EPA RMP and EPCRA citations @ food facility (NH3 & $225K w/ 770 pound release)

Respondent is food facility that produces frozen French fries and other potato products. It operates two (2) ammonia-based refrigeration systems at its facility. Both E1 and E2 contain refrigeration systems which use anhydrous ammonia as a coolant. On March 17, 2010, Respondent filed a program 3 RMP for the Facility (the “2010 RMP”), and updated it on September 20, 2013 (the “2013 RMP”). The 2010 and 2013 RMPs both reported that the E1 Process and the E2 process used 55,000 pounds and 26,000 pounds of anhydrous ammonia, respectively. During the evening of February 22, 2014, a boiler operator at the Facility discovered a leak in the E1 Process that resulted in the release of approximately 770 pounds of anhydrous ammonia (the “February 2014 Release”). The leak was reported to the Easton Fire Department, the Maine Department of Environmental Protection (“ME DEP”), the LEPC, the SERC, and the National Response Center.

NOTE: The inspection had to be suspended for a day while the EPA inspectors investigated an active leak caused by a failed gasket. You just know things are not going well when you gas the EPA inspectors!

On May 20, 2014, authorized representatives of EPA conducted an inspection at the Facility to follow up on the February 2014 Release and to determine the facility’s compliance with Section 112(r) of the CAA and with Sections 302-312 of EPCRA, 42 U.S.C. §§ 11002-1 I 022, (the “Inspection”).

According to both the 2010 and 2013 RMPs, the endpoint for a worse-case release of anhydrous ammonia used in the E1 Process and the E2 Process is greater than the distance to a public receptor. Additionally, the E1 and E2 Processes are subject to OSHA’s PSM requirements at 29 C.F.R. § 1910.119 because they each use anhydrous ammonia in an amount over the threshold quantity of 10,000 pounds. Therefore, in accordance with 40 C.F.R. § 68.l0(a)-(d), Respondent’s use, storage, and handling of anhydrous ammonia in the E1 Process and the E2 Process is subject to the requirements of RMP Program 3.

During the Inspection, EPA inspected the E1 Process, which is involved in the manufacturing of products at the Facility, and the E2 Process, which is involved with the cold storage of the products once they are manufactured. EPA also requested and eventually received and reviewed certain documentation pertaining to the Facility and the E1 and E2 Processes, including:

The 2010 RMP;
The 2013 RMP;
A document titled “Emergency Action Plan,” Revision #23, dated March 28, 2014 (the 2014 EAP”);
A document titled “EPA Prevention Program 3 and OSHA Process Safety Management Compliance Audit Report – Ammonia Refrigeration System,” dated April 1, 2010 (the “20 IO PSM Audit Report”);
A document titled “What-If Checklist PHA Study of the McCain Foods Ammonia Refrigeration System,” dated June 15, 2011 (the “‘2011 PHA Checklist”);
A document titled “Compliance Audit of OSHA Process Safety Management (PSM) and EPA Program 3 Prevention Program.” dated March 28, 2013 (the “2013 PSM Audit Report”);
A document titled “Ammonia Refrigeration Leak Response Procedures,” Revision – 0, dated November 11, 2011;
A document titled “Ammonia Refrigeration Leak Response Procedures,” Revision – 1, dated March 3, 2014;
A document titled “Incident Investigation Form,” dated February 22, 2014;
A document titled “Incident Investigation Form,” dated May 20, 2014;
A document titled “PHA Recommendation Management & Tracking Report,” last revised on June 14, 2011; and
Tier 2 Form for 2013 (filed on February 26, 2014).

EPA temporarily discontinued the Inspection on May 20, 2014 when inspectors noted a strong odor of ammonia near an oil separator cleanout port in the ammonia machinery room (“AMR”) of the E1 process. Inspection activities were delayed by EPA to allow facility personnel time to investigate the apparent ammonia leak. When the Inspection resumed the following day, facility staff reported that the source of the ammonia leak was a faulty gasket on the cleanout port and that the damaged gasket had been replaced with a new one. The facility staff also later showed the faulty gasket to the inspectors and explained that the gasket had apparently been previously used and had a wear point/fault in it, and been mistakenly re-installed on the cleanout port.

