EPA RMP citations @ refrigerated food processing facility (NH3 & $3,000,990 RMP & EPCRA)

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An ammonia refrigerated food processing facility will pay a civil penalty of $3,000,990 for violations of the Clean Air Act and EPCRA, and $8,865 for violations of CERCLA resulting from a 32,000 pound release of ammonia.  This after OSHA cited the facility for the same release in 2011 for $52,500 for 16 PSM violations.  ALL, but the OCA citations, from this EPA inspection are IDENTICAL requirements from OSHA’s PSM, yet the results are HUGELY different!  Here are the details; I can’t say I agree with all of them, but this gives us some idea as to why EPA issued their recent enforcement alert to the ammonia refrigeration industry.

At all relevant times, Defendant owned and operated a refrigerated food processing facility. The Facility size is over 240,000 square feet with 199,000 square feet of refrigeration and freezing space, consisting of five freezers, two blast tunnels and a blast freezer. The refrigeration system at the Facility which utilized anhydrous ammonia (NH3) in an amount in excess of 100,000 pounds. The Facility was built in 2005, and then the NH3 refrigeration system was expanded in 2006, increasing the amount of NH3 in process by more than 50 percent.  

At approximately 8:15 a.m. on April 25, 2007, Defendant experienced an accidental release of NH3 from its ammonia refrigeration system at the facility (April 2007 Release). Approximately 110 pounds of NH3 was released. The release was caused by a weld crack on a piping component known as the suction header located on the roof the Facility.  Defendant reported that the weld cracked as a result of hydraulic shock.

Hydraulic shock is an internal pressure stress on a piping system which occurs as a result of a sudden change in liquid velocity. This occurs when cold liquid meets hot gas, and this can occur when the defrost cycle on the NH3 refrigeration system is interrupted. Hydraulic shock results in a hammering effect on system piping.

At approximately 7:00 a.m. on January 6, 2010, Defendant investigated an ammonia alarm and found a weld crack on a suction header located on an evaporator (a part of the NH3 refrigeration system) at the Facility (January 2010 Release). This release of approximately 31.05 pounds of NH3 was also caused by hydraulic shock.

Another release occurred on August 23, 2010. Prior to the release, the facility reported that on August 22, 2010, the NH3 refrigeration system at the facility had been shut-down as a result of a power failure. The plant engineer arrived at the facility in response to the loss of power. The plant engineer cleared enough system alarms to restart the blast and high temperature systems, but did not take the measures necessary to allow the freezer portion of the Refrigeration Control System (RCS) to be safely restarted.  The facility reported that the plant engineer left the facility without achieving safe operations on all systems. Before leaving the facility, the plant engineer also overrode the RCS automatic shutdown mode which allowed additional ammonia to build up in the piping ultimately leading to the August 23, 2010 release.

On the morning of August 23, 2010, sometime before 8:45 a.m., Defendant experienced an accidental release of NH3 from the roof of its facility. Over 32,000 pounds of NH3 was released through a cracked pipe on the roof of the facility (August 2010 Release).  None of the released NH3 was contained during the August 2010 release. It flowed through the ambient air traveling southeast towards the mouth of a Ship Channel and over the Decontamination Staging Area located at the nearby marine facility. Approximately one hundred and fifty-two (152) people were treated for symptoms of ammonia exposure at several hospitals in the area and four of those people were admitted into intensive care units.

Defendant reported that there were four (4) possible causes of the August 2010 Release:

  1. Hydraulic shock to the roof piping as a result of an early termination of the defrost cycle;
  2. Design shortcoming in that too many evaporators went into defrost mode simultaneously;
  3. Failure of the RCS because of early termination of a defrost cycle;
  4. Human factors in terms of operator error in the actions leading up to the failure.

COUNTS 1 – 6 pertain to the portion of the regulations found at Subpart D – The Program 3 Prevention Program, 40 C.F.R. § 68.65.

The facility’s refrigeration process at the Facility is a covered process because a regulated hazardous substance (NH3) is present in more than a threshold quantity (10,000 pounds). The covered process at the the facility is subject to RMP Program 3 requirements because it is also subject to the OSHA process safety management standards set forth in 29 C.F.R. § 1910.119.

Counts 1 – 6 pertain to the RMP requirements under 40 C.F.R. § 68.65(a) which require the owner or operator to complete a compilation of written process safety information (“PSI”) before conducting any process hazard analysis.

