Respondent operates a facility located in Vermont, where it makes cheese (the “Facility”). The Facility is located in an industrial section of Swanton, Vermont, within approximately 700 feet (0.13 mile) of Route 78, which runs up to the Canadian border, 590 feet (0.11 mile) of the nearest residence, 1,000 feet (0.19 mile) of the Missisqoui River, and within half a mile of the downtown area, which is located across the river from the Facility. At the time of the violations alleged herein, a worst-case release of ammonia from the largest vessel on site could have seriously injured people within a 1.9-mile perimeter of the Facility. At the time of the violations alleged herein, the Facility had a refrigeration system, which cycled approximately 2,500 pounds of anhydrous ammonia through various physical states to cool Respondents’ products. Accordingly, Respondents “stored” and “handled” anhydrous ammonia. The Facility’s ammonia refrigeration system was installed decades before Respondent, the reality company, acquired the Facility. Respondent, the cheese manufacturer, restarted the defunct plant in 2011.
Anhydrous ammonia is an “extremely hazardous substance” subject to the General Duty Clause. It is also a “hazardous chemical” subject to reporting under EPCRA Section 312, 42 U.S.C. § 11022, and a “hazardous substance” subject to reporting under CERCLA Section 103(a), 42 U.S.C. § 9603(a). Due to the dangers associated with anhydrous ammonia, the ammonia refrigeration industry has developed industry standards to control the risks associated with the use of ammonia. In collaboration with the American National Standards Institute, the International Institute of Ammonia Refrigeration (“IIAR”) has issued (and updates) “Standard 2: Equipment, Design, and Installation of Closed-Circuit Ammonia Mechanical Refrigerating Systems,” along with other applicable standards and guidance. Bulletins and guidance include without limitation:
- IIAR Bulletin No. 109, Guidelines for IIAR Minimum Safety Criteria for a Safe Ammonia Refrigeration System (1997);
- IIAR Bulletin No. 110, Guidelines for Start-Up, Inspection, and Maintenance of Ammonia Mechanical Refrigerating Systems (rev. 2002);
- IIAR Bulletin No. 114, Guidelines for Identification of Ammonia Refrigeration Piping and System Components (1991 and 2014 editions);
- IIAR Bulletin 116, Guidelines/or Avoiding Component Failure in Industrial Refrigeration Systems Caused by Abnormal Pressure or Shock (1992); and the
- 2005 Ammonia Refrigeration Management Program (“IIAR ARM Program”), which is intended for systems containing less than 10,000 pounds of ammonia.
Also in collaboration with the American National Standards Institute, the American Society of Heating, Refrigerating and Air-Conditioning Engineers (“ASHRAE”) has issued (and updates) “Standard 15: Safety Standard for Refrigeration Systems.” These standards are consistently relied upon by refrigeration experts and are sometimes incorporated by reference into state building, mechanical, and fire codes.
On February 6, 2015, at approximately 3:30 p.m., a release of approximately 1,650 pounds of anhydrous ammonia occurred during an attempt to drain oil from a compressor in the Facility’s ammonia machinery room (the “Release”). Due to the lack of self-closing or manual quick-closing valve near the oil drain point, the compressor was not fully isolated, which meant that pressure in the ammonia refrigeration system forced the oil plug out in an uncontrolled manner, splashing three employees with a hot oil/ammonia mixture. The employees left the ammonia machinery room and escaped serious injury due to the protection provided by their heavy winter clothing. An ongoing ammonia release ensued.
At approximately 3:45 p.m. on February 6, 2015, Facility personnel contacted the Swanton Fire Department, which responded to the Facility at 4:09 p.m. According to the Fire Department’s incident report, the Fire Department evacuated the remaining four Facility employees from the Facility, established an evacuation radius of 0.5 mile, and requested assistance from the Vermont Hazardous Materials Response Team.
The Vermont Hazardous Materials Response Team arrived at the Facility and stopped the release at 8:50 p.m. Because the Facility lacked emergency shutdown controls outside the room and proper ventilation systems to safely vent the room for entry, the responders could not immediately stop the refrigeration system from continuing to release ammonia.
The Release endured for several hours until enough ammonia was vented outside through fans so the oil plug could be reseated. On February 10 and 12, 2015, the Facility’s ammonia refrigeration system was recharged with a total of 1,650 pounds of anhydrous ammonia. Based on these recharge amounts, EPA estimates that approximately 1,650 pounds of anhydrous ammonia were released over a span of 320 minutes on February 6, 2015.
Respondents did not report the Release to the National Response Center (“NRC”) immediately after it occurred. Respondents did report the Release to the NRC on March 24, 2015, after EPA inspected the Facility.
After hearing about the Release, a duly authorized EPA inspector, two of EPA’s Senior Environmental Employment (“SEE”) Program grantees, an EPA On-Scene Coordinator, and EPA emergency response contractors (collectively, the “EPA Inspectors”) visited the Facility on March 24, 2015 (the “March 24, 2015 Inspection”) to investigate the Release and determine whether Respondents were complying with Section 112(r) of the CAA, EPCRA, and Section 103 of CERCLA. The EPA inspectors interviewed the Plant Manager and three employees involved with the Release. They also toured areas of the Facility in which ammonia system components were located, as well as oil and chemical storage areas.
