the violator (including the history of—
non-compliance), ability of the violator to pay, and ability to
continue to provide educational services.
TABLE A
Base Penalty For LEA
EXTENT
I
I CIRCUMSTANCES
(Levels)
A
MAJOR
B IC
SIGNIFICANT I MINOR
1
$5,000
$3,400
$1,000 I
High
Range
2
$4,000
$2,400
I.
$600
I
3
$3,000
$2,000
$300*
Mid
Range
—
4
$2,000
$1,200
S200*
‘
5
$1,000
$600
Sl00
I
Low
Range
6
S400*
$260*
I
$4Q*
• l ic NON mr the ficet citation of vioiations that fall within these cells if
is the only violation
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—1.2—
Nature
A violation may be either chemical control, control-
associated data gathering, or hazard assessment in nature.
The AHERA regulations are essentially chemical control in
nature since the goals of AHERA are aimed at placing
constraints on how asbestos-containing building material (ACBM)
is maintained and handled, and therefore, how to minimize the
risks presented by the presence, handling, and removal of ACBM
in a school building. However, the management plan and
record-keeping requirements of AHERA are control-associated
data gathering in nature since the goal of these requirements
are to enable the Agency, and the general public, to evaluate
the effectiveness of the regulations and to monitor compliance.
For the purposes of this proposed AHERA ERP, a single matrix
shall be used for both types of violations, and therefore, it
will not be necessary to distinguish the nature of the violation.
Ci rcwnstances
The first step in selecting the base penalty is to determine
which level on the circumstances axis applies to the violation.
The circumstances axis of the GBP matrix reflects the
probability that harm will result from a particular violation.
In the case of A1 fERA, the probability of harm would increase as
the potential for asbestos exposure to school children and
employees increases. The matrix provides the following levels
for measuring circumstances (probability factors):
Levels 1. and 2 (High): The violation is likely to
cause harm.
Levels 3 and 4 (Medium): There is a significant chance
the violation will cause harm.
Levels 5 and 6 (Low): There is a small chance the
violation will result in harm.
The circumstance levels that are to be attached for each
provision of AHERA of which an LEA may be in violation are listed
in Appendix of—this ERP.
Extent -
The second step in selecting the base penalty for a specific
violation from the matrix is to determine its position on the
extent axis. This axis of the GB? matrix reflects the extent Of
potential harm caused by a violation. In the case of NIERA, harm
would be determined by the quantity of the regulated substance
involved in the violation (e.g., quantity inspected, removed,
enclosed, encapsulated, or repaired in violation of the
regulation).
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—13—
For the purposes of this proposed ERP, the extent levels are
as follows:
! JOR - violations involving more than 3.000 square feet
or 1,000 linear feet of ACBM.
SIGNIFICANT - Violations involving more than 160 square
feet or 260 linear feet and less than or
equal to 3,000 sq. ft. or 1,000 linear ft.
MINOR - violations involving less than or equal to 160 sq.
ft. or 260 linear ft.
One hundred and sixty square feet or 260 linear feet is the
cutoff for reporting under the National Emissions Standards for
Hazardous Mr Pollutants (NESHAPs), and the cutoff in 40 CFR 763.90
(i)(5) for use of phase contrast microscopy (PCM). Three thoUsand
square feet or 1,000 linear feet is the cutoff for transmission
electron microscopy (TEN) until October 7, 1989 (40 CFR 763.90(6)).
In situations where the quantity of asbestos involved in the
AJIERA violation cannot be readily determined, the civil penalty is
to be calculated using the major extent category.
Ad iustment Factors
As required by AHERA section 207, the penalty assessed
against an LEA for violations of AHERA must also consider the
culpability of the violator, including any history of violations;
the ability to pay; and the ability of the LEA to continue to
provide educational services.
CulDabilitv of LEA
The Agency mailed copies of the AHERA regulations to all LEAS
on a comprehensive list obtained from the Quality Education Data
(QED) School Guide. EPA has also mailed other information and
guidance docllal.vlts on AHERA to each of these LEAs (e.g., the
documents entitled ‘Asbestos-In-Schools: A Guide To New Federal
Requirements Tsr Local Education Agencies,” and “100 Commonly Asked
Questions About the New AHERA Asbestos-In-Schools Rule”).
Therefore, 0CM does not anticipate situations in which a reasonably
prudent and responsible LEA would not know of their
responsibilities for AHERA compliance. However, in those rare
situations where It can be shown that the LEA did not know about its
responsibilities under AHERA, Regions may, at their discretion,
adjust the penalty downward as much as 25%.
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—14—
The culpability of the LEA may also be taken into cons ider-
ation, and penalties reduced by 25%, when the LEA does not have
control over the violation charged. Further, the civil action may
be eliminated completely in situations where the LEA can document
that they made a reasonable effort to assure compliance. For
example, if the LEA took reasonable steps to determine if an
asbestos inspector was accredited, and further specified in the
job contract that persons who conduct inspections for ACBM must be
accredited under AHERA for that activity, then generally the
Agency will not take a civil action against that LEA for that
violation. The Agency will, however, issue a civil complaint
against the unaccredited inspector.
History of Previous Violations
The gravity based penalty (GBP) matrix provided in Table A
is designed to apply to “first offenders” (or second offenders
for the asterisked matrix cells, i.e., a Level 6 violation or
Level 3, 4, or 5 minor extent violation). Where an LEA has -
demonstrated a history of violations under TSCA title II, the
penalty is to be adjusted upward in accordance with the TSCA-. .-.
Penalty Policy.
The Agency will disregard the LEA’S prior history of
violations in calculating the penalty for a voluntarily disclosed
violation. However, for violations discovered by the Agency, the
Agency will address history of prior violations as indicated in
the TSCA Penalty Policy, even if the prior history results from a
violation which was voluntarily disclosed.
