EPA RMP Citations @ seafood plant (NH3 & $30K)

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The RMP CAFO is very interesting in that the facility stated they were under 10,000 pounds (NH3 TQ) and EPA challenged their numbers, even though the facility had completely pumped down their system and had exact pounds they charged the system with when they started up. So the case is going to court and EPA wrote this CAFO under both the General Duty Clause (in the event the court agrees with the business) and using Part 68 (in the event the court agrees with EPA).

Pursuant to Section 112(r)(1) of the CAA, owners and operators of stationary sources producing, processing, handling, or storing substances listed pursuant to Section 112(r)(3) of the CAA, or any other extremely hazardous substance, have a general duty to:

(a) identify hazards that may result from accidental releases of such substances, using appropriate hazard assessment techniques;

(b) design and maintain a safe facility, taking such steps as are necessary to prevent releases; and ‘

(c) minimize the consequences of accidental releases that do occur.

This section of the CAA is referred to as the “General Duty Clause. ” The extremely hazardous substances listed pursuant to Section 112(r)(3) include, among others, anhydrous ammonia. Under Section 312(a) of EPCRA, 40 C.F.R. §§ 370.10, 370.12, 370.20, 370.40, 370.44, and 370.45, the owner or operator of any facility that is required to prepare or have available a safety data sheet (“SOS”) for a hazardous chemical under OSHA and the hazard communication standards promulgated thereunder at 29 C.F.R.§ 191O.11200(b)(1), must prepare and submit an emergency and hazardous chemical inventory form (“Tier I” or “Tier II” form) to the state emergency response commission (“SERC”), community emergency coordinator for the local emergency planning committee (“LEPC”), and the local fire department with jurisdiction over the facility. Pursuant to 40 C.F.R. §§ 3 70.40 and 370.45, the Tier I or Tier II form must be submitted annually on or before March 1st of each year and is required to contain information with respect to the preceding calendar year. Facilities in New Hampshire must submit Tier II forms instead of Tier I forms.

The Respondent operates a fresh and frozen seafood processing and distribution facility. The Facility is located on the State Fish Pier, which is a publicly accessible pier open to fishermen and tourists. The Facility is located immediately adjacent to other businesses and is located within several hundred feet of residences. According to the U.S. Census data from 2010, several thousand people live near the Facility.

On March 21, 2017, EPA inspectors visited the Facility and performed an inspection (“the Inspection”) to assess Respondent’s compliance with Section l 12(r) of the CAA and EPCRA. At the time of the Inspection, the Facility included seafood processing, freezing, and cold storage areas, including refrigeration equipment, as well as shipping, receiving, and administrative offices. The Facility included an ammonia refrigeration system for cooling the Facility’s blast freezers, cold storage rooms, and a refrigerated loading dock.  At the time of the Inspection, Respondent used anhydrous ammonia in a refrigeration process.

In 2005, the previous tenant of the facility, filed an RMP with EPA reporting that the capacity of the Facility’s ammonia refrigeration system was 17,500 pounds of anhydrous ammonia. In 2005, Allied Cold Storage conducted a Process Hazard Analysis (“PHA”) for the Facility. Allied Cold Storage submitted Tier II reports pursuant to Sections 311 and 312 of the Emergency Planning and Community Right-to-Know Act of 1986 (“EPCRA”) reporting that the Facility used the following quantities of ammonia:

a. 15,000 pounds of anhydrous ammonia in the reporting year 2004.

b. 15,000 pounds of anhydrous ammonia in the reporting year 2005.

After Respondent began operating at the Facility, Respondent submitted Tier II reports pursuant to Sections 311 and 312 EPCRA, 42 U.S.C. §§

a. 18,500 pounds of anhydrous ammonia in reporting year 2006.

b. 18,500 pounds of anhydrous ammonia in reporting year 2008.

c. 9,999 pounds of anhydrous ammonia in reporting years 2009-2014.

d. 8,000 pounds of anhydrous ammonia in reporting years 2015 and 2016.

e. 8,949 pounds of anhydrous ammonia in reporting year 2017.

f. 9,041 pounds of anhydrous ammonia in reporting year 2018.

