### UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 1- NEW ENGLAND

IN THE MATTER OF Mann Distribution LLC and 3134 Post LLC 3 134 Post Road Warwick, Rhode Is land 02886 Respondents ) 

### ) ) ) 

### ) ) ) 

### ) ) 

### ) ) Proceeding under Section 1 13 ofthe ) C lean Air A ct and Section 3008(a) of the ) Resource Conservation and Recovery Act ) 

### ) 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 ofViolations

. ........... .......... ....... .. ...... .... .... ...... ...... .. .... ..... .. . .................. .. .....8 C lean 

### Air

.\ct

........... ...... .. ...... .... .... ......................... .. .. ......... ..................................... 8 Count 

### 1: Failure to Design and Maintain a Safe Facility, 

### In Vio l ation ofthe General Duty C lau se ................................................................................................................. 8 Count 

### II: Failure to Minimize Consequence ofReleases that Do Occur, in Violation ofthe General Duty Clause ........................ ........................... ...................... .............. 13

RCRA

..... .. .............................................. . ........ .............. ... ....... . ............................... l4 Count 

### ill: Failure to Not ify RIDEM About Hazardous Waste Activ i ty
...... .......... .. 14 Count IV: Failu re to Make an Adequate Hazardous Waste Determination

.. .... . .. .... I 6 Count V: Failure to Separate Incompatible Wastes

............. . ................................... 17 Count VI: Failure to Have Adequate Conta inment Systems .................... .. ... ........ ... 18 Count VII: Failure to Adequately Trajn All Employees with Hazardous Waste Management Responsibilities
........................ .... ........................................................ 18 Count VTII: Failure to Label Contajners ofHazardous Waste with the Words

" Hazardous Waste," a Description ofthe Contents, the Date ofAccumu l ation, 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 ofRelease

.................................... .. .......... ..... 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 ofCompliance 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 ofViolation and issues an ORDER ON C001SENT for Respondents' failure to comply with Section 112(r)(l) ofthe Clean Air Act, 42 U.S.C. § 7412(r)(l), and RCRA Section 3002, 42 U

. S.C. § 6922, with regard to the handling ofhazardous 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) ofthe 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 ofPractice Governing the Administrative Assessment ofCivil Penalties, Issuance ofCompliance or Corrective Action Orders, and the Revocation, Termination or Suspension ofPermits, 40 C.F .R. 

### Part 22 ("Part 22"). 2. This Order on Consent ( 11

### 0rder") 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'sjurisdiction to issue this Order or enforce its terms. Further, Respondents shall not contest EPA's jurisdiction to: compel compliartce with this Order 

### in any s ub sequent enforcement proceedings, either administrative orjudicial; require Respondents' 

### full compliance with the terms ofthis Order; or impose sanctions for violations ofthis 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 ofthe Respondents will in any way alter the status ofRespondents 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) ofthe 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 ofTitle 29, to (a) i dentif y hazards which may result from accidental releases of such substances, using appropriate hazard assessment techniques; (b) design and maintain a safe faci lity, taking such steps as are necessary to prevent releases; and (c) minimize the**con~equences** 

### of accidental releases that do occur. This section ofthe CAA is referred to as the "General Duty Clause."


### 3

### 5. The term "stationary source" is defined by Section ll2( r)(2)(C) ofthe 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 ofthe same person, from which 

### an accidental release may occur. 6. The term "extremely hazardous substance" means an 

### extremely ha zardous substance within the meaning of 

### Section 112(r)(l) ofthe Clean Air Act. Such substances include any chemical which may, as a result ofshort

-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 ofits acute toxic effect or as a result of an explosion or fire or that causes substantia l 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) ofthe CAA, 42 U.S.C. § 

### 7412(r)(2)(A), as an unanticipated emission ofa 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 ofthe 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 ofthe order to the relevant State air pollution control agency, and an order relating to a violation of Section 112 ofthe CAA can take effect immediately upon issuance. 9

. The authority to issue orders pursuant to Section 113(a)(3) ofthe 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 regu late 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---- · · 

### --- 11. Pursuant to Section 3001 ofRCRA, 42 U.S.C. 

### § 6921, EPA promulgated regulations to define what materials are "solid wastes," and ofthese 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 ofhazardous 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, Congr ess 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 ofthe 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 ofRhode Island and Providence Plantations ("Rhode Island ") final authorization to administer its hazardous waste program in lieu ofthe federal government's base RCRA program. See 51 Fed. Reg. 3780 (January 30, 1986). Updates to the Rhode Is land 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 Is land RCRA regulations are entitled State of Mode Island and Providence Plantation Rules andRegulations for Hazardous Waste Management (Regulation #OEM OWM HW I 0-01 , Rules 1.00 through 17.00), hereinafter t he "201 0 RI Rules. " New RI Rules came into effect on February 10, 2014 (the 2014 

### RJ Rules), but those Rule s were not in effect on the date ofthe 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 ofthe 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 exclusivejurisdiction 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 c arried out under Subtitle C of RCRA. Therefore, a violation of any requirement of Jaw under an authorized state hazardous waste rrogram is a violation ofa requirement of Subtitle C ofRCRA.


