01/27/89
Guidance on Inclusion of Environmental Auditing Provisions in
Clean Air Act Settlements
MEMORANDUM JANUARY 27, 1989
SUBJECT: Guidance on Inclusion of Environmental Auditing Provisions in
Clean Air Act Settlements
FROM: /s/ Terrell E. Hunt
Associate Enforcement Counsel
Air Enforcement Division
/s/ John S. Seitz, Director
Stationary Source Compliance Division
Office of Air Quality Planning & Standards
TO: Addressees
Attached is the new "Guidance on Inclusion of Environmental Auditing
Provisions in Clean Air Act Settlements." This guidance supplements the
"EPA Policy on the Inclusion of Environmental Auditing Provisions in
Enforcement Settlements," issued by Tom Adams on November 14, 1986. A draft
of this guidance was distributed to the Regions and DOJ for comment on June
30, 1987.
As you can see from the attached summary of comments submitted by the
Regions ( DOJ asked that their comments remain confidential ), considerable
effort has been invested in this project. We attempted to incorporate every
comment submitted.
The Geppert Bros. consent decree was the best example of an asbestos
case with environmental auditing that was available when this guidance was
sent out for comment. Several suggestions for improvements in the Geppert
Bros. consent decree were received. Those improvements plus more recent
consent decrees that have been entered with the courts are available upon
request. The best example currently is U.S. v. City of Ottumwa, which is
appended to this guidance, but it too will certainly be surpassed in time.
To stay abreast of the latest developments in this and other dynamic areas,
we recommend that you utilize the clearinghouse function provided by the
lead regional attorney concept in addition to the resources we offer at
Headquarters. Presently, the lead regional attorney for environmental
auditing is Randye Stein, Region II ( FTS 264-3277 ).
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We appreciate the considerable efforts which you have made to comment on
the draft guidance and to include environmental auditing in your programs.
Please continue to emphasize this valuable enforcement tool.
Questions regarding this guidance should be addressed to Charles Garlow
of OECM at FTS 475-7088.
Attachments
Addressees:
Regional Counsels
Regions I-X
Regional Counsel Air Contacts
Regions I-X
Air and Waste Management Division Director
Region II
Air Management Division Directors
Regions I, III, and IX
Air and Radiation Management Division Director
Region V
Air, Pesticides, and Toxics Management Division Directors
Regions IV and VI
Air and Toxics Division Directors
Regions VII, VIII, and X
David Buente, Chief
Environmental Enforcement Section
Department of Justice
Robert Van Heuvelen, Assistant Chief
Environmental Enforcement Section
Department of Justice
Justina Fugh
EDRS Coordinator
OECM-Air
INCLUSION OF ENVIRONMENTAL AUDITING PROVISIONS
IN CLEAN AIR ACT SETTLEMENTS
This document sets forth guidance for inclusion of environmental
auditing provisions in settlement of Clean Air Act enforcement actions. EPA
policy encourages the use of environmental auditing to enable regulated
entities to achieve and maintain compliance with environmental laws and
regulations. EPA maintains that effective environmental auditing promotes
higher levels of compliance and reduces risks to human health and the
environment. 51 Fed. Reg. 25004 ( July 9, 1986 ). This policy is based on
the statutory authority of Section 114 of the Clean Air Act, 42 USC, Section
7414 and the information gathering provisions of other environmental
statutes. 1/
1/ Section 104 of the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, 42 USC Section 9604 et seq.;
Section 308 of the Clean Water Act, as amended, 33 USC Section 1318 et
seq.; Sections 3007 and 3013 of the Resource Conservation and Recovery
Act, 42 USC Sections 6927 and 6933; Section 1423(c)(8) of the Safe
Drinking Water Act, 42 USC Section 300h-2(c)(8); and Section 11(c) of
the Toxic Substances Control Act, 15 USC Section 2610(c).
The Clean Air Act environmental auditing guidance supplements the "EPA
Policy on the Inclusion of Environmental Auditing Provisions in Enforcement
Settlements," issued on November 14, 1986 ( "EPA Policy" ). That policy
establishes a general framework, applicable to enforcement under all
environmental statutes, for the use of environmental auditing provisions in
settlement agreements. This guidance addresses the application of the
general policy to air pollution cases.
Appropriateness of Environmental Auditing Provisions
As stated in the general policy, environmental auditing provisions are
appropriate to propose in settlement negotiations in instances in which: 1)
a pattern of violations results, at least partially, from the absence of an
effective environmental management system, or 2) the nature of the
violations indicates a likelihood that similar noncompliance may occur at
other parts of the same facility or at other facilities owned by the same
entity. The need for environmental auditing is most likely to apply to the
owner or operator of extensive or multiple facilities, but may in some
circumstances apply to a single-facility company as well. See EPA Policy at
p. 2.
In the stationary source program, the most likely candidates to benefit
from environmental auditing would include:
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1) National demolition / renovation companies engaged in activities
subject to the National Emission Standard for Asbestos. This is a unique
category of air pollution sources, since a company does not typically own
and operate a fixed universe of facilities but instead is involved in the
operation of a constantly changing group of transient activities. EPA has
learned in enforcing the asbestos regulations that large demolition
companies may have a corporate awareness of the applicable requirements but
lack an effective environmental management system to assure compliance with
the law. The need for such a system is particularly acute due to the very
nature of the business, which involves an itinerant work force and sometimes
relies on temporary employees. Establishing a means of managing the
activity of demolition or renovation crews is an appropriate element of a
consent decree designed to enjoin future noncompliance with asbestos control
requirements. Such a system should involve accountability for environmental
compliance at each work site involving asbestos, training of workers, and
enhanced corporate oversight of the activities of the work crews. As an
example of model provisions applicable to a demolition contractor see the
consent decree in U.S. v. City of Ottumwa, et al. ( S.D. Iowa ), attached.
Common characteristics of recent asbestos consent decrees include:
o Training for all asbestos workers with tests to ensure
understanding.
o Enhanced training for supervisors / managers.
o Instruction brochures for each employee to keep permanently as a
reference.
o Ensuring the presence of trained supervisors at work sites.
o Checklist for proper equipment, notice, training certificates.
2) Owners / operators of multiple volatile organic compound ( VOC )
sources. Companies that own several facilities, such as can-coating or
automobile-coating plants, may benefit from environmental auditing. In such
instances, a compliance audit may identify common problems at similar
facilities, and the same or similar remedies at one facility may be
applicable to the company's other plants. Environmental auditing would be
particularly appropriate where EPA or a State has cited more than one
facility for VOC violations.
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Suggested provisions for VOC environmental auditing include:
o Improved checklists to log all coatings with a certification that
they are in compliance with the relevant requirements.
o Establishment of procedure for periodic maintenance of VOC
incinerators and other control equipment.
o Training for supervisors and other employees on recognizing the
occurrence of abnormal operating conditions.
3) Volatile hazardous air pollutant ( VHAP ) sources. The National
Emission Standard for Hazardous Air Pollutants regulates fugitive emissions
of VHAPs at 40 CFR Part 61, Subpart V. The regulations require that a
source institute specified leak detection and repair procedures addressing
potentially hundreds of pumps, valves, and other pieces of equipment at a
facility. The standard requires monitoring, reporting, and recordkeeping,
rather than installation of control equipment. Compliance with the VHAP
regulations demands particular diligence and attention to detail. Our
limited enforcement experience to date indicates that companies have not
completely identified the equipment subject to the standard and have not
established adequate systems to assure that the required procedures are
followed. Due to the nature of the VHAP standard, a compliance audit would
be appropriate to enable corporate management to identify violations and to
put management systems in place to ensure that the requirements are
followed. An example of such a VHAP auditing requirement is attached.
( Consent decree, U.S. v. Texaco Refining & Marketing, Inc. ( D. Del. ) ).
The major provisions in the Texaco environmental auditing decree are:
o Selection of EPA approved independent contractor.
o Delivery of detailed schematics identifying all equipment in
benzene service to EPA and auditor.
o Thorough compliance audit.
o Compliance report with schedule for corrections to be undertaken
and training to be conducted.
4) Asphalt Concrete Plants are likely candidates for the auditing
provisions because these air pollution sources, which have a high turnover
in ownership, can be easily relocated. They, therefore, can be subject to
differing emission limits because of the various state implementation plan
provisions.
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Consequently, mobility of the source can result in an evasion of
enforcement. Environmental auditing of such sources would give enforcement
personnel data that would help in identifying similar violations of plant
owners. Owners often have several other facilities and an audit would
reveal the locations of the plants. Likely auditing provisions in this
category could include:
o Making available to the auditor and EPA a list of all plants owned
within the last five years, a list of those currently owned and the
various states in which they have been located.
o Providing to the auditor and EPA any and all evidence that these
plants have been and are in compliance with applicable SIPs.
o Conducting a thorough compliance audit of all facilities.
o Having the auditor prepare a plan ( training, management
procedures ) to ensure compliance, which plan would be an
enforceable provision of the decree.
5) Multi-media sources. Facilities that are likely to have water
pollution or waste management problems in addition to being a source of air
pollution may also benefit from environmental auditing. A compliance audit
in such circumstances would enable the company to develop a comprehensive
approach to its environmental responsibilities. Environmental auditing
would be particularly appropriate where EPA or a State has cited violations
by the facility under more than one statute.
A multi-media audit would at least include:
o A review of current management practices and procedures used to
ensure compliance with various environmental requirements.
o An in-depth compliance audit to determine how well these procedures
are being utilized.
o An analysis of additional management procedures needed to track
compliance.
o Employee and supervisor training in the law and regulations
affecting the facility and in the new protocol to be implemented.
o Certification by the source that it is in compliance with all
environmental requirements.
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We suggest these categories of sources as likely candidates to benefit
from environmental auditing, but they are not intended to limit in any way
the universe of sources for which auditing is appropriate. The case
development or litigation team should be alert to indications that a company
has an environmental management problem or that similar violations are
likely to occur at other parts of the same facility or at other facilities.
An example of such a management problem would be a continuing series of
violations blamed on operator error. This management problem could be
addressed by better required operator training courses complemented by
periodic refresher courses. The litigation team should routinely review the
case docket to determine if the company has had environmental problems in
other regions or other media. Where such indications exist, EPA should
probe the need for auditing with a site inspection, in a Section 114 letter
or in a discovery request. An example of such a Section 114 letter is
attached.
Contents of Audit Provisions
The consent decree provisions should clearly identify the type of audit
to be performed. A compliance audit is an independent assessment of the
current status of the party's compliance with environmental requirements. A
management audit is an independent evaluation of the party's environmental
compliance policies, practices, and controls. The nature of each type of
audit is described in greater detail in the EPA Policy at p. 3.
Both a compliance audit and a management audit should be encouraged.
The nature of the case will determine which type of audit is more
appropriate. The audit provisions appropriate for demolition and renovation
contractors are unique but fit more closely within the ambit of a management
audit. Its focus is to assure centralized management controls over the
decentralized functions of the company. VOC sources are most likely to
benefit from a compliance audit, which may identify recurring problems at
similar facilities. VHAP sources may be candidates for a hybrid of the two.