On February 4, 2010, Respondent deregistered the Facility from the RMP program because Respondent conducted a pump-down of the Facility’s ammonia refrigeration system and calculated that it was using less than 10,000 pounds of anhydrous ammonia. Specifically, Respondent determined that the Facility had 7,804 pounds of ammonia as of January 25, 2010.

On November 28, 2017, after the Inspection, EPA issued a Notice of Potential Violation to Respondent regarding Respondent’s compliance with the requirements of Section 112(r) of the CAA and EPCRA.  On January 29, 2018, Respondent met with EPA to respond to EPA’s Notice of Potential Violation and report about Respondent’s compliance with the requirements of the CAA. At the meeting, EPA indicated that to support Respondent’s assessment that the total ammonia capacity of the Facility’s system was less than 10,000 pounds, Respondent should perform a full inventory analysis of all the equipment at the Facility, including calculations regarding the minimum level of ammonia necessary to keep the Facility’s refrigeration system functioning as well as the general quantity of ammonia necessary to operate the refrigeration system at its normal operating level.

In an affidavit submitted to EPA on January 29, 2018, Respondent provided documentation regarding what the company claimed was all of the ammonia purchases between 2013 and 2016 for additional ammonia to be added to the Facility’s ammonia refrigeration system. This documentation showed that the Facility purchased 400 pounds of anhydrous ammonia during this time period. Specifically, the Facility added 200 pounds of anhydrous ammonia in 2014, 100 pounds of anhydrous ammonia in 2015, and 100 pounds of anhydrous ammonia in 2016.

On April 28, 2018, Respondent submitted information to EPA with its assessment that the total ammonia charge of the Facility’s system was 8,949 pounds based on a pump-down of the Facility’s ammonia refrigeration system performed in March 2017.

On May 16, 2018, EPA provided Respondent with an inventory analysis of all the known equipment at the Facility, including calculations regarding EPA’s assessment of the quantity of ammonia present at the Facility during the Inspection and the general quantity of ammonia necessary to operate the refrigeration system at its normal operating level. These calculations indicated that the amount of ammonia at the Facility during the Inspection and during normal operations exceeded 10,000 pounds.

In a response dated June 19, 2018, Respondent provided information indicating that its contractor, XXXXXXXXXXXXXX, had reviewed and adjusted some numbers in EPA’s calculations and concluded that the Facility had a total ammonia charge of 9,056 pounds.

On August 17, 2018, EPA issued to Respondent a formal information request pursuant to Section 114(a)(1) of the CAA, asking for more information about the previous pump downs performed at the Facility and for a full equipment inventory. In a response dated September 18, 2018, Respondent provided additional information about the Facility’s ammonia equipment dimensions and indicated that the total ammonia charge of the Facility was 9,041 pounds, including O pounds of ammonia in the Facility’s plate freezer and compressor.

Based on the ammonia refrigeration system design and operating information provided by Respondent on September 18, 2018, EPA estimated that:

(a) the Facility’s ammonia refrigeration system, including all pressure vessels, condensers, piping, and evaporators, could contain as much as 22,900 pounds of anhydrous ammonia if filled to capacity; and,

(b) under normal operating conditions, the Facility’s entire ammonia refrigeration system would contain approximately 12,958 pounds of anhydrous ammonia.
Respondent calculates that, at the time of the Inspection to the present, the process at the Facility has contained less than 10,000 pounds of anhydrous ammonia, in which case, as the operator of a stationary source that processes, handles, or stores an “extremely hazardous substance,” Respondent would be subject to the General Duty Clause.

However, EPA alleges that, the Process was a “covered process” subject to the provisions of Part 68 because Respondent “used,” “stored,” and “handled” the RMP chemical anhydrous ammonia at the Facility in the process in an amount greater than 10,000 pounds.

