In January 2024, chemical manufacturer Nox-Crete Inc., located in Omaha, Nebraska, agreed to pay a $37,026 EPA civil penalty and install a fire suppression system to resolve alleged violations of the federal Clean Air Act (CAA); Emergency Planning and Community Right-to-Know Act (EPCRA); and Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
The facility, which produces “chemical solutions to concrete problems,” was inspected by the EPA after a fire in May 2022 resulted in the release of an estimated 659,543 pounds (lb) of chemicals, including 40,262 lb of extremely hazardous substances, and an evacuation of over 2,000 residents, according to EPA records.
“Nox-Crete’s operations presented a significant risk to its workers and the surrounding community, which is already overburdened by pollution,” said David Cozad, director of EPA Region 7’s Enforcement and Compliance Assurance Division, according to an Agency news release. “This settlement, including the installation of the improved fire suppression system, will reduce the risk to workers and residents from future harmful accidents.”
CAA General Duty Clause
Facilities that use hazardous, toxic, and/or flammable substances are required to comply with the CAA. The law’s General Duty Clause makes facility owners and operators responsible for managing chemicals safely. Under this clause, owners and operators of stationary sources must:
- Identify hazards that may result from accidental releases using appropriate hazard assessment techniques.
- Design and maintain a safe facility, taking such steps as are necessary to prevent releases.
- Minimize the consequences of any accidental releases.
Meeting requirements under this clause include the obligation for owners/operators to:
- Adopt or follow any relevant industry codes, practices, or consensus standards (for the process or facility as a whole, as well as for particular chemicals or pieces of equipment).
- Be aware of the unique circumstances of your facility that may require a tailored accident prevention program.
- Be aware of accidents and other incidents in your industry that indicate potential hazards.
EPCRA and CERCLA
Chemicals manufactured at the facility include those defined as “extremely hazardous substances” because they’re combustible, flammable, and/or toxic.
As outlined in the settlement, the EPA alleges that Nox-Crete violated multiple legal requirements, including:
- Failure to identify hazards that may result from releases of hazardous substances;
- Failure to minimize the consequences of the release before and after the May 2022 fire, including the failure to adequately coordinate with local response authorities regarding the facility’s fire prevention design and plans;
- Failure to immediately notify the EPA and local response authorities after the company was aware of a hazardous substance release; and
- Failure to report the use and storage of two hazardous substances to local response authorities for use in emergency planning before the May 2022 fire.
CERCLA and EPCRA require reporting of releases of hazardous substances that meet or exceed reportable quantities within a 24-hour period. The purpose of the notification is for federal, state, tribal, and local officials to evaluate the need for an emergency response to mitigate the effects of a release to the community.
CERCLA Section 103(a) (42 U.S.C. 9603), as amended, requires that the person in charge of the facility immediately notify the National Response Center at 1-800-424-8802 whenever a reportable quantity or more of a CERCLA hazardous substance is released in any 24-hour period, unless the release is federally permitted. The purpose of this requirement is to notify officials of potentially dangerous releases so they can evaluate the need for a response action.
EPCRA requires owners/operators to notify the State or Tribal Emergency Response Commission (SERC or TERC) and the Local or Tribal Emergency Planning Committee (LEPC or TEPC) for any area(s) likely to be affected by the release if a release of an extremely hazardous substance is at or above its applicable reportable quantity.
Emergency release notifications must include:
- The chemical name;
- An indication of whether the substance is extremely hazardous;
- An estimate of the quantity released into the environment;
- The time and duration of the release;
- Whether the release occurred into air, water, and/or land;
- Any known or anticipated acute or chronic health risks associated with the emergency and, where necessary, advice regarding medical attention for exposed individuals;
- Proper precautions, such as evacuation or sheltering in place; and
- Name and telephone number of contact person.
The facility must also provide a detailed follow-up written report as soon as practicable after the release. This report must update information included in the initial notice and provide information on actual response actions taken and advice regarding medical attention necessary for citizens exposed. The SERC/TERC and the LEPC/TEPC are required to make these reports available to the public.
Additional settlement details and enforcement alert
In addition to paying the civil penalty, Nox-Crete also agreed to install a foam-deluge fire suppression system in its manufacturing and raw material storage areas, costing about $244,000. The EPA says this will help protect workers, responders, and the surrounding area from accidental releases of hazardous substances.
“EPA identified the community surrounding the Nox-Crete facility as a potentially sensitive area with respect to air toxics, diesel particulate matter, lead-based paint and underground storage tanks,” the Agency news release says. “EPA is strengthening enforcement in such communities to address disproportionately high and adverse human health or environmental effects of industrial operations on vulnerable populations.”