UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGION 1-NEW ENGLAND 

IN THE MATTER OF 

Mann Distribution LLC and 

3134 Post LLC 

3134 Post Road 

Warwick, Rhode Island 02886 

Respondents 

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Proceeding under Section 113 ofthe ) 

Clean Air Act and Section 3008(a) of the ) 

Resource Conservation and Recovery Act ) 

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DocketNos: RCRA-01-2015-0028 

CAA-01 -201 5-0029 

FINDING OF VIOLATION 

AND ADMINISTRATIVE 

ORDER ON CONSENT 

Table of Contents 

I. Introduction .................................................................................................................... 3 

ll. Statutory and Regulatory Authority ........................................................................... 3 

Clean Air Act. ............................................................................................................ 3 

RCRA ........................................................................................................................ 4 

ill. General Allegations .................................................................................................... 6 

IV. Findings of Violations ................................................................................................ 8 

Clean Air .\ct ............................................................................................................ 8 

Count 1: Failure to Design and Maintain a Safe Facility, In Violation of the General 

Duty Clause ................................................................................................................. 8 

Count II: Failure to Minimize Consequence of Releases that Do Occur, in Violation 

of the General Duty Clause ....................................................................................... 13 

RCRA ...................................................................................................................... l4 

Count ill: Failure to Notify RIDEM About Hazardous Waste Activity .................. 14 

Count IV: Failure to Make an Adequate Hazardous Waste Determination ............. I 6 

Count V: Failure to Separate Incompatible Wastes ................................................. 17 

Count VI: Failure to Have Adequate Containment Systems .................................... 18 

Count VII: Failure to Adequately Trajn All Employees with Hazardous Waste 

Management Responsibilities .................................................................................... 18 

Count VTII: Failure to Label Contajners of Hazardous Waste with the Words 

"Hazardous Waste," a Description of the Contents, the Date of Accumulation, or the 

Waste Code ................................................................................................................ 20 
Count IX: Failure to Maintain Adequate Aisle Space Between Containers of 

Hazardous Waste ....................................................................................................... 21 

Count X: Failure to Minimize Threat of Release ..................................................... 21 

V. Order and Compliance Obligations ......................................................................... 22 

RCRA ...................................................................................................................... 22 

Clean Air Act .......................................................................................................... 22 

First Compliance Certification .................................................................................. 22 

Hazardous Material Storage Plan Submittal .............................................................. 23 

Install Fire Suppression System ................................................................................ 24 

Third-Party Inspection Program ................................................................................ 25 

Approval ofDeliverables .......................................................................................... 29 

Notifications .............................................................................................................. 29 

Summary of Compliance Obligations ..................................................................... 31 

VI. Access ......................................................................................................................... 32 

VII. Stipulated Penalties ................................................................................................. 32 

VIII. Dispute Resolution ................................................................................................. 34 

IX. Force Majeure and Excusable Delay ...................................................................... 35 

X. Effect of Settlement, Reservation of Rights, and Judicial Review ......................... 36 

XI. Modification .............................................................................................................. 37 

XII. Severability .............................................................................................................. 37 

XID. Termination ........................................................................................................... 38 

XID. Effective Date and Signatures .............................................................................. 38 

2 
I. INTRODUCTION 

1. The United States Environmental Protection Agency, Region 1 ("EPA'' or 

"EPA Region 1 ") makes the following Findings of Violation and issues an ORDER ON 

C001SENT for Respondents' failure to comply with Section 112(r)(l) of the Clean Air 

Act, 42 U.S.C. § 7412(r)(l), and RCRA Section 3002, 42 U.S.C. § 6922, with regard to 

the handling of hazardous wastes and extreme1y hazardous substances at its 3134 Post 

Road, Warwick, Rhode Island Facility. The parties to the ORDER ON CONSENT are 

EPA Region J and Respondents, Mann Distribution LLC and 3134 Post LLC. EPA 

makes the findings and issues this ORDER ON CONSENT pursuant to Section l 13(a)(3) 

ofthe Clean Air Act ("CAA''), 42 U.S.C. § 7413(a)(3); Section 3008(a) of the Solid 

Waste Disposal Act, as amended by the Resource Conservation and Recovery Act and 

the Hazardous and Solid Waste Amendments of 1984 (hereinafter, "RCRA"), 42 U.S.C. 

§ 6928(a); and the Consolidated Rules of Practice Governing the Administrative 

Assessment of Civil Penalties, Issuance of Compliance or Corrective Action Orders, and 

the Revocation, Termination or Suspension of Permits, 40 C.F .R. Part 22 ("Part 22"). 

2. This Order on Consent (

110rder") is entered into upon mutual agreement 

by the parties. Accordingly, although Respondents neither admit nor deny EPA's 

findings herein, Respondents consent to and agree not to contest EPA's jurisdiction to 

issue this Order or enforce its terms. Further, Respondents shall not contest EPA's 

jurisdiction to: compel compliartce with this Order in any subsequent enforcement 

proceedings, either administrative or judicial; require Respondents' full compliance with 

the terms of this Order; or impose sanctions for violations of this Order. 

3. This Order shall apply to and be binding upon Respondents, their agents, 

successors and assigns and upon all persons, contractors, and consultants acting under or 

for Respondents. No change in ownership or corporate or partnership status of the 

Respondents will in any way alter the status of Respondents or their responsibilities 

under this Order. 

U. STATUTORY AND REGULATORY AUTHORITY 

Clean Air Act 

4. Pursuant to Section 112(r)(l) ofthe CAA, 42 U.S.C. § 7412(r)(l), owners 

and operators of stationary sources producing, processing, handling, or storing substances 

listed pursuant to Section 112(r)(3) of the CAA, 42 U.S.C. § 74l2(r)(3), or any other 

extremely hazardous substance, have a general duty, in the same manner and to the same 

extent as section 654 of Title 29, to (a) identify hazards which may result from accidental 

releases of such substances, using appropriate hazard assessment techniques; (b) design 

and maintain a safe facility, taking such steps as are necessary to prevent releases; and (c) 

minimize the con~equences of accidental releases that do occur. This section of the CAA 

is referred to as the "General Duty Clause." 

3 
5. The term "stationary source" is defined by Section ll2(r)(2)(C) of the 

CAA, 42 U.S.C. § 74l2(r)(2)(C), in pertinent part, as any buildings, structures, 

equipment, installations or substance-emitting stationary activities, located on one or 

more contiguous properties under the control of the same person, from which an 

accidental release may occur. 

6. The term "extremely hazardous substance" means an extremely hazardous 

substance within the meaning of Section 112(r)(l) of the Clean Air Act. Such substances 

include any chemical which may, as a result of short-term exposures associated with 

releases to the air, cause death, injury, or property damage due to its toxicity, reactivity, 

flammability or corrosivity. 1 The term includes, but is not limited to, regulated 

substances listed in Section 1 t2(r)(3), 42 U.S.C. § 7412(r)(3), and 40 C.F.R. § 68.130. 

Also, the release of any substance that causes death or serious injury because of its acute 

toxic effect or as a result of an explosion or fire or that causes substantial property 

damage by blast, fire, corrosion or other reaction would create a presumption that such 

substance is extremely hazardous.2 

7. The tenn "accidental release" is defined by Section 112(r)(2)(A) of the 

CAA, 42 U.S.C. § 7412(r)(2)(A), as an unanticipated emission of a regulated substance 

or other extremely hazardous substance into the ambient air from a stationary source. 

8. Section 113(a)(3) ofthe CAA. 42 U.S.C. § 7413(a)(3), authorizes EPA to 

issue compliance orders for violations of the Act, including violations of Section 112(r), 

42 U.S.C. §7412(r). Pursuant to Section 113(a)(4) ofthe CAA, 42 U.S.C. § 7413(a)(4), 

EPA must send a copy of the order to the relevant State air pollution control agency, and 

an order relating to a violation of Section 112 of the CAA can take effect immediately 

upon issuance. 

9. The authority to issue orders pursuant to Section 113(a)(3) of the CAA has 

been delegated to EPA Region I's Regional Administrator, and in turn to the Director of 

EPA Region I's Office ofEnvironmental Stewardship. 

RCRA 

10. In 1976, Congress enacted RCRA, amending the Solid Waste Disposal 

Act, to regulate hazardous waste management. RCRA Subtit~e C, 42 U.S.C. § 6921 et 

~. empowers EPA to identify and list hazardous wastes. It also authorizes EPA to 

regulate hazardous waste generators, transporters, and the owners and operators of 

hazardous waste treatment, storage, and disposal facilities. EPA has promulgated federal 

regulations to implement RCRA Subtitle C, which are set forth at 40 C.F.R. Parts 260-

270. 

1 Senate Committee C'n Environment and Public Works, Clean Air Act Amendments of I 989. Sen. Report 

No. 228, 101 •' Congress, 1st Session 211 (I 989). 2 ld. 

4 
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11. Pursuant to Section 3001 of RCRA, 42 U.S.C. § 6921, EPA promulgated 

regulations to define what materials are "solid wastes," and of these solid wastes, what 

wastes are regulated as "hazardous wastes." These regulations are set forth at 40 C.F.R. 

Part 261. 

12. Section 3002 ofRCRA, 42 U.S.C. § 6922, required EPA to establish 

standards applicable to generators of hazardous wastes. These standards are codified at 

40 C.F.R. Part 262 and relate to such matters as determining whether a waste is 

hazardous, container management, labeling and dating containers, inspecting waste 

storage areas, training, and planning for emergencies. 

13. In 1984, Congress substantially amended RCRA with the Hazardous and 

Solid Waste Amendments ("HSWA") to, among other things: (a) restrict the disposal of 

hazardous wastes on the land or in landfills; and (b) change the method for determining 

whether wastes are toxic (and therefore hazardous). RCRA Section 3004(c)-(p), 42 

U.S.C. § 6924(c)-(p). 

14. Pursuant to Section 3006 ofRCRA, 42 U.S.C. § 6926, EPA may authorize 

a state to administer its hazardous waste program in lieu of the federal program when the 

Administrator deems the state program to be equivalent to the federal program. 

15. On January 30, 1986, EPA granted the State of Rhode Island and 

Providence Plantations ("Rhode Island") final authorization to administer its hazardous 

waste program in lieu of the federal government's base RCRA program. See 51 Fed. 

Reg. 3780 (January 30, 1986). Updates to the Rhode Island hazardous waste 

management program were authorized by EPA on March 12, 1990, effective March 26, 

1990; March 6, 1992, effective May 5, 1992; October 2, 1992, effective December 1, 

1992; August 9, 2002, effective October 8, 2002; December 11 , 2007, effective February 

11, 2008; and July 26, 2010 and September 20, 2010, effective September 24, 2010. The 

authority for the Rhode Island hazardous waste program is set out at Chapter 23-19.1 of 

the Rhode Island General Laws. The authorized Rhode Island RCRA regulations are 

entitled State of Mode Island and Providence Plantation Rules and Regulations for 

Hazardous Waste Management (Regulation #OEM OWM HW I 0-01 , Rules 1.00 through 

17.00), hereinafter the "201 0 RI Rules." New RI Rules came into effect on February 10, 

2014 (the 2014 RJ Rules), but those Rules were not in effect on the date of the violations 

alleged herein and are not yet federally-authorized. Accordingly, the RJ Rules cited 

herein are the 2010 Rl Rules. Also, because EPA has not yet authorized the State of 

Rhode Island to implement some HSWA portions of the federal RCRA program, there is 

a dual State/Federal RCRA program in Rhode Island. State law governs the base 

hazardous waste program, but EPA has exclusive jurisdiction to implement and enforce 

the HSWA provisions for which Rhode Island is not authorized. 

