Respondent operated a facility that utilizes anhydrous ammonia to provide cooling capabilities to processing, shipping, cooler areas, silos, and chillers for its beef and meat products. On March 30, 2022, EPA performed an inspection of the Facility to evaluate compliance with the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) Section 103, EPCRA Sections 304-312, and CAA Section 112(r). Based upon the information gathered during the Inspection and subsequent investigation, EPA determined that the Respondent violated specific provisions of EPCRA and the CAA.
I. EPCRA Section 312
EPCRA Section 312 requires the owner or operator of a facility to submit an annual emergency and hazardous chemical inventory form (“inventory form”) containing information on hazardous chemicals present at the facility during the preceding calendar year above threshold levels established in 40 C.F.R. § 355, Appendices A and B. The inventory form must be submitted by March 1 of each year to the State Emergency Response Commission (“SERC”), the Local Emergency Planning Committee (“LEPC”), and the fire department with jurisdiction over the facility. 40 C.F.R. §§ 370.44 and 470.45. Ammonia is a “hazardous chemical” as defined in Sections 311{e) and 312(c) of EPCRA with a threshold planning quantity of 500 pounds. 40 C.F.R. Part 355, App. A & B. At all times relevant to this CA/FO, Respondent exceeded 500 pounds or more of ammonia (anhydrous) in one or more processes at the Facility and is required to submit a material safety data sheet for anhydrous ammonia. 42 U.S.C. §§ 11021(a) and (e).
II. CAA Section 112(r)
Pursuant to the General Duty Clause in CAA Section 112(r)(1) owners and operators of stationary sources producing, processing, handling, or storing substances listed pursuant to CAA Section 112(r)(3), 42 U.S.C. § 7412(r)(3), or any other extremely hazardous substance (“EHS”), have a general duty, in the same manner and to the same extent as under Occupational Safety and Health Act (“OSHA”) to identify hazards which may result from accidental releases of such substances using appropriate hazard assessment techniques, to design and maintain a safe facility taking such steps as necessary to prevent releases, and to minimize the consequences of accidental
releases which do occur.
Pursuant to CAA Section 112(r)(7) and its implementing regulations, owners and operators of stationary sources at which a regulated substance is present in more than a threshold quantity (“TQ”) must prepare and implement a risk management plan (“RMP”) to detect and prevent or minimize accidental release of such substances from the stationary source, and to provide a prompt emergency response to any such releases in order to protect human health and the environment.
At all times relevant to this CA/FO, Respondent produced, used, or stored more than 10,000 pounds of ammonia (anhydrous) at the Facility. At all times relevant to this CA/FO, the Respondent was subject to Program 3 requirements because there are public receptors within the distance to the endpoint for the worst-case
release from its Facility and was subject to the OSHA process safety management standard set forth in 29 C.F.R. § 1910.119.
ALLEGED VIOLATIONS
COUNT I – Failure to Comply with Tier II Inventory Requirements
Based upon the Inspection and subsequent investigation, EPA determined that the Respondent failed to include its propane storage tank in its Tier II annual hazardous materials inventory form, and also failed to submit an accepted Tier II inventory.
Accordingly, EPA alleges that by failing to include the propane storage tank in its Tier II annual hazardous materials inventory and by failing to submit an accepted Tier II inventory, Respondent violated EPCRA § 312 and 40 C.F.R. § 370.42(s)(6).
COUNT II – Failure to Comply with Hazard Assessment Requirements
Based upon the Inspection and subsequent investigation, EPA determined that the Respondent failed to describe the basis for the quantity released in a worst-case release scenario for its East Refrigeration System.
Accordingly, EPA alleges that by failing to include a determination of the worst-case release quantity for its East Refrigeration Room, Respondent violated the hazard assessment requirements set forth at CAA Section 112(r)(7) and 40 C.F.R. § 68.25(b).