 

COUNT 1 – Pursuant to 40 C.F.R. § 68.65(c)(1)(i), Defendant was required to compile a block flow diagram or simplified process flow diagram in its PSI compilation.  However, the process flow diagrams in effect at the time of the August 2010 release did not match the facility’s then current operation. The temperature, pressure and mass flow rates of the accumulator vessel and evaporators which had been added at the time of the 2006 Facility expansion were not described in the diagrams at the time of the August 2010 Release in violation of 40 C.F.R. § 68.65(c)(1)(i).

 

COUNT 2 – Pursuant to 40 C.F.R. § 68.65(c)(1)(iii), Defendant was required to compile in its PSI the maximum intended inventory. However, in violation of 40 C.F.R. § 68.65(c) (1)(iii), at the time of the August 2010 Release Defendant listed its maximum inventory as 143,000 pounds when receipts dated August 2005, August 2006, and October 2006, showed that a NH3 supplier, pumped 197,480 pounds of ammonia into the facility’s system. Therefore, Defendant’s maximum intended inventory exceeded the amount listed in its PSI.

 

COUNT 3 – Pursuant to 40 C.F.R. § 68.65(c)(1)(iv), Defendant was required to include in its PSI information pertaining to safe upper and lower limits for temperatures, pressures, flows or compositions. However, in violation of 40 C.F.R. § 68.65(c)(1)(iv), Defendant’s PSI incorrectly listed high stage discharge pressure upper limit as 270 psig when the correct pressure is 210 psig.

 

COUNT 4 – Pursuant to 40 C.F.R. § 68.65(d)(1)(ii), Defendant‘s PSI was required to include accurate information pertaining to the equipment in process including complete piping and instrument diagrams (P&IDs). However, in violation of 40 C.F.R. § 68.65(d)(1)(ii), Defendant’s P&IDs in effect at the time of the August 2010 release did not include or reference the instrument control loops and associated diagrams.

 

COUNT 5 – Pursuant to 40 C.F.R. § 68.65(d)(1)(iv), Defendant was required to include in its PSI a relief system design and design basis. However, in violation of 40 C.F.R. § 68.65(d)(1)(iv), Defendant’s PSI in effect at the time of the August 2010 Release did not document the design basis for its relief system. Specifically, Defendant failed to provide the loads and sizes of the relief system and failed to provide any analysis for how it determined that the inlet and outlet sizes chosen for the relief valves were the appropriate sizes for the system. Defendant failed to provide American Society of Heating and Refrigeration and Air Conditioning Engineers (”ASHRAE”) number 15 standard calculations for its relief valves and headers.

 

COUNT 6 – Pursuant to 40 C.F.R. § 68.65(d)(1)(viii), Defendant was required to compile in its PSI information on safety systems (e.g. interlocks, detection or suppression systems). However, in violation of 40 C.F.R. § 68.65(d)(1)(viii), Defendant’s PSI in effect at the time of the August 2010 Release included none of that information.

 

COUNTS 7 – 10 pertain to the portion of the regulations found at Subpart D – The Program 3 Prevention Program, 40 C.F.R. § 68.67, and requirements that the Defendant conduct periodic process hazard analyses (PHAs) appropriate to the complexity of the process. Under these regulations, the Defendant was required to identify, evaluate and control the hazards involved in each process at the facility.

 

COUNT 7 – Pursuant to 40 C.F.R. § 68.67(a) owners or operators of covered sources subject to Program 3 requirements shall perform a PHA that is appropriate to the complexity of the process and shall identify, evaluate, and control the hazards involved in the process. the facility’s 2007 and 2010 PHAs did not adequately address the control of hydraulic shock. Therefore, in violation of 40 C.F.R. § 68.67(a), Defendant’s PHA did not control the hazards involved in the process.

 

COUNT 8 – 40 C.F.R. § 68.67(c) required Defendant to prepare a process hazard analysis which:

  1. addressed the hazards of the process;
  2. identified any previous incident which had a likely potential for catastrophic consequences;
  3. addressed engineering and administrative controls applicable to the hazards;
  4. addressed the consequences of failure of engineering and administrative controls;
  5. addressed the siting of the stationary source;
  6. addressed human factors; and
  7. provided a qualitative evaluation of the possible safety and health effects of a failure of controls.