At the time of the violations alleged herein, Respondents’ ammonia refrigeration system (“System”) had several components typically found in such systems, some of which are described below:
a. Evaporators: These are the units in which the ammonia is allowed to evaporate (at a low -28° F boiling point), drawing and absorbing the heat from a room as the ammonia evaporates, thereby cooling a room. This Facility had at least two cooling areas, identified in EPA’ s inspection reports as Cooler # 1 and Cooler #2. Ammonia pipes ran from this room through the “Green Room” (a chemical storage location) to the ammonia machinery room.
b. Compressors: After being allowed to evaporate, ammonia gas flows at low pressure to a compressor where it is compressed to a higher pressure. This compression process also raises the temperature of the gas. The hot, compressed vapor is then in a thermodynamic state known as a superheated vapor and is at a temperature and pressure at which it next will be condensed with either cooling water or cooling air. Oil is used in the compressors to help seal them and lubricate the compressor’s parts. Used oil must be regularly removed from the compressors. This Facility had four compressors, although at least two of them were not in service.
c. Accumulator: An accumulator is a temporary reservoir that prevents liquid refrigerant and oil from entering the compressor because compressors are designed to compress only ammonia that is a gaseous (vapor) state. This Facility had at least one accumulator embedded in the ceiling in the ammonia machinery room.
d. Condenser: Heated ammonia vapor at high pressure flows from a compressor to the condenser, where the vapor flows through the condenser’s heat exchanger. The heat exchanger cools the vapor and condenses it into a liquid. From here, the liquid typically flows at high pressure into a high pressure receiver, where it is stored. Respondents’ condenser was located on the roof.
e. High Pressure Receiver: The high pressure receiver is a tank that has the function of (a) collecting ammonia after the condensing stage, (b) storing most of the ammonia in a typical refrigeration system, and (c) sending the ammonia out to the evaporators. Due to their capacity to release large amounts of ammonia if breached, it is important to maintain the integrity of high pressure receivers and associated valves. Respondents’ System had one high pressure receiver, built in 1956, located in the ammonia machinery room.
f. Pumps and valves: Like most ammonia refrigeration systems, the System had multiple pumps and valves to move and control the flow of ammonia through the System. Receivers have “king valves” that can be used to stop the flow of ammonia from the receivers to the rest of the System during an emergency. Closing the king valve can shorten the duration of any continuing ammonia releases. Often solenoid valves near these king valves can be activated by emergency switches outside the building so that emergency responders do not have to enter a building filled with ammonia vapors to turn off a system. This System did not have any such emergency switches.
g. Piping: Pipes throughout the Facility and on the roof carried ammonia in all its various physical states.
h. Ammonia detectors: These devices, typically placed in ammonia machinery rooms, detect ammonia vapors that have been released at certain concentrations. They activate alarms to warn of a release, and they activate ventilation systems to prevent vapors from building up to dangerous levels. It is essential for detectors to be properly placed, maintained, calibrated, and connected to alarms and ventilation systems so that they can fulfill their function. The Facility had no ammonia detectors.
i. Emergency controls: An emergency control box, typically placed outside the designated machinery room door, allows emergency responders to control releases by actuating key refrigeration system equipment, such as compressors, ventilation, and king valves. The Facility had no emergency control boxes outside the ammonia machinery room access door.
J. Ice-Maker: This particular Facility had an ice-making process that included a large ice-maker box, an ammonia coil submersed in water, an ammonia-containing vessel resting on top of the ice-maker box, a surge drum, a water line, and ammonia piping.
During the March 24, 2015 Inspection, the EPA Inspectors observed some potentially dangerous conditions relating to the System. Due to EPA’ s concern over the dilapidated state of the Facility’s System, EPA hired an ammonia refrigeration expert (“Expert”) with over 30 years of experience to review the condition of the System.
The Expert, an EPA inspector, and an additional EPA contractor inspected the Facility again on April 24, 2015 (the “April 24 2015 Inspection”). The potentially dangerous conditions observed during the March 24 and April 24, 2015 inspections are listed in the chart attached hereto as Attachment I, which is incorporated by reference into this CAFO.
During the April 24, 2015 Inspection, the Expert confirmed EPA’ s previous findings about the System and observed several conditions that he believed should be addressed immediately, including the following:
a. Ice-maker deficiencies: In the ice-builder room, a corroded ammonia ice builder vessel was resting on top of the ice maker. The ice builder box (with the ammonia coil submersed in the water) was corroded, bulging, shored up with wood columns, and had the potential to collapse, which could cause a major ammonia release from the ice builder vessel and coil. Also in that room, a water line was supported by an ammonia suction line that appeared to be rusty and insufficiently supported.
b. Widespread corrosion: There were severely corroded pipes and components throughout the facility and on the roof, risking ammonia release. Many areas of piping had serious metal thinning and loss. These pipes needed non-destructive testing to determine whether they could continue to be used.
c. Breached vapor barriers: Many ammonia pipes and components inside the building and on the roof had broken vapor barriers, further risking corrosion from moisture. Some of these areas with broken vapor barriers were covered in ice.
d. Pressure relief deficiencies: Pressure relief valves were outdated, not tagged, and not properly maintained. The pressure relief system for the high pressure receiver was deficient. The relief header piping for the high pressure receiver seemed too small in diameter, which would create backpressure of any released ammonia on the vessels (possibly causing an explosion). Also, the relief header would not discharge at a sufficient height to prevent contact with ammonia vapor during a release.
e. Lack of emergency shut-off switches: There were no manual ventilation and emergency shut-off switches outside the ammonia machinery room.
f. No ventilation: There was no ventilation for the ammonia machinery room, which, combined with the lack of emergency shut-off switches, would make any ammonia release from equipment in this room more dangerous for workers and emergency responders because it would be impossible to turn off the equipment without entering into a vapor-filled space. Specifically, there was no air inlet to the machinery room, and the only exhaust fan for the room was not working.