Modeling performed by EPA indicates that the endpoint for a worst-case release from the Process is greater than the distance to a public receptor. Additionally, EPA alleges that, at the time of the Inspection, the Process was subject to OSHA’s PSM requirements at 29 C.F.R. § 1910.119 because it used anhydrous ammonia in an amount over the threshold quantity of 10,000 pounds. Based upon EPA’s allegations, in accordance with 40 C.F.R. § 68.10(a)-(d), Respondent’s use, storage, and handling of anhydrous ammonia in its Process at the Facility would be subject to the requirements of RMP Program 3.

In light of the potential hazards posed by the mishandling of anhydrous ammonia, industry trade associations have issued standards outlining the recognized and generally accepted good engineering practices (“RAGAGEP”) in the ammonia refrigeration industry. In collaboration with the American National Standards Institute (“ANSI”), the International Institute of Ammonia Refrigeration (“IIAR”) has issued (and updates) “Standard 2: Equipment, Design, and Installation of Closed-Circuit Ammonia Mechanical Refrigerating Systems,” along with other applicable standards and guidance. Also, in collaboration with the American National Standards Institute, the American Society of Heating, Refrigerating and Air-Conditioning Engineers (“ASHRAE”) has issued (and updates) Standard 15: Safety Standard for Refrigeration Systems.” These standards are consistently relied upon by refrigeration experts and are sometimes incorporated into state-building, fire, and mechanical codes.

Based upon the Inspection and EPA’s review of subsequently submitted information, EPA alleges that Respondent failed to design and maintain a safe facility and failed to minimize the consequences of a release. Some of the potentially dangerous conditions allegedly relating to the Process at the Facility, included:

 

a. Failure to register as an RMP facility in accordance with 40 C.F.R. §§ 68.10, 68.12, 68.150(a), and 68.150(b)(3).

As described above, the previous tenant at the Facility submitted an RMP for the Facility, and Respondent’s initial Tier II reporting for the Facility reported that Respondent used greater than 10,000 pounds of ammonia at the Facility. Respondent deregistered the Facility from the RMP program on February 4, 2010, and has not submitted a current RMP for the Facility. Based upon its calculations, EPA alleges that Respondent failed to comply with RMP facility registration requirements by failing to submit its RMP to EPA by the date on which anhydrous ammonia was first present above the threshold quantity of 10,000 pounds in the Process at the Facility, which was at least by 2017, when EPA inspected the Facility.

As described above, EPA’s calculations indicate that the Facility’s ammonia capacity exceeds 10,000 pounds and that normal operations at the Facility would require the use of greater than 10,000 pounds of ammonia.

 

b. Failure to maintain and comply with process safety information requirements in accordance with 40 C.F.R. § 68.65.

Based upon its calculations, EPA alleges that Respondent failed to comply with process safety information requirements, including failure to document that either the equipment complied with RAGAGEP or that existing equipment designed and constructed in accordance with codes, standards, or practices that are no longer in general use was designed, maintained, inspected, tested, and operated in a safe manner. For Respondent’s Process, at the time of EPA’s Inspection, applicable RAGAGEP sources included:

  • Int’l Inst. of Ammonia Refrigeration, Standard 2-2014, Standard for Safe Design of ClosedCircuit Ammonia Refrigeration Systems (2014), [hereinafter “IIAR 2-2014”];
  • Int’l Inst. of Ammonia Refrigeration, Bulletin No. 109: IIAR Minimum Safety Criteria for a Safe Ammonia Refrigeration System, [hereinafter “IIAR Bull. 109”];
  • Int’l Inst. of Ammonia Refrigeration, Bulletin No. 110: Guidelines for: Start-up, Inspection and Maintenance of Ammonia Mechanical Refrigerating Systems [hereinafter “IIAR Bull. 110”];
  • Int’l Inst. of Ammonia Refrigeration, Bulletin No. 114: Guidelines for Identification of Ammonia Refrigeration Piping and System Components [hereinafter “IIAR Bull. 114”];
  • Am. Nat’l Standards Inst/Am. Soc’y of Heating, Refrigerating and Air-Conditioning Eng’rs, Standard 15-2013: Safety Standard for Refrigeration Systems, [hereinafter “ASHRAE 15-2013”];
  • National Fire Protection Association, NFPA 70 National Electrical Code (2011 Edition) [hereinafter “NFPA 70 (2011 ed.)”]; and,
  • National Fire Protection Association, NFPA 1 Fire Code, 2012 Edition [hereinafter “NFP A 1 (2012 ed.)”]

