The RMP CAFO is very interesting in that the facility stated they were under 10,000 pounds (NH3 TQ) and EPA challenged their numbers, even though the facility had completely pumped down their system and had exact pounds they charged the system with when they started up. So the case is going to court and EPA wrote this CAFO under both the General Duty Clause (in the event the court agrees with the business) and using Part 68 (in the event the court agrees with EPA).
Pursuant to Section 112(r)(1) of the CAA, owners and operators of stationary sources producing, processing, handling, or storing substances listed pursuant to Section 112(r)(3) of the CAA, or any other extremely hazardous substance, have a general duty to:
(a) identify hazards that may result from accidental releases of such substances, using appropriate hazard assessment techniques;
(b) design and maintain a safe facility, taking such steps as are necessary to prevent releases; and ‘
(c) minimize the consequences of accidental releases that do occur.
This section of the CAA is referred to as the “General Duty Clause. ” The extremely hazardous substances listed pursuant to Section 112(r)(3) include, among others, anhydrous ammonia. Under Section 312(a) of EPCRA, 40 C.F.R. §§ 370.10, 370.12, 370.20, 370.40, 370.44, and 370.45, the owner or operator of any facility that is required to prepare or have available a safety data sheet (“SOS”) for a hazardous chemical under OSHA and the hazard communication standards promulgated thereunder at 29 C.F.R.§ 191O.11200(b)(1), must prepare and submit an emergency and hazardous chemical inventory form (“Tier I” or “Tier II” form) to the state emergency response commission (“SERC”), community emergency coordinator for the local emergency planning committee (“LEPC”), and the local fire department with jurisdiction over the facility. Pursuant to 40 C.F.R. §§ 3 70.40 and 370.45, the Tier I or Tier II form must be submitted annually on or before March 1st of each year and is required to contain information with respect to the preceding calendar year. Facilities in New Hampshire must submit Tier II forms instead of Tier I forms.
The Respondent operates a fresh and frozen seafood processing and distribution facility. The Facility is located on the State Fish Pier, which is a publicly accessible pier open to fishermen and tourists. The Facility is located immediately adjacent to other businesses and is located within several hundred feet of residences. According to the U.S. Census data from 2010, several thousand people live near the Facility.