Violating VHAP sources typically have not even determined what equipment is
subject to the standard and consequently are not fully aware of their
compliance status. In addition, VHAP sources have a particular need for
operation and maintenance programs, monitoring, recordkeeping, and reporting
systems, and other management controls to assure compliance with the
standard.
The consent decree provisions should identify the party conducting an
audit. The auditors may be a consultant or an in-house person or team. In
any event, the auditors should be independent of the persons and activities
to be audited, although in-house auditors are often not as "independent" as
outside auditors. See EPA Policy at p. 4. EPA and the State should be
provided with advance notice of the audit and an opportunity to participate
in the audit.
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The consent decree should include clearly specified and enforceable
schedules, timetables and requirements for completion of the audit. In the
case of demolition / renovation contractors, the audit will be an ongoing
requirement that will accompany the performance of work at facilities
containing friable asbestos, and will not be subject to a schedule for
completion.
EPA assumes that any and all information submitted to EPA pursuant to
these audit provisions is not automatically considered to be confidential
business information ( CBI ). However, a business may submit such
information with a request that the information be treated as CBI, subject
to appropriate statutory and regulatory restrictions ( cf. 5 USC Section
552, 40 CFR Part 2, Subpart B ).
The consent decree should specify that the Agency is entitled to copies
of all information developed during the audit, including not only final
audit reports, but also copies of all underlying audit data as well as draft
audit reports, whether developed by the employees or contractors of the
defendant. Though entitled to this information, the Agency need not always
demand access to the data.
Consequences of Audit
For an audit to benefit the company and the environment, the consent
decree should require that, upon completion of the audit, the company
implement its recommendations provided, however, that some procedure should
be included for the Agency to review and approve the audit's conclusions and
for the company to dispute the findings / recommendations of the audit. The
consent decree may require the company simply to certify that it has
remedied any problems uncovered by the audit, or it may require full
disclosure to EPA of the audit results. The decree may also require the
party to submit a compliance or environmental management plan, or both, with
an enforceable schedule for completion.
Additionally, the consent decree should address the enforcement of
audit-discovered violations. In particular, the consent decree may provide
for stipulated penalties for violations that can be predicted and are
promptly remedied. See EPA Policy at p. 5. See also the City of Ottumwa
consent decree for an example of stipulated penalties for violations of the
audit provisions.
Impact of Audit Provisions on Civil Penalties
If a source, by agreeing to implement an environmental audit, exhibits
an extraordinary degree of cooperation, it may be appropriate to consider
that cooperation in adjusting the gravity component, but not the economic
benefit of noncompliance, downward. See EPA Policy at p. 6. An audit would
not be a credit towards paying the bottom line penalty.
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Adjustments to the gravity component should only be made in compelling
circumstances in cases in which the gravity component is a major portion of
the penalty. Appendix III of the Civil Penalty Policy, pertaining to
asbestos cases, establishes a scheme for the gravity component which
recognizes that asbestos is a hazardous air pollutant and explicitly
punishes repeat violators more than first-time violators. EPA should assure
that the penalty in any asbestos case meets these objectives. In most such
asbestos cases, the gravity component of the penalty is much higher than the
benefit component. Similarly, the benefit component in VHAP cases is likely
to be smaller than the gravity component. Therefore, in both instances, the
gravity component should not be adjusted unless the bottom line penalty is
still sufficient to deter future violations.
Attachments
Summary of Regional Comments on Draft Guidance on the
Inclusion of Environmental Auditing Provisions in
Clean Air Act Enforcement Cases
Region I: In-house auditors are not likely to be "independent."
EPA and States should get advance notice of audit and an
opportunity to participate in audit.
Audit results should always be fully disclosed.
Several comments on improving the Geppert Bros. Consent Decree
were offered.
Region III: Regions should remain free to determine when auditing is
appropriate.
It is good that no additional decree requirements are
mandated.
Region V: Asphalt / concrete plants are good examples of candidates for
auditing.
There should be due process for companies by including an
opportunity to dispute the findings of the audit.
Agency should review & approve audit findings before the
company is required to implement the recommendation.
Region VI: In-house auditors are not very independent.
Difficult to determine how much to adjust penalties if
auditing done.
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF IOWA
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
v. )
)
CITY OF OTTUMWA, IOWA, )
)
and )
) CIVIL ACTION NO. 88-164-E
OTTUMWA AIRPORT AUTHORITY, )
)
Defendant. )
_______________________________________)
PARTIAL CONSENT DECREE
WHEREAS, Plaintiff, the United States of America, on behalf of the
Administrator of the Environmental Protection Agency ( "EPA" or
"Plaintiff" ) filed a complaint herein on March 28, 1988, alleging that
Defendants City of Ottumwa, Iowa, ( "the City" ) and Ottumwa Airport
Authority ( "OAA" ) had violated the Clean Air Act, as amended, 42 USC
Sections 7401 et seq. ( "the Act" ), and certain specified provisions of the
National Emission Standards for Hazardous Air Pollutants established
pursuant to Section 112 of the Act, 42 USC Section 7412, codified at 40 CFR
Part 61 ( the "asbestos NESHAP" ); and
WHEREAS, Plaintiff and Defendants agree that settlement of the aforesaid
matters without further litigation would serve the public interest and that
entry of this Partial Consent Decree is the most appropriate means of
resolving this matter; and
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WHEREAS, Plaintiff and Defendants have consented to the making and
entering of this Partial Consent Decree; obligating Defendants to implement
certain remedial actions as specified herein; providing for payment of a
civil penalty in settlement of violations alleged in the Complaint; and
providing for stipulated penalties in the event of noncompliance herewith;
and
WHEREAS, Defendants' agreement to this settlement and entry of this
Consent Decree does not constitute an admission or an adjudication of the
validity of Plaintiff's allegations or of any liability by Defendants but
such agreement by Defendants is solely to terminate this lawsuit and to
settle these claims on the terms set forth in this document;
NOW, THEREFORE, upon consent and agreement of these parties herein, and
the Court having considered the matter and being duly advised,
It is hereby ADJUDGED, ORDERED AND DECREED as follows:
-I-
JURISDICTION
This Court has subject matter jurisdiction pursuant to Sections 112 and
113 of the Act, 42 USC Sections 7412 and 7413, and pursuant to the 28 USC
Sections 1331, 1345, and 1355. The Complaint states a claim upon which
relief can be granted.
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-II-
APPLICATION AND SCOPE
A. The provisions of this Partial Consent Decree shall apply to and be
binding upon the parties to this action, and upon Defendants' officers,
directors, agents, servants, employees, successors and assigns, and to all
persons, firms or corporations having actual notice of the Decree who are,
or will be, acting in active concert or participation with the Defendants or
their officers, directors, agents, servants, employees, successors or
assigns.
B. Prior to any sale, assignment, or other transfer of property or
operations which are subject to this Partial Consent Decree, Defendants
shall advise the purchaser, assignee or transferee, in writing, of the
existence of this Partial Consent Decree, and of its binding effect upon
said purchaser, assignee or transferee. A copy of such written notification
shall be sent by certified mail, return receipt requested, to the Director,
Air and Toxics Division, EPA Region VII, 726 Minnesota Avenue, Kansas City,
Kansas 66101 no later than 5 days after any such sale, assignment, or
transfer.
C. The provisions of this Partial Consent Decree shall apply to all of
Defendant's demolition and/or renovation operations.
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-III-
DEFINITIONS
Terms used in this Partial Consent Decree that are defined in Section
112 of the Act, 42 USC Section 7412, or in 40 CFR, Part 61, Subpart M, shall
have the meanings assigned to those terms in said definitions.
-IV-
INSPECTION, SAMPLING AND ANALYSIS
A. Prior to commencing any demolition or renovation operation,
Defendants shall conduct a diligent and complete survey of the facility to
be demolished or renovated for the presence of friable asbestos-containing
material ( "ACM" ) and/or ACM which may become friable during the course of
demolition or renovation operations.
B. If Defendants discover suspected ACM and/or ACM during the course
of its operations, all work which could disturb the suspected ACM and/or ACM
shall cease immediately until Defendants informs, in writing, the Director,
Air and Toxics Division, EPA Region VII, 726 Minnesota Avenue, Kansas City,
Kansas 66101 and appropriate state and/or local air pollution control
authorities. Defendants shall notify all appropriate authorities within 24
hours. If Defendants' previous notice to EPA indicated that no ACM was
present, or if the amount of ACM discovered puts the total amount of ACM
over 260 linear feet on pipes or 160 square feet on other facility
components, then
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Defendants shall immediately inform EPA and the appropriate state and/or
local authorities. Defendants shall make this notification to the
appropriate authorities within 24 hours and shall discontinue any operations
which may disturb ACM or suspected ACM for at least 24 hours after EPA and
the appropriate state and/or local authorities have received such notice.
C. If Defendants discover any friable materials or any materials which
may become friable, Defendants may elect to treat these materials as ACM
without sampling and analyzing. Except as provided for in Section IV.B and
IV.D., before Defendants may treat such materials as non-ACM Defendants
shall collect at least three representative samples of the materials.
Defendants shall take these samples from representative locations within
the materials, and shall label each sample container with a sample
identification number unique to the sampling location. Defendants shall
arrange for analysis of the samples by an independent laboratory with
expertise and experience in analyzing samples for the presence of asbestos,
as evidenced by an EPA-approved test method. Defendants shall not commence
any work which might disturb any suspected ACM until the laboratory has
completed its analysis and reported the results to Defendants, confirming
said material is, in fact, non-ACM.
D. Nothing in this Section IV shall be construed to relieve Defendants
of their obligations under the asbestos NESHAP set forth at 40 CFR Part 61,
Subpart M.
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-V-
NOTIFICATION
A. Defendants shall, by written notification post-marked or delivered
ten days prior to commencement of work which may potentially disturb ACM if
the amount of ACM is at least 80 linear meters ( 260 linear feet ) on pipes
or at least 15 square meters ( 160 square feet ) on other components or
twenty (20) days prior to commencement of work which may potentially disturb
ACM in all other operations, advise EPA Region VII and the appropriate state
and/or local air pollution control authorities, of any planned demolition
and/or renovation of a facility containing ACM. If ACM is discovered after
the project has begun, Defendants shall notify the EPA Region VII and the
appropriate state and/or local air pollution control authorities as provided
in Section IV.B, hereof.
B. In the case of a facility being demolished pursuant to the order of
a State or local governmental agency, issued because the facility is
structurally unsound and in danger of imminent collapse, Defendants shall
send written notification of the demolition of such facility to the
appropriate EPA Regional Office, and the appropriate state and/or local air
pollution control authorities, as early as possible, and shall include with
such notification (i) a copy of the order pursuant to which the demolition
is being conducted, and (ii) recitation of the name, title, address, and
authority of the State or local official who ordered the demolition.
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C. Any notification required by Section V(A) and (B) shall be provided
by employing the Notice form annexed hereto as Attachment I, and shall
include all of the information required by that form. In addition,
Defendants shall prepare for each site a graphic representation generally
depicting the proposed demolition or renovation showing the location(s) of
the areas sampled in accordance with Section IV hereof, and identifying all
areas where ACM was found. This graphic representation shall be maintained
on-site by the Asbestos Site Coordinator.
