ORDERS:
ORDER
STATEMENT OF CASE
This matter comes before the Administrative Law Judge Division upon request by Tin Products, Inc. ("Tin Products") for
administrative review of an Emergency Order issued pursuant to S.C. Code Ann. § 48-1-290 (1987) by the South Carolina
Department of Health and Environmental Control ("DHEC" or the "Department") on February 7, 2001 after the occurrence
of a fire at the Tin Products facility in Lexington County. The Emergency Order mandated that Tin Products cease all
operations of its facilities until the conditions specified in the Emergency Order are met. The issues raised by the request
for review before this tribunal are: (1) whether conditions or operations at the facility at the time of the issuance of the
Emergency Order did in fact constitute an emergency justifying issuance of the Emergency Order; and (2) whether an
emergency currently exists to justify the continued enforcement of the Emergency Order.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into
consideration the burden of persuasion by the parties, I make the following Findings of Fact by a preponderance of
evidence:
1. Tin Products owns and operates a manufacturing facility located at 1000 Bonhomme Richard Drive in Lexington
County, South Carolina.
2. Tin Products manufactures tin chloride, tetrabutyl tin ("TBT"), and tetraoctyl tin ("TOT"). Tin chloride, also known as
stannic chloride, is a key intermediate in the manufacture of organotin compounds. Organotin compounds are used in the
production of heat stabilizers for a variety of plastic products.
3. On January 23, 2001, DHEC conducted a multimedia inspection of the Tin Products facility. Based on their
observations during the inspection, DHEC staff reported to DHEC management that several releases and violations of
permit requirements and regulatory requirements had occurred. Based on these reports, DHEC management decided to
issue an Administrative Order against Tin Products. However, DHEC did not determine that an emergency existed at that
time.
Afterwards, on February 7, 2001, a fire occurred at Tin Products in the portion of the facility that manufactures TBT and
TOT. The fire occurred in a scrubber unit designed to remove alkyl aluminum from a nitrogen gas stream. The fire
resulted in significant damage to the scrubber and a nearby storage tank that collected water for reuse in the process. The
cause of the fire has not yet been determined.
On that same day, DHEC issued the Emergency Order requiring the immediate shutdown of all processes at the Tin
Products facility until the conditions of the Emergency Order are met. Though DHEC does not have any analytical
evidence to indicate that airborne chemicals left the facility as a result of the fire, the fire, along with concerns about the
operation of Tin Products, precipitated the issuance of the Emergency Order.
4. In support of the need for an Emergency Order, DHEC witnesses cited the existence of a bulging drum on the site as a
significant factor in the Department's decision to issue the Emergency Order. However, DHEC did not provide any
evidence to suggest that a chemical reaction was taking place inside this drum. In fact, the evidence demonstrated that
when the drum was opened, only a small portion of a solid residue was found at the bottom of the drum.
Additionally, DHEC witnesses cited the observance of two releases of hydrochloric acid from a leaking pump seal as a
factor in its decision to issue the Emergency Order. However, even these witnesses conceded that these releases were
minor and did not rise to the level of an emergency threat to public health. Releases of this nature are typically handled
through DHEC's enforcement procedures rather than the exercise of DHEC's Emergency Order authority.
DHEC witnesses also cited the history of uncontrolled releases at the Tin Products facility and their belief of a lax attitude
toward safety by Tin Products' management as factors in DHEC's decision to issue the Emergency Order. However,
DHEC's Emergency Order authority under S.C. Code Ann. § 48-1-290 (1987) is not the appropriate mechanism for
addressing a facility's history of releases and the perceived attitudes of a facility's management. The appropriate
mechanism for addressing such concerns is DHEC's normal enforcement process. In fact, Tin Products personnel have
cooperated with DHEC in responding to the fire and in their inspections of the Tin Products facility.
5. Many chemical facilities that operate in South Carolina handle dangerous chemicals on a routine basis. Some of these
facilities have had fires occur in the past. However, these fires did not result in the issuance of Emergency Orders by
DHEC.
6. DHEC has not promulgated a specific standard for the classification of organotin contaminants. Furthermore, Tributyl
tin chloride is an incidental byproduct of the processes used to manufacture TBT. Tributyl tin chloride is not used as a
biocide. The oxide form of tributyl tin, which is used as a biocide, is not manufactured at Tin Products.
7. Despite assertions by DHEC witnesses that the attitude of Tin Products' management toward safety at the facility has
been lax, it was not DHEC's intent in issuing the Emergency Order to permanently shut down the Tin Products facility.
Rather, DHEC intends to withdraw the Emergency Order once it has been established that the facility no longer poses an
immediate threat to public health or property.
I find that the issuance of the Emergency Order was proper in light of the perceived threat of additional fires at the facility.
However, I find the conditions established by DHEC for withdrawal of the Emergency Order to be too vague in that they
failed to establish clear steps necessary for such a withdrawal. Furthermore, since Tin Products was properly shutdown due
to the immediate potential of a threat to public health or property, an orderly resumption of the operations at Tin Products
should insure that the continued operation of the facility will be safe.
Additionally, in issuing the Emergency Order, DHEC ordered the shutdown of the entire facility because of its belief that
the stannic chloride process area and TBT/TOT process areas were not separate. However, the evidence presented at the
hearing established that these two process areas, though connected by piping, can be operated separately. Moreover, the
stannic chloride process area was unaffected by the fire. Therefore, the resumption of the operation of the stannic chloride
process area will not require as much oversight as the TBT/TOT process areas.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact and the testimony put forth in this case, I conclude the following as a matter of law:
1. Under S.C. Code Ann. § 48-1-290 (1987), the Department has the authority to issue an Emergency Order whenever it
"[f]inds that an emergency exists requiring immediate action to protect the public health or property." Such an Emergency
Order must be revoked "[a]s soon as conditions or operations change to the extent that an emergency no longer exists."