16. Section 3006 ofRCRA, 42 U.S.C. § 6926, as amended, provides, inter 

alia, that authorized state hazardous waste programs are carried out under Subtitle C of 

RCRA. Therefore, a violation of any requirement of Jaw under an authorized state 

hazardous waste rrogram is a violation of a requirement of Subtitle C ofRCRA. 

5 
17. Pursuant to Sections 3008(a) and 3006(g) ofRCRA, 42 U.S.C. § 6928(a) 

and 6926(g), EPA may enforce the federally-approved Rhode Island hazardous waste 

program, as well as the federal regulations promulgated pursuant to HSWA, by issuing 

orders requiring compliance immediately or within a specified time for violations of any 

requirement ofSubtitle C ofRCRA, Sections 3001-3023 ofRCRA, 42 U.S.C. §§ 6921-

6939e. Pursuant to Section 3008(a)(2) ofRCRA, 42 U.S.C. § 6928(a)(2), notice ofthjs 

action has been given to Rhode Island. 

18. Unlike CAA orders, RCRA compliance orders are subject to the 

requirements of Part 22, which includes the right to an administrative hearing. Pursuant 

to 40 C.F.R. § 22.37(b), compliance orders become final unless, no later than 30 days 

after the order is served, the respondent requests a hearing. (As specified in paragraphs 

124 and 125 below, Respondents agree to waive this right to a hearing.) 

19. The authority to issue orders pursuant to Section 3008(a) ofRCRA has 

been delegated to EPA Region l's Regional Administrator, and in turn to the Director of 

EPA Region l's Office of Environmental Stewardship ("OES"), who, in turn re-delegated 

her authority to OES's LegaJ Enforcement Manager. By memorandum dated September 

8, 2011, the Director ofOES clarified that she retains concurrent authority to issue such 

orders. 

ID. GENERAL ALLEGATIONS 

20. Mann Distribution LLC ("Mann") is the operator of a facility that 

distributes, packages, and warehouses chemicals (the ''Facility"), located at 3134 Post 

Road, Warwick, Rhode Island 02886. 

21. Mann is a limited liability corporation organized under the laws of the 

Rhode Island that was fonnerly known as Mann Chemical LLC. 

22. 3134 Post LLC owns the real estate at 3134 Post Road and is a limited 

liability corporation organized under the laws of the Rhode Island. 

23. As limited liability corporations, Mann and 3134 Post LLC are each a 

"person" within the meaning of Section 302(e) of the CAA, 42 U.S.C. § 7602(e) to whom 

a compliance order may be issued under Section 113(a)(3) of the CAA, 42 U.S.C. § 

7413(a)(3). Likewise, each Respondent is a "person" pursuant to Section 1 004(5) of 

RCRA, 42 U.S.C. § 6903(15), and 2010 Rl Rule 3.0, to whom a compliance order may 

be issued under Section 3008(a) ofRCRA, 42 U.S.C. § 6928(a). 

24. On August 26, 2009, EPA issued a Notice of Violation, Administrative 

Order, and Reporting Requirement to Mann Chemical LLC for violations of CAA 

Section 112(r) found during a July 25, 2009, inspection of the Facility ("the 2009 

Order"). Likewise, on September 30,2011, EPA issued a Notice ofViolation and 

Administrative Order to Respondents for CAA Section 112(r) violations found during a 

6 
February 10, 201 J inspection ("the 2011 Order"). In response to these enforcement 

actions, Respondent, Mann, undertook many actions to further its compliance with CAA 

Section 112(r), including but not limited to conducting a facility-wide hazard analysis; 

fixing secondary containment for tanks; limiting storage of certain chemicals so as not to 

trigger the risk management planning requirements of 40 C.P.R. Part 68; designing and 

implementing a plan to separate incompatible chemicals; and installing a fire alarm 

system. Mann purchased and installed a sprinkler system, but it is not yet operational, as 

the City water main needed to be extended. Also, County water officials and the 

Warwick Fire Department still need to approve the hook-up. ln addition, Mann made 

several staffing changes, including hiring an Environmental Health and Safety 

Coordinator to manage environmental compliance. 

25. In November of2012, Respondent, Mann, through its contractor, provided 

hazardous waste training required for generators of hazardous waste to one of its 

employees. 

26. On April4, 2013, authorized representatives ofEPA Region l (the 

"Inspectors") conducted an inspection of the Facility (the "2013 Inspection") pursuant to 

Section 3007 ofRCRA, 42 U.S.C. § 6927; Section 114 of the CAA, 42 U.S.C. § 7414; 

and EPCRA, 42 U.S.C. § 11001 et ~· Officials from the Warwick Fire Department 

accompanied the Inspectors. 

27. As more fully described in CAA Counts I and II below, during the 2013 

Inspection, the Inspectors observed several examples of deficient chemical management 

practices relating to extremely hazardous substances, mainly inventory, stored at the 

Facility, including the following: 

a. Storage of chemicals that, alone or in combination, are extremely hazardous 

substances without an operational fire suppression system; 

b. Failure to timely inspect fire alarm system; 

c. Failure to separate incompatible chemicals; 

d. Failure to proper1y assess the compatibility of stored chemicals that are 

generally in tbe same hazard class but that nonetheless should not be colocated; 

e. Containers of flammable chemicals stored outdoors within 10 feet of the 

warehouse building; 

f. Inadequate spacing between aisles; and 

g. Failure to store containers so that contents could be identified by reading the 

container's labeL 

28. At the time of the 2013 Inspection, Respondents also had generated and 

were accumulating "hazardous wastes" at the Facility, as such term is defined under 

Section 1004(5) ofRCRA, 42 U.S.C. § 6903, and 2010 R.I. Rule 3.0. As more fully 

described in Counts III through X below, the Inspectors observed several examples of 

deficient management of hazardous wastes at the Facility, including, among others, the 

following: 

7 
a. Failure to properly notify the Rhode Island Department of Environmental 

Management ("RID EM") about hazardous waste activity; 

b. Failure to properly conduct hazardous waste detem1inations at the time of 

generation; 

c. Failure to separate incompatible wastes; 

d. Failure to maintain an adequate hazardous waste training plan; 

e. Failure to label containers of hazardous waste with the words "hazardous 

waste,'' a description of the contents, and the date of accumulation; 

f. faj\ure to maintain adequate aisle space; 

g. Failure to maintain adequate emergency response equipment at each 

hazardous waste storage area; 

h. Failure to minimize the potential for a release; and 

1. Storage of hazardous waste containers in arrangements that obstruct labels 

from being able to be viewed. 

29. On May 28,2013, EPA issued a Notice of Potential Violation 

to Respondent, Mann. This Notice warned Mann about the dangerous conditions listed 

in paragraphs 27 and 28 above. 

30. Subsequent to the 2013 Inspection, on October 2, 2013, the Rhode Island 

Department of Environmental Management ("RIDEM") investigated a complaint alleging 

that a reaction had occurred at the Facility on September 12, 2013, when sodium 

chloride, chlorine, and phosphoric acid were improperly mixed in a container, creating a 

chemical reaction ("the September 2013 Incident"). RIDEM learned that incompatible 

off-specification commercial products had been combined within the container, resulting 

in a chemical reaction and smoke. 

31. Later, on January 7, 2014, a forklift accidently punctured a container of 

sulfuric acid stored outside the Facility's warehouse, causing 200 gallons of sulfuric acid 

to spill (the ''2014 Sulfuric Acid Spill"). According to a Mann report, five gallons or less 

of sulfuric acid reached the Apponguag Cove. Respondent, Mann, notified RID EM 

approximately one hour after the spill, but did not notify the local fire department or the 

National Response Center until the next day. 

IV. FINDINGS OF VIOLATION 

Clean Air Act 

Count 1: Failure to Design and Maintain a Safe Facility, In Violation of the Clean 

Air Act's General Duty Clause 

32. Pursuant to Section 112(r)(l) ofthe CAA, 42 U.S.C. § 7412(r)(l), owners 

and operators of stationary sources producing, processing, handling, or storing substances 

listed pursuant to Section 112(r)(3) of the CAA, 42 U.S.C. § 7412(r)(3), or any other 

extremely hazardous substance, have a general duty, in the same manner and to the same 

8 
extent as section 654 of Title 29, to (a) identify hazards which may result from accidental 

releases of such substances using appropriate hazard assessment techniques; (b) design 

and maintain a safe facility taking such steps as are necessary to prevent releases; and (c) 

minimize the consequences of accidental releases that do occur. CAA Section 112(r)( I) 

is known as "the General Duty Clause." 

33. The General Duty Clause is a performance standard with requirements that 

often can be achieved in a variety of ways. EPA routinely consults codes, standards, and 

guidance ("industry standards") issued by trade and fire prevention associations to 

understand the hazards posed by the use of various extremely hazardous substances. The 

industry standards are also evidence of the standard of care that industry, itself, has found 

to be appropriate for managing those hazards. These industry standards are consistently 

relied upon by industry and fire prevention experts and are sometimes incorporated into 

state building, t1re, and mechanical codes. For chemical warehouse and distribution 

facilities, EPA often consults National Fire Prevention Association standards (such as 

NFPA 30 and 400, NFPA's flammable liquids and hazardous materials codes), state fire 

codes, and the Center for Chemical Process Safety's Guidelines for Safe Warehousing of 

Chemicals. 

34. At the times relevant to the violations alleged herein, Respondents 

processed, handled, and/or stored the following chemicals at the Facility, among many 

others: hydrofluoric acid (concentration 49%), ammonium hydroxide (with at least 30% 

ammonia content), ethylenediamine, formaldehyde, nitric acid (concentration of 68%), 

pheno11 sulfuric acid, hydrochloric acid, methyl ethyl ketone, methanol, isopropyl 

alcohol, acetone, xylene, dimethylfonnamide, potassium permanganate, sodium chlorite, 

sodium persulfate, triethanolamine 85%, acetic acid, phosphoric acid, dodecyclbenzene 

sulfonic acid, formic acid, amyl acetate, glycol ether EB, sodium hydrosulfite, and 

thiourea dioxide. 

35. The chemicals listed in paragraph 34 above, either alone or improperly colocated with at least one of the other chemicals listed in that paragraph, are chemicals that 

may, as the result of short-term exposures associated with releases to the air, cause death, 

injury or property damage due to their toxicity, reactivity1 flammability, volatility, or 

corrosivity. Accordingly1 they are "extremely hazardous substances," within the 

meaning ofthe General Duty Clause of Section 112(r)(l) ofthe CAA1 42 U.S.C. 

§7412(r)(l). 

36. The unanticipated emission of any of the chemicals listed in paragraph 34, 

either alone or in combination, into the ambient air from the facility would constitute an 

"accidental release," as that term is defined by Section 112(r)(2)(A) of the CAA, 42 

U.S.C. § 7412(r)(2)(A). 

37. The facility is a building or structure from which an accidental release 

may occur and is therefore a "stationary source," as that term i.s defined Section 

112(r)(2)(C) ofthe CAA, 42 U.S.C. §7412(r)(2)(C). 

9 
38. Matm is the ' 'operator" and 3134 Post LLC is the "owner," as those terms 

are defined by Section 112(a)(9) of the CAA, 42 U.S.C. §7412(a)(9), of a stationary 

source. 