In addition, at the time of the Inspection, significant portions of the ammonia refrigeration system at the Facility did not meet these standards. Normal day-to-day maintenance and inspection was substantially lacking. Specific issues identified, include:

1. Ammonia detection issues: At the time of the Inspection, the ammonia detector in the ammonia machinery room activated an alarm only when the ammonia concentration reached 35 ppm, rather than 25 ppm. The standard industry practice is for ammonia alarms to activate at ammonia concentrations of 25 ppm or greater. See e.g., IIAR 2-2014, supra,§ 6.13.

Additionally, there were no audio/visual alarms in the ammonia machinery room itself, outside the second entrance to the ammonia machinery room, or any other areas of the Facility containing ammonia. It is standard industry practice for there to be at least one ammonia detector in the ammonia machinery room and for audible and visual alarms to be provided inside the ammonia machinery room to warn that access to the room is restricted to authorized personnel and emergency responders when the alarm is activated. It is standard industry practice for additional audible and visual alarms to be located outside of each entrance to the ammonia machinery room. See e.g., IIAR 2-2014, supra,§ 6.13. Furthermore, the exterior orange lights associated with ammonia alarms at the Facility were not marked regarding their function. It is standard industry practice for ammonia leak detection alarms to be identified by signage adjacent to visual and audible alarm devices. See e.g., IIAR 2-2014, supra, § § 6.15.2 and 17.6.

In addition, at the time of the inspection, there were no ammonia detectors or alarms installed in the blast freezer rooms, cold storage rooms, or outdoor Rooms # 1 and #2. It is standard industry practice for level 1 ammonia detection and alarms to be provided for areas where an ammonia refrigeration system or equipment is installed outside of a machinery room. See e.g., IIAR 2-2014, supra, §§ 7.2.3 and 17.7.1.

In addition, the ammonia detector located on the wall outside the ammonia machinery room office was located approximately six feet below the ceiling in a location where a refrigeration leak would not concentrate. It is standard industry practice for ammonia leak detection sensors to be mounted in a position where ammonia from a leak is expected to accumulate. See e.g., IIAR 2-2014, supra, § 17.4.

At the time of the Inspection, the Facility lacked an eyewash station or body shower outside the entrance to the machinery room. The standard industry practice is to maintain an eyewash station and body shower unit located external to the machinery room and readily accessible by an exit. See e.g., IIAR 2-2014, supra,§ 6.7 and Bull. 109, supra, § 4.10.10.

At the time of the Inspection, none of the ammonia refrigeration piping, vessels, or valves associated with the outdoor Room #1 ammonia refrigeration vessels and equipment contained labels or tags to identify the purpose of the equipment, contents, physical state, or direction of flow. In addition, ammonia refrigeration piping and equipment in the blast freezers and cold storage rooms did not contain tags or labels to identify the purpose, contents, physical state or direction of flow of ammonia. The standard industry practice is for all piping mains, headers, and branches to be identified as containing ammonia and as to the physical state of the refrigerant (that is, vapor or liquid, etc.), the relative pressure level of the refrigerant, and the direction of flow. The standard industry practice is to use an identification system that is either one established as a standard by a recognized code or standards body or one described and documented by the facility owner. See e.g., IIAR 2-2014, supra, § 5.14.5 and ASHRAE 15-2013, supra,§ 11.2.2 and IIAR Bull. 114, supra, and IIAR Bull. 109, supra, § 4.7.6.

