Respondent operates a facility to manufacture, store and distribute ice cream and other food products. Respondent produced, used, or stored more than 10,000 pounds of ammonia (anhydrous) at the Facility and was subject to the requirements of CAA§ 112(r)(7). Respondent was subject to Program 3 requirements because it was subject to the OSHA process safety management standard set forth in 29 C.F.R. § 1910.119. On September 10 and 11, 2019, EPA performed an inspection of the Facility pursuant to Section 112(r) of CAA, Sections 304-12 of EPCRA, and Section 103 of the Comprehensive Environmental Response, Compensation, and Liability Act. Based upon the information gathered during the Inspection and subsequent investigation, EPA determined that Respondent violated certain provisions of the CAA and EPCRA.
ALLEGED VIOLATIONS
Count 1 – Failure to Comply with Process Safety Requirements
40 C.F.R. § 68.65(d)(2) requires owners or operators to document that process equipment complies with recognized and generally accepted good engineering practices (“RAGAGEP”).
Pursuant to 40 C.F.R. § 68.65(d)(3), if any process equipment was designed and constructed in accordance with codes, standards, or practices no longer in general use, then the owner or operator must determine and document that such equipment is designed, maintained, inspected, tested, and operating in a safe manner.
EPA determined that Respondent did not document the design, maintenance, inspection, testing, and operation of secondary entry doors to Ammonia Machinery Rooms (“AMR”) 1 and 2 in a manner consistent with RAGAGEP.
- EPA determined that Respondent did not document the design, maintenance, inspection, testing, and operation of audible and visual ammonia leak detection alarms located at the entrance to AMRs 1 and 2 in a manner consistent with RAGAGEP.
- EPA determined that Respondent did not document the design, maintenance, inspection, testing, and operation of primary and secondary exit doors from AMR 1 in a manner consistent with RAGAGEP.
- EPA determined that Respondent did not document the design, maintenance, inspection, testing, and operation of an eyewash station and safety shower outside the primary entrance door to AMR 1 in a manner consistent with RAGAGEP.
- EPA determined that Respondent did not document the design, maintenance, inspection, testing, and operation of ammonia piping associated with the glycol chillers and spiral freezers in a manner consistent with RAGAGEP.
- EPA determined that Respondent did not document the design, maintenance, inspection, testing, and operation of piping supports below the glycol chillers in AMR 1 in a manner consistent with RAGAGEP.
- EPA determined that Respondent did not document the design, maintenance, inspection, testing, and operation of ammonia detectors near the ceiling of AMRs 1 and 2 in a manner consistent with RAGAGEP.
Accordingly, EPA alleges that Respondent violated CAA 112(r) and 40 C.F.R. § 68.65(d)(2) and (3) by failing to document the design, maintenance, inspection, testing, and operation of process equipment in a manner consistent with RAGAGEP.
Count 2 – Failure to Comply with Process Hazard Analysis Requirements
Under 40 C.F.R. §68.67, the owner or operator must perform a Process Hazard Analysis (“PHA”) on processes covered by the CAA§ l 12(r) requirements to identify, evaluate, and control the hazards involved in the process.
Under 40 C.F.R. § 68.67(e), the owner or operator must establish a system to promptly address the PHA findings and recommendations and assure that the recommendations arc resolved in a timely manner and that the resolution is documented.
Respondent failed to address two “Prompt Attention” recommendations from its April 2014 PHA by the time of the Inspection.
Accordingly, EPA alleges that Respondent violated CAA § 112(r) and 40 C.F.R. § 68.6 7( e ), by not promptly addressing the PHA findings and recommendations and assuring that the recommendations are resolved in a timely manner.
Count 3 – Failure to Correct Deficient Equipment
Under 40 C.F.R. § 68.73, the owner or operator must perform inspections and tests on process equipment and correct deficiencies in equipment that are outside acceptable limits before further use, or in a safe and timely manner when necessary means are taken to assure safe operation.
During the Inspection, EPA identified several pieces of equipment with deficiencies that were outside acceptable limits (collectively, “Deficient Equipment”).
Respondent had not corrected the issues with the Deficient Equipment before putting them to further use and did not take necessary means to assure the Deficient Equipment’s safe operation.
Accordingly, EPA alleges that Respondent violated CAA 112(r) and 40 C.F.R. § 68.73(e), by failing to perform inspections and tests on process equipment and correct deficiencies in equipment that are outside acceptable limits before further use, or in a safe and timely manner when necessary means are taken to assure safe operation.
Count 4 – Failure to Comply with Management of Change (“MOC”) Requirements
Under40 C.F.R. § 68.75(a). the owners or operator must establish and implement written procedures to manage changes to process chemicals, technology, equipment, and procedures, and changes to stationary sources that affect a covered process.
During the Inspection, EPA determined that Respondent failed to implement its own written MOC procedure for approving extensions of deadlines.
Accordingly, EPA alleges that Respondent violated CAA § 112(r) and 40 C.F.R. § 68.75(a), by failing to establish and implement written procedures to manage changes to process chemicals, technology, equipment, and procedures, and changes to stationary sources that affect a covered process.
Count 5 – Failure to Comply with Compliance Audit Requirements
Under 40 C.F.R. § 68.79, the owner or operator must certify that they have evaluated compliance with the regulatory requirements for each covered process at least every three
years to verify that the process procedures and practices are adequate and are being followed.
Under 40 C.F.R. §68.79(d), the owner or operator shall promptly determine and document an appropriate response to each of the findings of the compliance audit, and document that deficiencies have been corrected.
EPA determined that Respondent did not correct deficiencies identified during its December 2016 compliance audit until after the Inspection.
Accordingly, EPA alleges that Respondent violated CAA § 112(r) and 40 C.F.R. § 68.79(d), in that it did not promptly determine and document an appropriate response to each of the findings of the compliance audit and document that deficiencies had been corrected.
Count 6 – Failure to Submit Correct Tier II Reports
The Facility is required to prepare or have available an MSDS for a hazardous chemical under OSHA, and thus is subject to Section 312 reporting requirements of EPCRA for hazardous chemicals present at the Facility during the preceding calendar year above threshold level established in 40 C.F.R. § 370.20(b).
For reporting years 2016 through 2018, the Facility managed and/or stored anhydrous ammonia in quantities exceeding the applicable TPQ.
For repo1ting years 2016 through 2018, Respondent failed to report the correct maximum and average daily amount of the hazardous chemical anhydrous ammonia present at the Facility in its Inventory Forms.
Accordingly, EPA alleges that Respondent violated EPCRA § 312 and 40 C.F.R. § 370.42 by failing to report the maximum and average daily amount of anhydrous ammonia at the Facility in 2016 through 2018.
Respondent agrees to the assessment of a civil penalty of THREE HUNDRED ONE THOUSAND, AND SIXTY-SIX DOLLARS ($301,066) for the claims set forth herein as final settlement of the civil claims against Respondent as alleged in the CAFO.
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