Defendant violated 40 C.F.R. § 68.67(c) by failing to identify and evaluate the following, as part of the PHA conducted subsequent to the April 2007 Release:

  1. human factors;
  2. hazards of process such as control system failures, failure of piping to maintain its pressure rating,loss of instrumentation, failure of the solenoid valve, and loss of electricity; and
  3. siting of the stationary source next to an active ship wharf.

 

COUNT 9 – 40 C.F.R. § 68.67(e) requires the owner or operator to establish a system to promptly address the finding and recommendations from the PHA and to assure that the recommendations are resolved in a timely manner and to document the resolution.  Defendant failed to assure resolution of the PHA recommendations related to the April 2007 Release, including a recommendation that testing of the NH3 system was needed to safeguard against a unit rupture in violation of 40 C.F.R. § 68.67(e).

 

COUNT 10 – 40 C.F.R. § 68.67(f) required Defendant, as part of the PHA process, to update and revalidate the initial PHA at least every five (5) years after the completion of the initial process hazard analysis to assure that the process hazard analysis is consistent with the current process.  Defendant’s May 2010 PHA five year review did not assure that the PHA was consistent with the current processes. Specifically, the review did not include any new or updated analysis or changes even though process changes occurred after the April 2007 release and the Defendant had significantly expanded its facility in 2006. Therefore, Defendant did not assure that the revised PHA was consistent with its current process in violation of 40 C.F.R. § 68.67(f).

 

COUNTS 11 – 13 pertain to the portion of the regulations found at Subpart D- The Program 3 Prevention Program, 40 C.F.R. § 68.69, and requirements pertaining to operating procedures at Defendant’s facility.

 

COUNT 11 – 40 C.F.R. § 68.69(a)(1)(vii) required Defendant to develop and implement operating procedures that provide clear instructions for safely conducting activities involved in each Covered Process consistent with the PSI from each process at the Facility and shall address startup after an emergency shutdown. At the time of the August 2010 Release, the operating procedures only required the operator to clear all alarms and errors. There was no requirement in the operating procedures that the operator achieve safe operations after clearing the alarms. As a result, the operator did not safely restart the freezer system. This resulted in the release of over 32,000 pounds of NH3.  Therefore, Defendant’s operating procedures did not provide procedures to achieve safe operation after an emergency shutdown in violation of 40 C.F.R § 68.69(a)(1)(vii).

 

COUNT 12 – 40 C.F.R. § 68.69(c) required Defendant to review the operating procedures as necessary to assure that they reflect current operating practice, and to certify annually that these operating procedures were current and accurate. Defendant’s 2006 certification was due on November 8, 2006, however Defendant did not certify until January 16, 2008. Defendant was 14 months late in certifying procedures. Defendant failed in violation of 40 C.F.R. § 68.69(c), to certify annually that its operating procedures were current and/or accurate and had been reviewed as required. This is a continuing violation from November 8, 2006, until it was remedied on January 16, 2008.

 

COUNT 13 – 40 C.F.R. § 68.69(d) required Defendant to develop and implement safe work practices to provide for the control of hazards during operations. Defendant failed, in violation of 40 C.F.R. § 68.69(d) , to implement safe work practices in at least 5 ways:

  1. Failed to include specific valve numbers in the operating procedure for the High Pressure Receiver;
  2. Failed to show that it conducted and documented lock-out/tagout annual inspections for 2006 through 2010;
  3. Failed to demonstrate it completed a daily motor room log verifying inspection activities;
  4. Failed to provide compressor “facility specific” operating parameters; and
  5. Failed to provide contractor M&M compressor start-up documents from the vendor for 2005 and 2006.

 

COUNTS 14 -15 pertain to the portion of the regulations found at Subpart D- The Program 3 Prevention Program, 40 C.F.R. § 68.71, and requirements pertaining to training of employees in the operating procedures at Defendant’s facility.

 

COUNT 14 – 40 C.F.R. § 68.71(b) required Defendant to provide refresher training at least every three years to each employee involved in operating a process to assure that the employee understands and adheres to the current operating procedures of the process. Defendant failed to provide operator refresher training for the plant engineer in 2008 in violation of 40 C.F.R. § 68.71(b).