39. As mentioned in paragraph 27 above, On April4, 2013, the Inspectors 

observed some deficient practices relating to the storage of extremely hazardous 

substances at the Facility, including the following: 

a. Storage of chemicals without an operational fire suppression system. The 

Inspectors observed that Respondents had not yet installed an operational fire 

suppression system, despite being required to do so by the Warwick Fire 

Marshal in 2009 and by EPA on September 30, 20 I 1. It is standard industry 

practice to have a fire suppression system in chemical warehouses that store 

hazardous materials.3 Respondents stored certain oxidizers, pyrophoric solids, 

flammable liquids and combustible liquids in the warehouse in amounts that 

exceeded fire code limits for buildings that do not have fire suppression 

systems. Some of these chemicals even exceeded the amounts that can be 

safely stored even with fire suppression, and at least one chemical (sodium 

hydrosulfite) should be stored in a separate detached building. For example, 

every day during 2012, Respondents stored potassium permanganate, a class 2 

oxidizer, in Warehouse A in average amounts of 11,000 pounds and a 

maximum amount of 22,000, which exceeded maximum allowable amounts. 

Oxidizers give up oxygen under certain conditions, which can feed and 

intensify fires, and some oxidizers can cause combustible materials to ignite 

without an obvious ignition source or cause materials that do not readily burn 

in air to burn. 

b. Failure to timely inspect fire alarm system. From looldng at inspection 

certificate stickers on the fire alarm control panel, the Inspectors observed 

that, according to the schedule on the sticker, the frre alarm system was almost 

four months overdue for inspection. Fire alarm systems a!Jow for early 

warning and evacuation of warehouse employees, as well as timely alerting 

emergency responders to dangers. Tt is standard industry practice to maintain 

alarm systems in operable condition.4 

c. Failure to separate incompatible chemicals. The Inspectors observed 

storage of incompatible chemicals in close proximity to one another. The colocation of these chemicals creates risk of fire, explosion, liberation of toxic 

gases and corrosive fumes, and other reactions if the chemicals are spilled or 

3 See e.g., Center for Chemical Process Safety, Guidelines for Sqfe Warehousing of Chemicals, Chapter 7 

(1998); and National Fire Prevention Association (''NFPA") I, Fire Code, Section 66.6. 7 (20 12 edition) 

(incorporated by reference into the Rhode Island Fire Safety Code, Section 7); NFPA 400, Hazardous 

Ma!eria/s Code, Section 6.2.1.1 {2010 edition), referenced throughout NFPA J; and Jnternational Fire Code 

Section 2704.5 (2006 edition). 4 See e.g., Guidelines for Safe Warehousing of Chemicals, Chapter 8; NFPA 72, Chapter 10 (2002 ed.); 

NFPA 1 Section60.5.1.16(2012ed.). 

10 
released. It is standard industry practice to separate incompatible chemicals.5 

In response to previous EPA Orders, Respondents had developed an 

Incompatible Material Segregation Plan to control these risks, which plan was 

partially but not fully implemented at the time of the 2013 Inspection. Some 

examples of co-location of incompatible chemicals found during the 2013 

Inspection, among others, include the following:6 

1. In the hot acid room, phenol was stored adjacent to phosphoric acid 

and triethanolamine. The interaction of these substances can cause an 

exothermic reaction that can generate heat and cause 

overpressurization. Triethanolamine was also stored adjacent to acetic 

acid in this room, and the interaction of these substances can cause an 

intense exothermic reaction that can generate toxic and corrosive 

fumes. 

ii. In a separately bermed area of Warehouse A marked "Combustible 

Solid Storage" were six 55 gallon drums of benzyl alcohol stored a 

few feet from nine fiber containers of thiourea dioxide. These two 

chemicals, if combined, can have a particularly violent or explosive 

exothermic reaction that releases heat and produces dangerous gases. 

iii. In Warehouse B, the Facility's Hazardous Materials Segregation Plan 

indicated that physical barriers existed in this room to separate acids 

from alkali materials, as well as to separate acidic oxidizers from other 

acids. However, no such physical barriers existed except a berm 

around the hydrofluoric acid, and aisle space in this room was 

minimal. 

1v. In one area outside the warehouse, the Inspectors observed 

intermingled drums and totes of flammable material, including methy1 

ethyl ketone, methanol, isopropyl alcohol, acetone, and xylene. 

Sometimes chemicals in the same hazard class should not be mixed. 

For example, acetone and methanol are both flammable and in the 

same hazard class, but they can form explosive or shock sensitive 

reaction products ifmixed. 

v. Also outside, a row of hydrochloric acid was stored only 22 inches 

from a row of32% aqueous ammonia 26 Baume, which in turn was 

only 22 inches from a row ofUN1993 glycol ether. If mixed, 

hydrochloric acid and the 32% aqueous ammonia can have an intense 

or explosive exothermic reaction, releasing heat and producing acid 

fumes. Likewise the hydrochloric acid and glycol ether (which were 

not immediately adjacent but within a few feet of each other) are 

incompatible; they can have at1 exothermic reaction that generates gas 

and heat, and the reaction products may be flammable or explosive. 

s See e.g., Guidelines for Safe Warehousing of Chemicals, Chapter 2.6.; Material Safety Data Sheets; and 

NFPA I, Section 66.9.17 (2012 ed.). 6 The reactivity of chemicals was predicted through the use of CAMEO Chemicals and, in some cases, the 

Chemical Reactivity Worksheet. These are on-line tools designed for people who are involved in hazardous 

material incident response and planning, developed by the National Ocean and Atmospheric 

Adrrinistration's Office of Response and Restoration in partnership with the EPA and the U.S. Coast 

Guard. 

11 
vi. In a waste staging area outside, the Inspectors found saw a pile of 

various containers and totes stored on wood pallets, including 

methanol stored next to caustic soda solution (an incompatible duo, 

which can have an exothermic reaction that releases heat and generates 

hydrogen gas); isopropyl alcohol near acetone (which can create 

explosive or shock-sensitive reaction products); and sodium chlorite 

next to acetone (which can have a particularly violent exothermic 

reaction that can create toxic and flammable reaction products). 

vii. Generally, many of the physical barriers depicted in the Facility's 

Incompatible Materials Separation Plan to separate incompatibles were 

either not present or did not provide complete and continuous 

separation between incompatible materials. 

d. Containers of flammable cbemicaJs stored outdoors within 10 feet of tbe 

warehouse building; The Inspectors noted that, outside, flammable 

chemicals were stored immediately up against the building despite fire code 

restrictions against doing so.7 

e. Inadequate spacing between aisles. During the 2013 Inspection, the 

Inspectors observed insufficient aisle spacing betwe.en piles of hazardous 

materials throughout and outside the warehouse. For example, in addition to 

the examples mentioned above in the discussion of incompatible chemicals, in 

the Hot Room 2 Acid Room, the Inspectors found that the floor space was 

completely full of a myriad of containers (including phenol, gluconic acid, 

triethanolamine 85%, phosphoric acid, and acetic acid) without any aisle 

space whatsoever. In the event of a spill, fire, or other incident, Respondent's 

failure to maintain adequate aisle space to allow the unobstructed movement 

of forklifts, personnel, emergency responders or emergency equipment could 

increase the potential for an accidental release or exacerbate the consequences 

of a fire or accidental release. It is standard industry practice to maintain aisle 

space.8 

f. Failure to store containers so that contents could be identified by reading 

the container's label. The Inspectors also found numerous places where 

containers could not be identified because the labels were not visible. This 

makes it very difficult to properly handle the chemicals so as to prevent a 

release (for example, by ensuring that incompatibles are not co-located), and 

to conduct safe emergency response in the event of a release. Examples 

included the Hot Room 2 Acid room (containing phenol, among other 

chemicals) where the Inspectors could not identify many containers because 

labels were not visible, the Hot Room I Alkali Room (also containing phenol 

and other chemicals), and the outdoor waste storage area (discussed above). It 

7 ~ u,., NFPA I, 66.15.4.3 (2012 ed.) referencing 66.1 5.4.1 (which specifies that a 10 foot clearance 

space along the common wall is needed if storing more than 1100 gallons of flammable liquids next to an 

adjacent building wall). 

1 ~ ~-. NFPA 400, Section 13.4.3.2 (201 0 ed.) (aisle spacing for flammable solids), Section 18.4.3.2.2 

(aisle spacing for toxic solids and li~uids), Section 19.4.3.2 (aisle spacing for unstable solids and liquids), 

and Section 6.1.12.2 (aisle spacing for storage of incompatible materials). 

12 
is standard industry practice for containers to be conspicuously labeled and 

have the labels facing the aisles so that they can be read.9 

40. In addition to the Inspector's observations, the September 2013 Incident, 

discussed in paragraph 30, above, provides another example of Respondents' failure to 

properly manage incompatible chemicals so as to prevent fire hazards and the release of 

dangerous gases. 

41. The 201 4 Sulfuric Acid Spill discussed in paragraph 3 1 above, could have 

been prevented had Respondent provided secondary containment for its outside storage 

of extremely hazardous substances. It is standard industry practice to prevent spills of 

certain extremely hazardous substances, such as sulfuric acid, by providing secondary 

containment. 10 

42. The failures to install a fire suppression system, timely inspect the fire 

alarm, separate and approp:riately manage incompatible chemicals, store large quantities 

of flammable liquids far enough from the warehouse, maintain adequate aisle space, store 

containers such that their contents could be read, and provide adequate secondary 

containment for certain chemicals stored outdoors constitute a failure to design and 

maintain a safe facility, in violation ofthe General Duty Clause. 

Count II: Failure to Minimize Consequence of Releases that Do Occur In Violation 

of the Clean Air Act's General Duty Clause 

43. The allegations in paragraphs 1 through 42 are hereby realleged and 

incorporated herein by reference. 

44. As alleged in paragraphs 4 and 32 above, in addition to designing and 

maintaining a safe facility, the GDC requires Respondents to minimize the consequences 

of releases that do occur. 

45. On January 7, 2014, the day ofthe 2014 Sulfuric Acid Spill, Respondents' 

employees did not immediately contact the fire department when they knew that a 

sulfuric acid spill had occurred, as required by federal and state law. See EPCRA Section 

9 See, y., NFPA 1 Section 60.5.1.8.2 (2012 ed.); Guidelines for Safe Wa1·ehousing of Chemicals, Chapter 

4.4.1. 10 See~. International Fire Code (2006 edition), Section 2704.2.2; NFPA I , Fire Code, Section 60.5.!.3.1 

(2012 edition incorporated by reference into the Rhode Island Fire Safety Code, Section 7); NFPA 1 

section 60.5.1.1, which states that "storage of hazardous materials in quantities exceeding the maximum 

allowable quantity permhted io control areas set forth in Section 60.4 [ofNFPA 1] shall comply with 

Section 6.2 ofNFPA 400 and the applicable material-specific requirements in Chapters l l through 21 of 

NFPA 400,'' which in turn requires that corrosive liquids and toxic liquids, among other types of hazardous 

materials, be provided with secondary containment when stored outdoors in amounts exceeding the 

maximum allowable quantity (see Table 6.2.7.3.2 ofNFPA 400 for secondary containment requirements 

and Table 5.4.1.2 (or maximum allcwable quantities); and NFPA's requirements for flammable liquids at 

NFPA 1, Section 66.15.3.5 (outdoor storage of flammable liquids shall be graded in a mannerto divert 

possible spills away from buildings or shall be surrounded by a curb of at least 6 inches). 