EPA found that the Inspection and EPA’s review of information submitted by Respondent identified certain conditions related to the E1 and E2 Processes at the time of the Inspection, including that:

Ammonia piping and equipment had not been properly labeled and/or consistently color-coded ( e.g., the piping for the EI Process was color-coded in an inconsistent manner such that it was difficult to differentiate between piping that contained ammonia, natural gas, and fuel oil; the piping for the El Process was also largely unlabeled and lacking any information on the contents, direction of flow, physical state, and or pressure level; and the piping for the rooftop condensers for the E2 process was also largely unlabeled);
Respondent did not have any information/data to show that the ammonia detectors for the AMRs of the El and E2 Processes would sound an alarm and start a ventilation system if levels of ammonia reached a certain concentration;
Respondent did not have any information/data to show that the ammonia detectors for the AMRs of the El and E2 Processes would trigger an alarm if the continuous ventilation system failed;
Ammonia detectors in the AMRs did not activate visual and audio alarms outside the machinery rooms ( e.g., there were no audio/visual alarms outside of the AMR and the boiler room of the E 1 Process; and Respondent did not provide any information the ammonia detectors and/or alarms for the AMR of the El Process worked as designed; and the exterior access door for the AMR of the E2 Process has an ammonia alarm with a visual warning, but no audio alarm);
Emergency shutdown information had not been posted at the entrances to AMRs of the E1 and E2 Processes;
Doors for the AMRs were not all self-closing and tight-fitting (e.g., the overhead door/vent for the AMR of the E 1 Process could only be closed manually via the interior of the AMR; and the door for the AMR of the E2 Process was rusted and poorly sealed);
The AMRs could not be isolated/sealed and/or had other wall penetrations that could allow ammonia to release/leak to other parts of the building or to the outside environment (e.g., the overhead door/vent for the AMR of the El Process was open during the Inspection and could only be closed manually via the interior of the AMR; and the door for the AMR of the E2 Process was rusted and poorly sealed);
The AMRs did not have eyewash/safety shower stations inside the machinery room and/or close to outside of the room (e.g., there were no eyewash/safety shower stations near the exits for the AMR of the E1 Process; and there was no safety shower station either in or immediately outside of the AMR of the E2 Process);
The AMRs of the El and E2 Processes did not have ventilation air inlets that were located at ground level near machinery (e.g., the large wall vent (i.e., an overhead door) in the AMR for the E1 Process could only be opened/closed from inside the AMR; and the air inlets in the AMR for the E2 Process were all located at the top part of the room);
The fresh air intakes to the AM Rs of the E 1 and E2 Processes may have been closed or inadequate (e.g., the 2013 PSM Audit Report indicated that Respondent had not yet completely addressed questions regarding ventilation calculations and ammonia detectors in the AMRs of the E1 and E2 Processes that had been previously cited in the 2010 PSM Audit Report (and initially raised in 2004));
Respondent had not posted any signage to either identify the main ammonia shut-off valve (i.e., the “King Valve”) for the accumulator for the E2 Process or to direct emergency responders to the valve;
Emergency shut-off controls for the EI and E2 Processes were missing, not easily identifiable to emergency responders and/or not accessible to responders wearing emergency equipment;
There were multiple locations for the E1 and E2 Processes where ammonia pressure relief discharge points: (I) were less than 20 feet away from windows, ventilation intakes, or personnel exits; (2) were less than 7 .5 feet above roof surface; and/or (3) had outlets aimed downwards (i.e., toward the ground) rather than upwards;
There was a lack of signage or inadequate signage for manual ventilation fan overrides outside the AMRs of the E1 and E2 Processes to direct emergency responders to the equipment;
The AMRs had some impediments to a safe exit in case of an emergency (e.g., any escape from the AMR of the E1 Process via the overhead door/vent (which leads into an alcove area for the exterior door exit) could be hampered if an ammonia release vented into the alcove; and any escape from the AMR of the E2 Process was blocked by a padlocked gate/fence that lacked any “crash-out” capability);
Respondent had not yet addressed all findings from the 201O and 2013 PSM Audit Reports, including questions initially raised in 2004 regarding ventilation calculations and ammonia detectors in the AMRs of the E1 and E2 Processes;
There were multiple locations for the E1 and E2 Processes where piping and valves were corroded (e.g., the ammonia piping around the rooftop condensers for the E1 Process lacked paint and showed substantial corrosion; the ammonia piping under and around the rooftop condensers for the E2 Process were corroded; and the valves and pipe segments around the penthouse/chiller for the E2 Process were unpainted and quite corroded);
There were multiple locations for the E2 process where vapor barrier and insulation were breached (e.g., the valves and pipe segments around the penthouse/chiller for the E2 Process had many uninsulated areas; there were several areas around the penthouse/chiller for the E2 Process where piping insulations covers were broken, dislodged or missing, which allowed moisture to condense and collect resulting in corrosion both at the openings and under adjacent portions of insulation (i.e., “corrosion under-insulation”); and there was ice formation around areas in the AMR for the E2 process where insulation was missing or apparently broken with staining indicative of corrosion-under-insulation); and
Respondent had apparently reused a gasket in the oil separator cleanout port of RC-12 in the AMR of the E1 Process, which resulted in a leak of ammonia during the Inspection.