g. No ammonia detectors or alarms: There were no ammonia detectors at the facility to detect released vapors. Nor were there audio/visual alarms to warn of an ammonia release or a windsock to indicate wind direction.
h. Electrical hazards: There were multiple electrical hazards, including exposed wires throughout the facility. The danger was that ammonia is flammable in air at certain concentrations with a strong ignition source.
i. Lack of information about System: There were no piping and instrumentation diagrams to help employees, contractors, emergency responders, or regulators understand the System.
j. No Hazard Review: There was no hazard analysis/review to identify all the hazards associated with the system.
k. No spring loaded valve/or safe oil draining: There was no spring-loaded valve on the high pressure receiver to drain oil safely. Spring-loaded valves are intended to immediately close the System in the event of a problem, minimizing a release of ammonia and reducing the likelihood that a mechanic will be catastrophically exposed to ammonia when draining oil from the System.
l. Cylinders of ammonia in unsafe location: There were three extra cylinders of ammonia in the ammonia machinery room. Their presence raised the risk of an ammonia release should a fire occur in the Facility. Also, there were no ammonia detectors where the cylinders were stored. Severe injuries could occur if the cylinders leaked.
m. Corroded hangars: In the Green Room, which was one of the product cooling areas, the hangars supporting ammonia piping were corroded, risking an ammonia release.
On May 13, 2015, EPA issued a letter to Respondent, cheese manufacturer, providing notice of potential General Duty Clause violations (the “Letter”). The Letter included an earlier version of the chart in Attachment 1 and provided advance warning that EPA would be issuing an order to ensure compliance with the General Duty Clause. To expedite compliance, the Letter also outlined the first few steps that such an order likely would require. Respondent was responsive to the Letter and began taking steps to address deficiencies at the Facility.
On July 14, 2015, EPA sent Respondents a draft version of a Notice of Violation and Administrative Order (“NOV I AO”), requiring compliance with the General Duty Clause.
On August 6, 2015, Respondent notified EPA that the company planned to immediately remove the anhydrous ammonia from the System rather than fix the System. Respondent planned to replace the System with another refrigeration system that did not use anhydrous ammonia as a refrigerant.
On August 12, 2015, EPA issued the final NOV/AO, which incorporated comments on the draft and required a plan for safe removal of the anhydrous ammonia.
On September 10, 2015, Respondents removed the ammonia from the System.
On October 7, 2015, EPA obtained a waiver from the Department of Justice pursuant to the CAA, 42 U.S.C. § 7413(d)(1), to address the penalty stage of this action administratively. EPA also conducted an expedited review of Respondents’ financial documents to facilitate Respondents’ ability both to pay a penalty and reopen the Facility as soon as possible. Respondents subsequently reopened the Facility and purchased a new refrigeration system. As a result of EPA’s inspections and review of information provided by Respondents, EPA alleges that the following violations occurred while the anhydrous ammonia was still in the System:
VIOLATIONS
COUNT I-FAILURE TO IDENTIFY HAZARDS IN VIOLATION OF THE CAA’S GENERAL DUTY CLAUSE
Pursuant to the General Duty Clause, Section 112(r)(1) of the CAA, owners and operators of stationary sources producing, processing, handling or storing extremely hazardous substances have a general duty, in the same manner and to the same extent as Section 654 of Title 29, to, among other things, identify hazards which may result from accidental releases of such substances, using appropriate hazard assessment techniques.
As alleged, Respondents own or operate a stationary source that handled and stored anhydrous ammonia, an extremely hazardous substance. Accordingly, at the time of the violations alleged herein, Respondents were subject to the General Duty Clause.
Industry standards and guidelines with respect to ammonia refrigeration systems are found in, among other places, ANSI/IIAR Standard 2, ANSI/ASHRAE Standard 15, IIAR bulletins, the IIAR ARM Program, and other materials consistently relied upon in the refrigeration industry.
The recommended industry practice and standard of care for identifying, analyzing, and evaluating potential hazards associated with ammonia refrigeration systems of the same size and type as Respondents’ System is to use, among other things, standard, industry developed hazard identification checklists, a “What If’ analysis, or a Hazard and Operability (a/k/a “HAZOP”) study. IIAR has developed checklists for this purpose. See, e.g., IIAR ARM Program, Section 10 and Appendix 10.1. See also IIAR’s Bulletin No. 110, Startup, Inspection, and Maintenance of Ammonia Mechanical Refrigeration Systems, Section 5.2.1; and U.S. Environmental Protection Agency, Guidance for Implementation of the General Duty Clause Clean Air Act Section I I 2(r)(I), May 2000 (“EPA’s GDC Guidance”), Section 2.3.1.
According to EPA’s GDC Guidance, the General Duty Clause’s duty to identify hazards that may result from hazardous releases requires determining
(a) the intrinsic hazards of the chemicals used in the processes,
(b) the risks of accidental releases from the processes through possible release scenarios, and
(c) the potential effect of these releases on the public and the environment.
The document that contains this analysis is often referred to as a process hazard analysis or process hazard review (“Process Hazard Review”).
EPA Inspectors and the Expert observed potentially dangerous conditions at the Facility that indicated a failure to identify hazards associated with the System.Moreover, Respondents were not able to produce any Process Hazard Review while the EPA inspectors were at the Facility during either inspection. Accordingly, Respondents violated the General Duty Clause’s requirement to identify hazards associated with the refrigeration system using industry-recognized hazard assessment techniques, in violation of Section 112(r)(1) of the CAA.