-VI-
ASBESTOS CONTROL PROGRAM
Defendants shall establish an internal program to assure compliance with
the asbestos NESHAP, and the requirements of this Partial Consent Decree
( the "Asbestos Control Program" ) as hereinafter specified.
A. Within 60 days of the entry of the Partial Consent Decree,
Defendants shall designate an Asbestos Program Manager and, in his/her
absence or unavailability, an alternate Asbestos Program Manager ( the
"Asbestos Program Manager" ). Defendants may at their option amend their
designation of the Asbestos Program Managers upon 30 days prior notice to
EPA. The Asbestos Program Managers will report directly to the Deputy
Health Officer of the City of Ottumwa, Iowa or his designee and shall have
the following duties and responsibilities:
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1. Managing all of Defendant's Asbestos Control Program activities
including the asbestos training program required by Section VII hereof.
2. Ensuring that EPA and the appropriate state or local air pollution
control agency receive the notifications required by Section V hereof.
3. Ensuring that each job site within their purview is properly
inspected, and that samples of all friable materials are taken and analyzed,
to the extent required by Section IV hereof.
4. Supervising the asbestos site coordinators in the performance of
their prescribed duties under Section VI(B) hereof.
5. Acting as Defendants' primary liaison with EPA and any state or
local air pollution control agency on matters not covered by the duties of
the asbestos site coordinator.
6. Maintaining the following records for activities:
(i) a complete record of each demolition or renovation operation
involving asbestos, as required by Paragraph C, Subparagraph 7
of this Section;
(ii) reports of samples taken and analyses performed to determine
the presence of ACM or to monitor the presence of asbestos in
the air;
(iii) manifests, landfill receipts, and other
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documentation relating to transport and disposal of ACM; and
(iv) Any other record required to be maintained pursuant to the
terms of this Partial Consent Decree.
7. Complete the training required in Section VII A., B., and C.,
herein.
B. Commencing no later than 60 days after entry of this Partial
Consent Decree, Defendants shall designate an asbestos site coordinator
within seven (7) days after learning that any new site at which Defendants
proposes to engage in demolition or renovation work contains ACM. If
suspected ACM is discovered during the course of its work, Defendants shall
designate an asbestos site coordinator as soon as possible after learning
that suspected ACM is present. Operations shall neither commence nor
continue prior to the designation of an asbestos site coordinator. The
asbestos site coordinator shall oversee all activities involving ACM at the
site and shall have been trained according to the training requirements
described herein in Section VII.
C. The asbestos site coordinator shall report directly to the Asbestos
Program Manager and shall have the following duties and responsibilities:
1. Being present when actual asbestos removal or stripping first
commences at a project site.
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2. Managing all activities at the work site relating to the
requirements of the asbestos NESHAP and the provisions of this Partial
Consent Decree.
3. Giving guidance and instructions on asbestos removal to employees
at the site.
4. Acting as the primary liaison between on-site employees and EPA and
state or local inspectors.
5. Immediately correcting any violations of the asbestos NESHAP or
this Partial Consent Decree. If an immediate remedy is not possible, the
asbestos site coordinator shall stop all ACM removal activities until all
such violations are corrected.
6. Retaining the following documents in his possession while at the
work site: a) a copy of the written notification for the site, required by
Section V, hereof; b) a copy of the graphic representation required by
Section V(C), hereof; c) a copy of the certification of training for each
employee on site, as required by Section VII(L), hereof, or a copy of the
card issued by Defendants certifying the successful completion of the
required training, pursuant to Section VII(M), hereof; and d) a copy of
Defendants' "Asbestos Training Pamphlet", preparation of which is required
by Section VI(D), hereof.
7. Recording, on a daily basis, with respect to any demolition or
renovation of a facility at which ACM has been found, the information called
for by a prescribed Daily Check
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List in the form annexed hereto as Attachment II, and certifying to the
accuracy of the recorded information.
8. Complete the training required in Section VII D., E., and F.,
herein.
D. 1. Defendants shall develop a written document entitled
Defendants "Asbestos Training Pamphlet" ( "the Pamphlet" ). The Pamphlet
shall address all of the requirements of this Partial Consent Decree and 40
CFR Part 61, Subpart M; shall describe Defendants' Asbestos Control Program,
and the respective responsibilities of the Asbestos Program Managers, the
asbestos site coordinator, and all employees engaged in work involving ACM;
shall detail the requirements applicable to handling, removal,
transportation and disposal of ACM; and shall encourage workers to report
any violations of these requirements to the Asbestos Program Manager, the
asbestos site coordinator, as appropriate. The Pamphlet may contain
additional material related to particular state and/or local requirements
which may apply.
2. Within thirty (30) after the Asbestos Program Manager has
completed the training described in Section VII, A, hereof, Defendants shall
submit a draft of the Pamphlet to the Director, Air and Toxics Division, EPA
Region VII, 726 Minnesota Avenue; Kansas City, Kansas 66101 for review and
approval.
3. EPA shall notify Defendants, in writing, of EPA approval or
disapproval of the draft Pamphlet, and shall specify deficiencies, if any.
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4. Within 30 days of receipt of EPA notification of disapproval
of any portions of the draft Pamphlet, Defendants shall amend and submit to
EPA a revised draft that remedies the deficiencies specified by EPA.
5. A copy of the Pamphlet, in the form approved by EPA, shall be
given by Defendants to each employee and supervisor involved with asbestos
activities.
6. The Pamphlet shall be reviewed by the Asbestos Program
Managers and Defendants's officers annually in addition to whenever there is
a change in the asbestos NESHAP. The Pamphlet shall be revised to reflect
changes in the asbestos NESHAP regulations.
7. Neither the terms of the Pamphlet nor Defendants' failure to
timely develop or distribute to its employees an EPA approved Pamphlet or to
revise an approved Pamphlet to reflect new regulatory requirements shall
absolve Defendants of liability for any violation of the terms of this
Partial Consent Decree or the asbestos NESHAP whether or not attributable to
the actions or derelictions of any of defendant's employees.
E. Defendants shall maintain all of the records required by this
Partial Consent Decree for the duration of the Partial Consent Decree,
including any extension, pursuant to Section IX hereof, and shall make them
available to EPA upon request. These records shall include, but not be
limited to, all records of: (1) employee training; (2) inspections made
prior to demolition / renovation jobs; (3) any demolition or renovation work
- 13 -
involving ACM ( including, but not limited to, the Daily Check List required
by Section VI(C)(7) hereto ); (4) transportation of ACM; and (5) disposal of
ACM.
- VII -
REQUIRED ASBESTOS TRAINING
No employee of Defendants shall engage in the demolition or renovation
of any facility containing ACM, or inspect a facility for the presence of
ACM pursuant to the requirements of Section IV hereof, unless he has
successfully completed a course of asbestos training, as hereinafter
specified.
A. The Asbestos Program Manager ( "APM" ), the alternate Asbestos
Program Manager, and all employees whose duties include inspection of
facilities for the presence of ACM pursuant to the provisions of Section IV
hereof, shall successfully complete, or have already completed, an EPA-
approved training course entitled, "Inspector / Management Planner" or
equivalent, subject to EPA approval. In the alternative, Defendants may
engage an instructor, accredited by EPA to provide the AHERA asbestos
training course entitled: "Inspector / Management Planner" or an EPA-
approved equivalent to the APM and alternate APM.
B. Defendants' employees subject to the requirement of Section VII(A),
hereof, who have not successfully completed the five-day course of study by
the date of entry of this Partial
- 14 -
Consent Decree, shall be enrolled in the next EPA-approved five-day course
of study, "Inspector / Management Planner" or an EPA-approved equivalent,
offered within the EPA Region VII or, at Defendants's election, an earlier
five-day course of study offered in any other Region, or, if Defendants
elect to engage an instructor as provided in Section VII(A) no later than 90
days after entry of this Partial Consent Decree.
C. Employees of Defendants who become subject to the requirements of
Section VII(A), hereof, after the date of entry of this Partial Consent
Decree, either by hiring or assignment of new work responsibilities
subsequent to that date, shall not engage in work involving ACM until they
have successfully completed a five-day course of study.
D. Defendants' asbestos site coordinator ( "ASC" ) shall successfully
complete, or have completed, an EPA-approved training course entitled:
"Contractor / Supervisor" or an EPA-approved equivalent. In the
alternative, Defendants may engage an instructor, accredited by EPA to
provide the AHERA asbestos training course entitled, "Contractor /
Supervisor" or an EPA-approved equivalent, to the ASC.
E. All asbestos site coordinators who have not successfully completed
a four-day course of study by the date of entry of the Partial Decree shall
be enrolled in the next EPA-approved four-day course of study, "Contractor /
Supervisor" or an EPA-approved equivalent, offered within EPA Region VII or
at Defendants's election, an earlier four-day course of study
- 15 -
offered in any other Region, or, if Defendants elect to engage an
instructor, accredited by EPA to provide the AHERA asbestos training course
entitled, "Contractor / Supervisor" or an EPA-approved equivalent, said
course must be held no later than 90 days after entry of this Partial
Consent Decree.
F. Employees of Defendants who become subject to the requirements of
Section VII(D) hereof, after the date of entry of this Partial Consent
Decree, either by hiring or assignment of new work responsibilities
subsequent to that date, shall not be Asbestos Site Coordinators until they
have successfully completed a four-day course of study.
G. All employees of Defendants who are not required by the terms of
this Partial Consent Decree to complete a four-or five-day course of study,
and who will engage in asbestos removal, handling, transportation and/or
disposal activities, shall successfully complete, or have completed, an EPA-
approved training course entitled: "Abatement Worker" or an EPA-approved
equivalent. Defendants' employees subject to the requirement of this
paragraph, who have not successfully completed a three-day course of study
by the entry of this Partial Consent Decree, shall be enrolled in the next
EPA-approved three-day course of study, "Abatement Worker" or an EPA-
approved equivalent, offered within EPA region VII or at Defendants'
election, an earlier EPA-approved three-day course of study offered in any
other Region or if Defendant elects to engage an instructor accredited by
EPA to provide the AHERA asbestos training course
- 16 -
entitled, "Abatement Worker" or an EPA-approved equivalent, said course must
be held within 90 days of the date of entry of this Partial Consent Decree.
H. No employee of Defendants shall engage in asbestos removal,
handling, transportation, and/or disposal activities unless he has
successfully completed the EPA-approved three-day training course entitled
"Abatement Worker" or an EPA-approved equivalent.
I. Appropriate tests shall be administered at the conclusion of the
five, four, and three-day courses. Such tests shall be administered by the
organization conducting the course, and shall be in writing to those
Defendants employees who read English. The tests shall be administered
orally, in the native language of the employee, to those Defendants
employees not fluent in English. The passing grades for such tests, whether
written or oral, shall be those established in 40 CFR 763, Appendix C to
Subpart E--EPA Model Contractor Accreditation Plan, (I)(2), Examinations.
No employee of the Defendants will be deemed to have "successfully
completed" his training, as that term is used in this Partial Consent
Decree, until he has passed the test associated with the relevant course of
study or training program.