### 517. 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 ofPart 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 law s ofthe 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 ofthe Rhode Island. 23. As limited liability corporations, Mann and 3134 Post LL C are each a "person" within the meaning of Section 302(e) ofthe CAA, 42 U.S.C. § 7602(e) to whom a compliance order may be issued under Section 113(a)(3) ofthe CAA, 42 U.S.C. § 7413(a)(3). Likewise, each Respondent is a "person" pursuant to Section 1004(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 violation s of 

### CAA Section 112(r) found during a July 25 , 2009, inspection ofthe 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
6February 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 ofcertain chemicals so as not to trigger the risk management planning requirements of40 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 ofhazardous waste to one ofits employees. 26. On April4, 2013, authorized representatives ofEPA Region l (the

" Inspectors ") conducted an inspection ofthe Facility (the "2013 Inspection") pursuant to Section 3007 ofRCRA, 42 U.S.C. § 6927; Section 114 ofthe 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 ofdeficient 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 proper 1y assess the compatibility of stored chemicals that are generally in tbe same hazard class but that nonetheless should not be colocated; e. Containers offlammable chemicals stored outdoors within 10 feet ofthe 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 ofthe 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 severa l examples of deficient management ofhazardous wastes at the Facility, including, among others, the following:



### 7a. Failure to properly notify the Rhode Island Department ofEnvironmental Management ("RIDEM") 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. Fa ilure to label containers ofhazardous waste with the words "hazardous waste,'' a description ofthe 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

. S torage of hazardous waste containers in arrangements that obstruct labels from being able to be viewed. 29

. On May 28,2013, EPA issued a Notice ofPotential 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 ofEnvironmental Management ("RIDEM" ) investigated a complaint alleging that a reaction had occurred a t the Facility on September 12, 2013, when sodium chlor ide, chl orine, and phosphoric acid were improperly mixed in a container, creating a chemical reaction ("the September 2013 Incident"). RIDEM learned that incompat ible off-specification commercial products had been com bined within the container, res ulting 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 su lfuric acid to spill (the ' '201 4 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 ofthe 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 ofstationary sources producing, processing, handling, or storing substances listed pursuant to Section 112(r)(3) ofthe 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


### 8extent as section 654 ofTitle 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 r eleases; 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 ofways. EPA routinely consults codes, stan dards , and guidance ("industry standards") issued by trade and fire prevention associat ions to understand the hazards posed by the use ofvarious extremely hazardous substances. The industry standards are also evidence ofthe standard ofcare 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 chemica l warehouse and distribution faci lities, 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 chem icals 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%), pheno1 1 sulfuric acid, hydrochloric acid, methyl ethyl ketone, methan ol, isopropyl alcoho l, acetone, xylene, dimethylfonnamide, potassium permanganate, sodium chlorite, sodium per s ulfa te, triethanolamine 85%, acetic acid, phosphori c acid, dodecyclbenzene sulf onic 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 ofthe 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, reactivity 1 flammability, volatility, or corrosivity. Accordingly 1 they are "extremely hazardous substances," within the meaning ofthe General Duty Clause of Section 112(r)(l) ofthe CAA 1 42 U.S.C. §74 12(r )(l). 36. The unanticipated emission of any ofthe 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) ofthe CAA, 42 U.S.C. 

### § 7412(r)(2)(A). 37. The facility is a building or structure from which an accidental release may occu r 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) ofthe CAA, 42 U.S.C. §7412(a)(9), ofa stationary source. 39. 

### As mentioned in paragraph 27 above, On April4, 2013, the Inspectors observed some deficient practices relating to the storage ofextremely 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 suppres sion 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 ofthese chemicals even exceeded the amounts that can be safely stored even with 

### fire suppression, and at least one chemical (sodium hydrosulfite) shou ld 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 loold ng 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 ofwarehouse 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 ofthese chemicals creates risk of

### fire, explosion, liberation of toxic gases and corrosive fumes, and other reactions 

### ifthe 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 {20 10 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.)

. 