 

COUNT 15 – 40 C.F.R. § 68.71(c) required Defendant to ascertain that each employee involved in operating a process has received and understood the training required by this paragraph and to prepare a record which contains the identity of the employee, the date of training, and the means used to verify that the employee understood the training. Of the Defendant’s three refrigeration operators, Defendant could not produce training records that two of the three operators had been trained on the safety and health hazards associated with the process. As operators were not trained in the safety and health considerations involved in operating a process, the Defendant violated 40 C.F.R. § 68.71(c).  Defendant also could not produce training records for RCS software changes in 2007 and 2010 or any training documents showing the means used to verify that the employee understood the training, in violation of 40 C.F.R. § 68.71(c).

COUNTS 16 – 19 pertain to the portion of the regulations found at Subpart D- The Program 3 Prevention Program, 40 C.F.R. § 68.73, and requirements pertaining to the mechanical integrity of the specific process equipment used in the Covered Process.

 

COUNT 16 – 40 C.F.R. § 68.73(b) required Defendant to establish and implement written procedures to maintain the ongoing integrity of process equipment. The facility failed to establish and implement written procedures for the following process equipment:

  1. process RCS interlocks, and
  2. “Receiver” and “Low Low Temperature Accumulator,” in violation of 40 C.F.R. § 68.73(b).

 

COUNT 17 – 40 C.F.R. § 68.73(d)(1) required Defendant to perform inspections and tests on process equipment. Defendant failed in at least 8 ways to perform inspections and tests on process equipment in violation of 40 C.F.R. § 68.73(d)(1). The list of failures are:

  1. no 6 month relief valve inspection in July 2010;
  2. no evidence that an oil and vibration analysis for the screw processors was performed annually;
  3. no evidence that ammonia was tested for purity on a bi-annual basis;
  4. no evidence that the shaft alignment was checked on the screw compressors on an annual basis;
  5. no evidence of maintenance on the liquid pumps on either a monthly or annual basis;
  6. no evidence that monthly evaporator checks took place;
  7. no evidence that inspections and tests were conducted on RCS interlocks;
  8. no evidence that Defendant performed the required July 2010 annual test on its key switches and kill button, just prior to the August 2010 Release.

COUNT 18 – 40 C.F.R. § 68.73(d)(2) required Defendant to follow recognized and generally accepted good engineering practices for its inspections and testing procedures in order to maintain the mechanical integrity of its process equipment. Defendant failed, in violation of 40 C.F.R. § 68.73(d)(2), in at least four ways to follow recognized and generally accepted good engineering practices:

  1. Failed to show that it conducted the IIAR Bulletin No. 109 inspections for all pressure vessels to help identify cracked and damaged vessels;
  2. Failed to mark/label its piping to meet the ammonia pipe labeling requirements of IIAR’s Bulletin No. 14, Guidelines for Identification of Ammonia Refrigeration Piping and Safety Components;
  3. Failed to show that it performed the annual test on its emergency ventilation system in July 2010 (just before the August 2010 Release). A testing schedule for the mechanical ventilation systems is required by IIAR 2-2008 Section 13.3.12.1;
  4. Failed to provide material certification documents (U-1, U-1A, U-2) for all the screw compressor oil filter housings, screw compressor cooler thermosyphon oil coolers, intercoolers, accumulators, and oil pots.

COUNT 19 – 40 C.F.R. § 68.73(f)(2) required Defendant to make appropriate checks and inspections to assure proper equipment installation consistent with design specifications and the manufacturer’s instructions. Defendant failed in 2007 and 2010, in violation of 40 C.F.R. § 68.73(f)(2) to follow its own certification procedures for original system start up by failing to provide pressure tests and vacuum tests for pipe installation as specified by the equipment manufacturers.

 

COUNTS 20 – 22 set forth below pertain to the portion of the regulations found at Subpart D- The Program 3 Prevention Program, 40 C.F.R. § 68.81, and requirements for investigation of the April 2007 Release, the January 2010 Release and the August 2010 Release, which resulted or could reasonably have resulted in a catastrophic release of a regulated substance.

 

COUNT 20 – 40 C.F.R. § 68.81(d)(4) required Defendant to prepare a report of each investigation involving any incident which resulted in, or could have resulted in a release, which report was required to include the factors that contributed to the release. Defendant failed, in violation of 40 C.F.R. § 68.81(d)(4), to determine and document all factors that contributed to the April 2007 Release. Specifically, Defendant failed, in  violation of 40 C.F.R. § 68.81(d)(4), to adequately perform and document an engineering/hazard analysis to determine the root cause of the hydraulic shock event. In particular, Defendant failed, in violation of 40 C.F.R. § 68.81(d)(4), to identify power loss and process re-start as contributing factors. For the January 2010 release, Defendant failed in violation of 40 C.F.R. § 68.81(d)(4), to perform/conduct any engineering/hazard analysis to determine the root cause of the crack discovered on the suction header.