J. Defendants shall retain a record of each employee's training, which
will be kept at the office where the employee will work. This record shall
include:
- 17 -
1. A certification of successful completion of the training together
with any supporting documentation to evaluate the identity of the employee
and the validity of certification;
2. A copy of the test taken or, for test administered by outside EPA-
approved vendors, a record from which it can be determined that an
appropriate test was taken and passed;
3. A statement as to whether the employee can read the language in
which the materials are printed, and if not, the name of the person who
orally tested him; and
4. For those subject to the one-day training program, or those who
have supplied documentation of successful completion of training from
another EPA-approved source, an acknowledgement in the form annexed hereto
as Attachment III signed by the employee. If the employee is unable to
read, the document shall also be signed by the person who read the document
to the employee.
K. For each employee for whom Defendants have compiled and maintained
the documentation required by Section VII(J) above, Defendants may issue the
employee a card, in a form to be approved by EPA, indicating that the
employee has fulfilled all of the training requirements or the training
provider may issue the employee such a card.
L. An employee's successful completion of the training required by
this Partial Consent Decree shall not absolve Defendants of liability for
any violation of this Partial Consent
- 18 -
Decree or the asbestos NESHAP whether or not attributable to the action(s)
or dereliction(s) of that employee.
M. Nothing in this Section shall be construed as relieving Defendants
from any more stringent training obligations imposed or to be imposed by any
federal, state or local law or regulation, including but not limited to
EPA's regulations promulgated pursuant to the Toxics Substances Control Act,
as amended.
- VIII -
CONTRACTOR AND SUBCONTRACTOR EXCLUSION
Section VI, paragraphs C.2-4 and D.5 and the training requirements of
Section VII of this Partial Consent Decree do not apply to third-party
contractor or subcontractor employees conducting demolition or renovation
operations on behalf of the Defendants provided, however, that nothing in
this Section shall be construed to relieve Defendants of their obligations
under the asbestos NESHAP set forth at 40 CFR Part 61, Subpart M.
- IX -
SITE ACCESS
A. During the duration of this Partial Consent Decree, Defendants
shall not withhold consent for EPA and/or state or local air pollution
control agencies, and/or their authorized contractors and consultants and
representatives, to enter on, through and about the site of any demolition
and/or
- 19 -
renovation operation with which Defendants is involved, at reasonable times,
and without notice, to take such samples and photographs and to inspect and
copy any records as may be deemed necessary to determine Defendants's
compliance with the requirements of the asbestos NESHAP and the provisions
of this Partial Consent Decree.
B. The provisions of Section VIII(A) hereof are in addition to, and
not a limitation on, any rights or access afforded by any statute,
regulation, or other law.
- X -
DURATION OF THIS DECREE
Defendants's obligations under this Partial Consent Decree shall
commence upon entry hereof. Unless extended by the Court, this Partial
Consent Decree shall terminate two (2) years after the date of final entry
of the Decree by the Court. The United States shall have the right to seek
extension of the period of time this Partial Consent Decree is in effect.
This right is in addition to any other rights the United States may have to
enforce this Partial Consent Decree.
- XI -
PENALTIES
A. Defendants shall pay a civil penalty of fifty thousand dollars
($50,000.00). This civil penalty shall be paid within thirty days of the
date of entry of this Partial Consent
- 20 -
Decree by certified check payable to The United States of America, and
forwarded to:
United States Attorney's Office
Southern District of Iowa
115 U.S. Courthouse
Des Moines, Iowa 50309
Notification of all such payments, as well as copies of all such certified
checks shall be sent to:
Regional Hearing Clerk ( 3RC00 )
U.S. Environmental Protection Agency
Region VII
726 Minnesota Avenue
Kansas City, Kansas 66101
B. The United States shall be deemed a judgement creditor for purposes
of collection of the foregoing civil penalties. Any penalty payments made
under this Partial Consent Decree are not tax deductible.
- XII -
STIPULATED PENALTIES
Defendants shall be liable to Plaintiff for Stipulated Penalties in the
amount of Five Hundred Dollars ($500.00) per violation per day for each
violation of any requirement of this Partial Consent Decree contained in
Section IV, Section V, Section VI, Section VII, and Section VIII hereof.
This stipulated penalty provision does not apply to violations of the
asbestos NESHAP regulation, 40 CFR Part 61, Subpart M. Defendants shall pay
Stipulated Penalties within fifteen (15) days of its receipt of a written
demand by Plaintiff for such
- 21 -
penalties. If Defendants believes it is not liable for the demanded
Stipulated Penalties, it may petition the Court within fifteen (15) days of
its receipt of the written demand to hear evidence on whether Defendants is
liable for the Stipulated Penalties demanded by Plaintiff. Defendants shall
have the burden of proof in establishing that it is not liable for the
Stipulated Penalties demanded by the United States. Defendants may present
matters to the Court which it believes mitigates the amount of any
stipulated penalties for any violation of the Partial Consent Decree,
provided however that nothing in this Section shall be deemed to expand any
defenses available to Defendants pursuant to the terms of Section XII,
hereof. Payment of Stipulated Penalties will be made in the manner as that
specified in Section X hereof. Plaintiff reserves the right to seek such
additional relief for violations of the Partial Consent Decree and/or
applicable law as is available by law or in equity.
- XIII -
GENERAL PROVISIONS
A. The Court shall retain jurisdiction to modify and enforce the
provisions of this Partial Consent Decree, to resolve disputes arising
hereunder, and to entertain any application as may be necessary or
appropriate for the construction and effectuation of this Partial Consent
Decree.
B. Any modification of this Partial Consent Decree shall be in writing
and approved by the Court. EPA reserves the
- 22 -
right to seek a modification of this Partial Consent Decree to conform to
any asbestos NESHAP requirements made applicable by reason of any revision
of the Clean Air Act and/or its implementing regulations.
C. This Partial Consent Decree is neither a permit nor a modification
of any existing permit and in no way relieves Defendants of its obligations
to comply with all applicable federal, state or local laws or regulations.
D. Plaintiff reserves any and all legal and equitable remedies
available to enforce the provisions of this Partial Consent Decree, and of
the Clean Air Act and its implementing regulations.
E. Nothing herein shall be construed to limit the authority of the
United States to undertake any action against any person, including the
Defendant, in response to conditions which may present an imminent and
substantial endangerment to the public health, welfare or the environment.
F. Notices required in this Decree, as applicable ( and except as
otherwise provided herein ), shall be transmitted to the addresses noted in
Attachment II.
- XIV -
COSTS
Defendants shall pay the plaintiff United States of America $1102.64 in
costs for this action.
- 23 -
- XV -
PUBLIC NOTICE
The parties agree that final approval and entry of this Decree is
subject to the public notice requirements of 28 CFR Section 50.7.
For Plaintiff United States of America:
_________________ _______________
ROGER J. MARZULLA Dated
Assistant Attorney General
Land and Natural Resources Division
United States Department of Justice
____________________ _______________
CYRUS S. PICKEN, JR. Dated
Trial Attorney
Land and Natural Resources Division
Environmental Enforcement Section
United States Department of Justice
CHRISTOPHER D. HAGEN
United States Attorney
Southern District of Iowa
___________________ _______________
RICHARD L. RICHARDS Dated
Assistant United States Attorney
Southern District of Iowa
115 U.S. Courthouse
Des Moines, Iowa 50309
(515) 284-6273
____________________ _______________
THOMAS L. ADAMS, JR. Dated
Assistant Administrator Enforcement
and Compliance Monitoring
United States Environmental Protection
Agency
- 24 -
_____________ _______________
HENRY ROMPAGE Dated
Assistant Regional Counsel
United States Environmental Protection
Agency
Region III
726 Minnesota Avenue
Kansas City, Kansas 66101
For the Defendants:
_________________________ _______________
Ottumwa Airport Authority Dated
_____________________ _______________
City of Ottumwa, Iowa Dated
______________ _______________
THOMAS KINTIGH Dated
Attorney for Defendants
IT IS SO ORDERED:
____________________________ _______________
UNITED STATES DISTRICT JUDGE Dated
OMITTED TEXT: Attachment I - Notice of Asbestos Removal Activities
Demolition and/or Renovation; Attachment II - Asbestos Removal Project Daily
Check List; Attachment III - Employee's Acknowledgement of Asbestos Training
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
UNITED STATES OF AMERICA, )
)
Plaintiff, ) Civil No. 86-321-MMS
)
v. )
)
TEXACO REFINING AND MARKETING )
INC., f/k/a GETTY REFINING )
AND MARKETING COMPANY, and )
TEXACO CHEMICAL COMPANY, )
)
Defendants. )
_______________________________________)
CONSENT DECREE
WHEREAS, Plaintiff, the United States of America ( hereinafter "United
States" ), on behalf of and at the request of the United States
Environmental Protection Agency ( "EPA" ), filed its Complaint against
defendants Texaco Refining and Marketing Inc., f/k/a Getty Refining and
Marketing Company, and Texaco Chemical Company ( collectively "Texaco" ) on
July 14, 1986, and filed its Amended Complaint against Texaco on July 28,
1987;
WHEREAS, the original Complaint and the Amended Complaint ( collectively
the "Complaint" ) allege that Texaco violated the Clean Air Act ( the
"Act" ), 42 USC Sections 7401-7642, and the National Emissions Standard for
Hazardous Air Pollutants ( "NESHAP" ) for benzene, 40 CFR Part 61, Subparts
A, J, and V, at Texaco's petroleum refinery in Delaware City, Delaware
( "the refinery" );
WHEREAS, the Complaint alleges that in connection with owning and
operating the refinery which produces benzene as part
- 2 -
of the petroleum refining process, Texaco violated reporting, monitoring,
and leak repair requirements of the benzene NESHAP;
WHEREAS, the United States' Complaint seeks permanent injunctive relief
and the imposition of civil penalties;
WHEREAS, Texaco denies the material allegations of the Complaint and
denies any and all liability and has asserted various defenses;
WHEREAS, the United States and Texaco agree that settlement of this
action is in the public interest, and also agree to entry of this Consent
Decree as an appropriate means of resolving this matter;
WHEREAS, this Consent Decree is entered prior to any trial or
adjudication of any issue of law or fact in this action;
NOW, THEREFORE, upon consent of the parties hereto, it is hereby
ORDERED, ADJUDGED AND DECREED as follows:
I. JURISDICTION
A. This Court has jurisdiction over the subject matter of this action
and over the parties consenting hereto pursuant to Section 113(b) of the
Clean Air Act, 42 USC Section 7413(b), and 28 USC Sections 1331, 1345, and
1355. Venue is proper in this Court pursuant to Section 113(b) of the Clean
Air Act, 42 USC Section 7413(b), and 28 USC Section 1391(b) and (c).
B. The Complaint filed states a claim upon which relief may be granted
against Texaco pursuant to Section 113(b) of the Clean Air Act, 42 USC
Section 7413(b).
- 3 -
II. DEFINITIONS
Terms used in this Consent Decree that are defined in 42 USC Section
7412, and 40 CFR Sections 61.02, 61.111, and 61.241, shall have the meanings
set forth in such definitions.
III. BINDING EFFECT
A. The provisions of this Consent Decree shall apply to and be binding
upon the parties hereto, their respective officials, officers, directors,
agents, servants, employees, successors, and assigns.
