EPA has reached an agreement with a Nitrogen manufacturer to resolve federal civil environmental violations of the Clean Air Act’s chemical accident prevention measures and of federal laws requiring timely notification of chemical accidents. EPA identified these violations following an anhydrous ammonia release that led to thirteen workers being injured at the facility in Arizona. The facility, which uses anhydrous ammonia to manufacture ammonium nitrate-based explosives for mining operations and agricultural fertilizers, will pay a $1.5 million civil penalty and make widespread safety improvements to its facility, some of which have already been implemented. EPA’s inspections in 2015 and 2017 were prompted by the company’s release of more than 52,000 pounds of anhydrous ammonia while offloading a railcar in June 2014. During the investigation, EPA found violations of the Clean Air Act’s Risk Management Program regulations, including deficiencies in the plant’s hazard assessment, process safety information, operating procedures, mechanical integrity program, compliance audits, and emergency response program. The release injured twelve employees and one contractor, including seven who needed off-site medical evaluation, and also required the evacuation of employees.
While EPA’s investigation of the 2014 release was ongoing, the facility had an additional release of anhydrous ammonia in August 2015 due to the facility’s ineffective preventive maintenance program. The company then failed to immediately notify the National Response Center and state and local authorities, in violation of the federal Comprehensive Environmental Response, Compensation, and Liability Act and Emergency Planning and Community Right-to-Know Act, ultimately reporting the release several hours after it occurred.
This case is part of EPA’s National Compliance Initiative to reduce risks of accidental releases at chemical manufacturing facilities. Proper implementation of a risk management plan helps facilities that store large amounts of regulated hazardous substances prevent and prepare for chemical accidents. Apache Nitrogen Products uses large quantities of anhydrous ammonia, a toxic chemical highly corrosive to skin, eyes and lungs.
Two processes within the Facility are subject to RMP Regulations applicable to “Program 3” facilities within the meaning of 40 C.F.R. §§ 68.10(h) and 68.12(d), because the Facility’s NAICS Code 325311 is a Program 3-designated NAICS Code under 40 CFR § 68.10(h)(1), and because the processes are subject to the OSHA process safety management standard, as the quantity of anhydrous ammonia the Facility has in each process exceeds the threshold quantity of 10,000 pounds under OSHA’s process safety management regulations.
GENERAL ALLEGATIONS
On June 10, 2014, at approximately 10:08 a.m., there was a release of 52,000 pounds of anhydrous ammonia at the Facility. On that date, personnel was offloading ammonia from a railcar when a sight glass in the ammonia piping broke, resulting in the release described above. The release led to the injuries of twelve employees and one contractor and resulted in the evacuation of some employees.
On August 3, 2015, at approximately 12:40 p.m., there was a release of between 168 and 1150 pounds of anhydrous ammonia at the Facility.
The release described resulted in the evacuation of some employees. The facility was aware of the release at the time of the release. At least 3.25 hours passed after the release before they notified the National Response Center, the LEPC, or the SERC, at approximately 4:05 p.m.
Following the incident, EPA began an investigation of Defendant’s implementation of Section 112(r) of the CAA, Section 103 of CERCLA, and Sections 302 through 312 of EPCRA at the Facility. This investigation included but was not limited to an inspection of the Facility on May 25, 2015, and a follow-up inspection on September 29, 2017.
Based on the investigation, EPA issued a Notice of Inspection Findings and Request for Information to Defendant on March 9, 2016, and an additional Notice of Inspection Findings and Request for Additional Information on July 23, 2018, regarding the Facility.