At the time of the Inspection, the ammonia machinery room did not contain a legible, permanent sign securely attached and easily accessible in any location on the ammonia refrigeration system that displayed key information about the system, including

(a) the name and address of the installer;

(b) the refrigerant number and the amount of refrigerant in the system; and,

(c) the field test pressure(s) applied. It is standard industry practice to for the person in charge of a facility with an ammonia refrigeration system to provide directions for emergency shutdown of the system in a location that is readily accessible to trained refrigeration system staff and trained emergency responders. The schematic drawings or signage shall include several types of information including:

(1) Instructions with details and steps for shutting down the system in an emergency;

(2) The name and telephone numbers of the refrigeration operating, maintenance, and management staff, emergency responders, and safety personnel;

(3) The names and telephone numbers of all corporate, local, state, and federal agencies to be contacted as required in the event of a reportable incident;

(4) Quantity of ammonia in the system;

(5) Type and quantity of refrigerant oil in the system; and,

(6) Field test pressures applied. See e.g., IIAR 2-2014, supra,§ 5.15.

At the time of the Inspection, none of the doors entering the fish processing area, blast freezers, cold storage rooms, ice-making ammonia machinery room, or the door to access the roof containing ammonia condensers were marked with warning signs indicating the presence of ammonia.

In addition, the plywood doors leading to the outdoor Rooms # 1 and #2 and to the ice making ammonia machinery room did not include signs to indicate that access is for authorized personnel only. Finally, the high-pressure receiver in the ammonia machinery room did have an NFPA placard indicating the presence of ammonia in the vessel. It is standard industry practice for access to the refrigeration machinery room to be restricted to authorized personnel and for doors to be clearly marked at each entrance to indicate this restriction. See e.g., ASHRAE 15-2013, supra,§ 8.11.8 and IIAR 2-2014, supra,§ 7.2.2. It is also standard industry practice for buildings and facilities with refrigeration systems to be provided with signage in accordance with NFPA 704, which establishes a standard system for identifying hazardous materials for emergency responders. See e.g., IIAR 2-2014, supra, § 6.15.

At the time of the Inspection, the Facility lacked design calculations to show that the opening above the plywood walls to Rooms #1 and #2 was large enough to provide appropriate natural ventilation necessary to exhaust ammonia in the event of a release. It is standard industry practice for a facility to include appropriate natural ventilation that meets industry standard calculations for free-aperture cross-section, see e.g., IIAR 2-2014, supra,§ 7.3.2, or for the facility to provide appropriate mechanical ventilation. See e.g., ASHRAE 15-2013, supra,§§ 8.11.2, 8.11.3, 8.11.4, and 8.11.5.

At the time of the Inspection, the ammonia system’s pressure relief valves discharged through pipes extended above the roof of the Facility; however, the vent headers were less than 7.25 feet above the roof height. In addition, the pressure relief vents for the condensers on the roof discharged at an elevation below an adjacent roof level located within 20 feet horizontally from the pressure relief valves. It is standard industry practice for the termination of pressure relief devices to discharge to atmosphere not less than 7.25 feet above a roof that is occupied solely during service and inspection. And where a higher adjacent roof level is within 20 feet horizontal distance from the relief discharge, the discharge termination shall not be less than 7.25 feet above the height of the higher adjacent roof. See e.g., IIAR 2-2014, supra,§ 15.5.1.3 and ASHRAE 15-2013, supra,§ 9.7.8.

In addition, the ammonia machinery room’s ventilation exhaust vents discharged horizontally on the roof, within five feet of the roof access door, rather than discharge vertically upward. It is standard industry practice for machinery room exhaust vents to discharge vertically upward. See e.g., IIAR 2-2014, supra, §§ 6.14.3.4 and 6.14.3.5.

Finally, the administrative office windows open to the Facility’s third roof, where the ammonia condensers are located approximately 20 feet from the windows. In the event of an ammonia release, if the windows were open, ammonia could enter the office areas. It is standard industry practice for any ammonia refrigeration machinery, other than piping, that is installed outdoors shall be located not less than 20 feet from building openings, with certain exceptions. See e.g., IIAR 2-2014, supra,§ 4.2.2.

At the time of the Inspection, the roll-up entry door to the ammonia machinery room was located beneath three air intakes for the ammonia machinery room. If an ammonia release occurred in the ammonia machinery room while the roll-up door was open, ammonia would be drawn back into the three air intakes. It is standard industry practice for intakes for make-up air for the ammonia machinery room should be positioned to draw in uncontaminated outdoor air and avoid recirculation. See e.g., IIAR 2-2014, supra, § 6.14.5 .4 and ASHRAE 15-2013, supra, § 8.11.4.