B. Texaco shall give notice in writing of this Consent Decree to any
successors in interest prior to a change in ownership or a transfer of right
to operate the refinery. A copy of such written notice shall be
simultaneously provided to EPA.
C. The undersigned defense counsel and representatives of Texaco are
authorized to sign this Consent Decree on behalf of the entities they
represent, and the undersigned representatives of the Department of Justice
and EPA are authorized to sign this Consent Decree on behalf of the United
States and EPA respectively.
IV. NOTICES
Unless otherwise indicated, whenever under the terms of this Consent
Decree written notice is required to be given, or a report or other document
is required to be forwarded by one party to the other, such notice or other
document shall be mailed first class, postage prepaid, to the following
individuals at the
- 4 -
addresses specified below ( or to such other addresses as may be designated
by written notice ):
A. If to the United States or EPA:
U.S. Environmental Protection Agency
Attention: Chief, Air Enforcement case
Activities Section ( 3AM22 )
841 Chestnut Building
Philadelphia, Pennsylvania 19107
B. If to Texaco:
Plant Manager
Texaco Refining and Marketing, Inc.
2000 Wrangle Hill Road
Delaware City, Delaware 19706
Such notice shall be considered timely if postmarked on the date such
notice is due.
V. REFINERY AUDIT
A. In accordance with the provisions set forth below, Texaco shall
hire and bear the cost of an agreed-upon independent contractor ( the
"Contractor" ) to conduct a benzene audit ( "audit" ) of the refinery.
1. Within fifteen (15) working days ( i.e., excluding weekends and
federal holidays ) of the entry of this Consent Decree, Texaco shall
inform EPA of the identity of the Contractor that Texaco intends to
employ to perform the audit.
2. The United States shall have the right to disapprove the
Contractor if the United States determines that the Contractor is not
qualified to perform the audit, or if the United States determines that
the Contractor is not independent of Texaco. The United States shall
notify Texaco, in writing, within twenty (20) working days following
receipt of Texaco's notice of Contractor whether the United States
disapproves the proposed Contractor. Should the United States
disapprove of the proposed Contractor, the United States shall state the
reasons therefor.
- 5 -
3. In the event the United States disapproves the proposed
Contractor, Texaco shall, as soon as practicable following receipt of
the United States' notice but no later than fifteen (15) working days
following receipt of such notice, propose an alternate Contractor to
perform the audit. The United States shall have the right, as set forth
in Paragraph V.A.2., to disapprove such Contractor.
4. In the event the United States does not notify Texaco that the
United States disapproves of the Contractor within the time prescribed
by Paragraph V.A.2., or if the United States notifies Texaco, in
writing, that the United States does not intend to invoke its right to
disapprove the Contractor, the Contractor shall be deemed "selected" by
Texaco to perform the audit of the refinery.
5. The United States shall not be held out as or deemed a party to
any contract between or among Texaco and the Contractor retained to
perform the audit.
B. Within thirty (30) working days from the entry of this Consent
Decree, Texaco shall provide the following information to EPA:
1. Schematics of the refinery that identify the refinery process
flow with streams ( i.e., as identified on the most recent version of
drawing number 1201-120-KD-56 for the refinery in general, and as
identified on the most recent version of drawing number 1290-132-KD-3000
for the benzene facilities in particular ). These schematics shall be
identified hereinafter as the "general schematic".
2. Schematics of the refinery that identify each piece of
equipment that contains or contacts benzene from the bottom of Unit 25-
C-3 and the top of Unit 32-C-101 to the termination of the benzene
process stream(s). These schematics, as well as any other schematics
requested by the Contractor pursuant to Paragraph V.C.2., shall be
identified hereinafter as the "detailed schematic". The detailed
schematic shall identify the complete benzene process streams from their
initial formation to final off-loading sites, including all storage
areas and vents, and shall indicate where, if anywhere, any fluid
( liquid or gas ) composed of 10% benzene by weight or greater is
removed from the process stream.
- 6 -
3. For any piece of equipment identified on the detailed schematic
that Texaco knows or determines in its engineering judgment contains or
contacts a fluid ( liquid or gas ) less than 10% benzene by weight and
that Texaco has not made a part of its benzene NESHAP program, Texaco
shall indicate each such piece of equipment on the detailed schematic.
In the event that Texaco and EPA do not agree on whether a piece of
equipment is in benzene service, and at EPA's written request, Texaco
shall verify the benzene content for each such piece of equipment
through ASTM Method D-2267.
4. The results of the benzene content tests conducted pursuant to
Paragraph V.B.3., shall be recorded in a log provided by Texaco to EPA.
5. The information required by Paragraph V.B. herein, shall be
forwarded to EPA.
C. Within twenty (20) working days from the selection of the
Contractor as described in Paragraph V.A., Texaco shall enter into a
contract with the agreed-upon Contractor and provide the Contractor with
copies of the general and detailed schematics referred to in Paragraph V.B.
above. Texaco shall send a copy of such contract to EPA. Texaco shall
ensure that the Contractor undertakes the following steps ( which shall be
made a part of the contract between Texaco and the Contractor ):
1. The Contractor, using the general schematic referred to in
Paragraph V.B., shall make an independent assessment of each process
unit with regard to Texaco's determination as to the presence, or lack
thereof, of benzene.
2. The Contractor, using the detailed schematic referred to in
Paragraph V.B., shall make an independent assessment of each piece of
equipment shown and not already tagged and monitored to determine if
such piece of equipment, in the Contractor's judgment, contains or
contacts a fluid ( liquid or gas ) that is 10% or greater benzene by
weight. The Contractor shall have the right to request of Texaco other
schematics which, in the judgment of the Contractor, are needed to
- 7 -
make an independent assessment. The Contractor, in making its
assessment, shall conform to the procedures set forth at 40 CFR Section
61.245.
3. Pursuant to Paragraphs V.C.1. and 2. herein, the Contractor
shall have the right to conduct whatever on site inspection and/or
testing the Contractor deems necessary to determine the benzene content
of any piece of equipment. If Texaco wishes to limit the extent of any
on site inspection and/or testing by the Contractor, such limitation
must be approved by EPA prior to Texaco's imposition of such limitation.
4. Once the Contractor has identified all pieces of equipment
that contain or contact a fluid ( liquid or gas ) that is 10% or greater
benzene by weight, the Contractor shall ensure, subject to EPA review,
Texaco's compliance with the identification and equipment requirements
of the benzene NESHAP. This shall require that the Contractor:
a. tag any piece of in benzene service equipment that has
not been tagged pursuant to 40 CFR Section 61.242-1(d).
Equipment may be tagged in a manner consistent with
existing tagging at the refinery so long as such tagging
complies with applicable regulations. The Contractor
shall prepare a list of all pieces of equipment tagged
pursuant to this subparagraph;
b. identify all open-ended valves and lines in benzene
service to verify that each is equipped with a cap, blind
flange, plug or second valve as required by 40 CFR
Section 61.242-6. The Contractor shall prepare a list of
all open-ended valves and lines where such equipment is
absent but is required pursuant to the benzene NESHAP;
and,
c. review all other pieces of in benzene service equipment
to verify that each such piece of equipment complies with
the standards set forth in the benzene NESHAP. The
Contractor shall prepare a list of any equipment that
does not comply with such standards.
- 8 -
5. The Contractor shall review all information that Texaco is
required to keep under the benzene NESHAP to assess the completeness of
such information and the efficacy of Texaco's information gathering
methods. Subject to EPA review, the Contractor shall prepare a list of
all deficiencies found. The Contractor's review shall include, without
limitation, the recordkeeping and reporting requirements contained in 40
CFR Sections 61.246 and 61.247.
6. The Contractor will review Texaco's monitoring and leak
detection and repair practices to ensure such practices comply with the
benzene NESHAP. Subject to EPA review, the Contractor shall prepare a
list of any deficiencies noted. This review shall consist of:
a. accompanying Texaco personnel or any agent or contractor
hired by Texaco to perform any of Texaco's obligations
under the benzene NESHAP, on one monthly leak detection
review, during the first month of a quarter, of all
tagged in benzene service equipment at the refinery.
Such leak detection review shall include those pieces of
equipment required to be inspected on an annual basis;
and,
b. reviewing the procedures employed by Texaco personnel
and/or any agent or contractor of Texaco responsible at
the refinery for leak detection and leak repair to assure
proper monitoring and leak detection and repair.
7. The Contractor shall have the right to perform any tests
pursuant to 40 CFR Section 61.245 to assess the performance of Texaco or
Texaco's agent or contractor. If Texaco wishes to limit the extent of
any on site inspection and/or testing by the Contractor, such limitation
must be approved by EPA prior to Texaco's imposition of such limitation.
8. For each piece of equipment that is either known or
determined, in Texaco's engineering judgment, to contain or contact a
fluid ( liquid or gas ) less than 10% benzene by weight and that is not
tagged, the Contractor shall identify and prepare a list, subject to EPA
review, of each such piece of equipment whose content has the potential
to at any time fluctuate to or over the 10% benzene limit. Texaco or
the
- 9 -
Contractor shall tag each such piece of equipment in the manner set
forth at Paragraph V.C.4. above.
D. Within thirty (30) working days from the completion of the work as
described in Paragraph V.C., Texaco in conjunction with the Contractor,
shall submit to EPA a compliance report ( the "Report" ). This Report shall
be sent to EPA and shall include the following:
1. A complete description of the work performed by the Contractor
pursuant to Paragraph V.C., attaching any lists or other documents
prepared by the Contractor, or prepared by Texaco for the Contractor,
pursuant to such paragraph.
2. A complete description of any work performed directly by Texaco
pursuant to Paragraph V.C.
3. A detailed description of any remaining work ( as of the date
of the Report ), that must be performed to bring the refinery into
compliance with the benzene NESHAP and the terms of this Decree. This
description shall include:
a. the nature and scope of the work to be performed;
b. for each item identified, an estimate of the time
necessary for completion; and,
c. for each item identified, the person(s) responsible for
the performance of the work.
4. The Report shall include a section entitled, "Compliance
Program Schedule." Such section shall include the following:
a. for the work identified in Paragraph V.D.3., for each
item identified and/or described, Texaco shall set forth
a deadline for completion and identify the person(s)
responsible for each such deadline;
b. a description of all procedures, or training programs
that Texaco and/or Texaco's contractor(s) shall use to
- 10 -
assure future compliance with the benzene NESHAP,
including an effective date for the implementation of
each identified procedure or program. ( For each
training program identified, such description shall
include the date(s) of such programs, the identity of all
persons responsible for instruction, and the identity of
attendees. )
d. a statement by Texaco that all pieces of in benzene
service equipment that were identified and tagged
pursuant to Paragraph V.C. shall be monitored in
accordance with the benzene NESHAP; and,
e. a statement by Texaco explaining how deficiencies noted
by the Contractor during the audit have been addressed in
the Report.
E. Within forty-five (45) working days of the submission of the Report
to EPA pursuant to Paragraph V.D., EPA shall inform Texaco, in writing,
whether EPA accepts or rejects all or part of the Report. In the event of
rejection, EPA shall specify its objections in writing. The following
schedule and provisions shall thereafter apply:
1. Within forty-five (45) calendar days of receipt of any EPA
notification of rejection, Texaco shall submit to EPA a revised Report
which remedies the specified objections.