13 
304, 42 U.S.C. § 11004, and NFPA 1, Section 60.5.1.3.4, which is incorporated by 

reference into the R.I. Fire Safety Code, Section 7. Nor did any employee call the 

National Response Center ("NRC") as required by federal law until the next day. See. 

CERCLA Section 103(a), 42 U.S.C. §9603(a). RIDEM was contacted approximately an 

hour after the spill. Respondents finally notified the fire department and the NRC the 

next day. 

46. Sulfuric acid is extremely hazardous and requires specialized emergency 

response when spilled. By failing to alert emergency responders ofthe 2014 Sulfuric 

Acid Spill in a timely manner and by failing to provide secondary containment for the 

chemical, Respondents potentially jeopardized the health and safety of employees. 

47. In addition, as alleged above in paragraph 39(a), Respondents currently do 

not have a fire suppression system in place to minimize fires and releases that might 

occur in the warehouses. 

48. By failing to timely alert emergency responders of the 20 l 4 Sulfuric Acid 

Spill; provide secondary containment for certain chemicals such as sulfuric acid that are 

stored outside; and install a fire suppression system, Respondents have failed to minimize 

the consequences of releases, in violation of Section 112(r)(l) of the CAA, 42 U.S.C. § 

7412(r)(l). 

RCRA 

Count ID: Failure to Notifv RIDEM About Hazardous Waste Activity in Violation 

ofRCRA 

49. The allegations in paragraphs 1 through 48 are hereby realleged and 

incorporated herein by reference. 

50. During the 2013 Inspection, the Inspectors saw an area within Warehouse 

A of the Facility where there were two pallets of waste chemicals that, according to 

FacHity representatives, were awajting being lab packed for shipment offsite. 

Respondent's contractor stated that the chemicals were generated from cleaning out a 

laboratory that was no longer in use. 

51. On the loading dock for Warehouse A, the Inspectors observed four 55-

gallon drums that were marked as off-spec 20% methanol. Near the loading dock was an 

area with ten 55-gallon drums and eleven 275-gallon totes, which the plant manager 

identified as a waste area. He stated that he had consolidated all the waste-containing 

drums and totes in this area beginning Jess than a month prior to the inspection. A 

consultant for Respondents (Mr. Fradette of GZA GeoEnvjronmental, Inc.) later stated 

that this pile of waste was a collection of the waste containers that he had encountere-d 

around the Facility since he had been working for the Facility. The containers were 

stored up to two-tiers high with no aisle space. The labels attached to the containers were 

14 
not all visible for inspection. However, the Inspectors were able to read some labels to 

ascertain that the pile of drums and totes contained at least the following hazardous 

wastes, among others: 

a. One drum with a "Material for Recycle" label and a "99% isopropyl alcohol" 

label and another drum labeled with an isopropyl alcohol product label. The 

second drum also had a "To be Dispositioned or Recycled" sticker attached. The 

isopropyl alcohol likely would be a flammable waste carrying the hazardous 

waste code ''DOO 1 "; 

b. One drum labeled with a methanol product label. Methanol likewise would be a 

flammable waste carrying the hazardous waste code "DOO 1 "; 

c. Two drums labeled with acetone product labels. The product label attached to 

one of these drums was also marked •<+ xylene" after the word "acetone." The 

drums also had a "Hold for Inspection" sticker attached. The acetone and xylene 

wastes likely would be flammable wastes carrying the hazardous waste code 

"DOOl"; 

d. One tote with a caustic soda solution UN-1824 product label as well as a ''To Be 

Dispositioned or Recycled" sticker attached. The caustic soda solution would 

likely be a corrosive waste carrying the hazardous waste code "D002"; 

e. Two totes with sodium chlorite solution UN-1908 product labels. One of the totes 

was also labeled "Hold for Inspection." The sodium chlorite solution was likely a 

corrosive waste carrying the hazardous waste code "D002." This chemical is an 

oxidizer and therefore should also carry the waste code for flammable wastes 

(D001); 

f. Three totes with phosphoric acid UN-1805 product labels. Two ofthe totes were 

also labeled "Hold for Inspection." The phosphoric acid waste was likely a 

corrosive waste carrying the hazardous waste code "D002.'' 

52. During the 2013 Inspection, the Inspectors and the Facility's Owner and 

Operations Manager discussed whether some of the wastes referenced in paragraph 51 

above might be reused or recycled. When the Inspectors asked him to specifY which 

wastes could be reused and how1 he was not able to provide such information and stated 

"we will ship it all off." 

53. Subsequently, on April 29, 2013, Respondent, Mann, shipped off 36,180 

pounds of hazardous waste including: 

a. 26,240 pounds of corrosive liquid waste (D002). including sodium chlorite, 

sodium hydroxide, hydrochloric acid, sulfuric acid, and phosphoric acid (see 

Hazardous Waste Manifest 000808766VES); 

b. 4,800 pounds of flammable liquids (DOOl), including a xylene and aJcohol mix, 

isopropanol, and methanol (see Hazardous Waste Manifest 00808767VES)~ 

c. 400 pounds of waste n-propyl bromide petroleum distillates (naptha) carrying the 

hazardous waste codes Ul59, 0035, and DOOl (see Hazardous Waste Manifest 

000808794VES); 

d. 4,400 pounds of waste sodium hydroxide (D002) (see Hazardous Waste Manifest 

000808768VES); and 

15 
e. All on Hazardous Waste Manifest 000808795VES: 

i. 145 pounds of waste flammable liquids (0001), with 40 pounds also 

having the codes 0002 and U239; 

ii. 30 pounds oftoxic, carbamate pesticides with the waste code Ul 14; 

iii. 10 pounds of waste toxic liquids 1, 1,1, trichloroethane and methylene 

choride with the waste codes U088 and U226; 

iv. 150 pounds of waste corrosive liquids (0002); and 

v. 5 pounds waste fonnic acid with more than 85% acid by mass having the 

waste codes U123, 0002, and 0001. 

54. Pursuant to 2010 RI Rule 5.1, a generator of hazardous waste must apply 

for and obtain an EPA 1.0. number. 

55. At all times relevant to this Order, Respondents' Facility was a "facility," 

as defined at 40 C.P.R. § 260.10 and 2010 R1 Rule 3.0. 

56. At all times relevant to this Order, Respondent Mann Distribution LLC 

was the "operator" of the Facility, and Respondent 3134 Post LLC was the "owner" of 

the Facility as defrned at 40 C.F.R. § 260. 10 and 2010 RI Rule 3.0. Both 

Respondents were also "generators" as defined at 40 C.F.R. § 260.10 and 2010 R1 Rule 

3.0. 

57. At all times relevant to this Order, Respondents generated "solid waste" as 

defined in Section 1004(27) ofRCRA, 42 U.S.C. § 6903(27) and 40 C.P.R.§§ 260.0 and 

261 .2. See also 2010 R.I. Rule 3.0 ("Waste shall mean solid waste as defined in 40 

C.F.R. 261.2"). 

58. At all times relevant to this Order, some of the wastes Respondent 

generated were "hazardous wastes" as defined in Section 1104(5) ofRCRA, 42 U.S.C. 

§ 6903(5), 40 C.F.R. §§ 260.10 and 261.3, and 2010 Rl Rule 3.0. 

59. Respondents failed to obtain an EPA ID number for the hazardous wastes 

generated at the Facility until after the 2013 Inspection. Accordingly, Respondents 

violated 2010 RJ Rule 5.1. See also 40 C.F.R. § 262.12. 

Count IV: Failure to Make an Adequate Hazardous Waste Determinations in 

Violation of RCRA 

60. The allegations in paragraphs 1 through 59 are hereby realleged and 

incorporated herein by reference. 

61. Pursuant to 201 0 RI Rule 5 .8, a generator must determine if any of its 

wastes meet any of the definitions of a hazardous waste, as required by 40 C.F.R. § 

262.11. See also 40 C.F.R. §§ 268.7(a) and 268.9(a). 

16 
62. At the time of the 2013 Inspection, Respondent was not conducting 

hazardous waste determinations for at least the following waste streams and/or containers 

of waste: 

a. Waste chemicals in Warehouse A awaiting lab oacking: As alleged in 

paragraph 50 above, the Inspectors saw two pallets of chemicals in Warehouse A 

that were awaiting being Jab packed for shipment off-site. They included, among 

other things, approximately 14 five-gallon containers of material, one of which 

was marked sulfuric acid, three jugs of material for which the identity of the 

material was not immediately apparent; and several boxes and smaller containers 

of unknown material. At least some ofthis material was later shipped off as 

hazardous waste, as alleged in paragraph 53 (see, for example references to 

sulfuric acid waste on Manifests 000808766VES and 000808795VES). 

b. Outside waste storage area: As alleged in paragraph 51 above, there 

were totes and barrels of waste in the outdoor waste storage area for which 

inadequate waste determinations had been made. Some of the waste was marked 

"hold for inspection" (e.g., containers of sodium chlorite solution, phosphoric 

acid, and acetone+ xylene) and some marked "to be dispositioned or recycled" 

(e.g., isopropanol and caustic soda solution). This material was later shipped off 

as hazardous waste, as alleged in paragraph 53. 

63. Accordingly, Respondents violated the hazardous waste determination 

requirements of2010 RI Rule 5.8. 

Count V: Failure to Separate Incompatible Wastes In Violation ofRCRA 

64. Paragraphs 1-63 are realleged and incorporated by reference. 

65. Pursuant to 20l0 RI Rule 5.2. a generator may store hazardous waste 

onsite for 90 days or less without a permit as long as the hazardous waste is managed in 

accordance with, among other requirements, the requirements of 40 C.F.R. § 262.34. 

66. Pursuant to 40 C.F.R § 262.34(a)(1), a generator must comply with, 

among other requirements, the provisions of 40 C.F .R. Part 265, Subpart 1 for containers 

storing hazardous waste. 

67. Pursuant to 40 C.F.R. § 265.177(c), a storage container holding a 

hazardous waste that is incompatible with any waste nor other materials stored nearby in 

other containers must be separated from the other materials or protected from them by 

means of a dike, berm, wall, or other device. 

68. As alleged in paragraphs 39(c)(vi) and 51 above, in the outdoor waste 

storage area, Respondents were storing incompatible hazardous wastes together that were 

not separated by means of a dike, berm, wall or other device. 

17 
69. Accordingly, Respondents' failure to separate or protect containers 

holding hazardous waste rrom containers storing incompatible waste or other materials, 

violated 2010 RI Rule 5.02. 

Count VI: Failure to Have Adequate Containment Systems for Containers of 

Hazardous Waste 

70. Paragraphs 1 ~69 are realleged and incorporated by reference. 

71. Pursuant to 2010 RI Rule 5 .2, a generator may store hazardous waste 

onsjte for 90 days or less without a permit as long as the hazardous waste is managed in 

accordance with, among other requirements, the requirements of 40 C.F.R. § 262.34. 

72. Pursuant to 40 C.F.R § 262.34(a)(l), a generator must comply with, 

among other requirements, the provjsions of 40 C.F.R. Part 265, Subpart I for containers 

storing hazardous waste. 

73. Pursuant to 40 C.F.R. § 265.175, container storage areas must have a 

containment system that, among other things, must have sufficient capacity to contain 

10% ofthe volume of the containers or the volume of the largest container, whichever is 

greater. 