FIRST CLAIM FOR RELIEF
Failure to Adequately Implement a Risk Management Program as Required by Applicable RMP Regulations, 40 C.F.R. Part 68, at the Facility
Defendant is subject to the requirements of Section 112(r) of the Clean Air Act, 42 U.S.C. § 7412(r), and the RMP Regulations promulgated thereunder at 40 C.F.R. Part 68, and specifically those regulations applicable to Program 3 processes, with respect to the Facility, because it is the owner and/or operator of a stationary source that had more than a threshold quantity of a regulated substance in a process. The Risk Management Plan submitted by the Facility identifies and describes two such processes:
- the Ammonium Nitrate process (also known as the Anhydrous Ammonia process), and
- the Magazine and Curtis Yard process
The Risk Management Plan reports that the Ammonium Nitrate process may contain a quantity of up to 5,700,000 pounds of anhydrous ammonia at any one time and that the Magazine and Curtis Yard process may contain a quantity of up to 5,500,000 pounds of anhydrous ammonia at any one time.
As identified in the inspections of May 25, 2015, and/or September 29, 2017; and, upon information and belief, continuing for a period of time thereafter, and, for some of the failures listed below, continuing until the present day, Defendant failed to timely and adequately comply with the following RMP Regulations at the Facility:
- Failure to establish and implement an appropriate Management System to oversee implementation of a Risk Management Program, as required by 40 C.F.R. §§ 68.12 and 68.15, and to document the organization of that Management System (specifically, the failure to establish and implement an adequate Management System, and the failure to document the organization and staff responsibilities for the system that the Facility has);
- Failure to include all covered Program 3 processes in its process hazard analysis (“PHA”), as required by 40 C.F.R. § 68.67(a) (specifically, the failure to perform a PHA on the rail sidings where ammonia railcars are stored);
- Failure to document compliance with RAGAGEP, as required by 40 C.F.R. § 68.65(d)(2) (specifically, the failure to document compliance with RAGAGEP for
- the use of sight glass assemblies in the ammonia railcar offloading process;
- appropriate labeling of piping in the railcar unloading area;
- adequate protection for “pull away while connected” incidents at truck and railcar unloading areas; and
- adequate impact protection for pipes against moving machinery or vehicular damage;
- Failure to establish a system to promptly address findings and recommendations made in a PHA in a timely manner and documenting the resolution, as provided in 40 C.F.R. § 68.67(e) (specifically, the failure to address the PHA recommendation to remove obsolete piping and the PHA recommendation to consider removing from service old ammonia tanks not in accordance with appropriate standards);
- Failure to adequately establish and implement its mechanical integrity program, as required by 40 C.F.R. § 68.73(b) & (d) (specifically, the failure to set and conduct mechanical integrity inspection and testing with the frequency Defendant had itself assigned for certain equipment, failure to set mechanical integrity inspection and testing with a frequency consistent with manufacturer’s recommendations and good engineering practices for pressure relief valves, and failure to set inspection and testing frequency at all for certain process equipment);
- Failure to correct deficiencies in equipment in a safe and timely manner, as required by 40 C.F.R. § 68.73(e) (specifically, the failure to address external corrosion on piping);
- Failure to adequately establish and implement an emergency response program, as required by 40 C.F.R. §§ 68.90 and 68.95 (specifically, the failure to develop adequate procedures for informing the public about accidental releases and responding to accidental releases, the failure to develop procedures for the use, inspection, testing, and maintenance of emergency response equipment, and the failure to train employees in the use of emergency response equipment);
- Failure to certify compliance audits and to promptly respond to the findings of compliance audits, as required by 40 C.F.R. § 68.79(a) & (d) (specifically, the lapse of over five years in responding to certain compliance audit findings identified in 2011, and the failure to certify Defendant’s 2014 compliance audit);
- Failure to ensure the completeness and accuracy of process safety information, as required by 40 C.F.R. § 68.65(a) & (d) (specifically, the failure to maintain information on certain electrical classifications, interlocks, or the design and design basis for relief systems; and the failure to ensure the accuracy of certain piping and instrument diagrams);
- Failure to develop and implement clear written operating instructions, as required by 40 C.F.R. § 68.69(a) (specifically, the failure to develop and implement clear and safe instructions for offloading liquid ammonia from railcars and associated activities);
- Failure to update the Facility’s five-year accident history to include accidental releases, as required by 40 C.F.R. §§ 68.195(a), 68.168, and 68.175(1) (specifically, the failure to timely update the Facility’s accident history to include the June 10, 2014 release described in Paragraph 41); and
- Failure to certify its operating procedures annually, as required by 40 C.F.R. § 68.69(c) (specifically, the failure to timely certify operating procedures, including AMM-0010, AMM 0121, and LAN-0015).