2. In the event the parties cannot agree to appropriate amendments
to the Report following EPA notification of Report rejection, either
party may invoke the Dispute Resolution provision set forth in Paragraph
VIII.
F. Once EPA accepts the Report, then the Compliance Program Schedule
described in Paragraph V.D.4. shall become an enforceable addendum to this
Consent Decree.
- 11 -
VI. STIPULATED PENALTIES
A. If Texaco fails to meet the deadlines and/or requirements imposed
in this Consent Decree, Texaco shall pay stipulated penalties to the United
States in the amount of Two-Hundred Fifty Dollars ($250) per day per
violation for the first ten (10) days of noncompliance and One-Thousand
Dollars ($1,000) per day per violation thereafter.
B. Stipulated penalties shall be paid within fifteen (15) calendar
days of demand by the United States, shall be paid by check made payable to
"Treasurer, United States of America," and shall be delivered to the United
States Attorney for the District of Delaware, J. Caleb Boggs Federal
Building, 844 King Street, Room 5001, Wilmington, Delaware 19801. Texaco
shall send a copy of any such check together with the transmittal letter to
the Regional Hearing Clerk ( 3RC00 ), U.S. Environmental Protection Agency,
Region III, 841 Chestnut Building, Philadelphia, Pennsylvania 19107.
C. If Texaco wishes to contest any liability for, and/or the amount
of, any demand by the United States for stipulated penalties made pursuant
to Paragraph VI.A. herein, Texaco may invoke the Dispute Resolution
provision set forth in Paragraph VIII.
D. Nothing contained in this Consent Decree shall be construed to
prevent or limit the rights of the United States to obtain any other
appropriate relief under the Act, including but not limited to any
injunctive relief or civil penalties, in order
- 12 -
to obtain compliance with this Consent Decree, the Clean Air Act, or the
regulations promulgated thereunder, except as expressly provided in this
Consent Decree.
E. Payment by Texaco of stipulated penalties is in the nature of a
civil penalty and Texaco shall not claim this payment as a deduction for
federal tax purposes.
VII. FORCE MAJEURE
A. If any event occurs that causes or may cause a delay in Texaco's
compliance with any of the deadlines set forth in this Consent Decree,
Texaco shall notify EPA in writing within ten (10) calendar days of such
occurrence, describing in detail the anticipated length of delay, the
specific cause or causes of the delay, the measures taken or to be taken to
minimize the delay, and the timetable for the implementation of such
measures. Texaco shall adopt all reasonable measures to avoid or minimize
any such delay. Failure by Texaco to notify EPA within the time period set
forth shall constitute a waiver of any claim that circumstances beyond
Texaco's control have prevented compliance with this Consent Decree.
Notification, by itself, shall not excuse the delay.
B. If the parties agree that the delay in compliance with this Consent
Decree has been or will be caused by circumstances entirely beyond the
control of Texaco and that Texaco could not have foreseen or prevented such
delay by the exercise of due diligence, the time for performance of such
requirement may be extended for a period not exceeding the delay
- 13 -
actually caused by such circumstances. Stipulated penalties shall not be
due for such delay. In the event the parties cannot reach such agreement,
then any party may invoke the Dispute Resolution provision set forth in
Paragraph VIII. The burden of proving that any delay is caused by
circumstances beyond the control of Texaco and that Texaco could not have
foreseen or prevented such delay by the exercise of due diligence, and of
proving the appropriate duration of any extension shall rest upon Texaco.
C. The following shall not, in and of themselves, be a basis for
changes in this Consent Decree or for extensions of time under this
Paragraph:
1. Increased costs or expenses associated with the implementation
of actions called for in this Consent Decree;
2. A change in the economic circumstances of Texaco;
3. Any claim of technical infeasibility in achieving compliance
with the Consent Decree or applicable Clean Air Act requirements; or,
4. Difficulty in achieving compliance with the Consent Decree or
applicable Clean Air Act requirements.
VIII. DISPUTE RESOLUTION
Any dispute that arises among the parties regarding the requirements of
this Consent Decree, shall, in the first instance, be the subject of
informal negotiations between Texaco and the United States. If either party
believes it has a dispute with the other party, it shall notify the other
party in writing, setting forth the matter(s) in dispute. For purposes of
this
- 14 -
Paragraph only, Texaco shall address such notification to: U.S.
Environmental Protection Agency, Attention: Chief, Air and Toxics Branch
( 3RC10 ), 841 Chestnut Building, Philadelphia, Pennsylvania 19107, with a
copy to Robert L. Hines, Environmental Enforcement Section, Land and Natural
Resources Division, U.S. Department of Justice, P.O. Box 7611, Ben Franklin
Station, Washington, D.C. 20044 ( referring to Case No. 90-5-2-1-952 ). If
the dispute cannot be resolved by the parties within thirty (30) calendar
days from receipt of such notice, then Texaco shall follow the position of
the United States unless Texaco files a petition with the court for
resolution of the dispute within fifteen (15) calendar days of receipt of
the final decision of the United States, which shall be denominated as such
and shall not be mailed prior to the expiration of the thirty (30) day
period described above. The petition shall set forth the nature of the
dispute with a proposal for its resolution. The United States may within
thirty (30) calendar days file a response with an alternate proposal for
resolution. In any such dispute, Texaco shall have the burden of proving
that its proposal fulfills the terms, conditions, requirements, and
objectives of this Consent Decree, and that its proposal is more reasonable
than the proposal of the United States.
IX. CIVIL PENALTY
A. Texaco shall pay a civil penalty in the total sum of ONE HUNDRED
FIFTY-THREE THOUSAND DOLLARS ($153,000) in settlement of all civil
violations alleged in the Complaint, and
- 15 -
all other violations described in Paragraph XI.C. below. Within thirty (30)
calendar days after entry of this Consent Decree, Texaco shall tender
payment of the civil penalty to the United States Attorney for the District
of Delaware, J. Caleb Boggs Federal Building, 844 King Street, Room 5001,
Wilmington, Delaware 19801, by check payable to "The Treasurer, United
States of America." Copies of the transmittal letter and check shall be
sent to Robert L. Hines, Environmental Enforcement Section, Land and Natural
Resources Division, Department of Justice, P.O. Box 7611, Ben Franklin
Station, Washington, D.C. 20044 ( referring to Case No. 90-5-2-1-952 ) and
Regional Hearing Clerk ( 3RC00 ), Office of Regional Counsel, Region III,
U.S. EPA, 841 Chestnut Building, Philadelphia, Pennsylvania 19107.
B. Such payment is in the nature of a civil penalty and Texaco shall
not claim this payment as a deduction for federal tax purposes.
X. RIGHT OF ENTRY
A. For the purposes of monitoring compliance with the provisions of
this Consent Decree, any authorized representative of the United States
Environmental Protection Agency shall have a right of entry into the
refinery.
B. Paragraph X. herein in no way limits or otherwise affects any right
of entry held by the United States pursuant to applicable Federal or State
laws, regulations or permits.
- 16 -
XI. MISCELLANEOUS PROVISIONS
A. The United States does not, by its consent to the entry of this
Consent Decree, warrant or aver in any manner that complete compliance by
Texaco with Paragraph V. above will result in compliance with the
provisions of the benzene NESHAP, or the Act. Notwithstanding any review
and acceptance by the United States of any plans, reports, policies or
procedures, Texaco shall remain solely responsible for compliance with the
terms of this Consent Decree and the benzene NESHAP regulations, 40 CFR Part
61, Subparts A, J, and V.
B. Nothing contained in this Consent Decree shall be construed to
prevent or limit the rights of the United States to obtain civil penalties,
interest, costs or fees under the Clean Air Act or any other Federal
statutes or regulations for violations of this Consent Decree or any other
provisions of law, except as expressly provided in this Consent Decree.
C. This Consent Decree shall be in full settlement and satisfaction
only of those claims set forth in the Complaint filed by the United States
with this Court, except that in consideration of Texaco's performance of,
and compliance with, the provisions of Paragraph V. above, the United States
covenants not to sue Texaco for de minimis violations discovered in the
course of implementation of the provisions of Paragraph V. of this Consent
Decree.
D. This Consent Decree does not relieve Texaco of its obligations to
comply with all applicable requirements of the
- 17 -
Clean Air Act, 42 USC Sections 7401-7462, and the regulations promulgated
thereunder, and in no way affects or relieves Texaco of any responsibility
to comply with the requirements of any other federal, state, or local laws
and regulations, or any order of this Court. It shall be the responsibility
of Texaco to achieve and maintain complete compliance with all applicable
Federal and State laws, regulations and permits, and compliance with this
Consent Decree shall be no defense to any actions commenced pursuant to said
laws, regulations or permits, except as expressly provided in this Consent
Decree.
E. Nothing contained in this Consent Decree is intended or shall be
construed as a waiver by the United States of its right to institute
enforcement action or abatement action against Texaco for any past, present
or future violations of any statutes or rules or regulations enforced by the
United States except for those violations specified in the Complaint filed
herein and except as otherwise expressly provided in Paragraph XI.C. herein.
F. This Consent Decree does not limit or affect the rights of the
United States or Texaco as against any third parties. This Consent Decree
shall not operate to release, waive, limit or impair in any way the claims,
rights, remedies or defenses of the United States or Texaco against any
person or entity not a party hereto.
G. This Consent Decree represents the entire agreement between the
parties.
- 18 -
H. There shall be no modification of this Consent Decree without the
written consent of all parties and the approval of the Court.
XII. TERMINATION
A. One year from the date that Texaco has completed the requirements
set forth in Paragraph V. above, and has paid all outstanding penalties, and
has otherwise complied with all of the provisions of the Consent Decree, and
on notice to the Court, this Consent Decree shall terminate. Until such
termination, jurisdiction is retained by this Court to enable the Court to
issue such further orders or grant such relief as is necessary and
appropriate to carry out this Consent Decree and to resolve all disputes
arising hereunder.
B. Texaco shall notify EPA when Texaco has completed the requirements
set forth in Paragraph V. above, and has paid all outstanding penalties, and
has otherwise complied with all of the provisions of the Consent Decree. A
copy of such notification shall be provided to the Court.
C. The United States may petition the Court, on the basis of a showing
of good cause, to extend the termination date set forth in Paragraph XII.A.
above.
XIII. SEVERABILITY
The provisions of this Consent Decree shall be severable, and if any
provision is declared by a Court of competent jurisdiction to be
inconsistent with any law, and
- 19 -
therefore unenforceable, the remaining provisions of this Consent Decree
shall remain in full force and effect.
XIV. COSTS OF ACTION
Each party shall bear its own costs and attorney fees in this action.
Should Texaco subsequently be determined to have violated the terms and
conditions of this Consent Decree, then Texaco shall be liable to the United
States for reasonable costs and attorneys' fees incurred by the United
States in any action against Texaco for noncompliance with this Consent
Decree.
XVI. PUBLIC COMMENT
In accordance with 28 CFR Section 50.7, this Consent Decree shall be
lodged with the Court and published in the Federal Register to allow thirty
(30) days for public comment prior to entry of the Decree.
