Failing to report a 172-pound release of NH3 (RQ=100 pounds) via an RV to the NRC, SERC, and LEPC in a “timely manner” can be costly!
Respondent is a Wisconsin corporation, with a cream cheese and yogurt manufacturing facility. At all times relevant to this CAFO, the Facility was a facility at which a hazardous chemical was produced, used or stored. On April 17, 2017, EPA representatives conducted an inspection of the Facility following a reported release of anhydrous ammonia on September 6, 2016, to determine Respondent’s compliance with Section 103 of CERCLA and Sections 302-312 of EPCRA. During the EPA Inspection, Respondent’s personnel provided documentation to EPA regarding the September 6, 2016 event that had occurred at the Facility, when a conservatively estimated 172 pounds of anhydrous ammonia (7664-41-7) was released from a silo in the cream cheese plant at the Facility (“the Release”). Respondent first became aware of the Release at approximately 7:40 a.m. on September 6, 2016, when processing employees smelled ammonia and evacuated the area, and the ammonia detection system alarm sounded. Respondent ‘s personnel discovered the source of the Release, reset the relief valves that were open due to a faulty dual pressure regulator in the cooling system, and terminated the Release at 7:55 a.m. Respondent replaced the faulty dual pressure regulator and the silo was returned into service by the end of the day.
Following the Release, Respondent performed several sets of calculations to estimate the amount of ammonia released, which ranged from 114 pounds to 172 pounds. Respondent reported the Release as 172 pounds, based on the most conservative calculation performed. On April 12, 2018, EPA sent to Respondent an EPCRA/CERCLA Post-Inspection Letter itemizing potential violations of, among other requirements, CERCLA and EPCRA release reporting requirements following the -September 6, 2016 Release, and requesting that Respondent comply with its obligations under EPCRA and take steps to prevent recurrence of the compliance issues.
On May 7, 2018, Respondent replied to EPA’s Post-Inspection Letter, outlining steps it had taken to come into compliance and to prevent future violations of the requirements of CERCLA and EPCRA, including conducting multiple personnel training programs and updating its standard operating procedures related to the introduction of new chemicals on site and the release reporting requirements.
On September 27, 20 18, EPA issued to Respondent a Request to Show Cause and Opportunity to Confer with EPA Regarding Alleged Violations of CERCLA Section 103 and EPCRA Section 304.
Count I
Failure to Immediately Notify the NRC of a Release
Section 103(a) of CERCLA, as implemented by 40 C.F.R. Part 302, requires , in relevant part, a person in charge of a facility to immediately notify the National Response Center (“NRC”) established under Section 311 (d)(2)(E) of the Clean Water Act, as amended, 33 U.S.C. § 132 l (d)(2)(E), as soon as they have knowledge of a release (other than a federally permitted release) of a hazardous substance from such facility in a quantity equal to or greater than the RQ. The chemical ammonia is a hazardous substance, as defined under Section 101(14) of CERCLA and 40 C.F.R. § 302.3, with an RQ of 100 pounds, as listed in 40 C.F.R. § 302.4.
The September 6, 2016 Release from the Facility constituted a release of a hazardous substance in a quantity equal to or exceeding the RQ for that hazardous substance, requiring immediate notification of the NRC pursuant to Section 103(a) of CERCLA, 42 U.S.C. § 9603(a).
The September 6, 2016 Release was not a “federally permitted release” as that term is used in Section 103(a) of CERCLA, 42 U.S.C. § 9603(a), and 40 C.F.R. § 302.6, and defined in Section 101(10) of CERCLA, 42 U.S .C. § 960 1(10).
Respondent notified the NRC of the Release at 10:27 a.m. on September 6, 2016.
Respondent failed to immediately notify the NRC as soon as it had knowledge of the release of a hazardous substance from the Facility in a quantity greater than the RQ.