74. As alleged in paragraphs 39(c)(vi) and 51 above, in the outdoor waste 

storage area, Respondents were storing hazardous wastes. This container storage area 

had no containment system. 

75. Accordingly, Respondents' failure to have a containment system for the 

outdoor waste storage area violated 2010 RI Rule 5.02. 

Count VII. Failure to Adequately Train All Employees with Hazardous Waste 

Management Responsibilities 

76. Paragraphs 1-7 5 are realleged and incorporated by reference. 

77. Pursuant to 2010 RI Rule 5 .2, a generator may store hazardous waste 

onsite for 90 days or less without a permit as long as the hazardous waste is managed in 

accordance with, among other requirements, the requirements of 40 C.F.R. § 262.34. 

78. Pursuant to 40 C.F.R. § 262.34(a)(4), a generator must comply with, 

among other requirements, 40 C.F.R. § 265.16. 

18 
79. Pursuant to 40 C.F.R. § 265.16(a)(l ), employees who manage hazardous 

wastes must complete a hazardous waste management training program that teaches them 

to perfonn their duties in a way that ensures the facility's compliance wit_!l RCRA. 

80. Pursuant to 40 C.F.R. § 265.16(a)(2), the training program must be 

directed by a person trained in hazardous waste management procedures and must 

include instruction that teaches facility personnel hazardous waste management 

procedures relevant to the positions in which they are employed (i.e., ''initial RCRA 

training'). 

81. Pursuant to 40 C.F.R. § 265.16(b) and (c), employees who manage 

hazardous waste must successfully complete the program within six months after the date 

of their employment; must not work in unsupervised positions until they have completed 

the training requirements; and must take part in an annual review of the training (i.e., 

have annual RCRA training). 

82. Pursuant to 40 C.F.R. § 265.16(d), the owner or operator must have a 

RCRA training program, with documents and records of the following: ( 1) the job title 

for each position at the facility related to hazardous waste management and the name of 

the employee filling each job; (2) a written job description for each such position, 

including the requisite skill, qualifications, and duties offacility personnel assigned to 

each position; (3) a written description ofthe type and amount of both introductory and 

continuing training that will be given to each person in a position related to hazardous 

waste management; and (4) records that document that the training required has been 

given to, and completed by facility personnel. 

83. Pu·suant to 40 C.F.R. § 265.16(e), the owner or operator ofthe facility 

must maintain hazardous waste training records on all current personnel until the facility 

is closed. For former employees, such records must be maintained for at least three years 

after their last work date at the facility. 

84. According to training documentation received from Respondents on May 

17, 2013, only one employee was trained before the 2013 Inspection. He was trained on 

November 15,2012. Subsequent to the 2013 Inspection, six additional employees were 

trained on April 26, 2013. When asked for training documentation, including 

documentation of the training program, Respondents provided training certificates and a 

Power Point presentation of the training received. However, Respondents did not provide 

any other documentation showing compliance with the training program requirements of 

40 C.F.R. § 265.16(d)(l)-(3), which are listed in paragraph 82 above. 

85. Accordingly, Respondent's failure to document its training program, as 

described above in paragraph 84, violated 2010 R1 Rule 5.2, which incorporates by 

reference 40 C.F.R. § 262.34(a)(4), which in turn incorporates by reference 40 C.F.R. § 

265.16. 

19 
Count VIII. Failure to Label Containers of Hazardous Waste with the Words 

"Hazardous Waste," a Description of the Contents, the Date of Accumulation, or the 

Waste Code; 

86. Paragraphs 1-85 are realleged and incorporated by reference. 

87. Pursuant to 2010 Rl Rule 5.4 A., a generator must label the side of all 

hazardous waste containers, excluding satellite accumulation, in accordance with the 

provisions of 40 C.F.R. § 172 and include (a) the words "hazardous waste"; (b) the 

generator's name and address; (c) the USDOT shipping name and the generic names of 

the principal hazardous waste components; (d) the EPA or Rhode Island waste code; 

(e) the dates of containerization (accumulation start date); and (f) the hazardous waste 

manifest number (prior to being shipped off-site). 

88. Additionally, 2010 R1 Rule 5.4B requires that the generator must label and 

mark every container, excluding those in satellite accumulation in accordance with the 

provisions of 40 C.F.R. § 262.32, which includes some of the above labeling 

requirements as well as the generator's waste identification number. 

89. The Department ofTransportation regulations found at 40 C.F.R. § 172, 

referenced in both 2010 RI Rule 5.4 and 40 C.F.R. § 262.32, contain requirements for, 

among other things, label durability, size, language, color, and special depictions for each 

type of material. 

90. Finally, 2010 RI Rule 5.2 requires that any hazardous waste stored on site 

by a generator for a period of 90 days or Jess must be managed in accordance with 40 

C.F.R. § 262.34, which additionally requires that, during storage, the date upon which 

each period of accumulation begins is clearly marked and visible for inspection. 

91. As discussed in paragraphs 50 and 51, during the 20 l 3 Inspection, the 

EPA inspectors saw two areas where hazardous wastes were being stored. One area 

inside Warehouse A had tv.ro pallets of waste that were later shipped off as hazardous 

waste, including, among other things, approximately 14 five-gallon containers of waste, 

three jugs of waste for which the identity of the material was not immediately apparent; 

and several boxes and smaller containers of unknown waste. The outside storage area 

had a pile often 55-gallon drums and eleven 275-gallon totes, which were, likewise, 

shipped off as hazardous waste. A few containers in those two areas had a description of 

the contents, but none appeared to have the words "Hazardous Waste," the dates of 

accumulation, or the waste code. Nor were the labels clearly visible for inspection. 

92. Accordingly, Respondents' failure to appropriately label its containers of 

hazardous waste violated 2010 R1 Rules 5.2 and 5.4. 

20 
Count IX: Failure to Maintain Adequate Aisle Space Between Containers of 

Hazardous Waste 

93. Paragraphs 1-92 are realleged and incorporated by reference. 

94. Pursuant to 2010 RI Rule 5.2, a generator may store hazardous waste 

onsite for 90 days or less without a permit as long as the hazardous waste is managed in 

acc-ordance with, among other requirements, the requirements of 40 C.F.R. § 262.34. In 

tum, 40 C.F.R. § 262.34(a)(4) requires generators to comply with the preparedness and 

prevention requirements of 40 C.F.R. Part 265 Subpart C, including the requirement in 

C.P.R. 40 C.F.R. § 265.35 to maintain aisle space to allow the unobstructed movement.of 

personnel, fire protection equipment, spill control equipment. and decontamination 

equipment to any area of the facility operation in an emergency, unless aisle space is not 

needed for any ofthese purposes. 

95. As alleged in paragraph 51, outdoors, the EPA inspectors witnessed a pile 

often 55-gallon drums and eleven 275-gallon totes in a waste storage area, which wastes 

were later shipped off-site as hazardous waste. The containers were stored up to twotiers high with no aisle space. 

96. Respondents' failure to maintain aisle space between containers of 

hazardous waste violated 2010 Rl Rule 5.2, which references 40 C.P.R. § 2.62.34, which 

in turn references the requirements of 40 C.F.R. Subpart C. 

Count X: Failure to Minimize Threat of Release 

97. Paragraphs 1-96 are realleged and incorporated by reference. 

98. Pursuant to 2010 RI Rule· 5.2, a generator may store hazardous waste 

onsite for 90 days or less without a permit as long as the hazardous waste is managed in 

accordance with, among other requirements, the requirements of 40 C.P.R. § 262.34. In 

turn, 40 C.F.R. § 262.34(a)(4) requires generators to comply with the preparedness and 

prevention requirements of 40 C.F.R. Part 265 Subpart C, including the requirements of 

40 C.P.R. § 265.31. Forty C.f.R. § 265.31 requires that facilities be maintained and 

operated to minimize the possibility of a fire, explosion, or any unplanned sudden or nonsudden release of hazardous waste or hazardous waste constituents to air, soil, or surface 

water which could threaten human health or the environment. 

99. As· alleged in paragraph 39(c)(vi), the outside hazardous waste staging 

area contained co~ ocated incompatible hazardous wastes that, if mixed, could cause an 

unplanned sudden fire, explosion, or release of hazardous waste or hazardous waste 

constituents. Due to the lack of containment in this area, the dangers associated with the 

chemicals and their reactions with co-located incompatible chemicals, and the proximity 

of surface water, a release of hazardous waste or hazardous waste constituents from this 

staging area could go to the air, soil, or surface area and threaten both human health and 

the environment. 

21 
100. Respondents' failure to operate the Facility so as to minimize the possibility 

of a fire, explosion, or any unplanned sudden or non-sudden release of hazardous waste 

or hazardous waste constituents to air, soil, or surface water violated 20 I 0 Rl Rule 5 .2, 

which references 40 C.P.R. § 262.34, which in tum references the requirements of 40 

C.P.R. Part 265 Subpart C. 

V. ORDER AND COMPLIANCE OBLIGATIONS 

101. RCRA: Accordingly, pursuant to Section 3008(a) and (b) of RCRA, 42 

U.S.C. §§ 6928(a) and (b), Respondents shall achieve and maintain compliance with all 

applicable requirements ofRCRA. Within 15 days of the effective date of this Order, 

and once again 365 days from the effective date of this Order, Respondent shall submit to 

EPA written confinnation of its continued compliance or noncompliance with the RCRA 

generator requirements ofRl Rule Chapter 5 (accompanied by a copy of any appropriate 

supporting documentation). Any notice of noncompliance shall state the reasons for the 

non::;ompliance and when compliance is expected. Notice of noncompliance will in no 

way excuse the noncompliance, unless EPA agrees otherwise in writing or approves a 

delay pursuant to the Force Majeure provisions of Section IX. 

102. CAA: Pursuant to Section 113(a)(3) of the CAA, 42 U.S.C. § 7413(a)(3), it 

is hereby ordered that Respondents shall take the following actions to correct the 

violations of the General Duty Clause cited in Counts I and n above and maintain 

compliance with the General Duty Clause. By each deadline listed below, Respondents 

shaU submit to EPA written confinnation of compliance or noncompliance with the 

required action (accompanied by a copy of any appropriate supporting documentation, 

including documentation of costs). Any notice of noncompliance shall state the reasons 

for the noncompliance and when compliance is expected. Notice of noncompliance will 

in no way excuse the noncompliance unless EPA agrees otherwise in writing or approves 

a delay pursuant to the Force Majeure provisions of Section IX. Unless otherwise 

specified below or otherwise approved by EPA, compliance with Mann's .EPA-approved 

Hazardous Material Storage Plan, the most recent versions of the state fire code, and 

NFPA standards shall, for purposes of enforcing this Order, constitute compliance with 

the General Duty Clause's requirement to design and maintain a safe facility. Before 

requesting EPA to approve deviations that might not be consistent with the state fire code 

and the NFPA standards referenced by the fire code, Respondents must receive the fire 

department's approvaJ of the deviation. 

First Comoliance Certification 

a. By 30 days after the effective date of this Order, submit to EPA written 

confirmation that Respondents have: 

1. Inspected the Facility's fire alarm system in accordance with the 

system's inspection schedule and instituted operating procedures to 

ensure that such inspections continue; and 

2. Instituted procedures to ensure that appropriate emergency response 

authorities are notified of any future chemical spills in accordance with 

22 
state and federal disclosure laws, such as EPCRA Section 304 and 

CERCLA Section 103. 