The parties hereby consent to entry of the foregoing Consent Decree:
FOR THE UNITED STATES OF AMERICA:
_________________ __________
ROGER J. MARZULLA Date
Assistant Attorney General
Land and Natural Resources Division
United States Department of Justice
Washington, D.C. 20530
- 20 -
WILLIAM C. CARPENTER, JR.
United States Attorney
District of Delaware
By:
______________ __________
DAVID C. WEISS Date
Assistant United States Attorney
District of Delaware
J. Caleb Boggs Federal Bldg.
844 King Street
Wilmington, Delaware 19801
_______________________________ __________
ROBERT L. HINES, Trial Attorney Date
Environmental Enforcement Section
Land and Natural Resources Division
United States Department of Justice
10th & Pennsylvania Avenue, N.W.
Washington, D.C. 20530
Ed E. Reich 7/19/88
/s/ ________________ Date
ED E. REICH, for
THOMAS L. ADAMS, JR.
Assistant Administrator
Office of Enforcement and
Compliance Monitoring
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
- 21 -
Bruce M. Diamond June 22, 1988
/s/ ________________ Date
BRUCE M. DIAMOND
Regional Counsel
Region III
U.S. Environmental Protection
Agency
841 Chestnut Building
Philadelphia, Pennsylvania 19107
Katherine L. Shine June 21, 1988
/s/ __________________
KATHERINE L. SHINE
Assistant Regional Counsel
Region III
U.S. Environmental Protection
Agency
841 Chestnut Building
Philadelphia, Pennsylvania 19107
- 22 -
FOR TEXACO:
Richard G. Soehlke June 16, 1988
/s/ __________________ Date
RICHARD G. SOEHLKE
Plant Manager
Texaco Refining and Marketing Inc.
2000 Wrangle Hill Road
Delaware City, Delaware 19706
N.R. Young June 13, 1988
/s/ __________ Date
N.R. YOUNG
Senior Vice President
Texaco Chemical Company
Houston, Texas
Richard D. Allen June 3, 1988
/s/ ________________ Date
RICHARD D. ALLEN
Morris, Nichols, Arsht & Tunnell
1105 Market Street
P.O. Box 1347
Wilmington, Delaware 19899
Judgment is hereby entered in accordance with the foregoing Consent
Decree this _____ day of __________, 1988, Wilmington, Delaware. The
parties are hereby ordered to comply with the terms thereof.
____________________________
UNITED STATES DISTRICT JUDGE
In Reply Refer To: 3AM22 September 8, 1987
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Mr. M. J. Holmes
General Manager, Philadelphia Refinery
Chevron USA Inc.
30th Street and Penrose Avenue
Philadelphia, Pennsylvania 19104
Dear Mr. Holmes:
Under Section 114(a)(1) of the Clean Air Act ( CAA ), 42 USC Section
7414(a)(1), the United States Environmental Protection Agency ( EPA ) may
require a person who owns or operates an emission source to which an
emission standard under Section 112 of the CAA, 42 USC Section 7412,
applies, to provide information to EPA for the purpose of determining
whether such person is in violation of such emission standard.
On June 6, 1984, EPA established an emission standard under Section 112
of the CAA, 42 USC Section 7412, for equipment leaks of benzene. Chevron
USA Inc. presently owns and operates the Philadelphia Refinery which
consists of various process units, and pieces of equipment contained
therein, which are emission sources of benzene to which such emission
standard applies.
Under Section 114(a)(1) of the CAA, 42 USC Section 7414(a)(1), EPA
hereby requires Chevron USA Inc. to provide the following information to EPA
for the purpose of determining whether Chevron USA Inc. is in violation of
the emission standard for equipment leaks of benzene, established by EPA
under Section 112 of the CAA, 42 USC Section 7412, which emission standard
was effective on June 6, 1984, was applicable to new sources on that date,
and was applicable to existing sources ninety (90) days thereafter on
September 5, 1984:
1. A description of the history of Chevron USA Inc.'s ownership and
operation of the Philadelphia Refinery, including the 1985 merger
involving Gulf Oil Corporation ( Gulf ) and Chevron USA Inc.
( C-USA ). The description of the merger should include, at a
minimum, the date of the merger, the surviving corporate entity,
the date of the name change to Chevron USA Inc., and the
consequences of the
2
merger in terms of Chevron USA Inc.'s assumption of Gulf Oil
Corporation's liabilities for, among other things, any pre-merger
violations of the emission standard for equipment leaks of benzene
( See 40 CFR Part 61, Subpart A, Section 61.15(d)(5) ).
2. An identification and description of all process units, past and
present, at the Philadelphia refinery, including those which are,
or were, considered by Gulf or C-USA, to "conceivably contain
equipment in ( benzene ) service", under 40 CFR Part 61, Subpart V,
Section 61.245(d)(1). For each process unit, past and present, at
the Philadelphia refinery, and each piece of equipment contained
therein, provide the dates that construction thereof ( and any
subsequent modification thereof ) was commenced, their operating
design capacities, their initial startup dates, and their actual
operating production rates, including their actual hours of
operation. For the Philadelphia refinery in its entirety, past and
present, provide the amount of benzene per year ( in megagrams )
which the Philadelphia refinery is, and was, designed to produce or
use ( See 40 CFR Part 61, Subpart J, Section 61.110(c)(2) ).
3. Copies of any applications for determination of construction or
modification submitted by, and any determinations provided to, Gulf
or C-USA, under 40 CFR Part 61, Subpart A, Section 61.06.
4. Copies of any applications for approval of construction or
modification submitted by, and any approvals granted to, Gulf or C-
USA, under Section 112(c)(1)(A) of the CAA, 42 USC Section
7412(c)(1)(A), and 40 CFR Part 61, Subpart A, Sections 61.07 and
61.08.
5. Copies of any notifications of anticipated and actual dates of
initial startup furnished, by Gulf or C-USA, under 40 CFR Part 61,
Subpart A, Section 61.09.
6. Copy of any information provided, by Gulf or C-USA, under 40 CFR
Part 61, Subpart A, Section 61.10(a).
7. Copies of any requests for waiver of compliance submitted by, and
any waiver of compliance granted to, Gulf or C-USA, under Section
112(c)(1)(B)(ii) of the CAA, 42 USC Section 7412(c)(1)(B)(ii), and
40 CFR Part 61, Subpart A, Sections 61.10(b) and 61.11.
8. Copies of any changes in the information provided by Gulf or C-USA
under 40 CFR Part 61, Subpart A, Sections 61.10(a) or 61.07(b),
provided, by Gulf or C-USA, under 40 CFR Part 61, Subpart A,
Section 61.10(c).
3
9. An identification and description of, and copies of, any operating
and maintenance procedures for minimizing emissions of benzene from
equipment leaks used, by Gulf or C-USA, as required by 40 CFR Part
61, Subpart A, Section 61.12(c).
10. Copies of any permits, licenses, or approvals, and applications
therefor, required of Gulf or C-USA by the Commonwealth of
Pennsylvania or the City of Philadelphia, for the construction,
modification, and operation of all process units, past and present,
which are, or were, considered, by Gulf or C-USA, to "conceivably
contain equipment in ( benzene ) service", under 40 CFR Part 61,
Subpart V, Section 61.245(d)(1), and each piece of equipment
contained therein, at the Philadelphia refinery, under 40 CFR Part
61, Subpart A, Section 61.17(a)(2).
11. Copies of any applications for exemption submitted by, and any
exemptions granted to, Gulf or C-USA, under 40 CFR Part 61, Subpart
J, Section 61.110(c).
12. Copies of any documents evidencing demonstrations of compliance, by
Gulf or C-USA, under 40 CFR Part 61, Subpart V, Section 61.242-
1(a).
13. Copies of, or samples of, markings used, by Gulf or C-USA, under 40
CFR Part 61, Subpart V, Section 61.242-1(d).
14. An identification and description of each pump equipped with a dual
mechanical seal system that includes a barrier fluid system,
including and identification and description of the design criteria
( failure ) determined, by Gulf or C-USA, under 40 CFR Part 61,
Subpart V, Section 61.242-2(d)(5)(ii).
15. An identification and description of each pump designated, by Gulf
or C-USA, for no detectable emissions, under 40 CFR Part 61,
Subpart V, Section 61.242-2(e), and copies of any documents
evidencing the initial, and subsequent annual, tests, required by
40 CFR Part 61, Subpart V, Sections 61.242-2(e)(3) and 61.245(c).
16. An identification and description of each pump equipped with a
closed-vent system and control device, under 40 CFR Part 61,
Subpart V, Section 61.242-2(f).
17. An identification and description of each pump located within the
boundary of an unmanned plant site, including an identification and
description of the frequency of visual inspection, by Gulf or C-
USA, of
4
each such pump, under 40 CFR Part 61, Subpart V, Section 61.242-
2(g).
18. An identification and description of each compressor seal system
equipped with a barrier fluid system that is connected by a closed-
vent system to a control device, under 40 CFR Part 61, Subpart V,
Section 61.242-3(b)(2).
19. An identification and description of each compressor located within
the boundary of an unmanned plant site, under 40 CFR Part 61,
Subpart V, Section 61.242-3(e)(1).
20. An identification and description of the design criteria
( failure ) determined, by Gulf or C-USA, for compressor systems,
under 40 CFR Part 61, Subpart V, Section 61.242-3(e)(2).
21. An identification and description of each compressor equipped with
a closed-vent system and control device, under 40 CFR Part 61,
Subpart V, Section 61.242-3(h).
22. An identification and description of each compressor designated, by
Gulf or C-USA, for no detectable emissions, under 40 CFR Part 61,
Subpart V, Section 61.242-3(i), and copies of any documents
evidencing the initial, and subsequent annual, tests, required by
40 CFR Part 61, Subpart V, Sections 61.242-3(i)(2) and 61.245(c).
23. Copies of any documents evidencing monitoring, by Gulf or C-USA, of
pressure relief devices in gas / vapor service to confirm the
condition of no detectable emissions after pressure releases, under
40 CFR Part 61, Subpart V, Sections 61.242-4(b)(2) and 61.245(c).
24. An identification and description of each pressure relief device in
gas / vapor service equipped with a closed-vent system and control
device, under 40 CFR Part 61, Subpart V, Section 61-242-4(c).
25. An identification and description of each sampling connection
system equipped with a closed-purge system, under 40 CFR Part 61,
Subpart V, Section 61.242-5(a),(b)(1) and (2).
26. An identification and description of each sampling connection
system equipped with a closed-vent system and control device, under
40 CFR Part 61, Subpart V, Section 61.242-5(a) and (b)(3).
27. An identification and description of any in-situ sampling systems,
under 40 CFR Part 61, Subpart V, Section 61.242-5(c).
5
28. An identification and description of each open-ended valve or line,
including whether each open-ended valve or line is equipped with a
cap, blind flange, plug, or second valve, indicating specifically
with which of these four alternatives each open-ended valve or line
is equipped, under 40 CFR Part 61, Subpart V, Section 61.242-
6(a)(1).