Respondent violated Section 103(a) of CERCLA and the relevant regulations at 40 C.F.R. § 302.6 by failing to immediately notify the NRC as soon as it had knowledge of the release of a hazardous substance from the Facility in a quantity greater than the RQ.
In failing to comply with Section 103(a) of CERCLA and 40 C.F.R. Part 302, Respondent is subject to the assessment of penalties under Section 109(a) of CERCLA, 42 U.S.C. § 9609(a).
Count II
Failure to Immediately Notify the SERC of a Release
Air modeling conducted by EPA shows that the Release plume traveled offsite from the facility property in the south-southeast direction at concentrations between I part per million (“ppm”) and 2 ppm.
The September 6, 2016 Release from the Facility constituted a release of an EHS in a quantity equal to or exceeding the RQ for that EHS, requiring immediate notification of the SERC pursuant to Section 304(a)(1) and (b) of EPCRA.
Respondent notified the SERC of the Release at 11: 00 a.m . on September 6, 2016.
Respondent failed to immediately notify the SERC as soon as it had knowledge of the release of an EHS from the Facility in a quantity greater than the RQ.
Respondent violated Section 304(a)(1) and (b) of EPCRA, 42 U.S.C. § 11004(a)(1) and (b), and the relevant regulations at 40 C.F.R. §§ 355.40 through 355.43, by failing to immediately notify the SERC as soon as it had knowledge of the release of an EHS from the Facility in a quantity greater than the RQ.
In failing to comply with Section 304(a)(1) and (b) of EPCRA and 40 C.F.R. Part 355, Subpart C, Respondent is subject to the assessment of penalties under Section 325(b) of EPCRA.
Count III
Failure to Immediately Notify the LEPC of a Release
The September 6, 2016 Release from the Facility constituted a release of an EHS in a quantity equal to or exceeding the RQ for that EHS, requiring immediate notification of the LEPC pursuant to Section 304(a)(1) and (b) of EPCRA. Respondent notified the LEPC of the Release at 11: 10 a.m. on September 6, 2016.
Respondent failed to immediately notify the LEPC as soon as it had knowledge of the release of an EHS from the Facility in a quantity greater than the RQ.
Respondent violated Section 304(a)(1) and (b) of EPCRA and the relevant regulations at 40 C.F.R. §§ 355.40 through 355.43, by failing to immediately notify the LEPC as soon as it had knowledge of the release of an EHS from the Facility in a quantity greater than the RQ.
In failing to comply with Section 304(a)(1) and (b) of EPCRA and 40 C.F.R. Part 355, Subpart C, Respondent is subject to the assessment of penalties under Section 325(b) of EPCRA.
Count IV
Failure to Timely Submit Written Follow-up Report to the SERC
Section 304(c) of EPCRA as implemented by 40 C.F.R. Part 355, Subpart C, requires, in relevant part, that, when there has been a release of an EHS in a quantity equal to or greater than the RQ from a facility at which hazardous chemicals are produced, used, or stored , the owner or operator of that facility must provide a written follow-up report regarding the release to the SERC as soon as practicable.
The September 6, 2016 Release from the Facility constituted a release of an EHS in a quantity equal to or exceeding the RQ for that EHS, requiring the provision of a written follow-up report to the SERC pursuant to Section 304(c) of EPCRA.
Respondent provided a written follow-up report to the SERC regarding the September 6, 2016 Release on April 19, 2017, two days after the EPA Inspection. Respondent violated Section 304(c) of EPCRA and the relevant regulations at 40 C.F.R. §§ 355.40 through 355.43, by failing to provide a written follow-up report as soon as practicable to the SERC regarding the release of an EHS from the Facility in a quantity greater than the RQ.
In failing to comply with Section 304(c) of EPCRA and 40 C.F.R. Part 355, Subpart C, Respondent is subject to the assessment of penalties under Section 325(b) of EPCRA.