Ability of LEA to Pay/Anilitv of LEA to
Continue to Provide Educational Services
Under section 207 of AliERA, all civil penalties will go back
to the LEA for purposes of complying with the requirements of
AHERA. Any portion of the civil penalty remaining unspent after
compliance by the L is to be deposited into the Asbestos Trust
Fund. Regardless of this provision, LEAs may raise the ability to
pay as an issue. If this issue is raised by the LEA, the
determinatiOfl .OfWhat the LEA can be expected to pay will be made
on a case—by-Caae basis by the Regions after the civil complaint
has been ieau .
Other Factors As Justice May Recuire
Since AHERA section 207(a) states that civil penalties
issued to LEAs must be assessed in the same manner as those under
TSCA section 16, EPA may also consider “other factors as justice
may require,” such as “voluntary disclosure” and “attitude of the
violator,” when assessing civil penalties against LEAs.
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—15—
Voluntary Disclosure
Civil penalty amounts for an LEA’s Violation of PJIERJI will
be reduced if the violations are voluntarily discl sed by the
LEA. The penalty reductions for voluntarily disclosure are as
follows:
Voluntary disclosure 25%
Immediate disclosure within
30 days of discovery 25°
TOTAL 50%
The reduction for voluntary disclosure and immediate
disclosure may be made prior to issuing the civil complaint.
The civil complaint and Consent Agreement and Final Order (CAFO)
should state the original penalty and the reduced penalty and the
reason for the reduction.
The Agency will not consider voluntary disclosure reducrions
if the LEA has been notified of a scheduled EPA compliance
inspection or if the EPA compliance inspection has already begun.
ttitude
The existing adjustment provision for Attitude of the
Violator in the TSCA Civil Penalty Policy (September 10, 1980)
may also be applied to adjust the penalty by up to 15%. Please
note that this adjustment may decrease or increase the penalty by
15%. This adjustment applies equally to LEA5 that voluntarily
disclosed violations and those that did not. An LEA would
generally qualify for a downward adjustment if it immediately
halts the violative activity and takes immediate steps to rectify
the situation, and there is no finding of culpability. However,
such a reduction is at the discretion of EPA.
How Civil Penalties Will Be Collected
As stated previously, AHERA section 207(a) states that any
civil penalty collected from an LEA must be used by that LEA for
purposes of co lying with AHERA. Any portion of that civil penalty
remaining unapent after compliance by the LEA will be deposited
into the Asbestos Trust Fund by the Department of the Treasury.
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—16—
In order to implement the intent of this provision, Regions
are to defer payment of the LEA’s administrative Civil penalty in
accordance with the November 15, 1983 TSCA Settlement With
Conditions Policy. LEAs are to be placed on a compliance schedule
in which they must correct the violation for which they have been
cited and any other AHERA Compliance activities within a specified
period of time agreed on by the Region and the LEA. By the end of
the compliance schedule, or the point of completion of the
required activity, the LEA must present the Region with a strict
accounting of the cost of compliance. This may take the form of
notarized receipts, an independent accounting, or equivalent
proof. If the cost of compliance equalled or exceeded the amount
of the civil penalty, the LEA will not be required to pay any
money. If the cost of compliance was less than the amount of the
civil penalty, the LEA is to pay the difference. The penalty
check should be made out to the order of “The Treasurer of the
United States of America”, as with any civil penalty. In
addition, the LEA should be directed in the Consent Agreement to
state on the reverse side of the check, “For Deposit Into the
7\sbestos Trust Fund, 20 U.S.C. S4022.” The check should then’ T be
mailed to: U.S. EPA, Headquarters Accounting Operations Branch,
P ttention: Asbestos Trust Fund, P.O. Box 360277M, Pittsburgh; PA
15251.
ASSESSING ADMINISTRATIVE CIVIL PENALTIES AGAINST
PERSONS OTHER THAN THE LEA
AHERA section 3(b), Technical and Conforming Amendments,
amends TSCA title I to add section 15(l)(d), which states that it
shall be unlawful for an person to fail or refuse to comply with
any requirement of title II or any rule promulgated or order
issued under title II. This provision subjects persons other than
LEAS (“other persons”) to civil penalties under TSCA section 16 of
up to $25,000 per day for each violation of AHERA. Generally,
total civil penalties calculated which exceed $25,000 per day for
violations in a single school building are to be reduced to
$25,000 per day.
Generally, penal-ties assessed against “other persons” are
to be issued to the company if there is one. Civil penalties
collected from persona other than LEA5 for violationS of MERA do
n .t go into the Asbestos Trust Fund or back to the LEA for AHERA
compliance. All administrative civil penalties assessed against
“other persons” are to be sent to the standard EPA Regional civil
penalty locjcboxes.
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—17—
C lcu1atina the Administrative Civil Penalty for “Other Persons” —
Administrative civil penalties assessed against persons
other than the LEA are issued under TSCA title I. -Therefore,
this part of the policy has been developed in accordance with the
TSCA Civil Penalty Policy (45 FR 59770, September 10, 1980).
The TSCA Civil Penalty Policy establishes a system for
determining penalties in administrative actions brought pursuant
to TSCA section 16. Under that system, penalties are determined
in two stages: (1) determination of a “gravity based penalty”
(GB?) using the matrix found in Table B, and (2) adjustments to
the gravity based penalty.
To determine the gravity based penalty, the following
factors affecting a violation’s gravity are considered:
o The “nature” of the violation.
o The “extent” of environmental harm that could
result from a given violation.
o The “circumstances” of the violation.
TABLE B
Base Penalty For Persons - --
,i .J00 0 /&o ( o
2coO ,°° .i
1 1
CIRCUMSTANCES
A
MAJOR
f
B
SIGNIFICANT
C
MINOR
I
Levels
1
$25,000
$17,000
I $5,000
High
Range
2’
I
$20,000 I $13,000
I
S3,000 I
3
$15,000
$10,000
•
$1,500
Mid
Range
,
4
$10,000
$6,000
$1,000
5
$5,000
$3,000
$500
Low
Range
6
$2,000
J $1,300
$200
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-18—
Nature
Violations of AHERA by persons other than an LEA are to be
considered chemical control in nature.
Ci rcuinstances
The first step in selecting the base penalty is to determine
which level on the circumstances axis applies to the violation.