COUNT II-FAILURE TO DESIGN AND MAINTAIN A SAFE FACILITY IN VIOLATION OF THE CAA’S GENERAL DUTY CLAUSE
Pursuant to the General Duty Clause, Section 112(r)(1) of the CAA, owners and operators of stationary sources producing, processing, handling, or storing extremely hazardous substances have a second general duty – to, in the same manner and to the same extent as Section 654 of Title 29, design and maintain a safe facility, taking such steps as are necessary to prevent releases.
The recommended industry practice and standard of care for designing and maintaining a safe facility with an ammonia refrigeration system of the sa.me size and type as Respondents’ System is to base design considerations upon applicable design codes, federal and state regulations, and industry guidelines to prevent releases or minimize their impacts as well as to develop and implement standard operating procedures, maintenance programs, personnel training programs, management of change practices, incident investigation procedures, self audits, and preventative maintenance programs. IIAR, ASHRAE and others have developed standards and guidelines for this purpose, such as the IIAR Bulletins, ANSI/IIAR Standard 2, the IIAR ARM Program, and ANSl/ASHRAE Standard 15. See also EPA’s GDC Guidance, Section 2.3.2 and National Fire Protection Association 1, Fire Code, Section 53.
At all times relevant to the allegations in this CAFO, each Respondent failed in its general duty to design and maintain the Facility as a safe facility, taking such steps as were necessary to prevent a release of an extremely hazardous substance, in at least the respects listed in the subparagraphs below. Attachment 1 provides more information about each listed hazard, such as examples of industry standards of care that address each type of hazard, and an Expert reviewed explanation of how each hazard could result in a harmful release or exacerbate the consequences of a release. The industry standards of care illustrate how the ammonia refrigeration industry has recognized hazards associated with designing and maintaining an ammonia refrigeration system and developed measures to reduce such hazards. Some of the hazards listed in the subparagraphs below also have resulted in violations of the General Duty Clause’s third duty, as further discussed in Count III.
a. Inadequate information available about System: At the time of the EPA inspections, inadequate documentation was available about the technology and equipment of the ammonia refrigeration system. For example, there was no Process and Instrumentation Diagram or floor plan that would allow Facility personnel, inspectors, or emergency responders to identify the location of key System equipment, piping, and valves. Nor did Respondents have written information about System equipment, such as valves. Such information is critical to conducting a Process Hazard Review, writing standard operating procedures, and setting up an appropriate preventative maintenance program. Attachment 1, pages 1 to 2, lists examples of industry standards of care for documenting ammonia refrigeration system information.
b. Inadequate support for ammonia-containing piping and components: At the time of the EPA inspections, in the ice-builder room, a corroded ammonia containing vessel was resting on top of the ice maker tank. The ice builder tank (with an ammonia coil submersed in the water) was corroded, bulging, shored up with wood columns, and had the potential to collapse, which could cause a major ammonia release from the ammonia-containing vessel and coil. Also in that room, a water line lay across and was being supported by an ammonia suction line that appeared to be rusty and was, itself, insufficiently supported. In the Green Room, process piping was inadequately supported due to corrosion of piping hangars. Inadequate support for ammonia-containing vessels and pipes could cause a collapse of the equipment, leading to a release. Attachment 1, page 2, lists examples of industry standards of care for supporting ammonia-containing equipment and pipes.
c. Widespread corrosion: At the time of the EPA inspections, there were severely corroded pipes and components throughout the facility and on the roof, risking ammonia release if corrosion continues to the point of failure. EPA Inspectors found surface corrosion, pitting, and flaking on specific pipes and piping components, reducing the useful life of the equipment. The high pressure receiver, which is the component on site containing the most ammonia, had severe rust and pitting, rusted hand valves, and rusted piping. Many areas of corroded piping at the Facility had serious metal thinning and loss. Attachment 1, page 3, lists examples of industry standards of care for avoiding corrosion.
d. No ventilation: At the time of the EPA inspections, there was no fresh air intake to the ammonia machinery room that would allow adequate air exchange of the room for ventilation, and the exhaust fan for the machinery room was not working. Without adequate ventilation, ammonia vapors are more likely to build up to levels that present significant inhalation and dermal hazards or that risk causing fire or explosion. Also, where an exterior emergency shut-off switch is lacking, the buildup of dangerous levels of toxic and flammable vapors in a machinery room can delay the entry of emergency response personnel to shut off the system, resulting in a prolonged release. Accordingly, in addition to being a violation of the duty to design and maintain a safe facility, this condition also was a violation of the duty to minimize consequences of releases that do occur, as alleged in Count III, below. Attachment 1, page 4, lists examples of industry standards of care for ventilating ammonia machinery rooms.
e. Broken vapor barriers on piping: At the time of the EPA inspections, there were broken vapor barriers (i.e., insulation) on pipes throughout the Facility and on top of the roof. Vapor barriers insulate pipes and protect them from moisture, which causes corrosion. Corroded pipes can disintegrate and break, causing an ammonia release. Attachment 1, page 5, lists an industry standard of care for keeping vapor barriers intact.
f. No ammonia detectors or alarms: At the time of the EPA inspections, there was no ammonia detector at the Facility to detect released vapors. Nor were there audio/visual alarms to warn of an ammonia release. Ammonia detectors and alarms provide early warning that a release is taking place, enabling a quick system shutdown and response, and protecting workers, emergency responders, and the public from a larger release. Under the local fire code, such detectors must also automatically turn off electrical power when they sense vapors at certain concentrations, which could prevent further releases. Failure to have a vapor detector also was a violation of the duty to minimize consequences of releases that do occur, as alleged in Count III, below. Attachment 1, page 5, lists examples of industry standards of care for vapor detectors in ammonia machinery rooms.