On March 8, 2016, EPA issued a Notice of Potential Violation to Respondent that identified potential violations or areas of concern that were observed during the Inspection. On October 31, 2017, Respondent provided Complainant with a list of improvement activities (and their costs) that it had undertaken at the Facility since the Inspection that included in part, a list of upgrades that were taken to correct the areas of concern observed during the Inspection and noted in EPA’ s Notice of Potential Violation.

Accordingly, Complainant alleges the following violations of Part 68 and Part 370.

Alleged CAA/RMP Violations

Failure to Comply with Program 3 Process Safety Information Requirements

Pursuant to 40 C.F.R. §§ 68.12(d)(3) and 68.65, the owner or operator of a Program 3 process is required, among other things, to compile written process safety information, including information pertaining to the technology of the process and information pertaining to the equipment in the process, before conducting a PHA, in order to perform an adequate PHA and to enable proper maintenance of process equipment. This includes documenting: information pertaining to the hazards of the RMP chemical in the process; information pertaining to the technology and equipment of the process (including that the equipment complies with recognized and generally accepted good engineering practices); and information showing that any existing equipment that was designed in accordance with outdated standards is designed, maintained, inspected, tested, and operating in a safe manner.

At the time of the Inspection, Respondent failed to document that the E1 and E2 Processes complied with recognized and generally accepted good engineering practices (“RAGAGEP”) and that existing equipment designed according to outdated standards was designed, maintained, inspected, tested, and operated in a safe manner.

For example:

Respondent had not properly labeled and/or consistently color-coded all of the ammonia piping and equipment for the E1 and E2 Processes;
Respondent did not have any information/data to show that the ammonia detectors for the AMRs of the El and E2 Processes would sound an alarm and start a ventilation system if ammonia levels reached a certain concentration;
Respondent did not have any information/data to show that the ammonia detectors for the AMRs of the El and E2 Processes would trigger an alarm if the continuous ventilation system failed;
Ammonia detectors in the A MRs for the E1 and E2 Processes did not activate visual and/or audio alarms outside the machinery rooms;
Respondent had not posted emergency shutdown information at the entrances to AMRs of the El and E2 Processes;
The doors for the AMRs for the El and E2 Processes were not all selfclosing and tight-fitting;
The AMRs could not be isolated/sealed and/or had other wall penetrations that could allow ammonia to release/leak to other parts of the building or to the outside environment;
The AMRs did not have eyewash/safety shower stations inside the machinery room and/or close to each exit outside of the room;
The AMRs of the E1 and E2 Processes did not have ventilation air inlets that were positioned so as to avoid recirculation of exhaust air;
Respondent had not yet addressed questions raised in the 2010 and 2013 PSM Audit Reports regarding ventilation calculations and ammonia detectors in the AMRs of the E1 and E2 Processes;
Respondent had not posted any signage to either identify the main ammonia shut-off valve (i.e., the “King Valve”) for the accumulator for the E2 Process or to direct emergency responders to the valve;
The emergency shut-off controls for the E1 and E2 Processes were missing, not easily identifiable to emergency responders and/or not accessible to responders wearing emergency equipment;
There were multiple locations for the E1 and E2 Processes where ammonia pressure relief discharge points:
1. were less than 20 feet away from windows, ventilation intakes, or personnel exits;
2. were less than 7 .5 feet above roof surface; and/or (3) had outlets aimed downwards (i.e., toward the ground) rather than upwards;
There was a lack of signage or inadequate signage for manual ventilation fan overrides outside the AM Rs of the E1 and E2 Processes to direct emergency responders to the equipment; and
The AMRs had some impediments to a safe exit in case of an emergency located at ground level near machinery; and
The AMRs for the E1 and E2 Processes could not be completely isolated/sealed.

Accordingly, by failing to compile the necessary information about the technology and equipment of the E1 and E2 Processes, including by documenting that the E1 and E2 Processes complied with recognized and generally accepted good engineering practices, Respondent violated 40 C.F.R. § 68.65 and Section 112(r)(7)(E) of the CAA.

Failure to Comply with Program 3 Process Hazards Analysis Requirements

Pursuant to 40 C.F.R. §§ 68.12(d)(3) and 68.67(a), the owner or operator of a Program 3 process is required to perform an initial process hazard analysis (“PHA”) on covered processes. The PHA shall be appropriate to the complexity of the process and shall identify, evaluate, and control the hazards involved in the process.

Pursuant to 40 C.F.R. § 68.67(c), the PHA shall identify the hazards of the process, opportunities for equipment malfunction or human error, safeguards that are used or needed, and any steps used or needed to detect releases.

Pursuant to 40 C.F.R. § 68.67(e), the owner or operator shall, among other things:

establish a system to address the findings and recommendations of the team that performed the PHA;
assure that that the recommendations are resolved in a timely manner and that resolution is documented;
document what actions are to be taken;
and complete actions as soon as possible.

Pursuant to 40 C.F.R. § 68.67(f), the PHA shall be updated and revalidated every five years. Pursuant to 40 C.F.R. § 68.67(g), the owner or operator shall retain the documented resolution of these recommendations for the life of the process.

At the time of the Inspection, Respondent had not yet addressed all findings from the 2010 and 2013 PSM Audit Reports, including questions initially raised in 2004 regarding ventilation calculations and ammonia detectors in the AMRs of the E 1 and E2 Processes.

Respondent also failed to identify certain emergency response-related hazards in these Audit Reports, specifically:

the fact that the closest trained emergency responders were located approximately 65 miles (or 1.5 hours away) from the Facility; and
the difficulty of notifying the numerous Amish residents who live in the area around the Facility in the event of an ammonia release (due to the population ‘s lack of modern telecommunications equipment, such as telephones, cellphones and computers).

Accordingly, by failing to address all findings from the 2010 and 2013 PSM Audit Reports, as well as failing to identify certain emergency response-related hazards in these Audit Reports, as described above in paragraphs 54 and 55, Respondent violated 40 C.F.R. § 68.67 and Section 112(r)(7)(E) of the CAA.

