Respondent owns and operates a beet sugar manufacturing facility.
EPCRA
Section 312(a) of EPCRA assists state commissions, local committees, and fire departments in planning for emergencies and makes information on chemical presence and hazards available to the public. A delay in reporting could result in harm to human health and the environment.
Section 312(a) of EPCRA and its implementing regulations at 40 C.F.R. Part 370 require the owner or operator of a facility, which is required by the OSHA to prepare or have available a material safety data sheet (MSDS) or safety data sheet (SDS) for a hazardous chemical, to prepare and submit to the state emergency response commission (SERC), community emergency coordinator for the local emergency planning committee (LEPC) and fire department with jurisdiction over the facility annually by March 1, an emergency and hazardous chemical inventory form (“Tier I” or “Tier II” as described in 40 C.F.R. Part 370) for the previous calendar year. The form must contain the information required by Section 312(d) of EPCRA, covering all hazardous chemicals present at the facility at any one time during the preceding year in amounts equal to or exceeding 10,000 pounds and all extremely hazardous chemicals present at the facility at any one time in amounts equal to or greater than 500 pounds or the threshold planning quantity designated by U.S. EPA at 40 C.F.R. Part 355, Appendices A and B, whichever is lower.
Anhydrous sulfur dioxide is an “extremely hazardous substance” according to Section 302(a)(2) of EPCRA. For purposes of EPCRA reporting requirements, anhydrous sulfur dioxide has a minimum threshold level of 500 pounds, as listed in 40 C.F.R. Part 355, Appendix A. Anhydrous sulfur dioxide is a “regulated substance” pursuant to 40 C.F.R. § 68.3. For purposes of the Risk Management Program, the threshold quantity of anhydrous sulfur dioxide, as listed in 40 C.F.R. § 68.130, is 5,000 pounds.
On April 9, 2019, EPA sent to Respondent a Show Cause Letter, requesting information about the company’s compliance with the Risk Management Program at 40 C.F.R. Part 68.
On May 9, 2019, Respondent submitted a response to EPA’s Show Cause Letter.
Information gathered during EPA’s review of Respondent’s EPCRA emergency and hazardous chemical inventory forms (also known as “Tier II Forms”) and response to the Show Cause Letter revealed that Respondent had greater than 5,000 pounds of anhydrous sulfur dioxide in a process at its Facility from at least 2014 to February 28, 2019.
During at least one period of time during the calendar year 2017, anhydrous sulfur dioxide was present at the Facility in an amount greater than 500 pounds, the minimum threshold level for purposes of EPCRA reporting requirements.
From the time Respondent first had onsite greater than 5,000 pounds of anhydrous sulfur dioxide in a process until February 28, 2019, Respondent was subject to the requirements of Section 112(r) of the CAA and 40 C.F.R. Part 68 because it was an owner and operator of a stationary source that had more than a threshold quantity of a regulated substance in a process.
From the time Respondent first had onsite greater than 5,000 pounds of anhydrous sulfur dioxide in a process, Respondent was subject to the Program 3 prevention program requirements because, pursuant to 40 C.F.R. § 68.10(h), the covered process at its Facility did not meet the eligibility requirements of Program 1 and was subject to the OSHA process safety management standard, 29 C.F.R. § 1910.119.
From the time Respondent first had onsite greater than 5,000 pounds of anhydrous sulfur dioxide in a process, Respondent was required under Section 112(r)(7) of the CAA to submit a Risk Management Plan pursuant to 40 C.F.R. § 68.12(a) and comply with the Program 3 requirements provided at 40 C.F.R. § 68.12(d) and detailed in Subpart D.
Allegations of Violation
Count 1
Respondent was required to submit to the SERC, LEPC, and local fire department on or before March 1, 2018, a completed emergency and hazardous chemical inventory form including anhydrous sulfur dioxide for the calendar year 2017.
Respondent submitted to the SERC, LEPC, and Fire Department a completed emergency and hazardous chemical inventory form including anhydrous sulfur dioxide on February 22, 2019, for the calendar year 2017.
Each day that Respondent failed to submit to the SERC, LEPC, and Fire Department a completed emergency and hazardous chemical inventory form including anhydrous sulfur dioxide by March 1, 2018, for the calendar year 2017 constitutes a separate violation of Section 312(a) of EPCRA.
Count 2
The regulation at 40 C.F.R. § 68.12(a) requires the owner or operator of a stationary source subject to the Risk Management Program, 40 C.F.R. Part 68, to submit a single Risk Management Plan (RMP) as provided in 40 C.F.R. §§ 68.150 to 68.185. Pursuant to 40 C.F.R. § 68.160, the owner or operator shall complete a single registration form that provides, inter alia, the Program level of each covered process and whether the stationary source is subject to 29 C.F.R.§ 1910.119. Additionally, pursuant 40 C.F.R. § 68.175(a), the owner or operator is required to provide the information identified at 40 C.F.R. § 68.175(b) through (p) for each Program 3 process.
From at least 2014 through February 28, 2019, Respondent failed to submit an RMP pursuant to the requirements of 40 C.F.R. §§ 68.150 to 68.185, as required by 40 C.F.R. § 68.12(a).
Specifically:
(a)Respondent failed to complete a registration form pursuant to 40 C.F.R. § 68.160(a) that includes the information required by 40 C.F.R. § 68.160(b), including the Program level of the process and whether the stationary source is subject to 29 C.F.R. § 1910.119; and
(b)Respondent failed to provide the Program 3 prevention information (stated at 40 C.F.R. § 68.175(b) through (p)), as required by 40 C.F.R. § 68.175(a).
Respondent’s failure to submit an RMP pursuant to the requirements of 40 C.F.R. §§ 68.150 to 68.185, as required by 40 C.F.R. § 68.12(a), is a violation of Section 112(r)(7) of the CAA.
EPA has considered the appropriateness of the penalty pursuant to Section 113(e)(1) of the CAA, 42 U.S.C. § 7413(e)(1), and has determined that based on substantiated ability to pay information, the appropriate penalty for the violations is $71,978.10 to be paid in two installments.
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