### 10released. It is standard industry practice to separate incompatible chemicals. 5 In response to previous EPA Orders, Respondents had developed an Incompatible Material Segregati on Plan to control these risks , which plan was partially but not fully implemented at the time ofthe 2013 Inspection. Some examples ofco-location of incompatible chemicals found during 

### the 2013 Inspection, among others , include the following: 6 1. In the hot acid room, phe nol was stored adjacent to phosphoric acid and triethanolamine. The interaction ofthese substances can cause an exothermic reacti o n that can generate heat and cause overpressurization. Triethanolamine was also stored adjacent to acetic acid in this room, and the interaction ofthese substances can cause an intense exothermic r eaction that can genera te toxic and corrosive fumes. ii. In a separately bermed area ofWarehouse A marked "Combustible Solid Storage" were six 55 gallon drums of benzyl alcohol stored a few feet from nine fiber containers ofthiourea dioxide

. These two chemicals, ifcombi ned, 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 physica l barriers existed in this room to sepa ra

te acids from a lkali materia ls, 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 offlammable material , including methy1 ethyl ketone, methanol, isopropyl alcohol, acetone, and xylene. Sometim e s chemicals in the same hazard cla ss shou ld 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 outsi de, a row ofhydrochloric acid was stored only 22 inches from a row of32% aqueous ammonia 26 Ba ume, w h ich in turn was only 22 inches from a row ofUN1993 glycol ether. Ifmixed, hydrochloric acid and the 32% aqueous ammonia can have an intense or explosive exothermic reac tion, releasing heat and producing acid fumes. Likewise the hydrochloric acid and g lycol ether (which were not immediately adjacent but within a few feet ofeach other) are incompatible; they can have at1 exothermic reaction that generates gas and hea t, and the reaction products may be flammable or explosive.

s See e.g., Guidelines for Safe Wa rehousing of Chemicals, Chapter 2.6.; Material Safety Data Sheets; and NFPA I, Section 66.9.17 (2012 ed.). 6 The reactivity of chemica ls was pred icted through the u se ofCAMEO Chemicals and, in some cases, the Chemical Reactivity Worksheet. These are on-line t oo l s designed for people who are involved in haza rdous material incident response and planning, developed by the National Ocean and Atmospheric Adrrinistration's Office ofResponse 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 ofthe physical barriers depicted in 

### the Facility's Incompat i ble 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 agai n st 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 ofhazardous materials throughout and outside the warehouse. For example, in addition to the examples mentioned above in the discussion ofincompatible chemicals, in the Hot Room 2 Acid Room, the Inspectors f ound that the fl oor space was completely full of a myriad ofcontainers (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 offorklifts, personnel, emergency responders or emergency equipment could increase the potential for an accidental release or exacerbate the consequence s ofa 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 difficul t to properly handle the chemicals so as to prevent a release (for example, by ensuring that incompatibles are not co- l ocated), and to 

### conduct safe emergency response in the event ofa 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 chemica ls) , and the outdo or 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 offlammable 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 ofincompatible materials). 

### 12is standard industry practice for containers to be conspicuous ly labeled and have the labels fac ing the aisles so that they can be read. 9
40

. 

### In addition to the Inspector's observations, the S eptemb er 2013 Incident, discussed in paragraph 30, above, provides another example ofRespondents' fail ure to properly ma nage incompatible chemicals so as to prevent fire hazards and the release of dangerous gases. 41. The 2 01 4 Sulfuric Acid S pill discussed in paragraph 3 1 above, could have been prevented had Respondent provided secondary containment for its outside storage ofextremely hazardous substances. It is standard indu stry 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 in spect the fire alarm, separate and approp:riately manage incompatible chemicals , store large quantit ies offlammable liquids far e n ough from th e warehouse, maintain adequate ais l e 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 m aintain a safe facility, in v iolation ofthe General Duty Clause.



### Co unt II: Failure to Minimize Consequence of Releases that Do Occur In Violation of the Clean Air Act' s General Duty Clause
43. The allega tions 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 design in g an d maintaining a safe facility, the GDC requires Respondents to minimize the consequences ofreleases that do occur. 45. On January 7 , 20 1 4, the day ofthe 20 14 Sulfuric Acid Spill, Respondents' employees did not immediately contact the fire department 

### when they knew 

### that a sulfuric acid spill h ad occurred, as required by federal and sta t e law. See EPCRA Section

9 See, y., NFPA 1 Section 60.5.1.8.2 (20 12 ed.); Guidelines for Safe Wa1·ehousing of Chemica ls, Chapter 4.4 .1. 10**See~.** Internationa l Fire Code (2006 edi tion), Section 2704.2.2; NFPA I , Fire Code, Section 60.5.!.3.1 (2012 edition incorporated b y reference into the Rhode I sland Fire Safety Code, Section 7); NFPA 1 section 60

