Respondent is an “owner or operator” of the Facility, which produced, used, or stored anhydrous ammonia, a hazardous substance. On April 25, 2019, the EPA conducted an inspection to determine compliance with the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) Section 103, 42 U.S.C. § 9603, and the Emergency Planning and Community Right-to-Know Act (“EPCRA”) Sections 302 through 312.
On August 10, 2021, EPA issued an Information Request pursuant to Section 114 of the CAA, 42 U.S.C. § 7414, and Section 104(e) of CERCLA, 42 U.S.C. § 9604(e), to Kerry to determine compliance with Section 112(r) of the CAA, 42 U.S.C. § 7412(r), and Section 103(a) of CERCLA, 42 U.S.C. § 9603(a) (“EPA’s IRL”).
Count I – Failure to Design and Maintain a Safe Facility
The General Duty Clause applies to any stationary source producing, processing, handling, or storing substances listed pursuant to Section 112(r)(3) of the CAA, or other extremely hazardous substances. The Facility is a “stationary source” as defined by 40 C.F.R. § 68.3. At the time of the inspection, EPA observed that the facility had two (2) ammonia refrigeration systems onsite, each with a capacity of approximately two thousand (2,000) pounds. Therefore, the Facility stores approximately four thousand (4,000) pounds of anhydrous ammonia onsite.
As the owner and operator of a stationary source, with respect to the use and storage of anhydrous ammonia, Respondent has a duty under 112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1), to identify hazards that may result from releases of regulated substances listed pursuant to Section 112(r)(3) of the CAA, 42 U.S.C. § 7412(r)(3), or of any other extremely hazardous substances, design and maintain a safe facility to prevent the accidental release of these substances to the air, and minimize the consequences of accidental releases should they occur.
Relevant industry standards for the use and storage of ammonia include, but are not limited to, the International Institute of Ammonia Refrigeration Standards (“IIAR”). Sections 5.1, 5.2, and 5.4 of IIAR 7 advise owners and operators of anhydrous ammonia refrigeration facilities to develop and maintain standard operating procedures. Operating procedures that should be developed and maintained include initial startup, normal operations, temporary operations, normal shutdown, emergency shutdown, emergency operations, and startup following a turnaround or after an emergency shutdown.
EPA requested a copy of the Facility’s standard operating procedures in EPA’s August 10, 2021 IRL. In its response dated September 21, 2021, Respondent provided EPA with standard operating procedures dated September 16, 2021. Respondent was unable to provide any standard operating procedures that were in effect prior to September 16, 2021.
Sections 5.1 through 5.6 of IIAR 6 require an owner of anhydrous ammonia refrigeration processes develop an inspection, testing, and maintenance program based on manufacturer recommendations, equipment and system operating and maintenance history, and the minimum safety requirements of IIAR 6 to reduce the probability of an ammonia release.
Section 5.3 of IIAR 6 require an owner of anhydrous ammonia refrigeration processes to establish and maintain a record keeping system to provide evidence that the provisions of Sections 5.1 through 5.6 of IIAR 6 have been implemented and to address identified
deficiencies.
Section 5.4 of IIAR 6 require an owner of anhydrous ammonia refrigeration processes to develop and maintain an inspection program.
In response to EPA’s IRL requesting, among other things, inspection reports for Respondent’s ammonia refrigeration systems for the past five years, Respondent provided EPA with inspection records for only September 2021. Respondent was unable to produce inspection records for the time period prior to September 2021.
Section 15.3.7 of IIAR 2 advises owners and operators of anhydrous ammonia refrigeration facilities to perform relief valve design calculations to assure sufficient mass flow carrying capacity to limit the pressure rise in protected equipment to prevent
catastrophic failure.
EPA requested a copy of the Facility’s relief valve design calculations in EPA’s IRL. Respondent was unable to provide any relief valve design calculations. By failing to have standard operating procedures in place at the Facility prior to September 16, 2021, by failing to maintain inspection or maintenance schedules for the time period prior to September 2021, and by failing perform relief design calculations, Respondent failed to comply with the requirements of Section 112(r)(1) of the CAA, to design and maintain a safe facility taking such steps as are necessary to prevent the release of substances listed pursuant to Section 112(r)(3) of the CAA, 42 U.S.C. § 7412(r)(3), or any other extremely hazardous substances.
In failing to comply with Section 112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1), Respondent is subject to the assessment of penalties under Section 113(d) of the CAA, 42 U.S.C. § 7413(d).
Count II – Failure to Immediately Notify the SERC and the LEPC of a Release; Failure to Submit a Follow-up Report to the SERC
Pursuant to information provided to EPA by the NRC, between June 21, 2021, and June 23, 2021, Respondent’s Facility released approximately 320 pounds of anhydrous ammonia from an ammonia condenser located on the roof of the Facility’s south engine room (the “Release”).
The Release from the Facility constituted a release of an EHS in a quantity equal to or exceeding its RQ, which required immediate notification under CERCLA Section 103, 42 U.S.C. § 9603, and therefore, required immediate notification of the SERC and LEPC pursuant to Section 304(a)(1) and (b) of EPCRA, 42 U.S.C. § 11004(a)(1) and (b).
This Release was not a “federally permitted release” as that term is defined in Section 304(a)(2)(A) of EPCRA, 42 U.S.C. § 11004(a)(2)(A), and 40 C.F.R. § 355.31(b).
Pursuant to a certified statement from the LEPC, Respondent did not notify the LEPC of the Release.
Pursuant to a certified statement from the SERC, Respondent did not notify the SERC of the Release.
Pursuant to a certified statement from the SERC, Respondent did not send a follow-up notice of the Release to the SERC.
By failing to immediately notify the SERC and LEPC as soon as Respondent knew or should have known that a release of an EHS had occurred at the Facility in an amount equal to or exceeding the applicable RQ, Respondent failed to comply with Section 304(a)(1) and (b) of EPCRA, 42 U.S.C. § 11004(a)(1) and (b).
By failing to send a written follow-up notice of the Release to the SERC, Respondent failed to comply with Section 304(c) of EPCRA, 42 U.S.C. § 11004(c).
In failing to comply with Section 304(a)(1), (b), and (c) of EPCRA, 42 U.S.C. § 11004(a)(1), (b), and (c), and 40 C.F.R. Part 355, Subpart C, Respondent is subject to the assessment of penalties under Section 325(b) of EPCRA, 42 U.S.C. § 11045(b).
CIVIL PENALTY
In settlement of EPA’s claims for civil penalties for the violations alleged in this Consent Agreement, Respondent consents to the assessment of a civil penalty in the amount of SEVENTY-TWO THOUSAND AND TWO HUNDRED TWENTY-FOUR dollars ($72,224).
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