At the time of the Inspection, the door between the ammonia machinery room and the high voltage electrical room lacked a tight seal at the bottom. It is standard industry practice for the ammonia machinery room to be separated from the remainder of the building by tight-fitting construction with a one-hour fire-resistance rating. See e.g., IIAR 2-2014, supra, §§ 6.2.1 and 7.2.1. Specifically, it is standard industry practice for machinery room doors to be self-closing and tight-fitting. See e.g., IIAR 2-2014, supra, § 6.10.2.

At the time of the Inspection, an oil pot for the ammonia refrigeration equipment in outdoor Room #1 at the Facility did not have a self-closing “deadman” shut-off valve to automatically close the pot when the valve is released. The standard industry practice is for ammonia refrigeration equipment used for oil removal to have a shut-off valve in a series with a self-closing shut-off valve. See e.g., IIAR 2-2014, supra, §§ 5.9.3.2 and 5.9.3.3.

At the time of the Inspection, the ammonia machinery room did not have a list of emergency contact numbers for state or federal agencies to contact in the event of a reportable incident or instructions for how to report such an incident. The standard industry practice is to provide directions for the emergency shutdown of the ammonia refrigeration system in a readily accessible location as well as schematics or signage including instructions for how to shut down the system in the event of an emergency and the names and telephone numbers for the personnel involved with operating, maintaining, and managing the system as well as emergency responders, safety personnel, and the corporate, local, state, and federal agencies to be contacted in the event of a reportable incident. See e.g., IIAR 2-2014, supra,§ 5.15.

At the time of the Inspection, the manual king valve in the ammonia machinery room was located approximately eight feet above the ground above the high-pressure receiver and was not readily accessible from the ground via a permanent ladder or a platform, and the valve was not operated by a chain. The standard industry practice is for all manually operated valves that are inaccessible from floor level to be operable from portable platforms, fixed platforms, ladders, or to be chain-operated. Isolation valves identified as being part of an emergency shutdown procedure should be directly operable or chain-operated from a permanent work surface. See IIAR 2-2014, supra,§§ 5.14.3, 6.3.3.2, and 13.3.7.

In addition, at the time of the Inspection, the ammonia refrigeration system’s remote emergency stop did not have a tamper-resistant cover or identifying labels to indicate what systems would be shut-down or if the king valves would close when the emergency stop was activated. It is standard industry practice for the emergency shut-off switch to have a tamper-resistant cover and to be marked by clear signage near the controls regarding its function. See e.g., IIAR 2-2014, supra, § 6.12.1.

Similarly, the emergency stop for the ice-making system was not labeled regarding its function. The standard industry practice is for main shut-off valves (king valves); hot gas defrost line main shut-off valves, and ammonia pump liquid main shut-off valves and/or disconnects of the ammonia system should be readily accessible and identified with a prominent sign having letters sufficiently large to be easily read. See e.g., IIAR Bull. 109, supra,§ 4.10.3.

Finally, the ammonia machinery room office lacked an emergency ventilation switch with on/override capability and a tamper-resistant cover. It is standard industry practice for a facility to have a clearly identified control switch for emergency ventilation with a tamper-resistant cover to be located outside the machinery room and adjacent to the designated principal machinery room door. See e.g., IIAR 2-2014, supra,§ 6.12.2.  And it is standard industry practice for the emergency ventilation switch to be powered independently of equipment within the machinery room and for the ventilation switch to continue to operate regardless of whether emergency shutdown controls for the machinery room have been activated. See e.g., IIAR 2-2014, supra, § 6.14.7.3.