.5.1.1, which states that "storage ofhazardous materials in quantities exceeding the ma xim um allowable quan tity 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 Chap ters l l through 21 of NFPA 400,'' which in turn r equires that corrosive liqui ds and toxic liquids, among other types ofhazardous 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 allcwab le quantities) ; and NFPA ' s requi r ements for flammable liquids at N

FPA 1, Section 66. 15 .3.5 (outdoor stor a ge of flam mable liquids shall be graded in a mannerto divert possib le spills away from build ings or shall be surrounded by a curb of at least 6 inches). 13304, 42 U.S.C. § 11004, and NFPA 1, Section 60.5.1.3.4, whi ch is incorporated by reference into the R.I. Fire Safety Code, Section 

### 7. No r did any employee call the National Response Center ("NRC") as required by federal law until the next day. See

. CERCLA Section 103(a), 4 2 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 spi lled. 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 potentiallyjeopardized the health and safety ofemployees.
47. 

### In addition, as alleged above in paragraph 39(a) , Respondents current ly 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 ofthe 20

### l 4 Sulfuric Acid Spill; provide secondary containment for certain chemicals such as sulfuric acid that are stored outside; and install 

### a fire suppres sion system, Respondents have failed to minimize the consequences of releases, in violation of Section 112(r)(l) ofthe CAA, 42 U.S.C. § 74 12(r)(l).



### RCRA Count ID: Failure to Notifv RIDEM About Hazardous Waste Activity in Violat ion 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 ofthe 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 chemica ls wer e 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-gall on totes, which the p lant 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 ofwaste was 

### a collection ofthe waste containers that he had encountere-d around the Facility since he had been working fo r the Facility. The containers were stored up to two

-tiers high with no aisle space. The labels attached to the containers were
14not 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 hazardou s 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 ofthese 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 ofthe 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 ofthe wastes referenced in paragraph 51 above might be reused or recycled

. When the Inspectors asked him to specifY which wastes could be reused and how 1 he was not ab le to provide such information and stated "we will ship it all off." 53. Subsequen tly, on April 29, 2013, Respondent, Mann, shipped off 36,180 pounds ofhazardous waste including: a. 26,240 pounds ofcorrosive liquid waste (D002)

. including sodium chlorite, sodium hydroxide, hydrochloric acid, sulfuric acid, and phosphoric acid (see Hazardous Waste Manifest 000808766VES); b

. 4,800 pounds offlammable liquids (DOOl), including a xylene and aJcohol mix, isopropanol, and methanol (see Hazardous Waste Manifest**00808767VES)~** c. 400 pounds ofwaste n-propyl bromide petroleum distillates (naptha) carrying the hazardous waste codes 

### Ul59, 0035, and DOOl (see Hazardous Waste Manifest 000808794VES); d. 4, 400 pounds ofwaste sodium hydr oxid e (D002) (see Hazardous Waste Manifest 000808768VES); and



### 15

### e. All on Hazardous Waste Manifest 000808795VES: i. 145 pounds ofwaste 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 ofwaste toxic liquids 

### 1 , 1 , 1, trichloroethane and methylene choride with the waste codes U088 and U226; iv. 150 pounds ofwaste cor r osive 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 ofhazardous 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 al l times relevant to this Order , Respondent Mann Distribution LLC was the "operator" ofthe Facility, and Respondent 3134 Post LLC was the "owner" of the Facility as defrned at 

### 40 C.F.R. § 

### 260. 1 0 and 2010 RI Rule 3.0. Both Respondents were also "gene rators" 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 ofthe 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 f or 

### 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 allegat ions 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 ofthe defini tions 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 ofthe 2013 Inspection, Respondent was not conducting hazardous waste determinations for at least the following waste streams and/or containers ofwaste:

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

### paragraph 50 above, the Inspectors saw two pallets ofchemicals in Warehouse A 

### that were awaiting being Jab packed for shipment off-site. They included, among other things, approximately 14 five-gallon containers ofmaterial, one ofwhich was marked sulfuric acid, three jugs ofmaterial for which the identity ofthe material was not immediately apparent; and several boxes and sma ller containers ofunknown 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 ofthe 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 hazardou s 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 of40 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 ofa 

### dike, berm, wall or other device.
1769. 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 l ong as the hazardous waste is managed in accordance with, among other requirements, the requirements of40 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 of40 C.F.R. Part 265, Subpart I for contain ers 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 ofthe containers or the volume ofthe 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

. Failu re to Adequately Train All Employees with Hazardous Waste Management Responsibilities
76. Paragraphs 1-75 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 requ irements, the requirements of40 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.