Hazardous Material Storage Plan Submittal 

b. Also, by 30 days after the effective date of this Order, Respondents shall 

submit to EPA for approval a new Hazardous Material Storage Plan to 

ensure that chemicals at the facility are properly separated and stored. 

This document shall: 

1. Reflect the practices for incompatible chemical segregation found in 

Appendix 1 ofthe September 30, 2011 Notice of Violation and 

Administrative Order; the Chemical Reactivity Worksheets found at 

http://response.restoration.noaa.gov/reactivityworksheet; and generally 

accepted industry standards, such as Guidelines for Safe Warehousing 

of Chemicals, Chapter 2.6.; Material Safety Data Sheets; NFPA 1, 

Section 66.9.17; and NFPA 400. 

2. Require that flammable chemicals no longer be stored up against the 

building, in accordance with NFPA 1, 66.15.4.3 referencing 66.15.4.1 

(which specifies that a 10 foot clearance space along the common wall 

is needed if storing more than 1100 gallons of flammable liquids next 

to an adjacent building wall); 

3. Require adequate materials separation in aJI rooms of the warehouses 

and in all outdoor storage areas, following generally accepted 

standards such as NFPA 30, Chapter 12.3 (2008); NFPA 1, Chapter 60 

(2010) and NFPA 400, which establishes different aisle space 

requirements for different types of chemicals (see index); 

4. Require that containers be stored so that contents can be identified by 

reading the container's label from the aisle; and 

5. Restrict storage of relevant chemicals to the specific chemicals and the 

maximum allowable amounts that can safely be stored in areas 

protected by the new fire suppression system, following generally 

accepted standards such as the Rhode Island Fire Safety Code Section 

7, which incorporates by reference NFPA 1 (2012 ed.), which in turn 

references NFPA 400 (2010 ed.). For example, this may require 

reducing the amounts of oxidizers stored in the warehouse and storing 

pyrophoric :hemicals in a separate outdoor storage unit; 

6. Require secondary containment for outside storage of certain 

extremely hazardous substances, following generally accepted 

standards such as Section 2704.2.2; NFPA 1, Fire Code, Section 

60.5.1.3.1 (2012 edition incorporated by reference into the Rhode 

Island Fire Safety Code, Section 7); NFPA 1 Section 60.5.1.1, which 

states that "storage of hazardous materials in quantities exceeding the 

maximum allowable quantity permitted in control areas set forth in 

Section 60.4 [ofNFPA 1] shall comply with Section 6.2 ofNFPA 400 

and the applicable material-specific requirements in Chapters 11 

through 21 ofNFPA 400," which in turn requires that corrosive liquids 

and toxic liquids, among other types of hazardous materials, be 

23 
provided with secondary containment when stored outdoors in 

amounts exceeding the maximum allowable quantity (see Table 

6.2.7.3.2 ofNFPA 400 for secondary containment requirements and 

Table 5.4.1.2 for maximum allowable quantities); and NFPA's 

requirements for flammable liquids at NFPA 66.15.3.5 (outdoor 

storage of flammable liquids shall be graded in a manner to divert 

possible spills away from buildings or shall be surrounded by a curb of 

at least 6 inches). 

1. For outside storage of chemicals, as an alternative to 

complying with the storage, grading, and containment 

requirements in subparagraph (b)(2)(5) and (6) above, 

Respondents may propose, with fire department approval to; 

(1) move liquids storage inside with the exception of the 

flammable liquids, provided such liquids storage does not 

violate other fire code and NFPA requirements or result in 

improper co-location of incompatible chemicals; (2) move 

flammable liquids to appropriately fire-rated 40-foot containers 

located at the end of the building; (3) move the dry goods to a 

fire code-compliant off-site warehouse, although some may be 

staged at the Facility for immediate distribution; and (4) store 

only empty totes and drums outside in the open; (5) or propose 

alternatives to any of the above that are approved in advance 

by EPA. 

7. Include a schedule for implementing any aspect of the Hazard 

Material Storage Plan that cannot be implemented immediately (for 

example, due to the need for construction or purchasing 40-foot 

containers). 

The requirements of the Hazard Material Storage Plan, including the schedule, 

shall be enforceable under this Order. 

Install Fire Suppression System 

c. By 60 days after the effective date of this Order, submit to EPA written 

confirmation that it has installed an operational fire suppression system 

meeting the requirements of the Rhode Island Fire Safety Code and the 

approval of the Warwick Fire Department. Respondents have purchased the 

system, the City water main has been extended, and eminent domain and pipe 

alignment issues associated with reconstruction of the adjacent rotary have 

been resolved. However, Respondents require one more County and Fire 

Department approval before they can install the system. The 60·day deadline 

provides time for this review and approval. However, if such approval is 

delayed or if, for weather-related reasons, installation must be delayed, 

Respondents may invoke the Force Majeure provisions of Section IX to argue 

that EPA should extend the deadline. 

24 
Third Party Inspection Program 

d. Third-Party Inspection Program: Because EPA has found repeat violations 

of the General Duty Clause at the Facility, Respondents have agreed to 

institute a third-party inspection program at the Facility to improve and 

confirm compliance. As more specifically described below, the program will 

require (a) hiring a qualified third-party auditor; (b) conducting four thjrdparty inspections over the course of at least one year, three of which will be 

unannounced; (c) documenting the inspections through photographs, film, and 

written reports; and (d) providing the inspection documentation to the local 

fire department and EPA. 

1. Within 15 days of the effective date of this Order, Respondents shall 

engage a third-party inspection team ("Team") and submit the Team 

members' resumes and qualifications to EPA. The Team shall have at 

least one person with chemistry expertise acceptable to EPA, one 

expert in environmental compliance auditing, and one expert in 

chemical process safety management. One Team member may fulfill 

more than one of these expertise requirements, but the Team shall have 

at least two people for inspection safety reasons. 

2. To ensure the Team's independence from Respondents and promote 

thorough inspections: 

1. No member of the Team may have previously 

performed work for Respondents or for any of 

Respondents' officers, although Team members who 

previously bid on projects but did not receive work 

from Respondents may participate; 

n. No member of the Team shall be allowed to work for 

Respondents or for any of Respondents' officers for 

five years after the inspections are completed; 

iii. Once the Team has given Respondents notice of the 

first upcoming inspection, no communication shalt 

occur between Respondents and the Team without EPA 

simultaneously being copied on the communication 

(except such communications that occur on-site while 

the inspections are being conducted). Accordingly, all 

such communication must be by e-mail or letter so that 

EPA may be copied. 

iv. Respondents shall have no control over the timing of 

the second, third and fourth inspections. 

v. Before conducting the first inspection, each member of 

the Team shall have: 

1. Read this Order; the 2009 and 20 ll Orders; the 

hazard analysis conducted pursuant the 2009 

Order; the Respondents' Hazardous Material 

Storage Plan; Appendix 1 of the September 30, 

25 
2011 Notice of Violation and Administrative 

Order; the Center for Chemical Process Safety's 

Guidelines for Sqfe Warehousing of Chemicals; 

EPA's Guidance for Implementation of the 

General Duty Clause Clean Air Act Section 

112(r)(J) (May 2000); the Material Safety Data 

Sheets for the chemicals at the Facility; and the 

NFPA 1, 30, and 400 chapters cited in this 

Order; and 

2. Become familiar with CAMEO Chemicals- in 

particular the function used to predict chemical 

reactivity. 

Also, before providing notice of the first inspection, it is 

permissible for the Team to visit the Facility for purposes 

of bidding on Third-Party Inspection Program work. 

vi. Respondents shall provide the Team with unimpeded 

access to the whole Facility on any day that 

Respondents are operating. Respondents shall also 

permit the Team to take photographs and film its 

inspections. 

vii. Respondents shall not have an opportunity to review or 

comment on inspection reports or drafts thereof before 

the Team sends them to EPA and Respondents. 

3. Inspections: 

i. The Team shall conduct four inspections within 11 months of 

the effective date of this Order. 

11. The purpose of the first inspection is to give all parties the 

opportunity to assess how Respondents manage their extremely 

hazardous substances when Respondents are operating with the 

highest level of care. Accordingly, the Team shall give 

Respondents and EPA at least 14 days of days of notice before 

the first inspection. This first inspection must occur by 90 

days after the effective date of this Order, at the very latest. 

iii. The next three inspections shall be unannollnced, with no 

notice to Respondents but with three days of notice to EPA. 

iv. EPA and/or the Warwick Fire Department shall have the right 

to accompany the Team on any inspection. 

v. The Team shall inspect the whole Facility, indoors and 

outdoors, for compliance with Clean Air Act Section 112(r), 

including but not limited to determining whether the following 

26 
dangerous conditions found in 2009, 2011, and/or 2013 are 

occurring: 

1. Failure to identify hazards which may resu It from 

accidental releases of extremely hazardous substances (for 

example, failing to identify new hazards that have arisen 

since Respondents completed their last hazard analysis); 

2. Failure to chock wheels of any present rail car containing 

chemicals; 

3. Failure to prevent leaks and run-off from outdoor 

containers and dilution operations; 

4. Failure to separate incompatible chemicals; 

5. Failure to maintain adequate aisle space; 

6. Failure to have, maintain, and test fire suppression, 

detection, and alarm systems; 

7. Failure to store flammable chemicals at an appropriate 

distance from building; 

8. Failure to have- and maintain -- secondary containment 

for extremely hazardous substances stored outside in tanks 

and containers; 

9. Failure to have chemical containers closed, properly 

labeled, and with labels situated such that they can be read 

by staff, emergency responders. and inspectors; 

10. Failure to have proper procedures to notify emergency 

responders in the event of a release. 

Ln addition, the Team shall review inventory records created 

since the last EPA or Team inspection (whichever is later) to 

ensure that Respondents have not triggered the requirements of 

40 C.F.R. Part 68 by storing chemicals listed in 40 C.F.R. § 

68.103 above regulatory thresholds. 

4. Documentazion of the inspections: 

1. Within 60 days of the effective date ofthe Order, the Team 

shall submit to Respondents and EPA a draft inspection report 

format that it wishes to use (the "Draft Report Format"), which 

EPA shall endeavor to review before the first inspection. A 

checklist format is allowable, provided that the report is broken 

down by room and outdoor area visited and provides detailed 

information about any deficiencies found. 

ii. The Team shall, within 15 days after each inspection, 

simultaneously submit to EPA and Respondents an inspection 

report, photographs, and a digital video of the inspection 

("Inspection Report"). Respondents' shall not have the 

27 
-------

opportunity to review any draft or final Inspection Report 

before such submittal. 

iii. EPA may require prospective changes to the format and 

content of the inspection documentation at any point during the 

duration of the third~party inspection program. 

5. Respondent8' response to the Inspection Report: Respondents shall 

have an opportunity to respond to each Inspection Report if so desired 

by submitting its comments on the Inspection Report to EPA and the 

Team within five business days of receiving the Inspection Report. 

6. Correction ofviolations: Within 20 days of receiving the Inspection 

Report, Respondents shall correct any violations found by the Team 

and send a letter to EPA confirming that the violations have been 

corrected unless the parties agree that another deadline is appropriate. 

7. Preservation of inspection documentation: The Team and 

Respondents shall keep copies of all Inspection Reports, photographs 

and digital films for three years. 