29. A specific identification of each valve monitored, by Gulf or C-
USA, the first month of every quarter, rather than monthly, under
40 CFR Part 61, Subpart V, Section 61.242-7(c).
30. An identification and description of each valve designated, by Gulf
or C-USA, for no detectable emissions, under 40 CFR Part 61,
Subpart V, Section 61.242-7(f), and copies of any documents
evidencing the initial, and subsequent annual, tests, required by
40 CFR Part 61, Subpart V, Sections 61.242-7(f)(3) and 61.245(c).
31. An identification and description of each valve designated, by Gulf
or C-USA, as unsafe-to-monitor, under 40 Part 61, Subpart V,
Sections 61.242-7(g), including an identification and description
of the basis for each designation, and a copy of the written plan
requiring monitoring as frequent as practicable during safe-to-
monitor times, under 40 CFR Part 61, Subpart V, Section 61.242-
7(g)(2).
32. An identification and description of each valve designated, by Gulf
or C-USA, as difficult-to-monitor, under 40 CFR Part 61, Subpart V,
Section 61.242-7(h), including an identification and description of
the basis for each designation, and a copy of the written plan
requiring monitoring at least once per calendar year, under 40 CFR
Part 61, Subpart V, Section 61.242-7(h)(3).
33. Copies of any documents evidencing findings, by Gulf or C-USA, of
evidence of potential leaks at pressure relief devices in liquid
service and flanges and other connectors, and subsequent monitoring
thereof, under 40 CFR Part 61, Subpart V, Section 61.242-8(a).
34. An identification and description of each product accumulator
vessel equipped with a closed-vent system and control device, under
40 CFR Part 61, Subpart V, Section 61.242-9.
35. An identification and description of each delay of repair, by Gulf
or C-USA, based upon the technical infeasibility of such repair
without a process unit
6
shutdown, under 40 CFR Part 61, Subpart V, Section 61.242-10(a).
36. An identification and description of each delay of repair, by Gulf
or C-USA, beyond a process unit shutdown, under 40 CFR Part 61,
Subpart V, Section 61.242-10(e).
37. An identification and description of each delay of repair, by Gulf
or C-USA, for equipment isolated from the process and which did not
remain in benzene service, under 40 CFR Part 61, Subpart V, Section
61.242-10(b).
38. An identification and description of each delay of repair for
valves, by Gulf or C-USA, based upon the emissions of purged
material resulting from immediate repair being greater than the
fugitive emissions likely to result from delay of repair, and
involving the eventual collection and destruction or recovery of
such purged material in a control device, under 40 CFR Part 61,
Subpart V, Section 61.242-10(c).
39. An identification and description of each delay of repair for
pumps, by Gulf or C-USA, based upon such repair requiring the use
of a dual mechanical seal system that includes a barrier fluid
system, under 40 CFR Part 61, Subpart V, Section 61.242-10(d).
40. An identification and description of each closed-vent system and
control device, under 40 CFR Part 61, Subpart V, Section 61.242-
11(a), including an identification and description of all times
when emissions may be vented to them, under 40 CFR Part 61, Subpart
V, Section 61.242-11(g), and an identification and description of
the nature and sources of all such emissions vented to them.
41. Copies of any documents evidencing the initial, and subsequent
annual, monitoring of closed-vent systems by detection instrument
and visual inspection, required by 40 CFR Part 61, Subpart V,
Section 61.242-11(f), by Gulf or C-USA.
42. An identification and description of the organic vapor recovery
efficiencies ( both design and operating ) of each vapor recovery
system, under 40 CFR Part 61, Subpart V, Section 61.242-11(b).
43. An identification and description of the benzene emission reduction
efficiencies and minimum residence time at minimum temperature
specifications ( both design and operating ) of each enclosed
combustion
7
device, under 40 CFR part 61, Subpart V, Section 61.242-11(c).
44. Copies of any documents evidencing visible emission observations,
by Gulf or C-USA, of each flare, under 40 CFR Part 61, Subpart V,
Section 61.242-11(d).
45. An identification and description of each device used, by Gulf or
C-USA, to monitor and detect the presence of a flare pilot flame at
all times at each flare, under 40 CFR Part 61, Subpart V, Section
61.242-11(d).
46. An identification and description of each flare, including the
following information for each:
a. whether the flare is steam-assisted, air-assisted, or non-
assisted;
b. the net heating value of the gas being combusted in the flare,
and the calculation thereof;
c. the exit velocities of each flare ( both design and
operating ), and the calculation of each actual operating exit
velocity; and
d. the maximum permitted velocity, V max, and the calculation
thereof, for each flare for which such maximum permitted
velocity is relevant;
under 40 CFR Part 61, Subpart V, Sections 61.242-11(d) and
61.245(e).
47. An identification and description of how each control device is, or
was, monitored via selected parameters, by Gulf or C-USA, to ensure
that each control device is, or was, operated and maintained in
conformance with its design, under 40 CFR Part 61, Subpart V,
Sections 61.242-11(e) and 61.246(d)(3).
48. An identification and description of the detection instrument used,
by Gulf or C-USA, under 40 CFR Part 61, Subpart V, Section
61.245(b).
49. For each process unit, past and present, at the Philadelphia
refinery, which is, or was, considered by Gulf or C-USA, to
"conceivably contain equipment in ( benzene ) service", under 40
CFR Part 61, Subpart V, Section 61.245(d)(1) ( previously required
to be identified and described as part of the information required
to be provided in response to Paragraph 2. above ), an
identification and description of the basis for so considering such
process units.
8
50. For each process unit, past and present, at the Philadelphia
refinery, which is, or was, considered, by Gulf or C-USA, to not
"conceivably contain equipment in ( benzene ) service", under 40
CFR Part 61, Subpart V, Section 61.245(d)(1) ( also previously
required to be identified and described as part of the information
required to be provided in response to Paragraph 2. above ), an
identification and description of the basis for so considering such
process units, indicating specifically whether any applications for
exemption were submitted, by Gulf or C-USA, under 40 CFR Part 61,
Subpart J, Section 61.110(c)(1) and (3).
51. For each process unit, past and present, at the Philadelphia
refinery, which is, or was, considered, by Gulf or C-USA, to
"conceivably contain equipment in ( benzene ) service", under 40
CFR Part 61, Subpart V, Section 61.245(d)(1), copies of any
documents evidencing any demonstrations that any pieces of
equipment within such process units are not, or were not, in
benzene service, under 40 CFR Part 61, Subpart V, Section
61,245(d).
52. For each piece of equipment within a process unit which is, or was,
considered, by Gulf or C-USA, to be in benzene service at any time,
copies of any documents evidencing any revised consideration of
such pieces of equipment, under 40 CFR Part 61, Subpart V, Section
61.245(d)(2)(ii).
53. Copies of, or samples of, the weatherproof and readily visible
identifications attached, by Gulf or C-USA, to leaking equipment,
under 40 CFR Part 61, Subpart V, Section 61.246(b)(1).
54. Copy of the leak detection log(s) kept, by Gulf or C-USA, under 40
CFR Part 61, Subpart V, Section 61.246(c).
55. Copy of the records of the design requirements for closed-vent
systems and control devices kept, by Gulf or C-USA, under 40 CFR
Part 61, Subpart V, Section 61.246(d).
56. Copy of the equipment log(s) kept, by Gulf or C-USA under 40 CFR
Part 61, Subpart V, Section 61.246(e).
57. Copy of the unsafe / difficult-to-monitor valve log(s) kept, by
Gulf or C-USA, under 40 CFR Part 61, Subpart V, Section 61.246(f).
58. Copy of the design criteria ( failure ) log(s) kept, by Gulf or C-
USA, under 40 CFR Part 61, Subpart V, Section 61.246(h).
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59. Copy of the exemption log(s) kept, by Gulf or C-USA, under 40 CFR
Part 61, Subpart V, Section 61.246(i).
60. Copy of the demonstration log(s) kept, by Gulf or C-USA, under 40
CFR Part 61, Subpart V, Section 61.246(j).
61. Copy of any statement submitted, by Gulf or C-USA, under 40 CFR
Part 61, Subpart V, Section 61.247(a).
62. Copies of any semiannual reports submitted, by Gulf or C-USA, under
40 CFR Part 61, Subpart V, Section 61.247(b).
63. An identification and description of any new sources resulting from
construction or modification undertaken, by Gulf or C-USA, for
which an application for approval of construction or modification
was not required, under 40 CFR Part 61, Subpart V, Section
61.247(e).
All terms used in this letter shall have the meaning given them in the
CAA, including Sections 112 and 302 of the CAA, 42 USC Sections 7412 and
7602, and in 40 CFR Part 61, Subparts A, including Sections 61.02 and
61.15, J, including Section 61.111, and V, including Section 61.241.
Chevron USA Inc. is required to respond individually and completely to each
numbered paragraph above without regard to any prior submissions or
communications of information to EPA. With regard to those numbered
paragraphs requiring the provision of copies of documents, a response which
fails to provide a required copy of a document and which indicates the
availability for inspection and copying of such document at premises of
Chevron USA Inc. shall not be a complying response and shall constitute a
failure or refusal by Chevron USA Inc. to comply with, and a violation of, a
requirement of Section 114 of the CAA, 42 USC Section 7414.
The above information required to be provided is to be provided by
Chevron USA Inc. to EPA-Region III, by postmarked response, within fourteen
(14) calendar days of the date of Chevron USA Inc.'s receipt of this letter.
Failure to provide the above information as required may result in
enforcement action under Section 113 of the CAA, 42 USC Section 7413.
Section 113(c)(2) of the CAA, 42 USC Section 7413(c)(2), states that "(a)ny
person who knowingly makes any false statement, representation, or
certification in any...document filed...under this Act...shall upon
conviction, be punished by a fine of not more than $10,000, or by
imprisonment for not more than six months, or by both". In addition, the
Criminal Fine Enforcement Act of 1984, P.L. 98-596, provides for fines in
excess of the amount specified in the CAA under certain circumstances.
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Any subsequent change which would have the effect of rendering the
information initially provided incomplete, inaccurate, or misleading in any
respect must be reported to EPA-Region III in a timely fashion, and any
appropriate supplemental information must also be provided to EPA-Region III
at that time.
Under regulations at 40 CFR Part 2, Subpart B, Chevron USA Inc. is
entitled to assert a claim of business confidentiality covering all or part
of any provided information, in the manner required at 40 CFR Part 2,
Subpart B, Section 2.203(b), unless such information is "emission data" as
defined at 40 CFR Part 2, Subpart B, Section 2.301(a)(2). Information
subject to a properly and permissibly asserted claim of business
confidentiality will be made available to the public only in accordance with
the regulations at 40 CFR Part 2, Subpart B. Unless a business
confidentiality claim is properly and permissibly asserted at the time
required information is provided, EPA may make this information available to
the public without further notice to Chevron USA Inc.
If you should have any questions concerning this letter, please contact
Bernard E. Turlinski, Acting Chief, Air Enforcement Branch, at (215) 597-
3989, or Ronald J. Patterson, of his staff, at (215) 597-6550.
Sincerely,
Thomas J. Maslany
/s/ ___________________________
THOMAS J. MASLANY, Director
Air Management Division
cc: William Reilly, Assistant Health Commissioner
Philadelphia Air Management Services
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