### 1879. 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 successful l y complete t he p rogram wit h in six months after the date oftheir employment; must not work in unsupervised positions until they have completed the training requirements; and must take part in an annual review ofthe training (i.e., have annua l 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 ofthe following: ( 1) the job title for each position at the facility related to hazardous waste management and the name of the employee filling eachjob; (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 ofboth 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 pe r sonnel 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 15,20 12. Subsequent to the 2013 Inspection , six additional employees were trained on April 26 , 2013. When asked for training documentation, including documentation ofthe training program, Respondents provided training certificates and a Power Point presentation ofthe training received. However, Respondents did not provide any other documentation showing compliance w i th 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 ofHazardous Waste with the Words "Hazardous Waste," a Des crip tion ofthe Contents, the Date ofAccumulation, 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 of40 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) th e 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 of40 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 ofmaterial. 90. Finally, 2010 RI 

### Rule 5.2 requires that any hazardous waste stored on site by a generator for a period of90 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 ofwaste that were la ter shipped off as hazardous waste, including, among other things, approximately 14 five-gallon containers of waste, three jugs ofwaste for which the identity ofthe material was not immediately apparent; and several boxes and smaller containers ofunknown 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 l ong as the hazardous waste is managed 

### in acc- ordance with, among other requirements, the requirements of40 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 of40 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 oft he se 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 of40 C.F.R. Subpart C.

Count X : Failure to Minimize Threat ofRelease
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 of40 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 of40 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 ofhazardous 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, 

### ifmixed, could cause an unplanned sudden fire, explosion, or release ofhazardous waste or hazardous waste constituents. Due to the lack ofcontainment in this area, the dangers associated with the chemicals and their reactions with co-located incompatible chemicals, and the proximity ofsurface water, a release ofhazardous 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. 21100. Respondents' failure to opera te the Facility so as to minimize t h e possibility of a fire, explosion, or any unplanned sudden or non-sudden release ofhazardous waste or hazar dous waste constituents to air, soil , or surface water violated 20 I 0 

### Rl Rule 5 .2, which references 40 C.P. R

. 

### § 262.34, wh i ch in tum references the requir ements of40 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 sha ll achieve and maintain compliance with all applicable requirements ofRCRA. Within 15 day s ofthe effective date ofthis Order, and once again 365 days from the effective date ofthis Order, Respondent shall submit to EPA written confinnation of its continued compl iance or noncompliance with the RCRA generator requirements ofRl Rule C hap t er 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 ofnoncompliance will in no way excuse the noncompliance, unless EPA agrees ot herwise in writing or approves a delay pursuant to the Force Majeure provisions of Section IX. 102. CAA: Pur suant to Section 113(a) ( 3) ofthe CAA, 42 U

.S.C. 

### § 7413(a)(3), it is hereby ordered t ha t Respondents shall take the follow ing actions to correct the viol ations ofthe General Duty Clause cited 

### in Counts I and 

## n above and maintain compliance with the General Duty Clau se. By each deadline listed below, Respondents shaU submit to EPA writt en confinnation ofcomp liance or noncompliance wit h the required action (accompanied by a copy of any appropriate supporting documentation , including documentation ofcosts). Any notice ofnoncompliance shall state the reasons for the noncompliance and when compliance is expected. Notice ofnoncompliance will in no way excuse the noncompliance unless EPA agrees otherwi se in writing or approves a delay pursuant to the Force Majeure provisions of Section IX. Unless ot herwi se specified below or otherwise approved by EPA, compliance 

### with Mann's .EPA-approved Hazardous Material Storage Plan, the most recent versions ofthe state fire code, and NFPA standards shall, for purposes ofenforcing this Order, constitute compliance with the General Duty Clause's requirement to desi gn and maintain a safe facility. Before reque sting EPA to approve deviati on s that might not be consistent with the state fi re code and the NFPA s tandard s referenced by the fire code, Respondents must receive the fire department's approvaJ ofthe deviation. First Comoliance Cert ification a. 

### By 30 days after the effective date of this Order, submit to E PA written confirmation that Respondent s have: 1. Inspected the Facility 's fire alarm system i n accordance with the system's inspection schedule and in stit uted operating procedures to ensure tha t such inspections continue; and 2. Institut ed procedures to ensure that appropriate emergency response authorities are notified of any future chemical spills in accordance with 

### 22state 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 Mate rial 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 ofViolation 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 ofChemicals, 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 offlammable liquids next to an adjacent building wall); 3. Require adequate materials separation in aJI rooms ofthe warehouses and in all outdoor storage areas, following generally accepted sta ndards 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 ofrelevant 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 Is land Fire Safety Code Section 7, which incorporat es by reference NFPA 1 (2012 ed.), which in turn ref erences NFPA 400 (2010 ed.). For example, this may require reducing the amounts ofoxidizers stored in the warehouse and storing pyrophoric :hemicals in a separate outdoor storage unit; 6. Require secondary containment for outside storage ofcertain 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 ofhazardous 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 liqui d s, among other types ofhazardous materials , be