The circumstances axis of the GBP matrix reflects the
probability that harm will result from a particular violation.
The circumstance levels that are to be attached for each provision
of AHERA that a person other than an LEA may be in violation are
listed in Appendix B of this ER?.
_p — i 4
The second step in selecting the base penalty for a specific
violation from the matrix is to determine its position on the
extent axis.
As with the penalties assessed against LEAs for violations of
AHERA, harm would be determined by the quantity of asbestos-
containing building material (ACBM) inspected, removed, enclosed,
encapsulated, or repaired in violation of the regulation (See
Extent Level used for LEAs on page 13).
Multiple Violations
Since administrative civil complaints issued to “other
persons” for violations of AIIERA are issued under TSCA title I,
the maximum civil penalty that may be assessed against “other
persons” is $25,000 per day per violation. Consistent with
administrative civil penalties issued to LEA5 for violations of
AHERA, a violation of AHERA will generally mean failure to comply
with respect to a single school building. Therefore, the maximum
penalty that will generally be assessed against an “other person”
for all violations in a single school building is $25,000 per day.
Total administrative civil penalties which exceed $25,000 per day
will generally be reduced to $25,000 per day.
EPA may assess administrative civil penalties to “other
persons” in icesa of $25,000 per school building (i.e., per TSCA
violation) in those situations where the violation i egregious.
An administrative civil complaint which is issued to an “other
person” which is calculated per TSCA violation rather than per
school builthng must be concurred on by 0CM before it is issued.
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—19-
One Day or Per Day Asses znents
Please refer to the list of violations in Appendix B to see
if a civil penalty for a violation is to be assessed as a one day
or per day penalty. For those administrative Civil complaints
which were calculated as a one day assessment and the “other
person” continues to violate AHERA after the complaint was issued,
it may be appropriate to amend the civil complaint or file a
second complaint to seek additional civil penalties on a per day
basis. Regions may also consider seeking injunctive relief or
pursuing criminal penalties, depending on the facts of the case.
If the Regions encounter any cases where per day penalties
for an “other person” are more appropriate than the one day
assessments which are recommended in Appendix B, an administrative
civil complaint which is calculated on a per day basis may be
issued provided the civil complaint has been concurred on by 0CM
prior to its issuance.
Adiustment Factors
Once the gravity based penalty has been determined, upward or
downward adjustments to the penalty amount are made in
consideration of the following factors in accordance with the TSCA
Civil Penalty Policy:
0 Culpability;
o History of such violations;
0 Ability to pay;
0 Ability to continue in business; and
o Such other matters as justice may require
(including voluntary disclosure and attitude
of the violator).
Settlement With Conditions
Regiona y choose to remit some or all of first-time civil
penalties asalesed against “other persons,” in accordance with the
November 15, 1983 TS A Settlement With Conditions Policy, if the
violative “o ther person” agrees to correct the violation for which
they are responsible, correct the violation in other schools in
which they may have also violated AHERA, or the “other person”
agrees to mandatory AHERA training in order to reduce the chance
of a reoccurrence of the AHERA violation in other SChOOlS (i.e.,
16 hour O&M training, AHERA accreditation, or other training as
the Region sees appropriate to reduce the possib 1ity of a repeat
violation).
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—20—
Generally 1 remitting some or all of a civil penalty in
exchange for mandatory AHERA training is only appropriate in
situations where an “other person” is not typically involved with
asbestos, and will likely cause subsequent envirorthtental harm
because of their ignorance of asbestos work practices and AHERA.
An example of this is a painter who was not informed by the LEA of
the presence of asbestos, and releases asbestos fibers in the air
when he scrapes the old paint of f a school wall containing friable
asbestos. That painter has conducted a response action without
being accredited. While this painter could be issued a civil
penalty of up to $25,000, the Region may choose to remit the
entire penalty in exchange for the painter correcting the
violation and/or taking AHERA training.
LEkEm lovees as “Other Persons”
Most enforcement actions Should be taken against “other
persons” (i.e., contractors) or the LEA. However, LEA employees,
such as the janitor, superintendent, and the LEA designated
person, are also considered “other persons,” and therefore,
subject to civil penalties under TSCA title I of up to $25,000 per
day per violation of AHERA. Further, LEA employees are subject to
criminal action for knowing or willful violations of AHERA under
TSCA title I.
Generally, EPA will issue an NON to an LEA employee that has
violated the less serious requirements of the AHERA statute or its
regulations for the first-time. EPA will only assess adminis-
trative civil penalties against LEA employees that are
responsible for an egregious and/or knowing or willful violation,
or have violated ANERA or its regulations a second-time. EPA may
also pursue criminal action against LEA employees responsible for
an egregious and/or knowing or willful violation. All adminis-
trative civil penalties issued to an LEA employee should be issued
in accordance with the section of this ERP entitled “Assessing
Administrative Civil Penalties Against Persons Other Than the
LEA.” Please note that the first three administrative civil
complaints that are assessed against an LEA employee must be
concurred on by the Office of Compliance Monitoring before they
are issued.
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—21—
ASSESSING ADMINISTRATIVE CIVIL PENALTIES AGAINST
PRIVATE NON-PROFIT SCHOOLS
Under AHERA section 202(7), the owner of the building that
contains a private non-profit elementary or secondary school is
considered the LEA. Therefore, if a private non-profit school
does not own its own building, then that private non-profit school
is considered an “other person” and n t an LEA. In this
situation, a private non-profit school could be subject to
administrative civil penalties under TSCA title I of up to $25,000
per day per violation of AHERA. However, in the event that a
private non-profit school violates AHERA, Regions are to treat the
private non-profit school as an LEA and assess administrative
civil penalties in accordance with the “Assessing Administrative
Civil Penalties Against LEAs” section of this ERP. That is,
private non-profit elementary and secondary schools are to be
liable for administrative civil penalties of up to $5,000 pef’day
per AHERA violation, and civil penalties are to go back to the
private, non-profit school for the purposes of complying with
AN ERA
According to the NiERA statute, the owner of the private non-
profit school building is an LEA, and therefore, must be assessed
administrative civil penalties in the same manner as other LEAs.