 

COUNT 21 – 40 C.F.R. § 68.81(d)(5) required Defendant to prepare a report of each investigation required by 40 C.F.R. § 68.81, which report was required to include recommendations resulting from the investigation. Defendant failed, in violation of 40 C.F.R. § 68.81(d)(5), to include any recommendations resulting from the April 2007 Release investigation in its report required under 40 C.F.R. § 68.81(d)(5).

 

COUNT 22 – 40 C.F.R. § 68.81(e) required Defendant to establish a system to promptly address and resolve the report findings and recommendations from the investigation of the April 2007 Release. Defendant failed, in violation of 40 C.F.R. § 68.81(e), to establish a system to address and resolve the April 2007 Release report findings.

 

COUNTS 23 – 24 pertain to the portion of the regulations found at Subpart E- Emergency Response, 40 C.F.R. § 68.95, and Subpart F – Regulated Substances for Accidental Release Prevention, 40 C.F.R. § 68.180. Under these regulations Defendant was required to develop and implement an emergency response program for the purpose of protecting human health and the environment.

 

COUNT 23 – 40 C.F.R. §§ 68.95(a)(1) and 68.180(a)(2) required Defendant to develop an emergency response plan which included specific actions to be taken in response to an accidental release of a regulated substance. However, in violation of 40 C.F.R. §§ 68.95(a)(1) and 68.180(a)(2), Defendant’s evacuation procedures included a statement that “Small ammonia leaks are normal in the operation of the refrigeration system and do not require an evacuation.” Defendant’s emergency response plan does not specify that any action should be taken for small leaks. Defendant’s failure to have an emergency response procedure for a small leak is a violation of 40 C.F.R. §§ 68.95(a)(1) and 68.180(a)(2).

 

COUNT 24 – 40 C.F.R. § 68.95(a)(3) required Defendant to provide training to all of its employees on relevant emergency response procedures. Defendant failed, in violation of 40 C.F.R. § 68.95(a)(3), to implement training for all employees in relevant emergency response procedures. Defendant’s 24-hour emergency response personnel failed to complete the annual refresher training course in 2009 and 2010 in violation of 40 C.F.R. § 68.95(a)(3).

 

COUNT 25 – 40 C.F.R. § 68.95(c) required Defendant to coordinate its emergency response plan with the community emergency response plan. Defendant failed, in violation of 40 C.F.R. § 68.95(c), to coordinate its emergency response plan (ERP) with the community response plan. Defendant’s ERP did not clearly identify the roles and responsibilities of the Emergency Response Team members, the local HAZMAT team and/or the Fire Dept. Failure to identify these roles indicated a lack of coordination with the community response plan in violation of 40 C.F.R. § 68.95(c).

 

COUNTS 26 – 29 pertain to the portion of the regulations found at Subpart G –Risk Management Plan – 40 C.F.R. §§ 68.165(a)(2); 68.175; 68.180 and 68.190 and set forth the requirements for preparation and submittal of a Risk Management Plan.

 

COUNT 26 – 40 C.F.R. § 68.165(a)(2)(b) required Defendant to submit in its Risk Management Plan a worst-case release scenario to represent all regulated toxic substances held above the threshold quantity and one worst-case release scenario to represent all regulated flammable substances held above the threshold quantity. Defendant failed in 6 ways to submit a worst case scenario representative of all regulated toxic substances held above the regulated quantity:

  1. Maximum intended inventory numbers were lower than actual inventory received;
  2. Listed release rate was not compliant with RMP Regulations in violation of 40 C.F.R. § 68.165(a)(2)(b)(7);
  3. Listed release duration was not compliant with RMP Regulations in violation of 40 C.F.R. § 68.165(a)(2)(b)(8); (d) Listed distance to endpoint was not compliant with RMP Regulations in violation of 40 C.F.R. § 68.165(a)(2)(b)(11);
  4. Estimated residential populations and schools within the distance to endpoint were inaccurate as it did not include public and environmental receptors within the distance in violation of 40 C.F.R. § 68.165(a)(2)(b)(12) ; and (f) Passive mitigation was not considered in violation of 40 C.F.R. § 68.165(a)(2)(b)(13).