8. Discovery of environmental violations other than CAA Section 112(r): 

The Team shall notify Respondents if it finds any non-CAA Section 

112(r) related violations ofEPA administered statutes (for example, 

violations ofRCRA, Clean Water Act, FIFRA, or TSCA), and 

Respondents shall correct those violations within 20 days of receiving 

the Inspection Report. However, such violations need not be included 

in the inspection report unless the Team believes that the violation 

could present an imminent and substantial endangerment to human 

health or the environment. 

9. Notification of immirzent and substantial endangerments: Respondents 

shall notify EPA immediately by telephone and e-mail if the Team 

discovers any condition at the Facility that could pose an imminent 

and substantial endangerment to human health or the environment. 

10. Third-Party Inspection Program Assessment: Within one year of the 

effective date of this Order, Respondents shall submit to EPA a brief 

one-page or summary assessment of the Third-Party Inspection 

Program, containing the following: 

L Total cost of the program, excluding costs to address any 

violations found by the Team; 

ii. Summary of the benefits of the program, including feedback 

from Respondents and the Team; 

iii. Criticisms of the program, including feedback from 

Respondents and the Team; 

28 
- - - ------ --- - - - --- ----

iv. Any suggestions for future improvements to a Third-Party 

Inspection Program; 

e. Approval ofDeliverab es: 

1. After review of any document that is required to be submitted 

pursuant to this Order (the "Submission"), including but not 

limited to the Draft Report Format, EPA shall, in writing (i) 

approve the Submission; (ii) approve the Submission with 

specified conditions; (iii) approve part of the Submission and 

disapprove the remainder; or (iv) disapprove the Submission. This 

subparagraph shall not apply to the Inspection Reports required by 

subparagraph (d)(4)(ii) and Respondents' response to such 

Inspection Reports (see subparagraph (d)(5)), as those documents 

do not require EPA review and approval. 

u. If the Submission is approved, Respondents shall take all actions 

required by the Submission in accordance with the schedules or 

requirements therein. If the Submission is conditionally approved 

or approved only in part, Respondents shall, upon written direction 

from EPA, take all actions required by the Submission that EPA 

detennines are technically severable from any disapproved 

portions, subject to Respondent's right to dispute only the specified 

conditions or the disapproved portions, under Section VIU of this 

Order (Dispute Resolution). 

m. lfthe Submission is disapproved in whole or in part, Respondents 

shall, within 30 days or such other time as the Parties agree to in 

writing, correct all deficiencies and resubmit the Submission, or 

disapproved portion thereof, for approval in accordance with the 

preceding subparagraphs. lfthe resubmission is approved in whole 

or in part, Respondents shall proceed in accordance with the 

preceding subparagraphs. 

tv. Any stipulated penalties applicable to the original Submission, as 

provided in Section VII of this Order, shall accrue during the 30-

day period or other specified period during which deficiencies are 

being corrected, but shal1 not be payable unless the resubmission is 

untimely or is disapproved in whole or in part. 

v. If a resubmission or portion thereof is disapproved in whole or in 

part, EPA may again require Respondents to correct any 

deficiencies, in accordance with the preceding subparagraphs, 

subject to Respondents' right to invoke Dispute Resolution and the 

right of EPA to seek stipulated penalties as provided in the 

preceding subparagraphs. 

f. Notifications: 

i. Submissions required by this Order shall be in writing and shall be 

mailed to the following addresses with a copy also sent by 

electronic mail: 

29 
------------- --

U.S. Environmental Protection Agency 

Region I 

5 Post Office Square, Suite 100 

Mail Code OES05 -1 

Boston, MA 02109-3912 

Attn: Jim Gaffey 

gaffey .j im@epa. gov 

ii. EPA will send all written communications to the following 

representative(s) for Respondents: 

Tom O'Donnell 

Manager, Mann Distribution LLC 

65 Walnut St. 

Peabody, MA 01960 

Thomas.odonnell@tannincorp.com 

Harlan Doliner 

Verrill Dana LLP 

One Boston Place 

Suite 1600 

Boston, MA 02108 

hdoliner@verrilldana.com 

g. All documents submitted to EPA in the course of implementing this Order 

shall be available to the public unless identified as confidential by 

Respondents pursuant to 40 C.F.R. Part 2 Subpart B, and determined by EPA 

to merit treatment as confidential business information in accordance with 

applicable Jaw. 

30 
h. Summary of Compliance Obligations: The attached chart summarizes the compliance 

obligations under this Order. 

-- Deadline Requirement Reference 

Within 15 days 1) Submit resUllles and qualifications ofThird Party Section V, 

of the effective Inspection Team paragraph 

date of this 102(d)(1) 

Order 

2) RCRA compliance confirmation Section V, 

_par~g@Qh I 0 1 

Within 30 days 1) P1 CAA compliance confirmation for: Section V, 

of the effective • Fire alarm testing and operating procedures paragraph 

date ofthis • Procedures for notifying appropriate emergency 102(a) and (b) 

Order response authorities about spills 

2) Submit Hazardous Material Storage Plan including 

enforceable schedule for implementing items that cannot be 

implemented immediately. 

Within 60 days 1) 2nd CAA compliance confmnation for: Section V, 

of the effective • Installing fire suppression system paragraph 

date of this 102(c) 

Order 2) Draft inspection report format submitted for third-party 

inspection program Section V, 

paragraph 

102( d)( 4)(ii) 

Withln 90 days Third-party Team must have completed first inspection with Section V, 

of the effective 14 days advance notice to all parties paragraph 

date of this 102(d)(3)(ii) 

Order, at the 

latest 

Within 105 Third-party Team submits first inspection report to Section V, 

days of the Respondents and EPA paragraph 

effective date l 02( d)( 4 )(i) 

of this Order at 

the latest 

Withln 110 Respondents' response to inspection report due, if Section Y, 

days ofthe Respondents desire to respond paragraph 

effective date 102(d)(5) 

of this Order at 

the latest 

Within 20 days Respondents confirm that violations found by third-party Section V, 

of receiving Team have been corrected paragraph 

Inspection 102(d)(6). 

Report 102(d)(8) 

Between 125 Three additional third-party inspections completed. After Section V, 

days after the each inspection: paragraph 

effective date • Third-party Team submits inspection report to 1 02( d)(3)(i), 

of this Order Respondents and EPA within 15 days of inspection 1 02(d)( 4)(i), 

and 11 months • Any response by Respondents to inspection report 102(d)(5), 

after effective due within 5 business days of receiving inspection J02(d)(6), 

31 
date of Order report. 102(d)(8) 

• Respondents confirm by e-mail that violations 

found in inspection have been corrected within 20 -daysof receiving Inspection Report. 

Within 12 1) Respondents submit Third-Party Inspection Section V, 

months of the Program Assessment paragraph 

effective date 2) Respondents submit second RCRA compliance 102(d)(10) 

ofthe Order certification 

Section V, 

paragraph 101 

VI. ACCESS 

103. Respondents hereby authorize EPA, its contractors, employees, and duly 

designated EPA representatives, and members ofthe Team to, at all reasonable times, 

enter and freely move about the Facility for the purpose of interviewing facility personnel 

and contractors; inspecting records; reviewing the progress of Respondents in carrying 

out the terms of this Order; using a camera, sound recording, or other documentary type 

equipment; and verifying the reports and data submitted to EPA by Respondents. 

Respondents shall permit such persons to inspect and copy all records, files, photographs, 

and documents, that pertain to the work being conducted under this Order and that are 

within the possession or under the control of Respondents or its contractors or 

consultants. Nothing in this paragraph, limits or otherwise affects EPA's right of access 

and entry pursuant to applicable law, including the CAA and RCRA. However, due to 

the presence of extremely hazardous substances at the Facility, at the time of access, 

Respondents may provide visitors with safety advice. 

VIT. STIPULATED PENALTIES 

104. Respondents must pay the following stipulated penalties to the United 

States for failure to complete the obligations ofthis Order in a manner consistent with its 

terms or by the time required by this Order: 

a. $1,000 per day for the first fifteen ( 15) days of such violation; 

b. $1,500 per day for the sixteenth (16th) through thirtieth (30th) day of such 

violation; and 

c. $2,000 per day for each day of such violation, thereafter. 

The amount of penalties accrued shall be subject to the limitations of CAA Section 

113( d)(l) on EPA's administrative penalty authority: Also, stipulated penalties shall not 

apply when there has been an excusable delay, as defined in Section IX, "Force Majeure." 

105. Penalties shal1 begin to accrue on the day after the complete performance 

is due or the day a violation occurs, and shall continue to accrue through the day of 

correction of the violation. Nothing herein shall prevent the simultaneous accrual of 

32 
--------------- ---------------- ----------

separate stipulated p_enalties for separate violations of this Order. Penalties shall continue 

to accrue regardless of whether EPA has notified Respondents of a violation. 

106. All penalties ciwed to the United States under this Section shaJ I be due and 

payable within thirty (30) days of the Respondents' receipt from EPA of a written 

demand for payment of the penalties, unless Respondents invoke the dispute resolution 

procedures under Section VIII, "Dispute Resolution." Such a written demand will 

describe the violation and will indicate the amount of penalties due. 

107. AU penalties shall be made payable by certified or cashier's check to the 

United States of America and shall be remitted to: 

U.S. Environmental Protection Agency 

Fines and Penalties 

Cincinatti Finance Center 

P .0. Box 979077 

St. Louis, MO 63197-9000 

All such checks shall reference "In the Matter of Mann Distribution LLC., Clean 

Air Act and RCRA Order on Consent, EPA Region 1" and Respondents' name and 

address. Copies of all such checks and letters forwarding the checks shall be sent 

simultaneously to the EPA contact listed in Section V, paragraph 1 02(f). 

108. Respondents may dispute EPA's assessment of stipulated penalties by 

invoking the dispute resolution procedures under Section Vlll. The stipulated penalties 

in dispute shall continue to accrue, but need not be paid, during the dispute resolution 

period. Respondents shall pay stipulated penalties and interest, if any, in accordance with 

the dispute resolution decision and/or agreement. Respondents shall submit such 

payment to EPA within thirty (30) days of receipt of such resolution in accordance with 

Paragraph 107 ofthis Section. 

109. Neither the invocation of dispute resolution nor the payment of penalties 

shall alter in any way Respondents' obligation to comply with the terms and conditions of 

this Order. 

110. The stipulated penalties set forth in this section do not preclude EPA from 

pursuing any other remedies or sanctions which may be availab1e to EPA by reason of 

Respondents' failure to comply with any of the terms and conditions of this Order. 

111. No payments under this section shall be tax deductible for federal tax 

purposes. 

33 
---------------- -

Vlll. DISPUTE RESOLUTION 

A. Informal Dispute Resolution 

112. The parties shall use their best efforts to resolve all disputes informally. If 

the dispute is resolved through informal dispute resolution, the resolution shall be 

reduced to writing, signed by representatives of each party, and incorporated into this 

Order, and any requirements or schedules therein shall become enforceable requirements 

of this Order. If, however, disputes arise concerning this Order which the parties are 

otherwise unable to resolve, the parties shall utilize the procedures set forth in Subsection 

B, "Formal Dispute Resolution," below. Unless otherwise agreed to by EPA, the 

informal dispute resolution period may not last longer than thirty (30) days from the day 

that the issue in dispute is raised. 