Failure to Comply with Mechanical Integrity Requirements

Pursuant to 40 C.F.R. §§ 68.12(d)(3) and 68.73, the owner or operator of a Program 3 process must establish and implement written procedures to maintain the ongoing integrity of certain process equipment and to train employees accordingly. See 40 C.F.R. § 68.73(b). The owner or operator must train each employee involved in maintaining the ongoing integrity of the processing the procedures applicable to the employee’s job task. See 40 C.F.R. § 68.73(c). The owner or operator must inspect and test the equipment either in accordance with the manufacturer’s recommendations and good engineering practices, or more frequently if needed based on prior operating experience. See 40 C.F.R. § 68.73(d). The owner or operator must also document the inspections or tests on process equipment; correct deficiencies; assure that any new equipment is suitable for the process application; perform checks to ensure that equipment is installed properly; and assure that maintenance materials and spare parts are suitable for the process application. See 40 C.F.R. §§ 68.73(d)-(f).

At the time of the Inspection, Respondent’s maintenance program for the E 1 and E2 Processes had not complied with RAGAGEP since it did not sufficiently address:

certain piping, valves, and other equipment, some of which were unpainted and corroded;
that there were multiple locations for the E2 process where vapor barrier and insulation were breached; and
that a previously used gasket and/or sealant were suitable for use in the oil separator cleanout port of RC-12 in the AMR of the E1 Process, which resulted in a leak of ammonia during the Inspection.

Accordingly, by failing to comply with mechanical integrity requirements for the E1 and E2 Processes, Respondent violated 40 C.F.R. § 68.73 and Section 112(r)(7)(E) of the CAA.

Alleged EPCRA Violation

Failure to Submit Tier 2 Form

Respondent is an owner or operator of a “facility,” as that term is defined by Section 329(4) of EPCRA, 42 U.S.C. § 11049(4), and 40 C.F.R. § 370.66. In at least December 2013, Respondent stored the following chemicals, which are “hazardous chemicals” as defined under 40 C.F .R. § 3 70.66, at the Facility, each in a quantity that exceeds the minimum threshold level (“MTL”) set forth in 40 C.F.R. § 370.10: Drewfloc 2449 Polymer; Propylene Glycol; and Transformer Oil.

At all times relevant to the violations cited herein, Respondent was required, pursuant to the Occupational Safety and Health Act of 1970 (“OSHA”) and regulations promulgated thereunder, to prepare or have available onsite a MSDS for each of the chemicals listed above.

During calendar year 2013, Respondent stored at least three hazardous chemicals, listed above, at the Facility in a quantity that exceeded the MTL of 10,000 pounds set forth in 40 C.F.R. § 370.10.

Under 40 C.F.R. §§ 370.20, 370.40, 370.44, and 370.45, Respondent was required to prepare and submit an emergency and hazardous chemical inventory form (“Tier 2 Form”) to the SERC, LEPC and the local fire department with jurisdiction over the Facility in order to report the data required by Section 312(d) of EPCRA, 42 U .S.C. §11022(d), for at least calendar year 2013 on or before March I st of the following calendar year.

Respondent prepared and submitted a Tier 2 form for calendar year 2013 by March 1, 2014 to the SERC, LEPC and the local fire department, but failed to include information regarding the hazardous chemicals listed above. Accordingly, Respondent’s failure to include information regarding the hazardous chemicals listed above on the Tier 2 Form for calendar year 2013 violates Section 312(a) of EPCRA, 42 U.S.C. § l 1022(a), and 40 C.F.R. §§ 370.20, 370.40, 370.44, and 370.45.

Respondent certifies that it has corrected the violations alleged in this Agreement and is currently in compliance with 40 C.F.R. Parts 68 and 370 at the Facility.

Respondent further certifies that it has in place at the Facility, the key safety measures listed in Attachment A.

EPA has determined that it is fair and proper to assess a civil penalty of $225,000 for the violations alleged in this matter.