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C l)
-22- f U’ (V ‘—) f ) L— 1 -—.— .i / j —.
U I
STATUTORY
VIOLATION
one day 207(a)(1)
one day 2O7(a)(1)
-# ;4
one day 207(a)(1)
NON
(notify State
Governor (Gov.)
or
Injunction)
Tile order of violations listed in Appendix A tracks the order of the requirements as they appear
In the AHERA statute and regulation at 40 CFR 763 Subpart E.
VIOLATION
APPENDIX A*
CIRCUMSTANCE LEVELS FOR LEA AHERA VIOLATIONS
PER DAY/
LEVEL ONE DAY
it
LEA failed to conduct an inspection pursu4n to
40 QFJ >763.85(a) of each school building, tNe’y
lease, own, or otherwise use as a school building
to identify all locations of friable and nonfriable
ACBM October 12, 1988, or by May 9, 1989 If a
deferral has been granted by the State frS763.85
(a)(l)j.
,ij LEA failed to conduct an inspection pursuant to
‘V 40 CFR 763.85(a) for a building leased or otherwise
acquired on or after October 12, 1988, or by May 9,
1989 if a deferral has be p.. granted, prior to Its
use as a school bu1lding or—w1-th4n---3O--days— after
conineqcement of Its “ p’ p school building if
sudi use was the result oi ai euiu rge cy (5763.Q5
, S LEA faile to use an ’ccredIted inspector to conduct
qoc Y?4 7 ?.?I:( ’y’ )
1 A failed to conduct a reinspection of all friable
and nonfriable known or assumed ACBM in each school
building that they lease, own, or otherwise use as a
school building, at least once every three years after
-aynana ement plan is In effect 1 )-5763.85(b-)-)-
— - P” ”- ‘1
t See proposal on page 4 for NON.
-------
—23-
Bulk samples were not collected in accordance with
3 86 durIng the Inspection
q
,)ç lk samples were collected during the re1nspectIon (
they—were nOt c llected and submitted for analysis in
accordance wIth 5J63.86 and 763.87.
LEA failed to have $he bulk samp1es col1ected from .tli
initial asbestos inspection submitted for ana
accordance with 40 çI R 763.87.
failed to hay
edited i or p
rovide
a !ttefl
f all
r able known or
for each inspection conducted under §763.8 ’ c
previous Inspections specified under §763.99 -
£xclu ipns—( S7G3 -08-) ) .
The inspection exclusion claimed by the LEA did not
meet the requirements of S763.99.
‘t’ cJ .v L .
3
one day
207 C a ) (1)
VIOLATION
LEVEL
1
NON
PER DAY!
ONE DAY VIOLATION
one day 207(a)(1)
one day 2 07(a)(1)
one day 207(a)(1)
one day 207(a)(1)
one day 207(a)(1)
1111 4j$. -d lpbpra-t r fur PLH drldl tSOt 2
m Jt aIled to take steps to assure that
t1, hulk samples,, ere analyzed by a laboratory which
has current interim accreditation for polarized light
microscopy (PIM) analysis under the EPA Interim
Asbestos Bulk Sample Analysis Quality Assurance
Program until the National Institute of Standards- &IJ / “
L/O
Technology (NIST) PIM program is operatlonal,(S763
LEA used an unaccredlted laboratory fo , t analy
sis
of bulk samples - LEA failed to take steps to assure
that the bulk samples were analyzed by a laboratory
currently accredited by the NIST laboratory accredita—
ti9n program for PLM once that program becomes
operational (5763.87(a)).
3
-------
-24-
VIOLATION
LEA received an inspection exclusion ai,d-
subsequently d1 covered ACBM in a homogenebus or
sampling area iid not comply with the applicable
sections of Subpart E within 180 days following the
date of the identification of ACBML(rS7 3.99(C)*L
A & ( .1w_ i
A LEA knowingly subm1t false information
any aspect of an insp ctlon,(S763.85)).
4. , LEA knowingly misrepresented an inspector as properly
accredited under Section 206 of title II of the Act. ‘j7
$J’1S763.85(a) (3)).
LEA knowingly submits false information regarding the
inspection exclusions permitted under 40 CFR 763.99.
LEA failed to provide short—term workers (e.g.
repairman, exterminators, etc.) who may come into
contact with asbestos in the school information
regarding the locations of ACBM and suspected AC
assumed to be ACM 4S763.84(d)). > v L’ 4 1 1
4 LEA has not designated a person to ensure that the
‘‘ requirements of the AHERA regulations are properly
implem nted. ‘fku s A Vf(O( kTLo’i 4 ‘to c -’ 7
/ ? f esignated person has not received adequate training
“to perform his duties, including, as necessary.
knowledge of:
a. Health effects of asbestos.
b. Detection, identification, and
assessment of ACM.
c. Options for controlling ACBM.
d. Asbestos management programs.
e. Other relevant Federal and State
regulations concerning asbestos.
concerning
LEVEL
1
jio’X” 4
1
NON
(notify Coy.
or
injunction)
NON
NON
PER DAYI STATUTORY
ONE DAY VIOLATION
one day 207(a)(1)
one day 207(a)(?)
one day 207(a)(2)
one day 207(a)(2)
-------
-25-
VIOLATION
4S LEA failed to conduct response actlons in a timely
manner. However, there is no ev ldence,of ininlnent or
substantial endangerment to human health or the
environment.(I.e., not conducted within the time—
frames stipulated In the management plan (5763.93(e)(6)]
or by §763.90) (55763.90 and 763.93(e)).
LEA failed to Implement response actions within the
timeframe specified In the management plan and/or
the response action conducted was not sufficient to
protect human health or the environment (possibily
Imminent and substantial endangerment) (55763.90
and 763.93(e)).
Response actlo’is selected and time frames specified
In the management plan were not sufficient to
protect human health and the environment (Generally,
this violation should only be cited If the LEA has
drastically altered the time frames or response
action selections that were recommended by the
accredited management planner under S763.93(e)(5) or
there is evidence of imminent hazard)(5763.90(a)).