g. Lack of emergency shut-off switches: At the time of the EPA inspections, there were no manual ventilation and emergency shut-off switches outside the ammonia machinery room door. The lack of such switches creates a risk of harm to workers and emergency responders who cannot quickly shut down or properly ventilate a machinery room without entering it, which room could have dangerous levels of vapors. The delay could also contribute to a longer ammonia release time, exacerbating risks to workers, emergency responders, and people off-site. During the Release, the lack of emergency shut-off switches contributed to Respondents’ inability to prevent a continuing release, increasing the risks to emergency responders and the public and requiring a 0.5 mile evacuation zone. This hazard also was a violation of the duty to minimize consequences of releases that do occur, as alleged in Count III, below. Attachment 1 at page 6, lists examples of industry standards of care for remote emergency shut-down controls.
h. Poor design of oil drain system: At the time of the EPA inspections, Respondents did not have an oil drain system on the high pressure receiver that was self-closing, a manual quick-closing emergency stop valve, or other suitably engineered system. Nor did Respondents have such a valve on the oil drain point between compressors #1 and #2. A spring-loaded valve would immediately close the System in the event of a problem during oil draining, minimizing a release of ammonia and reducing the likelihood of catastrophic injury to a mechanic draining oil from the System. The lack of such a valve on this System contributed to the extended Release that occurred on February 6, 2015. Due to a lack of selfclosing or manual quick-closing valve near the compressors’ oil drain point, the compressor was not fully isolated when the employees removed the oil plug to drain the oil. Pressure in the System forced the oil plug out in an uncontrolled manner, splashing the three employees with a hot oil/ammonia mixture. An ammonia release ensued that lasted several hours. This condition also was a violation of the duty to minimize consequences of releases that do occur, as alleged in Count III, below. Attachment 1, page 7, lists examples of industry standards of care for oil drain systems.
i. Electrical hazards: At the time of the EPA inspections, there were exposed electrical wires throughout the Facility, including the ammonia machinery room. There also were combustible materials stored in the machinery room as well as electrical panels and outlets, which could spark and serve as a source of ignition in the event of an ammonia leak. These conditions increase the risk of fire or explosion in the event of an ammonia release because ammonia is flammable at certain concentrations. A fire or explosion also could cause a much bigger release of ammonia than would otherwise occur. Accordingly, this condition also was a violation of the duty to minimize consequences of releases that do occur, as alleged in Count III, below. Attachment 1, pages 7 to 8, lists examples of industry standards of care for fire safety in ammonia machinery rooms.
j. Extra cylinders of ammonia present in the machinery room: At the time of the EPA inspections, three cylinders of ammonia were improperly stored in the ammonia machinery room, which increases the risk of an ammonia release should a fire occur in the facility. Also there were no ammonia detectors located in the area where they were stored to warn people of any leakage from the cylinders, which could result in severe injuries. Attachment 1, page 8, lists examples of industry standards of care for use and storage of ammonia cylinders in ammonia machinery rooms.
k. Inadequate signage and labeling on System: There was inadequate signage and labeling on various parts of the System, which meant that workers maintaining the system and emergency responders responding to releases did not have the information needed to safely perform their jobs. Signs and posted information can provide a level of protection in addition to training and operating procedures, keeping workers from inadvertently causing releases and allowing responders to quickly understand the System. Examples of deficient labeling and signage include the following:
i. There was not a legible, permanent sign anywhere on the System indicating the name and address of the installer, the refrigerant number and amount of refrigerant in the System, lubricant identity and amount, and the field test pressure( s) applied;
ii. The piping and valves were not labeled to indicate contents, direction of flow, physical state (i.e., liquid or vapor), pressure level (i.e., high or low). Nor were there distinctive markers for other system components (e.g., high pressure receiver, accumulator, etc.);
iii. The main shut-off valve (King Valve) for the high pressure receiver was not identified with a prominent sign (although a small paper tag identified the valve);
iv. The door to the machinery room lacked appropriate hazard warning labels and signage (including emergency procedures), increasing the chance of inadvertent exposure to ammonia and potentially frustrating efforts to react quickly and safely during an ammonia release.
v. There were no tags or other documentation for pressure relief valves showing the date of installation and when they had last been inspected. Some of the labeling and signage deficiencies also violated the duty to minimize consequences of releases that do occur, as alleged in Count III, below. Examples of industry standards of care for a permanent, legible sign on the System are provided in Attachment 1, page 9; on page 12 for piping and component labeling; on page 12 for King Valve labeling; on page 8 for door labeling; and on page 13 for pressure relief valve documentation.
l. Additional Pressure Relief Deficiencies: At the time of the EPA inspections, in addition to not being tagged or having adequate documentation, pressure relief valves and systems were deficient in the following ways:
i. Pressure relief valves were outdated and improperly maintained in that they were not replaced or inspected, cleaned, and tested every five years. Old pressure relief valves could release ammonia at normal operating pressures (as opposed to when the System is over-pressurizing) because the spring inside the relief valve can weaken with age.
ii. The Facility did not have adequate pressure relief valve calculations to demonstrate that the valves installed on the System met the capacity requirements within ammonia refrigeration design standards.
iii. The pressure relief device for the accumulator did not discharge to the outdoors, which would allow ammonia releases from this corroded vessel to discharge in a space where employees might be working, risking serious injury;
iv. The discharge height of pressure relief headers from both the high pressure receiver and the compressors outside the machinery room was less than 15 feet above the roof level. Also, the relief headers appeared to be too small. Improperly-placed discharge reliefs can result in ammonia being sprayed on people during a release, and relief headers that are too narrow and small may not be able to withstand the pressure of the ammonia being released, which would create backpressure of any released ammonia on the vessels (possibly causing an explosion).