As a condition of settlement, Respondent agrees to submit a description of a plan/process that has been developed and implemented to provide notice to nearby Amish residents of an emergency at the Facility, as further described below:

Emergency Notification to Amish Residents:

Respondent agrees to request that representatives from local emergency response and planning authorities, including but not limited to Respondent, local public safety departments, and disaster relief organizations ( collectively “LEPC”), develop and implement a plan/process to provide notice to nearby Amish residents of an ammonia release or other emergency at the Facility that could, in the judgement of the LEPC, adversely affect such residents. The business agrees to participate in the development of a notification plan/process to the extent permitted by the LEPC and to participate in the implementation of the plan/process as may be reasonably required by the LEPC. Within 180 days of the Effective Date of this CAFO, Respondent shall submit to EPA a written description of such plan/process.

ATTACHMENT A – LIST OF KEY SAFETY MEASURES

Identifying Hazards

Hazard Addressed: Releases or safety deficiencies that stem from a failure to identify hazards in design/operation of system
- Facility has completed a process hazard analysis or review.

Operating Activities

Hazard Addressed: High risk of release from operating or maintenance activity
- System has self-closing/quick closing valves on oil pots.
- Facility has written procedures for maintenance and operation activities.
- Only authorized persons have access to machinery room and the ability to alter safety settings on equipment.

Maintenance/Mechanical Integrity

Hazard Addressed: Leaks/releases from maintenance neglect
- A preventative maintenance program is in place to, among other things, detect and control corrosion, deteriorated vapor barriers, ice buildup, and pipe hammering, and to inspect integrity of equipment/pipe supports.
- All piping system openings except the relief header are plugged or capped, or valve is locked.
- Equipment, piping, and emergency shutdown valves are labeled for easy identification, and pressure vessels have legible, accessible nameplates.
- All atmospheric pressure relief valves have been replaced in the last five years with visible confirmation of accessible pressure relief valves [note replacement every five years is the general rule but there are two other options in IIAR Bulletin 110, 6.6.3].

Machinery Room and System Design

Hazard Addressed: Inability to isolate and properly vent releases
- The System(s) has/have emergency shut-off and ventilation switches outside each machinery room.
- The machinery room(s) has/have functional, tested, ventilation. Air inlets are positioned to avoid recirculation of exhaust air and ensure sufficient inlet air to replace exhausted air.
- Documentation exists to show that pressure relief valves that have a common discharge header have adequately sized piping to prevent excessive backpressure on relief valves, or if built prior to 2000, have adequate diameter based on the sum of the relief valve cross sectional areas.

Emergency Actions

Hazard Addressed: Inability to regain control and reduce release impact
- Critical shutoff valves are accessible, and a schematic is in place to show responders where to access them.
- EPCRA Tier II reporting is up to date.

Identifying Hazards

For systems that employ hot gas defrost, the process hazard analysis/review includes an analysis of, and identifies, the engineering and administrative controls for the hazards associated with the potential of vapor propelled liquid slugs and condensation-induced hydraulic shock events.

Operating Activities and Maintenance/Mechanical Integrity

Written procedures are in place for proper use and care of personal protective equipment.
If respirators are used, facilities know the location of their respirators, and they are inspected ·and maintained per manufacturer or industry standards.
All changes to automation systems (programmable logic controls and/or supervisory control and data acquisition systems) if present, are subject to management of change procedures.

Machinery Room and System Design

The facility has engineering controls in place to protect equipment and piping against overpressure due to hydrostatic expansion of trapped liquid refrigerant.
Administrative controls are acceptable where hydrostatic overpressure can occur only during maintenance operations.
Eyewash station(s) and safety shower(s) is/are present and functional.

Emergency Actions

Emergency response communication has occurred or has been attempted with the Local Emergency Planning Committee and local responders.
The facility has an emergency action plan pursuant to 29 C.F.R. § 1910.38(a) or an emergency response plan pursuant to 29 C.F.R. § l 910.l20(q) and 40 C.F.R. § 68.95.

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