Response action selected and implemented were not
consistent with the assessment conducted under
5763.88 (5763.90(a)).
Response action, other than a small-scale, short
duration repair, was not designed and/or conducted
by accredited persons (5763.90(g)).
Visual inspection and/or air monitoring was not
conducted in accordance with 5763.90(1) to determine
If response action has been properly completed
(5763.90(1)).
NON
NON
(Notify Gov.
or
Injunction)
NON
(Notify Gov.
or
Injunction)
NON
NON
(Injunction)
NON
(Injunction)
PER DAY!
ONE DAY
STATUTORY
VIOLATION
LEVEL
-------
-26-
PER DAY/
LEVEL ONE DAY
STATUTORY
VIOLATION
When TEM was used to clear response action, the
air sampling operation was not performed by qualified
Individuals completely independent of the abatement
contractor (763.90(1), see Appendix A section II. B. 2.
of Subpart E).
LEA failed to develop an operations and maintenance
(O&M) plan whenever any friable ACBM is present or
assumed to be present In a building that the LEA
leases, owns, or otherwise uses as a school building
(S763.91(a)).
LEA failed to
(O&M) program
assumed to be
leases, owns,
(S763.91(a)).
Implement an
whenever any
present in a
or otherwise
operations and maintenance
friable AC8M Is present or
building that the LEA
uses as a school building
NON
(Notify Gov.
or
Injunction)
LEA failed to meet the requirements of the EPA’ s
Wrrker Protection Rule 40 CFR 763.121 during O&M
activities conducted by LEA employees (Note, this
requirement only applies if the LEA’s custodial and
maintenance staff Is not already covered by the
OSHA regulations)U763.91(b)).
LEA failed to clean all areas of a school building
where friable ACUM, damaged or significantly damaged
thermal system insulation ACM, or friable suspected
ACBM assumed to be ACM are present at least once
after the completion of the inspection required by
763.85(a) and before the initiation of any response
action, other than O&M activities or repair according
to the procedures outlined in §763.91(c).
LEA failed to follow the procedures outlined in
763.91(d) when conducting operations and
maintenance activities disturbing friable ACUM
(S763.91(d)).
NON
(Notify Coy.
or
Injunction)
NON
(Notify Gov.
or
Injunction)
VIOLATION
NON
2
one day
207(a)( 3)
NO N
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—27-
PER DAY! STATUTORY
VIOLATION LEVEL ONE DAY VIOLATION
LEA failed to follow the procedures outI1i ed in NON
§763.91(f)(1) subsequent to a minor fiber release
episode (I.e., the falling or dislodging of 3
square or lInear feet or less of friable ACBM)
(S763.91(f)(1)).
In the event of a major fiber release episode NON
(1 e., the falling or dislodging of more (Injunction)
than 3 square or linear feet of friable ACBM),
the LEA failed to restrict entry Into the area and
post signs to prevent entry Into the area by persons
other than those necessary to perform the response
action (S763.91(f)(2)(i)).
In the event of a major-fiber release episode, the NON
LEA failed to shut off or temporarily modify the air (Injunction)
handling system to prevent the distribution of fibers
to other areas In the building (S763.91(f)(2)(li)).
J LEA failed to ensure that all members of Its NON
maintenance and custodial staff receive the 2 (Notify Coy.)
hours of asbestos awareness training required by
1 40 CFR 763.92(a)(1).
LEA failed to ensure that all members of its NON
maintenance and custodial staff who conduct (Notify Gov.
activities that will result In the disturbance or
of ACBN received the 14 hours of additional Injunction)
training required by 40 CFR 763.92(a)(2).
LEA failed to conduct a periodic surveillance, NON
pursuant to 40 CFR 763.92, in each building that (Notify Gov.)
It leases, owns, or otherwise uses as a school
building that contains ACBM or is assumed to
contain ACBM at least once every six months after
a mangement plan Is In effect (S763.92(b)(1)).
-------
-28-
LEA failed to submit a management plan to the State
Agency designated by the Governor on or before
October 12, 1988, or by May 9, 1989, if that LEA
received a deferral from the State, for each
building that the LEA leases, owns, or otherwise
uses as a school building ( 763.93(a)(1)).
LEA failed to include in the management plan, prior
to Its use as a school building, a new building that
Is to be used as part of a school that the LEA leases
or otherwise acquires after October 12, 1988, or by
May 9, 1989 if that LEA has received a deferral from
the State, and failed to submit the revised portions
of the plan to the Agency designated by the Governor
(S763.93(a)(2)).
LEA failed to begin implementation of the management
plan on or before July 9, 1989 (S763.93(c)).
VIOLATION
PER DAYI STATUTORY
ONE DAY VIOLATION
one day 207(a)C3)
one day 207(a)(3)
one day 207(a)(3)
LEA failed to
designated by
began to use
1988, or May
prior to the
LEVEL
NON
(Notify Gov.
or
Injunction)
submit a management plan to the Agency
the Governor for a building the LEA
as a school building after October 12,
9, 1989 ii the LEA was granted a deferral,
use as a school (S763.93(a)(3)).
t See proposal on page 4 for NON.
-------
-29—
PER DAY/ STATUTORY
VIOLATION LEVEL ONE DAY VIOLATION
LEA failed to update its management plan to NON
keep it current with on-going operations and (Notify Gov.)
maintenance, periodic surveillance, Inspection,
reinspection. and response action activities
(S763.93(d)).
LEA failed to include all the items required to 3 one day 207(a)(3)
be In Its management plan by 40 CFR 763.93(e)
and other applicable sections of the AHERA
regulations (S763.93(e)).
LEA failed to maintain In its administrative office 2 one day 207(a)(3)
a complete, updated copy of a management plan for
each school under its administrative control or
direction, and/or failed to make the plan available
without cost or restriction ( 763.93(g)(I) and (2)).
A school under the LEA authority failed to 3 one day 207(a)(3)
maintain in its administrative office a complete, ,, - çyy( V,t
updated copy of the management plan forthat school, -p.- _,
and/or failed to make the plan available without
cost or restriction ( 763.93(g)(3)).
