Respondent owns and operates the bulk anhydrous ammonia storage facility located in Nebraska. On or about August 18, 2014, EPA conducted an inspection of Respondent’s Facility to determine compliance with Section 112(r) of the CAA and 40 C.F.R. Part 68. Information gathered during the EPA inspection revealed that Respondent had greater than 10,000 pounds of anhydrous ammonia in a process at its facility. Respondent was subject to Program 2 prevention program requirements because, pursuant to 40 C.F.R. § 68.1O(c), the process does not meet the eligibility requirements of either Program 1 or Program 3, as described in 40 C.F .R. § 68.1O(b) and (d), respectively.
Allegations of Violation
EPA alleges that Respondent has violated the CAA and federal regulations promulgated pursuant to the CAA as follows:
Count 1
The regulation at 40 C.F.R. § 68.12(c)(2) requires the owner or operator of a stationary source with a process subject to Program 2 to conduct a hazard assessment as provided in 40 C.F.R. §§ 68.20 through 68.42.
Pursuant to 40 C.F.R. § 68.30, the owner or operator shall estimate to two significant digits the population within a circle with its center at the point of the release and a radius determined by the distance to the endpoint of the regulated substance.
The EPA’s inspection revealed that Respondent failed to accurately estimate in the RMP the population within the toxic endpoint of anhydrous ammonia resulting from a worst-case release at the facility, as required by 40 C.F.R. § 68.30(a).
Count 2
The regulation at 40 C.F.R. § 68.12(c)(3) requires the owner or operator of a stationary source with a process subject to Program 2 to implement the Program 2 prevention steps provided in 40 C.F.R. §§ 68.48 through 68.60.
The EPA’ s inspection revealed that Respondent failed to implement the Program 2 prevention steps of 40 C.F.R. §§ 68.48 through 68.60, as required by 40 C.F.R. § 68.12(c)(3). Specifically:
- Respondent failed to compile and maintain up-to-date safety information related to the regulated substance, process, and equipment at the facility, as required by 40 C.F.R. § 68.48(a)(1)-(5);
- Respondent failed to ensure that the process is designed in compliance with recognized and generally accepted good engineering practices, as required by 40 C.F.R. § 68.48(b);
- Respondent failed to conduct a review of the hazards associated with the regulated substance, process, and procedures, as required by 40 C.F.R. § 68.50(a);
- Respondent failed to prepare written operating procedures that provide clear instructions for safely conducting activities associated with the covered process, including the steps for each operating phase; equipment inspections; and the consequences of deviations from operating procedures and steps required to correct or avoid deviations, as required by 40 C.F.R. § 68.52(a) and (b);
- Respondent failed to ensure that each employee has been trained or tested competent in the operating procedures required under 40 C.F.R. § 68.52 and to provide refresher training at least every three years, as required by 40 C.F.R. § 68.54(a) and (b);
- Respondent failed to prepare and implement procedures to maintain the ongoing mechanical integrity of the process equipment; failed to train each employee involved in maintaining the ongoing mechanical integrity of the process; and failed to perform inspections and tests on process equipment, as provided by 40 C.F.R. § 68.56(a), (b), and (d); and
- Respondent failed to certify evaluation of the facility’s compliance with Program 2 prevention requirements at least every three years; failed to develop a report of the audit findings and to determine, document, and execute appropriate responses to any deficiencies identified; and failed to retain the two most recent audit reports, as required by 40 C.F.R. § 68.58(a) through (e).
Each of Respondent’s failures to comply with the Program 2 prevention steps of 40 C.F.R. Part 68, as described above, is a violation Section 112(r) of the CAA, 42 U.S.C. § 7412(r).
Count 3
The regulation at 40 C.F.R. § 68.12(c)(4) requires the owner or operator of a stationary source with a process subject to Program 2 to develop and implement an emergency response program as provided in 40 C.F.R. §§ 68.90 through 68.95. Pursuant to 40 C.F.R. § 68.90(a), the owner or operator of a stationary source with a Program 2 process shall comply with the emergency response program requirements of 40 C.F.R. § 68.95. However, the
regulation at 40 C.F.R. § 68.90(b) provides, in pertinent part, that the owner or operator of a stationary source whose employees will not respond to accidental releases of regulated substances need not comply with 40 C.F.R. § 68.95 provided that
(1) for stationary sources with any regulated toxic substance held in a process above the threshold quantity, the stationary source is included in the community emergency response plan developed under Section 303 of the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. § 11003; and
(2) appropriate mechanisms are in place to notify emergency responders when there is a need for a response.
The EPA’s inspection revealed that Respondent would rely on local emergency responders in the event of an accident or release from the facility. Subsequent investigation revealed, however, that Respondent did not have contact with the Cass County Emergency Management Agency and Respondent’s Facility was not included in the community emergency response plan. The EPA’s inspection further revealed that Respondent failed to comply with the emergency response program requirements of 40 C.F.R. § 68.95, as required by 40 C.F.R. § 68.90(a).
Count 4
The regulation at 40 C.F.R. § 68.190(b)(l) requires the owner or operator of a stationary source to revise and update an RMP submitted pursuant to 40 C.F.R. § 68.12(a) at least once every five years from the date of its initial submission or most recent update required by 40 C.F.R. § 68.190(b)(2)-(7).
The EPA’ s inspection and subsequent investigation revealed that Respondent’s five-year RMP update was due August 25, 2013, however Respondent submitted its updated RMP on August 15, 2014.
Respondent shall pay a civil penalty of Sixteen Thousand and Two-Hundred Dollars ($16,200) within thirty (30) days of the effective date of this CAFO.
Supplemental Environmental Project
In settlement of this matter, Respondent agrees to complete the following Supplemental Environmental Project (“SEP”), which the parties agree is intended to secure significant environmental and/or public health benefits. Respondents shall donate emergency response equipment to the Weeping Water Fire Department as described in Attachment A, which is incorporated herein by reference, including two (2) firefighting suits, two (2) helmets, two (2) pairs of boots, three (3) fire hoods, and six (6) pairs of gloves.
The SEP shall be completed no later than sixty ( 60) days from the effective date of the Final Order. The total expenditure for the SEP shall be no less than Four Thousand Seven Hundred and Fifty Dollars ($4,750), in accordance with the specifications set forth in Attachment A. All work required to complete the SEP shall be performed in compliance with all federal, state, and local laws and regulations.
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