23provided 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 offlammable 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 ofchemicals, as an alternative to complying with the storage, grading, and containment requ i rements in 

### subparagraph (b)(2)(5) and 

### (6) above, Respondents may propose, w i th fire department approval to; (1) move liquids storage inside with the exception ofthe flammable liquids, provided such liquids storage does not violate other fire code and NFPA requirements or result in improper co-location ofincompatible chemicals; (2) move flammable liquids to appropriately fire-rated 40-foot containers located at the end ofthe 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 ofthe above that are approved 

### in advance by EPA. 7. Include a schedul e for implementing any aspect ofthe 

### Hazard Material Storage Plan that cannot be implemented immediately (for example, due to the need for construction or purchasing 40-foot containers). The requirements ofthe 

### 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 ofthe Rhode Island Fire Safety Code and the approval ofthe 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 Pr ogram d. Third-Party 

### Inspection Program: 

### Beca use EPA has found repeat violations ofthe General Duty Clause at the Facility, Respondents have agr eed to institute a third-part y inspec tion 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 thjrd

part y inspection s over the course of at least one ye ar, three of which will be unannounced; (c) documenting the i nspections through photographs, film , and written reports ; and (d) providing the inspection documen tation to the local fire 

### department and EPA. 1. 

### Within 15 days 

### of the 

### effective date 

### ofthis Order, 

### Respondents shall engage a third

-party inspection team ("Team" ) and submit the Team members ' re sumes and qualifications to EPA

. The Team shall have at l east one person wi th chem i stry expertise acceptable to EPA, one expe rt in environmen tal com pliance auditing, and one expert in chemical pr ocess safety management. One Team member may fulfill more than one ofthese 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 ofthe Team may have previously performed work for Respondents or for any of R

espondents' officers , although Team members who previous ly bid on p ro

j ects but did not receive work from Respond ents may part i cipate; n. No member ofthe Team shall be allowed to work for Respondents or for any ofRespondents ' officers for five years after the in spections are completed ; iii. Once the Team has given Respondents notice of the first upcoming inspection, no communication shalt occur between Respond ents and the Team without EPA simul taneously being copied on the communication (except such communications that occur on-site while the inspections are being conducted). Accordingly, all s u

ch comm unicati on must b e by e-mail or letter so that EPA may be copied. iv. Respondents shall have no control over th e timing of the second, t hird and fourth inspections . v. Before conducting the first inspection, each member of the Team shall ha ve: 1. Read this Order; the 2009 and 20 ll Orders; the hazard analysis conducted pursuant the 2009 Order; the Respondents ' 

### Hazardous Material Storage Plan; A ppendix 1 

### o f the Septe mber 30, 252011 Notice ofViolation 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 c hemicals 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 functio n used to predict chem i cal reactivity. 

### Also , before providing notice ofthe first inspection, it is permissible for the Team to visit the Facility for purposes ofbidding 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 thereofbefore the Team sends them to EPA and Respondents. 3. 

### Inspections: i. The Team shall conduct four inspections within 11 months of the effective date ofthis Order.

11. The purpose ofthe first inspection is to give all parties the opportunity to assess how Respondents manage their extremely haz ardous substances when Respondents are operating with the highest level ofcare. Accordingly, the Team shall give Respondents and EPA at least 14 days ofdays ofnotice 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


### 26dangerous 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 su bstances (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-offfrom outdoor containers and dilution operati ons; 4. Failure to separate incompatible chemicals; 5. Failure to maintain adequate aisle space; 6. Failure to have, maintain, and test fire suppression, detectio n , 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 o utside in tanks and containers; 

### 9. Failure to have chemical containers c losed, properly labeled, and with labels situated such that t hey 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 r ev iew 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 ofthe effective date ofthe Order, the Team shall submit to Respondents and EPA a draft inspection report format that it wishes to use (the " D r aft 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 ofthe inspection ("Inspection Report"). Resp ondents' 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 c ontent ofthe inspection documentation at any point during the du ra

tion ofthe**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 Inspecti on Report to EPA and the Team within five business days ofr eceiving the Inspection Report

. 

