Respondent is the owner or operator of an egg production facility which employs a refrigeration process using anhydrous ammonia in its egg production system.
Pursuant to Section 112(r)(1) of the CAA, also known as the General Duty Clause, the owners and operators of stationary sources producing, processing, handling or storing substances listed pursuant to Section 112(r)(3), or any other extremely hazardous material, have a general duty in the same manner and the same extent as the Occupational Safety and Health Act, 29 U.S.C. § 654 et. seq. to identify hazards which may result from accidental releases using appropriate hazard assessment techniques, to design and maintain a safe facility, taking such steps as are necessary to prevent releases, and to minimize the consequences of accidental releases which do occur.
Ammonia is an extremely hazardous substance as defined by Section 329(3) of EPCRA, 42 U.S.C. § 11049(3) and as designated pursuant to Section 302(a) of EPCRA, and listed in 40 C.F.R. Part 355, Appendix A, with a reportable quantity of 100 pounds, and a TPQ of 500 pounds, as listed in 40 C.F.R. Part 355, Appendix A. Ammonia is a hazardous substance as defined by Section 101(14) of CERCLA, 42 U.S.C. § 9601(14), with a reportable quantity of 100 pounds as designated by 40 C.F.R. § 302.4.
On or about January 25, 2016, there was an accidental release of ammonia from the Facility. On or about April 22, 2016, as part of the EPA investigation into the release, the EPA sent Respondent a Chemical Release Questionnaire (“CRQ”).
Respondent’s response to the CRQ indicated that the release began on January 25, 2016, at 6:20 a.m. and ended at approximately at 8:30 a.m. or 9:00 a.m. An Areal Locations of Hazardous Atmospheres (ALOHA) model of the release was conducted using weather conditions on January 25, 2016, and estimated the ammonia release at 2,000 pounds, which is greater than the reportable quantity of 100 pounds under EPCRA and CERCLA and their implementing regulations.
According to the EPA investigation, a report of the release was made to the NRC at approximately 10:41 a.m. on January 25, 2016; however, Respondent never informed the SERC nor the LEPC of the release.
The EPA investigation revealed that Respondent had a maximum inventory of 7,585 pounds of ammonia since at least 2011. On or about March 1, 2016, Respondent filed its first Tier II Chemical Inventory Form pursuant to Section 312 of EPCRA, as implemented by 40 C.F.R. Part 370, showing a maximum inventory of 7,585 pounds of ammonia for 2015, more than ten times the TPQ listed in 40 C.F.R. Part 355, Appendix A.
The EPA investigation further revealed that at the time of the release, the LEPC was not aware Respondent’s Facility had ammonia above the TPQ of 500 pounds.
Allegation of Violations
EPA at this moment states and alleged that Respondent has violated the CAA, EPCRA, and CERCLA as follows:
Count 1
Respondent has a general duty:
(1) to identify hazards which may result from accidental releases of a regulated substance or other extremely hazardous substance, using appropriate hazard assessment techniques; and
(2) to minimize the consequences of accidental releases of controlled substances or other hazardous substances which do occur.
The EPA investigation revealed that Respondent:
(1) failed to develop an adequate hazard assessment of the ammonia refrigeration system and was unable to identify chemical or process hazards which may result in accidental release; and
(2) failed to minimize the consequences of the January 25, 2016 release by failing to train employees on how to safely respond to an ammonia release and failing to include in its Emergency Action Program a mitigation process for planning for an ammonia release.
Respondent’s failures to identify hazards and to minimize the consequences of the accidental release of ammonia violate Section 112(r)(1) of the CAA.
Count 2
Respondent was required to immediately notify the SERC and LEPC of the January 25, 2016 release.
The EPA investigation revealed that Respondent failed to notify the SERC and LEPC of the release immediately.
Respondent’s failure to immediately notify the SERC and LEPC of the January 25, 2016 release is a violation of Section 304 of EPCRA and the requirements of 40 C.F.R. § 355.40.
Count 3
Section 311 of EPCRA, as implemented by 40 C.F.R. Part 370, required Respondent to submit, in 2011, an MSDS for ammonia to the LEPC, SERC, and the fire department with jurisdiction over the Facility.
The EPA investigation revealed that Respondent failed to submit an MSDS for ammonia to the LEPC, SERC, and the fire department with jurisdiction over the Facility until after the January 25, 2016 release.
Respondent’s failure to timely submit an MSDS for ammonia to the LEPC, SERC, and the fire department with jurisdiction over the Facility is a violation of Section 311 of EPCRA, as implemented by 40 C.F.R. Part 370.
Count 4
Section 312 of EPCRA, 42 U.S.C. § 11022, as implemented by 40 C.F.R. Part 370, required Respondent to submit a Chemical Inventory Form for ammonia annually, starting on March 1, 2012, to the SERC, LEPC, and local fire department with jurisdiction over the Facility.
The EPA investigation revealed that Respondent failed to submit a Chemical Inventory Form for ammonia to the LEPC, SERC, and the fire department with jurisdiction over the Facility until March 1, 2016.
Respondent’s failure to timely submit a Chemical Inventory Form for ammonia annually, starting on March 1, 2012, to the SERC, LEPC, and local fire department with jurisdiction over the Facility, constitutes four (4) separate violations of Section 312 of EPCRA, as implemented by 40 C.F.R. Part 370.
Count 5
Respondent was required to immediately notify the NRC of the January 25, 2016 release.
The EPA investigation revealed that Respondent failed to immediately notify the NRC of the January 25, 2016 release.
Respondent’s failure to immediately notify the NRC of the January 25, 2016 release is a violation of Section 103(a) of CERCLA, and of the requirements of 40 C.F.R. § 302.6.
CONSENT AGREEMENT
Respondent agrees that, in settlement of the claims alleged herein, Respondent shall pay a civil penalty of Seventy Thousand Dollars ($70,000).
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