COUNT III – Failure to Comply with Process Safety Information Requirements
Based upon the inspection and subsequent investigation, EPA determined that the Respondent failed to provide accurate maximum intended inventory calculations for its East Refrigeration Room because it provided multiple conflicting versions of its inventory calculation.
Under 40 C.F.R. § 68.65(d)(2), the owner or operator of a facility must document that equipment complies with recognized and generally accepted good engineering practices (“RAGAGEP”).
Based upon the Inspection and subsequent investigation, EPA determined that the Facility did not document that equipment in the East Machinery Room complies with RAGAGEP.
Specifically:
a. Although section 6.2.5 of American National Standards Institute (“ANSI”)/International Institute of All-Natural Refrigeration (“IIAR”) 2-2014 states, “[a]ir shall not flow to or from any portion of the premises that is routinely accessible to or occupied by people on a part-time or full-time basis through a machinery room unless the air is ducted and sealed to prevent ammonia leakage from entering the airstream,” the Facility’s wall
penetrations and holes were not sealed.
b. Although section 5.14.5 of ANSI/IIAR 2-2014; IIAR Bulletin 109, section 4.7.6; IIAR Bulletin 114, sections 4.1.1 through 4.1.8; and ANSI/American Society of Mechanical Engineers (“ASME”) require ammonia piping mains, headers, and branches to be identified with the contents “AMMONIA” as well as labeling that includes the physical state of the ammonia, the pressure level of ammonia being low or high, pipe, service, and direction of flow, the Facility’s piping associated with the evaporators was not labeled.
c. Although section 13.4.2 of ANSI/IIAR 2-2014 states, “[r]efrigerant piping shall be isolated an supported to prevent damage from vibration, stress, corrosion, and physical impact,” the Facility’s evaporators were not protected from forklift damage.
d. Although section 6.13.1.2 states, “[t]he detector shall activate an alarm that reports to a monitored location so that corrective action can be taken at an indicated concentration of 25 ppm or higher,” the Facility’s ammonia alarms in the machinery room and several associated cold rooms were set above 25 ppm.
For existing equipment designed and constructed in accordance with codes, standards, or practices that are no longer in general use, under 40 C.F.R. § 68.65(d){3), the owner or operator must determine and document that the equipment is designed, maintained, inspected, tested, and operating in a safe manner.
Based on evidence gathered during the investigation, EPA determined that the Facility did not document that the deviations from RAGAGEP described in paragraph 38, above, were designed, maintained, inspected, tested, and operating in a safe manner.
Accordingly, EPA alleges that by failing to compile written process safety information, specifically the maximum intended inventory, before conducting any process hazard analysis, and by failing to comply with RAGAGEP or document that its existing equipment was safe, Respondent violated the process safety information requirements set forth at CAA Section 112(r)(7), and 40 C.F.R. §§ 68.65(c)(1)(iii), 68.65(d)(2) and 68.65(d)(3).
COUNT IV – Failure to Comply with Process Hazard Analysis Requirements
Based on evidence gathered during the investigation, EPA determined that Respondent failed to track its PHA to completion because multiple recommendation items were not updated to show whether they had been completed, and completed recommendations did not include dates on when they were completed or descriptions of what work was done to complete the recommendations.
Accordingly, EPA alleges that by failing to track its PHA recommendations to completion, Respondent violated the process hazard analysis requirements set forth at CAA Section 112(r)(7), 42 U.S.C. § 7412(r)(7), and 40 C.F.R. § 68.67(e).
COUNT V – Failure to Develop and Implement Adequate Operating Procedures
Based on evidence gathered during the investigation, EPA determined that several consequences of deviation associated with the Respondent’s standard operating procedures (“SOPs”) did not include adequate steps to correct or avoid deviation.
Based on evidence gathered during the investigation, EPA determined that several process diagrams attached to Respondent’s SOPs were illegible and not readily accessible to employees who work in or maintain a process.