B. Formal Dispute Resolution 

113. In the event that the parties cannot resolve a dispute by informal 

negotiations under either Paragraph 112 of Subsection A, "Informal Dispute Resolution," 

the position advanced by EPA shall be considered binding unless Respondents invoke the 

formal dispute resolution procedures as outlined below: 

a. Initiation of fonnal dispute resolution: If Respondents disagree, in whole 

or in part with any written decision ("Initial Written Decision") by EPA 

pursuant to this Order, except those decisions that are not subject to 

review, Respondents shall submit to EPA a formal notice of objection to 

EPA's Initial Written Decision. The notice of objection must contain the 

bases for Respondents' objection, including but not limited to any factual 

data, analysis, or opinion supporting that position and any supporting 

documentati'on relied upon by Respondents. Respondents must submit 

the notice of objection within five (5) days after the termination of the 

informal dispute resolution period. 

b. Formal dispute resolution period: After EPA receives Respondents' 

notice of objection, the parties shall then have an additional ten (1 0) days 

from EPA's receipt ofRespondents' objections to attempt to resolve the 

dispute. During this period, Respondents may request a meeting with the 

Director of the Office ofEnvironmental Stewardship, EPA Region 1 in 

order to make an oral presentation of its position and may bring to that 

meeting, at Respondents' sole discretion, a qualified engineer or other 

trained and licensed technical consultant with expertise relevant and 

applicable to the nature of the dispute, to assist Respondents in presenting 

the basis for its objections with regard to any technical dispute. If 

agreement is reached, the resolution shall be reduced to writing, signed by 

representatives of each party, and incorporated into this Order, and any 

requirements or schedules therein shall become enforceable requirements 

ofthis Order. 

34 
c. EPA Dispute Decision: IfEPA and Respondents are unable to reach 

agreementyithin the period specified in Paragraph 113.b. above, the 

Director of the Office of Environmental Stewardship shall notify- -

Respondents, in writing, of his or her decision and the bases for that 

decision within seven (7) days (hereinafter referred to as the "Dispute 

Decision.") Such decision shall be final and incorporated into this Order. 

Any requirements or schedules therein shall become enforceable 

requirements of this Order. 

d. Use of Alternative Dispute Resolution: The parties may, upon mutual 

consent, use ADR during the formal dispute resolution period. 

114. Except as provided in Section VII, "Stipulated Penalties," the existence of 

a dispute as defined in this section and EPA's consideration of matters placed into dispute 

shall not excuse, toll, or suspend any compliance obligation or deadline required pursuant 

to this Order during the pendency of the dispute resolution process, unless the nature of 

the dispute involves the technical feasibility of the compliance obligation. 

115. Within seven (7) days after either (a) reaching a dispute resolution 

agreement under Subsection A of this section or (b) receiving EPA's Dispute Decision 

under Paragraph 113.c. of this subsection, Respondents shall notify EPA that it has 

initiated compliance with the requirements of the agreement o r decision. ln the event that 

Respondents fail or refuse to comply, EPA may take such enforcement actions as are 

authorized by Jaw. Except as expressly waived in this Order, Respondents reserve all 

rights, remedies and defenses it may have under law or in equity against such 

enforcement actions. 

116. EPA may extend the time periods established in this Section upon notice 

to Respondents. 

IX. FORCE MAJEURE AND EXCUSABLE DELAY 

117. Force majeure, for purposes of this Order, is defined as any event arising 

from causes not foreseen and beyond the control of Respondents or any person or entity 

controlled by Respondents, including but not limited to Respondents' contractors, which 

delays or prevents the timely performance of any obligation under this Order. Force 

majeure does not include increased costs of the work to be undertaken under this Order, 

financial inability to complete the work, work stoppages or other labor disputes. Force 

majeure does include weather events and other changes in the condition of the natural 

environment that could impact the work, the acts of unrelated third parties that interfere 

with Respondents' ability to perform, acts of God, war, riot, terrorism, compliance with 

any law, or compliance with any governmental or court order, rule, pre-approval 

requirements, or directions. 

35 
118. If Respondents wish to claim a force majeure event, then within 5 days of 

learning of the potential for delay, Respondents must notify EPA of the potential for 

rlelay and within 15 days provide EPA in writing all relevant information relating to the 

delay, including all actions taken or to be taken to prevent or minimize the delay and a 

proposed revised schedule. Respondents shall include with any notice all available 

documentation supporting its claim. Failure to comply with the above requirements shall 

preclude Respondents from asserting any claim of force majeure for that event. 

Respondents shall be deemed to have notice of any circumstances of which its 

contractors had or should have had notice. 

119. IfEPA determines that a delay or anticipated delay is attributable to a 

force majeure event, EPA will extend in writing the time to perform the obligation 

affected by the force majeure event for such time as EPA determines is necessary to 

complete the obligation. 

120. If EPA disagrees with Respondents' assertion of a force majeure event, 

EPA will notify Respondents in writing, and Respondents may elect to invoke the dispute 

resolution provision. In any such proceeding, Respondents shall have the burden of 

demonstrating by a preponderance of the evidence that the delay or anticipated delay has 

been or will be caused by a force majeure event, that the duration of the delay or the 

extension sought was or will be warranted under the circumstances, that best efforts were 

exercised to avoid and mitigate the effects of the delay, and that Respondents complied 

with the requirements of this Section. If Respondents satisfies this burden, the time for 

performance of such obligation will be extended by EPA for such time as is necessary to 

complete such obligation. 

X. EFFECT OF SETTLEMENT, RESERVATION OF RIGHTS, AND 

JUDICIAL REVIEW 

I 21. EPA reserves all of its statutory and regulatory powers, authorities, rights, 

and remedies, both legal and equitable, which may pertain to Respondents, failure to 

comply with any of the requirements ofthis Order. This Order shaH not be construed as a 

covenant not to sue, release, waiver, or limitation of any rights, remedies, powers, and/or 

authorities, civil or criminal, which EPA has under any other statutory, regulatory, or 

common law authority of the United States. 

122. This Order on Consent does not resolve any civil or criminal claims of the 

United States for the violations alleged in this Order; nor does it limit the rights of the 

United States to obtain penalties or injunctive relief under RCRA, the CAA, or other 

applicable federal law or regulation. See CAA Section 113(a)(4), 42 U.S.C. §7413(a)(4). 

123. This Order is not intended to be nor shall it be construed to be a permit. 

Further, the parties acknowledge and agree that EPA's approval of this Order does not 

constirute a warranty or representation that requirements provided hereunder will meet 

the requirements ofRCRA or the CAA's General Duty Clause. Compliance by 

36 
Respondents with the terms of this Order shall not relieve Respondents of their 

obligations to comply with RCRA, the CAA, or any other applicable local, State, or 

federal laws and ~gulatio!}S. __ 

124. Respondents have entered into this Order in good faith without trial or 

adjudication of any issue of fact or law. Respondents reserve all rights and defenses they 

may have regarding liability or responsibility for conditions at the Facility, except that, 

for the purpose of this proceeding, Respondents admit the jurisdictional allegations in this 

Order; neither admit nor deny specific factual allegations made in the Order; consent to 

the compliance actions and conditions specified in the Order; and waive any rights to 

contest the allegations or to appeal the fmal Order. 

125. Respondents waive any rights to judicial review of the Order under CAA 

Section 307(b)(l), 42 U.S.C. § 7607(b)(l). Respondents also waive any right to a RCRA 

hearing under Section 3008(b) ofRCRA, 42 U.S.C. § 6928(b), 40 C.P.R. § 22.37(b), and 

40 C.F.R. § 22.15. 

126. In any subsequent administrative or judicial proceeding initiated by EPA 

or the United States for injunctive or other appropriate relief relating to the Facility, 

Respondents shall not assert, and may not maintain, any defense or claim based upon the 

principles of waiver, res judicata, collateral estoppel, issue preclusion, claim-splitting, or 

other defenses based upon any contention that the claims raised by EPA or the United 

States in the subsequent proceeding were or should have been raised in the present 

matter. 

127. Neither EPA nor the United States, by issuance of this Order, assumes any 

liability for any acts or omissions by Respondents or their employees, agents, contractors 

or consultants engaged to carry out any action or activity pursuant to this Order. Nor 

shall EPA or the United States be held as a pa1ty to any contract entered into by 

Respondents or by their employees, agents, contractors, or consultants. 

128. The parties shall bear their own costs and fees in this action, including 

attorney's fees. 

XI. MODIFICATION 

129. This Order may only be modified by mutual agreement ofEPA and 

Respondents. Any agreed-upon modifications shall be in writing, be signed by both 

parties, shaJJ have as their effective date the date on which they are signed by EPA, and 

shall be incorporated into this Order. 

XII. SEVERABILITY 

130. lf any provision or authority of this Order or the application of this Order 

to any party or circumstances is held by any judicial or administrative authority to be 

37 
invalid, the application of such provisions to other parties or circumstances and the 

remainder of the Order shall remain in force and shall not be affected thereby. 

Xlll. TERMINATION 

131. The Order shall terminate of its own accord one year after the effective 

date of the Order, in accordanc-e with Section ll3(a)(4) of the CAA, 42 U.S.C. § 

7413(a)(4). Although RCRA does not contain limitations on the duration ofRCRA 

administrative orders, the parties agree that the RCRA obligations of this Order shall also 

terminate one year after the effective date of the Order. 

XIV. EFFECTIVE DATE AND SIGNATURES 

132. Th!! RCRA requirements of the Order are subject to 40 C.F .R. Part 22. 

Thus, although the CAA requirements may take effect upon signature of the Order by the 

Director of the Office of Environmental Stewardship, the RCRA requirements herein 

may only take effect after the Regional Judicial Officer issues a final order and such 

order is filed with the Regional Hearing Clerk, in accordance with 40 C.F.R. Sections 

22.1 (a)(4), 22.l3(b), and 22.18(b)(2) and (3). For ease of administration, the parties 

agree that all aspects ofthis Order will take effect once the Order is filed with the 

Regional Hearing Clerk. 

133. The undersigned representative(s) ofthe Respondents certifies that he or 

she is fully authorized to enter into the terms and conditions of this Order and to execute 

and legally bind Respondents to it. 

IT IS so AGREED: I 

UA TE: ~l '6 '"\ '? /P'I''\ ~y -~~~~,-----~~--

Manager 

Mann Distribution LLC 

38 
IT IS SO ORDERED: 

DATE: 3MJA. j c._yJ {u:;/ BY: 62 I (1; ~ Susan 'Studlien 

Director, Office of Environmental 

Stewardship 

U.S. Environmental Protection Agency 

Region I 

39 
FINAL ORDER 

The RCRA requirements of the foregoing Order are subject to 40 C.F.R. Part 22. 

Thus, although the CAA requjrements may take effect upon signature of the Order by 

the Director of the Office ofEnvironmental Stewardship, the RCRA requirements may 

only take effect after the Regional Judicial Officer ratifies the agreement, issues a final 

order, and such order is filed with the Regional Hearing Clerk. 40 C.F.R. Sections 

22.l(a)(4), 22.13(b), and 22.18(b)(2) and (3). The RCRA requirements ofthe 

foregoing Order are hereby ratified, and Respondents are hereby ordered to comply 

with them, effective on the date the Order is filed with the Regional Hearing Clerk. 

LeAnn Jensen 

Acting Region 1dicial Officer 

U.S. EPA, Region 1 

In the Matter of Mann Distribution LLC and 3134 Post Road LLC, Docket Nos: RCRA01-2014-0005 and CAA-01-2014-0006 

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