Count V
Failure to Timely Submit Written Follow-up Report to the LEPC
Section 304(c) of EPCRA, as implemented by 40 C.F.R. Part 355, Subpart C, requires, in relevant part, that, when there has been a release of an EHS in a quantity equal to or greater than the RQ from a facility at which hazardous chemicals are produced, used, or stored, the owner or operator of that facility must provide a written follow-up report regarding the release to the LEPC as soon as practicable.
The September 6, 2016 Release from the Facility constituted a release of an EHS in a quantity equal to or exceeding the RQ for that EHS, requiring the provision of a written follow-up report to the LEPC pursuant to Section 304(c) of EPCRA.
Respondent provided a written follow-up report to the LEPC regarding the September 6, 2016 Release on April 19, 2017, two days after the EPA Inspection.
Respondent violated Section 304(c) of EPCRA and the relevant regulations at 40 C.F.R. §§ 355.40 through 355.43, by failing to provide a written follow-up report as soon as practicable to the LEPC regarding the release of an EHS from the Facility in a quantity greater than the RQ.
In failing to comply with Section 304(c) of EPCRA and 40 C.F.R. Part 355, Subpart C, Respondent is subject to the assessment of penalties under Section 325(b) of EPCRA.
SETTLEMENT
Civil Penalty
In settlement of EPA’s claims for civil penalties for the violations alleged in this Consent Agreement, Respondent consents to the assessment of a civil penalty in the amount of TWENTY-THREE THOUSAND THREE HUNDRED AND THIRTY-NINE DOLLARS ($23,339), which total includes FIVE THOUSAND THREE HUNDRED AND SIXTY-EIGHT DOLLARS ($5,368) for alleged violations of Section 103 U.S.C. §11045(b)(l)(C) and Section 109(a)(3) of CERCLA, 42 U.S.C. § 9609(a)(3), including, the following:
the nature, circumstances, extent and gravity of the violation or violations, and, with respect to the violator, ability to pay, any prior history of such violations, the degree of culpability, economic benefit or savings (if any) resulting from the violation, and such matters as justice may require.
These factors were applied to the particular facts and circumstances of this case with specific reference to EPA’s Enforcement Response Policy for Sections 304, 311 and 312 of the Emergency Planning and Community Right-to-Know Act and Section 103 of the Comprehensive Environmental Response, Compensation and Liability Act (September 30, 1999), which reflects the statutory penalty criteria and factors set forth at Section 325(b)(1)(C) of EPCRA and Section 109(a)(3) of CERCLA, the appropriate Adjustment of Civil Monetary Penalties for Inflation, pursuant to 40 C.F.R. Part 19, and the applicable EPA memoranda addressing EPA’s civil penalty policies to account for inflation.
Supplemental Environmental Project
The following Supplemental Environmental Project (“SEP”) is consistent with applicable EPA policy and guidelines, specifically EPA’s Supplemental Environmental Projects Policy 2015 Update (“the SEP Policy”), effective March 10, 2015.
Respondent agrees to upgrade the cooling system for the six milk silos at the Facility to minimize the potential for an ammonia release, and to minimize the amount of any such release that does occur. Respondent will interlock the cooling system with the plant Programmable Logic Controller, the automated computer system, to automatically disable the cooling system when the milk level in the tank is low and when the tank is in the clean-in-process (“CIP”) mode. This will prevent the addition of liquid ammonia to the cooling system during CIP mode when 180-degree water is added to the silo. This will mean that there will be less ammonia present in the cooling system to build up pressure upon the sudden change in temperature, thus reducing the likelihood of a release. The SEP is described further in the Supplemental Environmental Project Proposal (“SEP Proposal”), attached hereto as Attachment A and incorporated herein by reference.
Respondent shall complete the SEP by July 1, 2019 (“SEP Completion Deadline”).
Respondent ‘s total expenditure for the SEP shall not be less than $6,100 in accordance with the specifications set forth in the SEP Proposal. Respondent shall include documentation of the expenditures made in connection with the SEP as part of the SEP Completion Report described below.