COUNT 27 – 40 C.F.R. § 68.175 required Defendant to provide specific information as part of its Risk Management Plan that it submits to EPA. Defendant failed in 6 ways to meet all the Prevention Program 3 requirements in the its Risk Management Plan Report dated April 23, 1020:

  1. No evidence of a PHA Study for the August 1, 2005, PHA in violation of 40 C.F.R. § 68.175(e) which requires the date of completion of the most recent PHA or update;
  2. No date listed for the most recent changes that triggered a Management of Change Procedures in violation of 40 C.F.R. §68.175(i);
  3. No date listed for the most recent evaluations of contractor M&M safety performance in violation of 40 C.F.R. §68.175(p);
  4. No date listed for the most recent investigation of a release in violation of 40 C.F.R. § 68.175(l);
  5. Invalid date listed for latest compliance audit in violation of 40 C.F.R. § 68.175( k);
  6. Invalid date listed for latest Emergency Response training in violation of 40 C.F.R. §68.175(g).

COUNT 28 – 40 C.F.R. § 68.180(a)(5) required Defendant to provide the date of the most recent review or update of the emergency response plan. Defendant stated its most recent update of the plan was on April 9, 2009, but was unable to provide this plan.  Defendant violated 40 C.F.R. § 68.180 by failing to have the date of the most recent plan in its RMP.

 

COUNT 29 – 40 C.F.R. § 68.190 required Defendant to update its Risk Management Plan within 6 months of a change that requires a revised PHA. Defendant failed to update its Risk Management Plan within 6 months of expanding Defendant’s Facility by adding new compressors, evaporators, blast cells, piping and controls at its Facility in 2006. Defendant failed to update the plan. This failure is a violation of 40 C.F.R. §68.190(b)(5).

 

COUNT 30 – Subpart A – Management 40 C.F.R. § 68.15(c) – required Defendant to prepare an organization chart or similar document showing the lines of authority regarding the development, implementation, and integration of the Risk Management Plan. Defendant failed, in violation of 40 C.F.R. § 68.15(c), to define the all of the lines of authority and the supervisory chain in the Risk Management Plan.

 

COUNT 31 – Subpart D – Program 3 Prevention Program – 40 C.F.R. § 68.75 Management of Change (MOC) required Defendant to establish and implement written procedures to manage changes to process equipment, chemicals and technology.  Defendant failed in at least four ways to meet the MOC requirements:

  1. Failed to develop and implement MOC documents for the RCS changes (i.e. limiting the number of evaporators which can go into defrost at one time);
  2. Failed to develop and implement MOC documents following the August 2010 Release for a the installation of a pipe elbow at the end of a pipe;
  3. Did not complete a temporary MOC procedure (PHA, Safety and Health Checklist & Pre-Start Up Safety Review (PSSR)) for the defrost test;
  4. Failed to conduct a Process Hazard Analysis regarding the effect of the changes to the process design logic or programming of the refrigeration control system and include that analysis in its Management of Change documentation. Each of these failures is a violation of 40 C.F.R. § 68.75.

COUNT 32 – Subpart D – Program 3 Prevention Program – 40 C.F.R. § 68.77 Pre-Startup Review- required Defendant to conduct pre-start-up safety reviews for new stationary sources and for modified stationary sources when the modification is significant enough to require a change in the process safety information. Defendant failed, in violation of 40 C.F.R. § 68.77, to show that it conducted any pre-start-up safety review prior to operating with the modifications it made to its control system following the April 2007 Release and the August 2010 Release.

 

COUNT 33 – Subpart D – Program 3 Prevention Program – 40 C.F.R. § 68.79(d) – Compliance Audits – required Defendant to promptly determine and document an appropriate response to each of the findings of the compliance audit and document that the deficiencies have been corrected. The August 4, 2008 audit listed 10 deficiencies which Defendant failed to provide an appropriate response to, in violation of 40 C.F.R. §68.79(d).

 

COUNT 34 – Subpart D – Program 3 Prevention Program – 40 C.F.R. § 68.83(b) Employee Participation required Defendant to consult with employees and their representatives on the conduct and development of process hazards analyses (“PHAs”) and other elements of process safety management. Defendant failed, in violation of 40 C.F.R. § 68.83(b), to consult with employees on the conduct and development of PHAs.