LEA failed to notify in writing parent, teacher, 2 one day 207(a)(3)
and employee organizations of the availablity of
the management plans (S763.93(g)(4) and §763.84(f)).
LEA failed to update its management plan by NON
not keeping the records required under §763.94. (Notify Gov.)
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-30-
PER DAY! STATUTORY
VIOLATION LEVEL ONE DAY VIOLATION
LEA failed to maintain the records required by NON
§763.94 in a centralized location in the administrative (Notify Gov.)
office of both the school and the LEA as part of the
management plan (ç763.94(a)).
LEA failed to attach warning labels immediately NON
adjacent to any friable and nonfriable ACBM
located In routine maintenance areas in
accordance with §763.95.
Warning label that was attached immediately adjacent NON
to ACBM In routine maintenance areas did not contain
the language required by 40 CFR 763.95(c).
LEA that claimed an inspection exclusion did not 2 one day 207(a)(3)
include in their management plan all the information
required by §763.99.
LEA failed to include In its management plans a 4 one day 207(a)(3)
copy of the deferral request and/or the statements
required to accompany the request.
LEA that was granted a deferral performed, or directed 1 one day 207(a)(4)
an employee to perform renovations or removal of j!X
bufiding material other than in accordance with section
215(a)(l) of AHERA as amended.
LEA that was granted a deferral performed, or 2 one day 207(a)(4)
directed an employee to perform operations and (per day)
maintenance activities In the school without complying
with 40 CFR 763.91 (operations and maintenance),
including Appendix B to subpart E of part 763, and
paragraph (a)(2) of section 763.92 (training and
periodic surveillance).
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PER DAY/ STATUTORY
VIOLATION LEVEL ONE DAY VIOLATION
LEA directed a school employee to perform emergency 1 one day 207(a)(4)
repairs without that employee being provided proper
training to safely conduct such work In order to prevent
potential exposure to asbestos, and/or without providing
that employee with the proper equipment and work
practices necessary to safely conduct such work In order
to prevent potential exposure to asbestos.
LEA knowingly falsified its deferral request and/or 1 one day 207(a)(5)
the statements required to accompany this request.
LEA failed to notify affected parent, teacher, and 3 one day 207(a)(5)
employee organizations of the LEA’s Intent to file
the “request for deferral” before filing the deferral
request, and the LEA claimed it did this in Its
request for deferral.
In the case of public LEAs, the LEA failed to discuss 3 one day 207(a)(5)
the request for deferral at a public meeting of the
schoo) board before the request for deferral was
filed, and/or the LEA failed to notify the affected
parent, teacher, and employee organizations of the time
and place of this meeting in advance of the meeting,
and the LEA claimed it did this In its request for
deferral.
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APPENDIX Bk
CIRCUMSTANCE LEVELS FOR OTHER PERSONS VIOLATIONS OF AIIERA
PER DAY!
VIOLATIONS LEVEL ONE DAY
Person conducted an Inspection or reinspection of a i one day
school building for ACBM for the purposes of an LEA’s
compliance with AHERA without that person ever being
accredited for this activity under AHERA sectIon 206
or that persons accreditation has expired for more
than one year (c763.85(a)(3) and 763.85(b)(2)).
Person conducted an inspection or reinspection of a 3 one day
school building for ACBM for the purposes of an LEA’S
compliance with AHERA and their accreditation for this
activity has expired within the past year of the activity
( S763.85(a)(3) and 763.85(b)(2)).
Person who conducted the inspection for ACBM failed 2 one day
to visually Inspect all areas of the school building
to identify the locations of all suspected ACBM, and/or
failed to touch all suspected ACBM to determine whether
they are friable, and/or failed to identify homogeneous
areas of friable suspected ACBM and all homogeneous
areas of nonfriable suspected ACBM (S763.85(a)(4)(i)
(II), and (lii)).
Person who conducted the Inspection for ACBM failed 2 one day
to collect and/or submit for analysis bulk samples. In
accordance with §S763.86 and/or 763.87, for each homogeneous
area for all suspected ACM that was not assumed to be ACM
(SS763.85(a)(4)(Iv) and 763.86 and 763.87) (please note
the exception specified in S763.86(b)(4)).
* The order of the violations listed In Appendix B tracks the order of the requirements as they appear
in the AHERA statute and regulations at 40 CFR 763 Subpart E.
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PER DAY/
VIOLATION LEVEL ONE DAY
Person who conducted the inspection for ACBM failed to 4 one day
assess, or failed to complete the assessment, pursuant
to the requirements of §763.88, friable material In areas
where samples were collected, friable material in areas
that were assummed to be ACUM, thermal system insulatlob,
and friable ACBII identified during previous Inspections
(SS763..85(a)(4)(v) and 763.88).
Person who conducted the Inspection or relnspection, 5 one day
and who provided the LEA the assessment, and/or
reassessent of all friable ACBM and friable suspected
ACBM assumed to be ACM, failed to provide a written
justification for the assessment category selected
(ç$763.85(a)(4)(v), 763.85(b)(3)(i), 763.85(b)(3)(v) and
(vi), and S763..88(b)).
Person who conducted the Inspection for ACBM failed to NON
submit the records required by S763.85(a)(4)(vi) to the
LEA designated person within 30 days of the inspection
but did submit prior to 60 days (S763.85(a)(4)(vi)).
Persoi who conducted the inspection for ACOM submitted 6 per day for each
the records required by §763.85(a)(4)(vi) to the LEA day over 60 days
designated person more than 60 days after the Inspection
(S763.85(a)(4)(v l )).
Person who conducted the reinspection failed to reinspect 4 S day
andlor reassess, under §763.88. the condition of all friable
known or assumed ACBM and thermal system insulation
($S763.85(b)(3)(i) and (vi) and 763.88).
Person who conducted the reinspection failed to visually 2 one day
inspect material that was previously considered nonfriable
ACBM and touch the material to determine whether it has
(S76 8s(b)(3)(ii)). the last inspection or reinspection
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PER DAY/
VIOLATION LEVEL ONE DAY
Person who conducted the reinspection failed to Identify any 2 one day
homogeneous areas with material that has become friable since
the last inspection or reinspection ( 763.85(b)(3)(iIi)).