Examples of industry standards of care for maintaining pressure relief valves are found in Attachment 1, page 13; on page 13 for pressure relief valve calculations; on page 15 for discharging to outdoors; and on page 6 for pressure relief header requirements.
m. Inadequate training program: At the time of the EPA inspections, the Facility lacked an adequate training program and training documentation for safely operating, maintaining, and responding to releases from the System. The Facility did not have anyone on staff trained to operate or maintain the System and used a contractor from New York for maintenance activities. Yet, the February 6, 2015 Release occurred when Facility employees were changing the oil and had difficulty removing and then reseating the oil plug. Inadequately trained operators may manage refrigeration systems unsafely, which could lead to a release that injures the operator, other employees, and people off-site – particularly when the lack of training is compounded by a lack of safety features (such as a self-closing valve on the oil drain system and proper ventilation). Also, inadequately trained employees may not be able to respond safely during a release, thereby making the consequences of a release more dangerous. Accordingly, the lack of training was also a violation of the duty to minimize consequences of releases that do occur, as alleged in Count III, below. Examples of industry standards of care for training employees are found in Attachment 1 at pages 10 to 11.
n. Darkness and obstructions in ammonia machinery room: At the time of the EPA inspections, the ammonia machinery room was very dark, and there was not a clear and unobstructed way to access some of the equipment for inspection, service, and emergency shutdown. For example, the accumulator, embedded in the ceiling, was very difficult to examine. The EPA Inspectors had to bring their own lighting on the second inspection to adequately inspect the room. This condition also was a violation of the duty to minimize consequences of releases that do occur, as alleged in Count III, below. Examples of industry standards of care for providing a clear and unobstructed approach to refrigeration machinery are found in Attachment 1 at page 14.
o. Failure to protect liquid level gauge glass column and other System components from damage: At the time of the EPA inspections, the liquid level gauge column on the high pressure receiver was located such that it could be inadvertently damaged or struck, risking release of ammonia. Likewise evaporators in Cooler Area #1 were not properly protected from accidental damage or rupture from external sources (such as forklifts) in the passage way between Cooler Areas #1 and 2. Examples of industry standards of care for protecting sight gauges are found in Attachment 1 at page 14.
p. Excessive ice on piping and valves: At the time of the EPA inspections, there was excessive ice buildup on refrigeration piping and components in the cooling rooms and the ammonia machinery room. Ice buildup can weigh down piping, risking collapse and ammonia release. It also exposes pipes to moisture, which can cause corrosion and pipe failure. Examples of industry standards of care for reducing ice build-up are found in Attachment 1 at page 15.
q. No standard operating procedures: At the time of the EPA inspections, the Facility had no standard operating procedures for employees who were changing oil or otherwise engaged in maintaining the System. Without standard operating procedures, employees may not be consistent about operating the System’s equipment safely, increasing the chance of a release. Examples of industry standards of care for having standard operating procedures for a system of this size are found in Attachment 1 at page 16.
r. No documented mechanical integrity program: At the time of the EPA inspections, the Facility did not have a preventative maintenance program in place or maintenance schedules to ensure the mechanical integrity of the System. Lack of equipment inspection and maintenance can create risk of equipment breakdown, leading to a release. Examples of industry standards of care for having a mechanical integrity program for a system of this size are found in Attachment 1 at pages 16 to 17.
COUNT III- FAILURE TO MINIMIZE THE CONSEQUENCES OF ACCIDENTAL RELEASES THAT DO OCCUR IN VIOLATION OF THE CAA’S GENERAL DUTY CLAUSE
Pursuant to the General Duty Clause, Section 112(r)(1) of the CAA, owners and operators of stationary sources producing, processing, handling, or storing extremely hazardous substances have a third general duty – to, in the same manner and to the same extent as Section 654 of Title 29, minimize the consequences of any accidental releases of anhydrous ammonia which do occur.
Industry standards and guidelines for minimizing the consequence of an accidental release from ammonia refrigeration systems are found, among other things, in the IIAR ARM Program, ANSI/IIAR Standard 2, ANSI/ASHRAE Standard 15, IIAR bulletins, and other materials (including updates and revisions) consistently relied upon by refrigeration experts. They include design and maintenance measures to minimize the severity and duration of releases that do occur, such as, among other things, standards for vapor detection, alarms, equipment and door labeling, emergency shut-off switches, ventilation, keeping combustible materials and electrical hazards away from ammonia, safe oil drain systems, tight construction of machinery rooms; designing safe pressure relief valves and associated piping; reducing obstructions for responders; and having emergency eye wash stations and showers.
In addition, EPA’s General Duty Clause Guidance discuss the standard of care for emergency response planning at facilities that have extremely hazardous substances, such as anhydrous ammonia. The recommended industry practice and standard of care for emergency planning at ammonia refrigeration systems of this size is to inter alia, design and implement an emergency response plan that specifically addresses release scenarios developed from hazard analyses and facility-based knowledge; identifies emergency response equipment and its whereabouts, includes communication with and involvement of emergency planning and response officials (e.g., the Local Emergency Response Planning Committee); incorporates accident training for employees; and involves conducting periodic exercises to ensure that the plan is adequate to address emergency scenarios. EPA’s GDC Guidance at 16-18. IIAR, ANSI, ASHRAE, and other organizations have developed standards and guidelines for this purpose, including, among other things, ANSI/IIAR Standard 2, the IIAR ARM Program (2005), and ANSI/ASHRAE Standard 15. For example, Section 7 of IIAR’s ARM Program for smaller ammonia refrigeration systems provides that refrigeration facilities should develop an up-to-date, facility specific emergency response plan that accurately describes the facility and the potentially affected population. Such a plan should include, among other items, types of evacuation; evacuation procedures and routes; procedures for employees who remain to maintain critical operations; procedures for accounting for evacuated employees; any employee’s rescue and medical duties; and means for reporting emergencies. An adequate emergency response program should also identify procedures for responding to an ammonia release, including shutting the system down; starting emergency ventilation; and coordinating with relevant off-site emergency responders. IIAR’s ARM Program, Section 7.
