The respondent’s facility (“Facility”) is located in a mixed-use area. The Facility is located on the third and fourth floors of a mixed-use commercial/industrial building that houses medical offices, a deli, and other businesses. The Facility is located within a third of a mile of several tourist attractions, including museums and restaurants. The east end of the building abuts the South River that flows into the Atlantic Ocean.
Respondent designs and manufactures electro-optical components, high-energy switches, time-frequency switches, high voltage conversion systems, and X-ray sources for a variety of industries. Respondent employs approximately 175 full-time employees at the Facility and runs one to three shifts, depending on the area of operation. The Facility maintains bulk storage tanks for anhydrous ammonia, liquid nitrogen, liquid oxygen, and pressurized hydrogen gas located outside along the south side of the building. Respondent also stores and uses other extremely hazardous substances, such as hydrofluoric acid, sulfuric acid, nitric acid, and cyanides.
On January 24, 2020, EPA inspected the Facility to assess its compliance with federal chemical accident prevention, planning, and response laws, including Section 112(r) of the CAA; Section 103 of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”); and Sections 302-312 of the Emergency Planning and Community Right-to-Know Act (“EPCRA”).
In response to EPA’s January 24, 2020, document request for all of the Facility’s process hazard analyses/reviews, Respondent provided EPA with one process hazard assessment, “Anhydrous Ammonia Process Hazard Assessment: November 19, 2019,” which was divided into two documents (collectively referred to as “the 2019 Ammonia Assessment”).
EPA alleges that Respondent’s 2019 Ammonia Assessment only covers anhydrous ammonia use and storage at the Facility and does not address any other extremely hazardous substances used and stored at the Facility.
EPA alleges that Respondent’s 2019 Ammonia Assessment was insufficient and failed to use appropriate hazard assessment techniques for identifying anhydrous ammonia hazards at the Facility. EPA alleges that some of the deficiencies of the 2019 Ammonia Assessment include, but are not limited to:
a. The 2019 Ammonia Assessment does not adequately reflect the Facility’s unique process, including its configuration and location of tanks, piping, and chemical usage. Specifically, the 2019 Ammonia Assessment did not address several process-specific features and hazard scenarios regarding anhydrous ammonia use and storage at the Facility.
b. The 2019 Ammonia Assessment identifies the generic consequences of an ammonia leak. Still, it does not identify Facility-specific hazards or scenarios of individuals being exposed to ammonia when working in any of the Facility’s operations rooms (furnace room, high voltage power (HVP) production and testing room, etc.) or entering the areas from another location.
c. Although the 2019 Ammonia Assessment includes a brief list of recommended anhydrous ammonia risk mitigation measures to be taken, the 2019 Ammonia Assessment does not always include specific recommendations/action items with a schedule for completion or assignment of responsibility.
On September 30, 2020, EPA issued an Administrative Order on Consent (“AOC”) requiring that, as soon as possible, but no later than one hundred and eighty (180) days after the effective date of the AOC, Respondent would conduct a PHR for the use and storage of extremely hazardous substances at the Facility, using appropriate, industry-recognized hazard assessment techniques. The AOC further required that Respondent submits to EPA certification that the PHR had been completed; a brief statement about what actions Respondent is taking at the Facility to improve safety as a result of conducting the PHR (“Safety Plan Statement”); and a list of expenditures associated with implementing the requirements of the AOC.
On March 23, 2021, EPA received a timely and detailed response to the AOC. Following the review of the submission, EPA concluded that Respondent had fulfilled the requirements of the AOC.
Anhydrous ammonia, pressurized hydrogen gas, hydrofluoric acid, nitric acid, sulfuric acid, potassium cyanide and copper cyanide are “extremely hazardous substances,” within the meaning of the General Duty Clause of Section 112(r)(1) of the CAA. These chemicals, either alone or improperly co-located with at least one of the other chemicals listed, are substances that may, as the result of short-term exposures associated with releases to the air, cause death, injury or property damage due to their toxicity, reactivity, flammability, volatility, or corrosivity.
Additionally, anhydrous ammonia is an extremely hazardous substance listed in Section 112(r)(3) of the CAA, 42 U.S.C. § 7412(r)(3), and in 40 C.F.R. § 68.130; hydrogen fluoride is listed as an extremely hazardous substance directly in Section 112(r)(3) of the CAA, 42 U.S.C. §7412(r)(l); and sulfuric acid and nitric acid are listed as extremely hazardous substances in 40 C.F.R. Part 355, Appendix A.
ALLEGED VIOLATION
Failure to Identify Hazards under the General Duty Clause
To identify hazards that may result from accidental releases of extremely hazardous substances under the GDC and Section 112(r)(1) of the CAA, owners and operators of stationary sources should determine: (a) the intrinsic hazards of the chemicals used in the processes; (b) the risks of accidental releases from the processes through possible release scenarios; and (c) the potential effect of these releases on the public and the environment, using appropriate hazard assessment techniques.
As part of the Process, EPA alleges that Respondent used, handled, or stored extremely hazardous substances without properly identifying the hazards that may result from accidental releases or otherwise conducting a PHR using appropriate, industry-recognized hazard assessment techniques.
By failing to properly identify hazards that may result from accidental releases of an extremely hazardous substance used, handled, or stored as part of the Process, EPA alleges Respondent violated the General Duty Clause at Section 112(r)(1) of the Clean Air Act.
Respondent shall pay the total penalty amount of $46,968.
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