If person who conducted the reinspection collected 2 one day
bulk samples of newly friable material that was previously
assumed to be ACBN, those bulk samples were not collected
and submitted for analysis In accordance with SS763.86
and/or 763.87 (S763.85(b)(3)(lv)).
Person who conducted the reinspection failed to assess, 4 one day
under 763.88, the condition of the newly friable material
in areas where samples were collected, and newly friable
materials in areas that are assumed to be ACBM (S763.85
(b)(3)(v)).
Person who conducted the reinspection failed to submit the NON
records required by 5763.85(b)(3)(viI)(A) through (C) to the
LEA designated person within 30 days after the reinspection
but did submit prior to 60 days (763.85(b)(3)(vii)).
Person who conducted the reinspection submitted the records 6 r day for each
required by S763.85(b)(3)(vii)(A) through (C) to the LEA day over 60 days
designated person more than 60 days after the reinspection
(S763.85(b)(3)(v li)).
Laboratory conducted polarized light microscopy (PIM) 2 uS day
analysis of bulk samples of suspect ACBM for the purposes
of an LEA’S compliance with AHERA and was not interimly
accredited at the time of the analysis to conduct PLM
analysis under the EPA Interim Asbestos Bulk Sample Analysis
Quality Assurance Program (until the National Institute of
Standards Technology (NIST) Program is operat lonal)(5763.87(a)).
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PER DAY/
VIOLATION LEVEL ONE DAY
Laboratory conducted PLM analysis of bulk samples of 2 one day
suspect ACHM for the purposes of an LEA’s co ’ ipl1 1 ance
with AHERA and was not accredited at the time of the
analysis to conduct PIM analysis by the NIST laboratory
accreditation program for PLM once that program became
operational (S763.87(a)).
Laboratory conducting PIM analysis was properly accredited 3 one day
but failed to conduct the analysis in accordance with AHERA
(S763.87)).
Laboratory that conducted the bulk sample analysis failed to NON
provide the information required by §763.87(d) to the LEA
designated person within 30 days of the analysis U763.87(d)).
Laboratory that conducted the bulk sample analysis failed to 6 per day for each
provide the inforn’ation required by §763.R7(d) to the LEA day over 60 days
designated person withIn 60 days of the analysis (S763.87(d)).
Person designed or supervised a response action and was 2 one day
not a credited for that activity under sectIon 206 of AHERA
(S763.90(g)).
The worker(s) conducting the response action were not 2 per worker
accredited under AHERA section 206, and the response action per day
was not designed and/or supervised by persons accredited
under AHERA (S763.90(g)).
Th worker(s) conducting the response action were not 3 per worker
accredited under AHERA section 206, but were working on per day
a response action which was designed and supervised by
persons accredited under AHERA (S763.90(g)).
At the conclusion of a response action, the person designated 3 one day
by the LEA did not visually Inspect each functional space
where the response action was conducted to determine whether
the action was properly completed (S763.90(i)(1)).
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PER DAY!
VIOLATION LEVEL ONE DAY
Person de inated by the LEA did not collect air samples 2 one day
using aggressive sampling as described in Appendix A to
clear response actions (5763.90(i)(2)(i)).
Person who collected air samples to clear a response action 3 one day
was not qualFfied (5763.90(1), see Appendix A section II B.2).
Person who collected air samples for TEM analysis to clear 4 one day
a response action was not completely Independent of the
abatement contractor (5763.90(1). see Appendix A section
11.13.2.).
Laboratory conducted TEM analyses of air samples from 2 one day
a school building, for purposes of an LEA’s compliance
with AHERA, without being accredited at the time of the
analysis by the National Institute of Standards Technology
(PIIST) TEM laboratory accreditation program once that program
became operational, or without following the protocol described
In Aipendix A of Subpart E until the NIST program becomes
operational (S763.90(1)(2)(li) and (iii)).
Laboratory conducted PCM analyses of air samples from a 2 one day
school building, for purposes of an LEA’s compliance with
AHERA. without being enrolled at the time of the analysis
in the American Industrial Hygiene Association Proficiency
Analytical Testing Program (5763.90(i)(2(if)).
A laboratory Polled in the American Industrial Hygiene 2 one day
Association Proficiency Testing Program conducted PCN analysis
of air samples from a school building, for purposes of an LEA’s
following the method specified
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—37—
PER DAY!
VIOLATION LEVEL ONE DAY
An abatement contractor completed the response action 1 one day
without having cleared the response action using the required
air monitoring, and/or the average asbestos concentration in
the air samples exceeded the levels specified in §763.90(i)
( 763.9O(t)).
Person who developed the LEA’s management plan, which was 1 one day
submitted to the State Governor for purposes of the LEA’s
compliance with AHERA, was not accredited under AHERA
section 206 for management plan development ( 763.93(e)).
Person who developed the LEA’s management plan did not 2 one day
provide the LEA with a management plan which contained
all the information required by 5763.93(e) and elsewhere
In the regulations.
The accredited management planner that signed a statement 5 one day
that the management plan was in compliance with AHERA, as
ailtiwed by §763.93(f), was also Involved with implementation
of the Management plan (please note that this statement is
not mandatory, and no violation exists If the statement Is
not’ in the management plan) (5763.93(f)).
An accredited inspector, architect, or project engineer 1 one day
provided an LEA an inspection exclusion statement other
than In accordance with the conditions provided in §763.99
(5763.99).
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O S? 41 . —, 0,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY - -
_____ WASHINGTON, D.C. 20460 L ‘,
JUN —5 1989
MEMORANDUM
SUBJECT: Guidance for Coordination of Asbestos
NESH P-AHERA Compliance Inspections
FROM: John S. Seitz, Director’
Stationary Source Comp
Office of Air Quality
Connie A. Musgrove ?ffef
Office of Compliance Monitoring
TO: Addressees
On September 29, 1988, the Integration of Agency Asbestos
Activities Memorandum signed by The Assistant Administrators of
OAR, OPTS, and OECM was sent to the Regional Administrators
requesting a plan that addresses the multiple aspects of asbestos
activities throughout the Agency. Integration plans received
from the Regional Offices indicated that coordinated NESHAP/AHERA
inspections were appropriate and should be considered in the
normal course of business.