### 6. Correction ofviolations: Within 20 days ofrec eiv i ng 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 ifit finds any non-CAA Section**112(r) related**  violations**ofEPA administered**  statutes (for example, violations ofRCRA, C lean Water Act, FIFRA, or TSCA), and Respondents shall correct those violat ions within 20 da ys ofreceiv ing 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 ifthe Team discover s 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 ofthe Third-Party Inspection Program, containing the following:

L Total cost ofthe program, excluding costs to address any violations found by the Team; ii

. Summary of the benefits ofthe 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 tha t 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 remainde r; 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. Ifthe Submission is approved, Respondents shall take all actions required by the Submission in accordance with the schedules or requirements therein. Ifthe Submission is condit ionally approved or approved only in part, Respondents sha ll , upon written direction from EPA, take all actions required by the Submis sion 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 ofthis 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 re submission 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 ofthis 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 ofEPA 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 elect ronic 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 communi cations 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 informa tion in accordance with applicable 

### J aw.

30

### h. Summary ofCompliance Obl igations: The attached chart summarizes the compl iance obligations under this Order.



## -- Deadline Requirement Reference Within 15 days 1) Submit resUllles and qualifications ofThird Party Section V, ofthe effective Inspection Team paragraph date ofthis 102(d)(1) Order 2) RCRA compliance confirmation Section V,

**_par~g@Qh** I 0 1 Within 30 days 1) P 1 CAA compliance confirmation for: Section V, ofthe effective 

## • Fire alarm testing and operating procedures paragr aph 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 immediat ely

. Wit hin 60 days 1) 2nd CAA compliance confmnation for: Section V, ofthe effective 

## • Installing fire suppression system paragraph date ofthis 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, ofthe 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 ofthe Respondents and EPA paragraph effective date l 02( d)(4)(i) ofthis 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) ofthis 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), ofthis 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 ofreceiving 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

-daysofreceiving Inspection Report. Within 12 1) 

### Respondents submit Third-Party Inspection Section V , 

### months ofthe 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 ofRespondents in carrying out the terms ofthis 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 ofRespondents or its contractors or consultants. Nothing in this paragraph, limits or otherwise affects EPA's right ofaccess and entry pursuant to applicable law, including the CAA and RCRA. However, due to the pre sence ofextremely 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 Sta tes 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 d ay for the sixteenth (16th) 

### through thirtieth (30th) day of such violation; and c. $2,000 per day for each day of such violation, t hereafter

. The amount ofpenalties accrued shall be subject to the limitations ofCAA 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 d ue or the day a violation occurs, and shall continue to accrue through the day of correction ofthe violation

. Nothing herein sha ll prevent the simultaneous accrual of
32------------- -- --- ----------- - - ----- ---- - separate stipulated p

_ enalties for separate vio lations ofthis Order. Penalties shall continue to accrue regardless ofwhether 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 ofthe 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 ofpenalties due. 107. 

### AU penalties shall be made pa yable by certified or cashier's check to the United States ofAmerica and shall be remitted to: U.S. Environmental Protec tion Agency Fines and Penalties Cincinatti Finance Center P.0. Box 979077 St. Louis, MO 63197-9000 All such checks shall ref erence 

### "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 interes t , if any, 

### in accordance with the dispute resolution decision and/or agreement. Respondents shall submit such payment to EPA within thirty (30) days ofreceipt of such reso lution in accord ance with Paragraph 107 ofthis Section. 109

. Neither the invocation of dispute resolution nor the payment of penalties sha ll alter in any way Respondents' obligation to comply with the terms and conditions of this Order. 110. The stipulated penal ties 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 ofthe terms and conditions ofthis 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 ef forts to reso lve 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 ofthis 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 rai sed. 

### 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 offonnal dispute resolution: IfRespondents 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 ofobjection must contain the bases for Respondents' objection, including but not limited to any factual data, analysis, or opinion supporting that position and any support ing documentati'on relied upon by Respondents. Respondents must submit the notice ofobjection within five (5) days after the termination ofthe informal dispute resolution period. b. Forma l dispute resolution period: After EPA receives Respondents' notice ofobjection, the parties shall then have an additional ten 

### (1 0) days from EPA's receipt ofRespondents' objections to attempt to resolve the dispu te. 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 ofits 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 ofthe 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 ofeach party, and incorporated into this Order, and any requirements or schedules therein shall become enforceable requirements ofthis Order.


### 34c. EPA Dispute Decision: IfEPA and Respondents are unable to reach agreementyithin the period specified in Paragraph 113.b. above, the Director ofthe Office ofEnvironmental Stewardship shall notify

- - Respondents , in writing, ofhis or her decision and the bases for that decision within seven (7) days (hereinafter referred to as the " Dispute Decision. ") Such decision s hall be final and incorporated into this Order. Any requirements or schedules therein shall become enforceable requirement s ofthis Order. d. Use ofAlternative Di spute Resolution: The parties may, up on mutual consent, use ADR during the formal di spute resolution period.
114. Except as provided in Section VII, "Stipulated Penalties," the existence of a d ispute as defined 

### in this sect i on and EPA's consideration ofmatters placed into dispute shall not excuse, toll, or suspend any compliance obligation or deadline required pursuant to this Order during the pendency ofthe dispute resolution process, unle ss t he nature of the dispute involves the technical feasibility ofthe compliance obligation.
115. Within seven 

### (7) days after either (a) reaching a dispute re solution agreement under Subsection A ofthis secti on or (b) receiving EPA's Dispute Decision under Paragraph 1 13

.c . o f this subsection , Respondents shall notify EPA that it has initiated compliance with the requirements ofthe 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 t he time periods established in this Section upon notice to Respondents.