Id. (emphasis added).
2. An Emergency Order "[s]hall be effective immediately" and must be complied with immediately, even prior to the
opportunity for notice or an opportunity to be heard. However, upon "[a]pplication to the Department or by direction of the
Governor," DHEC must prove that an emergency still exists at a hearing within forty-eight hours. S.C. Code Ann. §48-1-290 (1987). Therefore, upon application to the Department by Tin Products, a hearing was afforded to Tin Products by the
Administrative Law Judge Division within the forty-eight hours required by S.C. Code Ann. § 48-1-290.
3. In the enforcement of Administrative Orders, including Emergency Orders, DHEC has the burden of proof. In the
present case, DHEC must prove that an emergency existed on February 7, 2001 necessitating the complete shutdown of Tin
Products to protect the public health or property, and that an emergency still exists, justifying DHEC's refusal to lift the
Emergency Order. DHEC must prove the continued existence of the emergency by a preponderance of the evidence. See
Anonymous v. State Board of Medical Examiners, 329 S.C. 371, 769 S.E.2d 17 (1998).
4. I find that the issuance of the Emergency Order was proper in light of the occurrence of the fire in the TBT/TOT process
area and the threat of additional fires at the facility. I further find that once Tin Products fulfills the conditions ordered
below with respect to the stannic chloride process area, an emergency with respect to the operation of the stannic chloride
process will no longer exist and the Emergency Order, to the extent that it applies to the stannic chloride process area shall
be withdrawn. Likewise, once Tin Products fulfills the conditions ordered below with respect to the TBT/TOT process
area, an emergency with respect to the operation of the TBT/TOT process area will no longer exist, and the Emergency
Order, to the extent that it applies to the TBT/TOT process area, should be withdrawn.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law:
IT IS HEREBY ORDERED that, the Emergency Order shall be modified to reflect that DHEC will withdraw its
Emergency Order, pursuant to S.C. Code Ann. § 48-1-290 (1987), once the following have occurred:
Stannic Chloride Process
1. An independent engineering consultant, retained by Tin Products and approved by DHEC, verifies the following
regarding the stannic chloride process:
a. all valves are in good repair; and
b. all hydrochloric acid monitors are properly calibrated and in good working order.
2. The independent engineering consultant shall conduct a process safety management review of the stannic chloride
process. This review may be completed after the stannic chloride process begins operation, but it shall be completed no
later than 14 days from the resumption of operations.
3. Tin Products shall review maintenance logs for the stannic chloride process and ensure that all problems noted in the
logs are corrected.
4. Tin Products shall ensure that stannic chloride process operators are aware of the consequences of upper and lower
deviation from process parameters.
5. Tin Products shall ensure that all standing water is removed from secondary containment areas. The Department shall
work with Tin Products in issuing the necessary approvals for the removal and disposal of the standing water.
6. Tin Products shall install a pancake blind or other appropriate device to isolate the stannic chloride process from the
TBT and TOT processes until the TBT and TOT processes are approved to begin operations.
7. If necessary, a hearing or conference call will be conducted no later than Friday, February 16, 2001 to determine whether
Tin Products has met the conditions specified in this Order for resuming operations of the stannic chloride process. This
Court shall maintain jurisdiction over this matter and, to the extent that it applies to the stannic chloride process area, such
jurisdiction shall continue until a hearing or conference call on this matter, or sooner if the parties have agreed that the
stannic chloride process can safely resume operations.
TBT/TOT Process Areas
8. An independent engineering consultant, retained by Tin Products and approved by DHEC, shall verify the following:
a. all equipment, vessels, pipes, and electrical connections which have been
damaged as a result of the fire are repaired and/or replaced, as needed;
b. there is no leakage from any vessels or pipes in the TBT/TOT process area;
c. piping and instrumentation are situated as indicated in the facility's piping and instrumentation diagrams; and
d. all vessels are constructed of proper materials.
9. Tin Products shall obtain an air source construction permit to operate the TBT/TOT process area in conformance with
24A S.C. Code Ann. Regs. 61-62.1.II.A.1(a) (1992).
10. Tin Products shall ensure that the operators in the TBT/TOT process area are aware of the consequences of upper and
lower deviation from process parameters.
11. Tin Products shall ensure that all standing water is removed from secondary containment areas in the TBT/TOT process
area. The Department shall work with Tin Products in issuing the necessary approvals for the removal and disposal of the
standing water.
12. The independent engineering consultant shall conduct a process safety management review of the TBT/TOT process.
IT IS FURTHER ORDERED that DHEC shall review all reports by the independent engineering consultant(s), as well as
any permit applications or other submittals necessary under this Order, with all deliberate speed, recognizing the extreme
nature of the Emergency Order and its continuing impact on Tin Products. DHEC shall further respond, with all deliberate
speed, to any requests for copies of Tin Products' documents in their possession and which are necessary to complete the
activities outlined under this Order. DHEC is ordered to work overtime including weekends if necessary to review such
submittals and determine whether the conditions have been met for withdrawal of the Emergency Order. Furthermore, the
parties are encouraged to attempt to resolve matters under this Order informally.
AND IT IS SO ORDERED
___________________________________
Ralph King Anderson, III
Administrative Law Judge
February 13, 2001
Columbia, South Carolina |