 

COUNT 35 – Subpart D – Program 3 Prevention Program – 40 C.F.R. § 68.85- Hot Work Permit—required Defendant to issue a hot work permit for hot work operations conducted on or near a covered process and to document in the permit that the fire prevention and protection standards of 29 C.F.R. § 1910.252(a) have been implemented prior to the beginning of the hot work operations. Defendant failed, in violation of 40 C.F.R. § 68.85, to issue a hot work permit for hot work operations or to document that the fire prevention and protection requirements had been implemented.

 

COUNT 36 – Subpart D – Program 3 Prevention Program – 40 C.F.R. § 68.87(b) – Contractors- required the Defendant to evaluate the safety performance and programs of contractors prior to selection of the contractor. Defendant could not produce the refrigeration contractor safety performance and programs documentation for its two contractors M&M and ASI who worked on the ammonia refrigeration system at the Facility. Therefore, Defendant failed to provide evidence that, as part of the selection of these contractors, it had evaluated information regarding each contractor’s safety performance and programs as required by 40 C.F.R. § 68.87(b).

 

Section 113(b) of the CAA, 42 U.S.C. § 7413(b), as amended by 28 U.S.C. § 2461 and 31 U.S.C. § 3701, provides that the Administrator of EPA shall, in the case of a person which is the owner or operator of a major stationary source, and may, in the case of any other person, whenever such person violates any requirement or prohibition of Subchapter I of the Act (42 U.S.C. §§ 7401-7515), commence a civil action for injunctive relief and to assess and recover a civil penalty of up to $27,500 per day for each such violation.

Under the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. § 2461, as amended by the Debt Collection Improvements Act of 1996 (DCIA), 31 U.S.C. § 3701, and pursuant to EPA’s Civil Monetary Penalty Inflation Adjustment Rule (Inflation Adjustment Rule), 69 Fed. Reg. 7,121 (Feb. 13, 2004) and 40 C.F.R. Part 19, 73 Fed. Reg. 75,340 (Dec. 11, 2008), promulgated pursuant the DCIA, Defendant is liable for assessment of a civil penalty of up to $32,500 per day for each violation of the RMP Regulations that occurred after March 15, 2004 through January 12, 2009, and up to , and up to $37,500 per day for each violation that occurred after January 12, 2009.COUNTS 37, 38, and 39 SECTION 112(r)(1) OF THE CLEAN AIR ACT.

 

COUNT 37 – Defendant failed in its general duty of care to identify hazards which may result from an accidental release of anhydrous ammonia in that Defendant failed to:

  1. identify and analyze all known risks associated with the hydraulic shock hazard;
  2. assess risks of an NH3 release to the community surrounding the Facility;
  3. analyze the impact of its Facility expansion in January 2006 when the Facility’s ammonia capacity was increased by 50 percent.

COUNT 38(A) – Defendant failed in its general duty to design and maintain a safe facility in that Defendant failed to address the causes of and risks associated with hydraulic shock by:

  1. designing an NH3 refrigeration system at the Facility to avoid piping failures caused by hydraulic shock;
  2. having redundant systems or layers of protection in place so that if piping is breached and/or the automatic control shut down system malfunctions there is an alternate method of containment;
  3. having an adequate maintenance program for the piping and automatic control shut down system; and
  4. failing to design a refrigeration control system to account for the impacts of a power failure.

COUNT 38(B) – Defendant also failed in its general duty to design and maintain a safe facility in that Defendant failed to address known design flaws that contributed to hydraulic shock events – Defendant noted in its September 22, 2010 Incident Report pertaining to the August 2010 Release that the root cause of the failure was a design flaw involving its RCS or process controls and the defrost cycle. the facility was aware of its flawed process design at least as of the April 2007 Release which occurred as a result of a power outage and a restart of the system at the wrong stage in the defrost cycle. Yet, the facility did nothing to address the problem until after the same event occurred in August of 2010 (power outage and restart of the system caused a catastrophic release).

 

COUNT 39 – Defendant failed in its general duty of care to minimize the consequences of the accidental release of anhydrous ammonia which occurred on April 25, 2007 and August 23, 2010, by failing:

  1. to design any type of containment system for the NH3 once released, or any sprinkler system to mitigate potential harm; and
  2. provide the plant engineer with the training necessary to handle an emergency situation.

The defendant violated the general duty of care under Section 112(r)(1) of the CAA every day it operated its refrigeration system without a means to adequately control occurrences of hydraulic shock or without conducting an adequate hazard identification, or without having adequate measures in place to respond to a catastrophic release.

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