At all times relevant to the allegations in this CAFO, Respondents each failed in its general duty to minimize the consequences of an accidental release of an extremely hazardous substance at or from the Facility, in accordance with applicable industry standards for systems of this size, in at least the following respects. Examples of industry standards of care are found in Attachment I.
Design and maintenance measures to minimize releases that do occur
Inadequate emergency shutdown controls: As discussed in Count II, the Facility had no emergency shutdown controls adjacent to the ammonia machinery room door. The lack of appropriate emergency shut-offs creates a risk of harm to workers and emergency responders, who cannot quickly shut down or properly ventilate the machinery room without entering a machinery room, which room could have dangerous levels of ammonia vapors. The delay could also contribute to a longer ammonia release time, exacerbating risks to workers, emergency responders, and people off-site.
Additional Pressure Relief Deficiencies:
As discussed in Count II, the System had many deficiencies with pressure relief devices and headers. The following deficiencies with pressure relief valves or systems could exacerbate the consequences of any release:
a. The pressure relief device for the accumulator did not discharge to the outdoors, which would allow any ammonia releases that did occur from this corroded vessel to discharges in spaces where employees might be working, risking serious injury;
b. The discharge height of the pressure relief headers outside the machinery room was less than 15 feet above the roof level. Also, the relief header appeared to be too small. Improperly-placed discharge reliefs can result in ammonia being sprayed on people during a release. Relief headers that are too narrow and small may not be able to withstand the pressure of the ammonia being released, which would create backpressure of any released ammonia on the vessels (possibly causing an explosion).
Inadequate normal and emergency ventilation system in machinery room:
As explained in Count II, the ammonia machinery room had no functional ventilation system.
Without adequate ventilation, vapors are more likely to build up to levels that are hazardous to human health or that risk causing fire or explosion. Moreover, a buildup of vapors makes it difficult to turn off equipment in the machinery room. The need for proper ventilation is even greater in facilities without emergency shutdown controls, like this one, because responders and employees cannot enter the machinery room to turn off the equipment until vapors have been ventilated, resulting in a prolonged release. Lack of vapor detectors: As explained in Count II, there were no ammonia detectors at the Facility to detect released vapors. Nor were there audio/visual alarms to warn of an ammonia release. Ammonia detectors and alarms provide early warning that a release is taking place, enabling quick response and protecting workers, emergency responders, and the public from a larger release. Under the local fire code, such detectors must also automatically turn off electrical power when they sense vapors at certain concentrations, which would have the effect of preventing further releases.
Poor design of oil drain system:
As discussed in Count II, Respondents did not have an oil drain system on the pressure vessel or compressors that was self-closing, a manual quick-closing emergency stop valve, or other suitably engineered system. A spring-loaded valve would immediately close the System in the event of a problem during oil draining, minimizing a release of ammonia and reducing the likelihood of catastrophic injury to a mechanic draining oil from the System.
Electrical hazards:
As discussed in Count II, there were exposed electrical wires throughout the Facility, including the ammonia machinery room. There were also combustible materials stored in the machinery room as well as electrical panels and outlets, which could spark and serve as a source of ignition in the event of an ammonia leak. These conditions exacerbate the risk of fire or explosion if there is an ammonia release because ammonia is flammable at certain concentrations. A fire or explosion could result in a much bigger release of ammonia than would otherwise occur.
Inadequate signage and labeling on System:
As discussed in Count II, above, there was inadequate signage and labeling on various parts of the System, including doors, pipes, valves and equipment. The lack of signage and labeling could prevent workers and emergency responders responding to releases from having the information they would need to safely and timely perform their jobs. Signs and posted information provide a level of protection in addition to worker training and operating procedures.
Machinery Room Door Deficiencies:
In addition to being unlabeled, the machinery room door was not tight-fitting and gasketed. Also, the door opened into the room instead of opening out and was not self-closing. Nor was it locked. In the event of an ammonia release inside the machinery room, the failure to have a tight-fitting and self-closing door risks the spread of ammonia vapors to other parts of the building and outdoors. Also, it is more difficult for employees to escape the room when the door opens into the room rather than out.
Examples of industry standards of care for ammonia machinery room doors are found in Attachment 1 at page 10. Machinery room not sealed tight: The machinery room walls contained holes and gaps for piping that were not sealed. These gaps and holes would increase the risk associated with a release by allowing ammonia vapors to spread to other parts of the building or outside, putting employees and responders at risk. Examples of industry standards of care for sealing machinery rooms are found in Attachment 1 at page 10.
Darkness and obstructions in ammonia machinery room:
As discussed in Count II, the ammonia machinery room was very dark, and there was not a clear and unobstructed way to access some of the equipment for inspection, service, and emergency shutdown. For example, the accumulator, embedded in the ceiling, was very difficult to examine. The EPA Inspectors had to bring their own lighting on the second inspection to adequately inspect the room.
Emergency response and preparedness planning to minimize releases
Inadequate emergency action plan or coordination with fire department:
Respondents did not report the presence and amounts of ammonia (or other chemicals) to emergency response and planning agencies as required by EPCRA. Also, the Facility had no emergency action or response plan. Examples of industry standards of care for emergency planning and coordination are found in Attachment 1 at page 17 and in paragraph 67, above.