This memorandum solicits your participation in a program
which coordinates NESHAP and AHERA compliance inspections,
between June and August 1989. The Stationary Source Compliance
Division (SSCD) and the Office of Compliance Monitoring (0CM) are
in agreement that an initiative be undertaken to monitor the
compliance of asbestos activities at schools for conformance with
the AHERA and NESHAP provisions. This will provide a statistical
basis for any further compliance activities at these sites in the
future. An evaluation of this special effort will take place in
September and October 1989.
Since a large number of asbestos removal projects
(demolition/renovation under NESHAP) will occur over the summer
while school children and teachers are on vacation, the Agency
needs to assure that inspections are targeted at these projects.
To ensure inspection coverage at these high risk sites, we feel
it is appropriate to target schools, using a combination of AHERA
and NESHAP criteria. It is anticipated that a significant number
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—2—
of school sites will be inspected. These inspections will
incorporate the review of NESHAP compliance and a check for
compliance with key MIERA provisions relating to response actions
and availability of management plans.
At this time, the primary goal of the AHERA program
continues to be obtaining the highest possible compliance with
development and submission of asbestos management plans. Program
resources are devoted to issuing notices of noncompliance and
civil complaints, as well as providing technical assistance to
obtain compliance.
The largest local education agencies (LEAs) should be the
focus for targeting coordinated NESHAP/AHERA compliance
inspections for two reasons: 1) larger projects which meet the
NESHAP regulatory threshold are more likely to be scheduled in
large school systems, and 2) inspections at large school systems
have the greatest impact for covering sizable school populations
which may be at risk. The Regions may also provide a number of
potential targets at smaller schools to obtain broader coverage
if those projects are identified as top or high priority in the
NESH1 P targeting scheme.
The AHERA program should provide the NESHAP program with a
list of the largest LEAs in the Region (a distribution among all
States is recommended). The list should note any information the
AHERA program has on sche uled asbestos removal/renovation
projects by these LEAs, from sources such as settlements of cases
or tips/complaints.
In addition, the AHERA program should provide a list of
contractors known to conduct asbestos work in schools in the
Region. This information along with the data contained in the
National Asbestos Registry System (NARS) should focus the Regions
activities on those sites deserving of our attention.
Inspectors perform the usual NESHAP compliance inspection
plus a key-provision inspection for AHERA. An abbreviated AHERA
compliance checklist for use by NESHAP inspectors is attached.
(We anticipate that these inspections will be carried out at the
Regional/State/Local level as would be the normal course of
action).
It is expected that these inspections would be conducted in
lieu of others that might take place otherwise. This should not
be an additional activity, but a redirection of the asbestos
NESHAP effort.
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—3—
The NESH7 P program should establish a mechanism for
returning inspection results to the AHERA program for review.
PARP enrollees may assist in this process
Both NESHAP and MIERA staff should review inspection
results. The NESHAP program will take civil actions for NESHAP
violations, while the 7 HERA program will take administrative
actions for the AHERA violations. The NESHAP inspector’s report
can be used to document violations under AHERA. In the case of
violations of both statutes, the programs should contact
Headquarters for guidance on the appropriate enforcement action
to be taken. Joint NESHAP/AHERA civil injunctive actions may be
taken whenever feasible.
The two programs should agree on a system to track the
coordinated inspection targets, accomplishments and enforcement
actions for management and coordination purposes. In addition, a
preliminary report of these activities will be requested to be
submitted to SSCD/OCM by September 15, 1989, to serve as the
basis for the evaluation of this coordinated inspection program.
This guidance is intended to allow adaptation for existing
Regional systems or unique circumstances. Details of the plans
are to be worked out by the two asbestos programs.
With regard to FY 89 integration activities carried out by
States with TSCA comp1ianc cooperative agreements, as a minimum,
States should continue to refer any violations of the Worker
Protection or NESHAP requirements observed during their AHERA
inspections to their EPA Regional office and the state agency
responsible for the NESHAP program, as applicable. The final
version of the TSCA compliance cooperative agreement guidance for
FY 90 will address expanded state-level coordination with NESHAP.
Maureen Lydon, Chief of the 0CM Grants and Evaluation Branch (FTS
382-7825), can provide additional information on state TSCA
agreements.
Questions concerning this guidance for coordination of
asbestos/NESHAP/AHERA inspections can be referred to either Linda
Flick, 0CM, FTS 382—2289 or Omayra Salgado, SSCD, FTS 382—2837.
Attachment
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—4—
Addressees
Regional Mr Division Directors
Regional Pesticides/Toxics Division Directors
Regional Air Compliance Branch Chiefs
Regional Pesticides/Toxic Branch Chiefs
Regional Asbestos NESHAP Coordinators
Regional Asbestos Coordinators
Regional Counsels
cc: Michael Stahl
David Kling
Frederick Stiehi
Terrell Hunt
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ABBREVIATED CHECKLIST FOR AHERA COMPLIANCE -
FOR USE ON NESHAP INSPECTIONS
Local Education
Agency (LEA) __________________________________________
Address ___________________________________________
School ______________________________________________
Address ______________________________________________
Designated Person ____________________________________________
Phone number _____________________________________________
Abatement Project Description (including size of project):
Was Project Supervisor Accredited? Yes ______ No _______
Accreditation Number ___________________ Date ___________
Each worker, state/number of accreditation, date of accreditation
Was Air Clearance in progress? Yes — No __________
Name of Person Conducting Clearance ____________________________
Affiliation
Laboratory contracted to analyze samples:
Name Address/Phone number
Type of Analysis: TEN ________ PCM ________
Was the Management Plan available to look at?
Yes No Location of Plan LEA — School —
Was the abatement project included in the Plan? Yes No
Inspector Date
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