Accordingly, EPA alleges that by failing to adequately develop and implement written operating procedures that provide clear instructions for safely conducting activities involved in each covered process including operating limits and the steps required to correct or avoid deviation, and by failing to have process diagrams readily accessible to employees, Respondent violated the operating procedure requirements set forth at CAA Section 112(r)(7) and 40 C.F.R. §§ 68.69(a) and (b).
Count VI – Failure to Ensure Mechanical Integrity
Based on evidence gathered during the investigation, EPA observed that the seal to the primary door to the East Machinery Room at the Facility needed to be repaired.
Accordingly, EPA alleges that the seal to the Facility’s primary door to the East Machinery Room was outside acceptable limits. By failing to fix the seal in a timely manner, Respondent violated the mechanical integrity requirements set forth at CAA Section 112(r)(7) and 40 C.F.R. § 68.73(e).
Count VII – Failure to Complete Incident Investigation Requirements
Based on evidence gathered during the investigation, EPA determined that the Respondent failed to include the date for when its investigation was initiated in its investigation report for an ammonia release on July 31, 2021.
Accordingly, EPA alleges that by failing to include the date in its investigation report for an ammonia release on July 31, 2021, Respondent violated the incident investigation requirements set forth at CAA Section 112(r)(7) and 40 C.F.R. § 68.81{d).
Count VIII – Failure to Confirm Employee Participation
Based on evidence gathered during the investigation, the EPA determined that the Respondent only provided employees access to process hazard analysis documents when the employees requested it from management personnel.
Accordingly, EPA alleges that Respondent violated the employee participation requirements set forth at CAA Section 112(r)(7) and 40 C.F.R. § 68.83(f) by making its process hazard analysis accessible to its employees only upon request.
Count IX – Failure to Coordinate with Local Authorities for Emergency Response Coordination
Based on evidence gathered during the investigation, EPA determined that Respondent failed to coordinate with the LEPC and fire departments for emergency response. Respondent also failed to provide the LEPC and first responders the emergency response plan.
Accordingly, EPA alleges that by failing to coordinate with local emergency planning and response organizations and document any coordination with such organizations, and by failing provide the information to local emergency planning and response organizations, Respondent violated the emergency response plan requirements set forth at CAA Section 112(r)(7) and 40 C.F.R. § 68.93(a), (b), and (c).
Count X – Failure to Identify Hazards Under the General Duty Clause
Based on evidence gathered during the investigation, EPA determined that Respondent failed to address recommendations from hazard reports in a timely manner, failed to adequately list or maintain mitigative safeguards that will take place once a what-if scenario has occurred, and failed to have consistent consequence ratings for what-if scenarios that could lead to larger releases for its West Refrigeration System.
Accordingly, EPA alleges that by failing to comply with the general duty clause for identifying and addressing hazards which may result in a release from its West Refrigeration System, Respondent violated 42 U.S.C. § 7412(r)(1).
Count XI – Failure to Design and Maintain a Safe Facility Under the General Duty Clause
Based on evidence gathered during the investigation, EPA determined that Respondent failed to design and maintain a safe facility for its West Refrigeration System.
Specifically:
a. Ammonia alarms in the machinery room and several associated cold rooms were set above 25 parts per million
b. Vapor barrier damage was observed in several locations in the machinery room and associated cold rooms;
c. The door to the machinery room had a frame that was not sealed;
d. There were obstructions in front of the safety shower;
e. The king valve (emergency shutoff valve) of a high-pressure receiver had a damaged label that was hard to see at any distance from the vessel;
f. The piping associated with the condensers was not labeled;
g. The evaporators were not protected from forklift damage; and
h. The relief valve information was dated after EPA’s onsite inspection.
By failing to comply with the general duty clause for designing and maintaining a safe facility for its West Refrigeration System, Respondent violated 42 U.S.C. § 7412(r)(1).
CIVIL ADMINISTRATIVE PENALTY
Respondent agrees to pay a civil penalty for $210,332
i. The EPCRA portion of the penalty totals $9,866.
ii. The CAA portion of the penalty totals $200,465.
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