Inadequate training program:
As discussed in Count II, the Facility lacked an adequate training program and training documentation for safely responding to releases from the System. Inadequately trained employees may not be able to respond safely during a release, thereby making the consequences of a release more dangerous.
Accordingly, Respondents violated the requirement to minimize the consequences of any accidental release of anhydrous ammonia which does occur, as required under the General Duty Clause, Section 112(r)(1) of the CAA, by failing to:
- notify emergency planners and responders about the presence and amount of ammonia on-site;
- develop and implement adequate emergency response procedures;
- have emergency shutdown controls;
- have properly designed pressure relief systems;
- have adequate ventilation;
- have adequate detector and alarm systems;
- have a proper oil draining system;
- have proper signage on machinery room doors, piping, and System components;
- control electrical hazards;
- have tightfitting doors to the machinery room;
- seal the machinery room tightly;
- reduce obstructions in the machinery room; and
- have eye wash stations and showers within 55 feet.
COUNT IV: FAILURE TO NOTIFY THE NATIONAL RESPONSE CENTER OF A RELEASE IN VIOLATION OF CERCLA
Section 103(a) of CERCLA, 42 U.S.C. 9603(a), and 40 C.F.R. § 302.6(a) require a person in charge of an onshore facility to immediately notify the National Response Center as soon as he has knowledge of a release (other than a federally permitted release) of a hazardous substance from such facility in an amount equal to or greater than the reportable quantity of that substance.
As alleged above, each Respondent is a “person,” as defined at Section 101 (21) of CERCLA, 42 U.S.C. § 9601(21), and 40 C.F.R. § 302.3.
The Facility is an “onshore facility,” as defined at Section 101(18) of CERCLA, 42 U.S.C. § 9601(18), and 40 C.F.R. § 302.3.
At the time of the Release, Respondents were “in charge of’ the onshore facility.
Ammonia is a “hazardous substance,” as defined at Section 101 (14) of CERCLA, 42 U.S.C. § 9601(14), and 40 C.F.R. § 302.3.
Pursuant to 40 C.F.R. § 302.4, the reportable quantity for an ammonia release is 100 pounds, as determined in any 24-hour period.
The Release on February 6, 2015 was a “release” into the environment, as defined at Section 101(22) ofCERCLA, 42 U.S.C. § 9601(22), and 40 C.F.R. § 302.3.
The Release of approximately 1,650 pounds of anhydrous ammonia from the Facility during the Release exceeded the reportable quantity.
The Release was not a “federally-permitted release,” as defined at Section 101(10) ofCERCLA, 42 U.S.C. § 9601(10).
Accordingly, Respondents were required to immediately notify the National Response Center as soon as Respondents knew that the amount of anhydrous ammonia released exceeded the reportable quantity.
Respondents knew or should have known that the Release exceeded the reportable quantity immediately on February 6, 2015 or shortly thereafter when the System was recharged with anhydrous ammonia.
Respondents did not notify the National Response Center of the Release until EPA inspected on March 24, 2015, over a month after the Release occurred and the System was recharged with 1,650 pounds of ammonia.
Accordingly, Respondents’ failure to immediately notify the National Response Center as soon as it had knowledge that the Release at the Facility exceeded the reportable quantity violated Section 103(a) of CERCLA and 40 C.F.R. § 302.6(a).
COUNT V: FAILURE TO SUBMIT CHEMICAL INVENTORY FORMS IN COMPLIANCE WITH EPCA SECTION 312
Pursuant to Section 312 of EPCRA, 42 U.S.C. § 11022, and 40 C.F.R. Part 370, commencing on or before the March 1 following the date upon which Respondents were required to prepare or have available an MSDS for anhydrous ammonia at or in connection with the Facility, and on or before the March 1 of each year thereafter, Respondents were required to submit an “emergency and hazardous chemical inventory form,” containing the data regarding anhydrous ammonia at the Facility, required under Section 312, for the preceding calendar year (“Inventory Form”), to the appropriate LEPC, the SERC, and the fire department with jurisdiction over the facility.
Specifically, Respondents were required to submit Inventory Forms to the appropriate LEPC, the SERC, and the fire department with jurisdiction over the Facility, at least on or before the following dates:
a. March 1, 2012 for reporting year (“RY”) 2011; b. March 1, 2013 for RY 2012; c. March 1, 2014 for RY 2013; and d. March 1, 2015 for RY 2014; Respondents never submitted Inventory Forms to the appropriate LEPC, the SERC, and the fire department with jurisdiction over the Facility.
Pursuant to EPCRA Section 325(c)(3), 42 U.S.C. § 11045(c)(3), each day that Defendant failed to timely submit an Inventory Form for anhydrous ammonia to the appropriate LEPC, SERC, and fire department with jurisdiction over the Facility, constitutes a separate violation of Section 312 ofEPCRA, 42 U.S.C. § 11022.
Accordingly, Respondents’ failure to submit the required Inventory Forms for reporting years 2011, 2012, 2013, and 2014 violated Section 312 ofEPCRA, 42 U.S.C. § 11022, and 40 C.F.R. Part 370.
TERMS OF SETTLEMENT
Taking into account the relevant statutory penalty criteria (particularly the economic impact of the penalty on the business), the facts alleged in this CAFO, and such other circumstances as justice may require, EPA has determined that it is fair and proper to assess a civil penalty of one hundred thousand ($100,000) for the violations alleged in this matter.
CLICK HERE for the CAFO including Attachment 1 – Table of General Duty Clause Violations