### IX. 

### FORCE MAJEURE AND EXCUSABLE DELAY
117. Force majeure, for purposes oft his Order, is defined as any event arising from causes not foreseen and beyond the control ofRespondents 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 inc lude incr eased costs ofthe 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 ofthe natural environment that could impact the wor k, the acts ofunrelated third parties that interfere with Respondents ' ability to perform, acts ofGod, war, ri ot, terrorism, compliance with any law, or compliance with any governmental or court order, rule, pre-approval requirements, or directions.



### 35118. IfRespondents wish to claim a force majeure event, then within 5 days of learning ofthe potential for delay, Respondents mu st notify EPA ofthe potential for rlelay and w i thin 15 days provide EPA in writi ng 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 ofwhich its contractors had or should have had notice. 119. IfEPA determines that a delay or anticipated delay is attributab l e to a force majeure event, EPA will extend in wr iting the time to perform the obligation affected by the force majeure event for such time as EPA determines is nece ssary to complete the obligation. 120. IfEPA disagrees with Respondents ' assertion ofa 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 ofthe evidence that the delay or anticipated delay has been or w ill be caused by a force majeure event, that the duration ofthe delay or the extension sought was or will 

### be warranted under the circumstances, that best efforts were exercised to avoid and mitigate the effects ofthe delay, and that Respondents complied with the requirements ofthis Section. IfRespondents satisfies this burden, the time for performance of such obligat ion will be extended by EPA for such time as is necessa ry 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 ofthe requirements ofthis Order. This Order shaH not be construed as a covenant not to sue, release, waiver, or limitation ofany rights, r emedies, powers, and/or authorities, civil or criminal, which EPA has under any other statutory, regulatory, or common law authority ofthe Uni ted States.
122. This Order on Consent does not resolve any civil or criminal claims ofthe United States for the violations alleged in this Order; nor does 

### it limit the rights ofthe 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 ofthis Order does not constirute a warranty or representation that requir ements provided hereunder will meet the requirements ofRCRA or the CAA's General Duty Clause. Compliance by


### 36Respondents with the terms ofthis Order shall not relieve Respondents oftheir obligations to comply with RCRA, the CAA, or any other applicable local, State, or federal laws and

**~gu latio!}S.**  __ 124. Respondents have entered into this Order in good faith without trial or adjudication of any issue offact 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 ofthis proceeding, Respondents admit thejurisdictional 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 orjudicial 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, resjudicata, 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 shou ld have been rai sed in the present matter. 127. Neither EPA nor the United States, by issuance ofthis 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. Th is 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 ofthis Order or the application ofthis Order to any party or circumstances is held 

### by anyjudicial or administrative authority to be


### 37

### invalid, the application of such provisions to other parties or circumstances and the remainder ofthe Order shall remain in force and shall not be affected thereby.



### Xlll. TERMINATION 131. The Order shall terminate ofits own accord one year after the effective date ofthe Order, in accordanc

- e with Section ll3(a)(4) ofthe 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 ofthis Order shall also terminate one year after the effective date ofthe Order.

XIV. EFFECTIVE DATE AND SIGNATURES 

### 132

. Th!! RCRA requirements ofthe Order are subject to 40 C.F .R. Part 22

. Thus, although the CAA requirements may take effect upon s ignature ofthe Order by the Director ofthe Office ofEnvironmental 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 h e or she is fully authorized to enter into the terms and condi tions ofthis Order and to execute and legally bind Respondents to it.

IT 

### IS 

## so AGREED: 

# I

UATE:

## ~l '6 '"\ '? /P'I''\

## ~y**-~~~~ ,-----** **~~--** Manager Mann Distribution LLC

38

### IT IS SO ORDERED : DATE : 

# 3MJA. j c._yJ {u:;/ BY: 

# 62 

# I (1;



## ~ S usan 'Studlien Director, Office of Envi r onmental Stewar dship U.S. Env i ronmental Protection Agency Region I

39

### FINAL ORDER The RCRA requirements ofthe foregoing Order are subject to 40 C

.F.R. Part 22. Thus, although the 

### CAA requjrements may take effect upon signature ofthe Order by the Director ofthe 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 w i th them, effective on the date the Order is fi l ed 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

40