SECOND CLAIM FOR RELIEF
Failure to Comply with the requirements of the General Duty Clause of Section 112(r)(1) of the CAA at the Facility
Pursuant to Section 112(r)(1) of the CAA, Defendant is required “to identify hazards which may result from such releases [accidental releases of extremely hazardous substances] 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.”
Ammonium nitrate, a granular solid, is a strong oxidizer and is highly reactive. Ammonium nitrate may undergo detonation if subjected to strong shocks. As an oxidizer, ammonium nitrate may increase the flammability and/or explosiveness of other substances, increasing the fire hazard and complicating the firefighting challenges. Ammonium nitrate is an EHS, as that term is used in Section 112(r)(1) of the CAA, and as further described above, because ammonium nitrate is a chemical which may, as a result of short-term exposures because of releases to the air, cause death, injury, or property damage due to its toxicity, reactivity, flammability, volatility, or corrosivity.
As identified in the inspection of May 25, 2015, and, upon information and belief, continuing for a period of time thereafter, Defendant failed to design and maintain a safe facility by taking such steps as necessary to prevent accidental releases of a regulated substance, specifically, by allowing unsafe design and/or maintenance of equipment in its liquid ammonium nitrate unit.
EPA observed at the May 25, 2015 inspection that there was a large accumulation of solid ammonium nitrate on the side of the vessel described below; that the accumulation of ammonium nitrate was approximately thirty feet above ground; and that large pieces of ammonium nitrate had fallen onto piping and the ground below. According to Defendant’s own records, Defendant had been aware of the deficiency and the need to correct it since at least November 19, 2014. On that date, Defendant issued a work order identifying a leak in the liquid ammonium nitrate unit and the need to repair it. However, at the May 25, 2015 inspection, EPA personnel observed the accumulation of solid ammonium nitrate described above; EPA personnel also observed that Defendant had attached tape reading “CAUTION” to surround the ammonium nitrate debris.
Feasible means existed by which Defendant could have addressed the issues and maintained a safe facility at the liquid ammonium nitrate unit.
Each instance of a failure by Defendant to design or maintain a safe facility constitutes a violation of the General Duty Clause of Section 112(r)(1) of the CAA.
THIRD CLAIM FOR RELIEF
Failure to Make a Timely Notification of Release of a Hazardous Substance at the Facility as required by Section 103 of CERCLA
Anhydrous ammonia is a listed hazardous substance with a reportable quantity of 100 pounds. 40 C.F.R. § 302.4. The release of anhydrous ammonia from the Facility described above exceeded the reportable quantity. The facility was aware of the release at the time of the releases. However, it failed to notify the National Response Center for over 3.25 hours after the release, in violation of Section 103(a) of CERCLA, which requires “immediate” notification, and 40 C.F.R. § 302.6.
FOURTH CLAIM FOR RELIEF
Failure to Make Timely Notifications of Release of a Hazardous Substance at the Facility as required by Section 304 of EPCRA
Anhydrous ammonia is a listed hazardous substance with a reportable quantity of 100 pounds. 40 C.F.R. § 302.4. The release of anhydrous ammonia from the Facility was above the reportable quantity. The facility was aware of the release at the time of the release. However, the facility failed to notify the LEPC or SERC for over 3.25 hours after the release in violation of Section 304 of EPCRA, which requires “immediate” notification, and 40 C.F.R. § 355.33.
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