At the time of the Inspection, several sets of piping and valves were not properly supported, including, but not limited to:

    • an ammonia pipe and valve beneath the flash tank outside Room # 1; two oil pots containing oil drain piping and valves in Room #I; an oil pot containing oil drain piping and a valve outside Room #2; 
    • ammonia piping suspended from the ceiling in the fish processing area that was unprotected from traffic, such as forklifts; and,
    • the site gage and associated piping for the high-pressure receiver in the ammonia machinery room was unprotected and unsupported

The standard industry practice is for piping hangers and supports to be able to carry the weight of the piping, as well as any other anticipated loads and to prevent damage from vibrations, stress, corrosion, and physical impact. See e.g., IIAR 2-2014, supra, §§ 5.11 and 13.4.2.

In addition, the evaporators and associated ammonia piping in the cold storage room were not provided with physical protection from equipment, such as forklifts. The standard industry practice is for ammonia piping to be inspected throughout a facility to determine that no piping is exposed to possible physical damage through traffic hazards, for example, forklifts. See e.g., IIAR Bull. 109, supra, §§ 4.42 and 4.7.3. Furthermore, it is standard industry practice for equipment to be protected where there is a risk of physical damage. For example, where equipment containing ammonia is located in an area with heavy vehicular traffic during normal operations and risk of impact exists, it is standard industry practice to provide vehicle barriers or alternative protection in accordance with the fire code. See e.g., IIAR 2-2014, supra, § 7.2.4.

At the time of the Inspection, the chain-link fence gate to access Room #1 with the Facility’s blast freezers did not contain panic hardware, was pad-locked, and the gate was not wide enough for emergency responders. It is standard industry practice for doors that are part of the means of egress to be equipped with panic hardware. See e.g., IIAR 2-2014, supra,§ 6.10.2.   Failure to comply with the mechanical integrity requirements for a Covered Process, in accordance with 40 C.F.R. § 68.73.

Based upon its calculations, EPA alleges that Respondent failed to establish a program to perform appropriate checks and inspections of the entire covered process to ensure that equipment was installed properly and maintained consistent with design specifications, the manufacturer’s instructions, and RAGAGEP in effect at the time of the Inspection. Respondent also failed to correct equipment deficiencies in accordance with 40 C.F.R § 68.73. Normal day-to-day maintenance and inspection was substantially lacking.  Specific issues identified, include:

1. At the time of the Inspection, sections of piping and system components exhibited signs of insulation problems, including surface corrosion, frosted piping, damaged and exposed insulation, and cursory repairs of insulation using only duct tape. Frosted piping indicates a breach in the insulation that could result in corrosion. In addition, poorly maintained insulation can increase the potential for corrosion-related problems. The standard industry practice is to inspect ammonia piping for damage to insulation, damage to lagging, and for corrosion and to make timely corrective actions. See e.g., IIAR Bull. 109, supra,§ 4.7 and IIAR Bull. 110, supra, § 6.7 and Appendix G-Typical Schedule for Inspection and Maintenance and IIAR 2-2014, supra,§ 13.4.2.

The standard industry practice is for piping and equipment surfaces not intended for heat exchange to be insulated, treated, or otherwise protected to mitigate condensation and excessive frost buildup where the surface temperature is below the dew point of the surrounding air during normal operation and in an area where condensation and frost could develop and become a hazard to occupants or cause damage to the structure, electrical equipment, or refrigeration system. See e.g., IIAR 2-2014, supra, § 5 .10.1.

In addition, the standard industry practice is to check piping for signs of corrosion and to treat corroded piping with rust preventative paint and to replace the badly corroded pipe. See e.g., IIAR Bull. 109, supra, §§ 4.7.4 and 4.7.5

The ammonia detector meter located within the ammonia machinery room was measuring less than “0” during the Inspection, indicating that the system was not operating properly. It is standard industry practice to follow the manufacturer’s specifications regarding the testing, inspecting, and calibrating of detectors. See e.g., IIAR Bull. 110, supra,§ 6.64 and ASHRAE 15-2013, supra,§ 11.6.3.

At the time of the Inspection, electrical code violations were identified. It is standard industry practice for electrical equipment and wiring to be installed in accordance with the Electrical Code. See e.g., IIAR-2-2014, supra,§ 6.8.1. It is standard industry practice for mechanical refrigeration systems to comply with electrical fire safety requirements of the Electrical Code. See e.g., NFPA 1 (2012 ed.), supra,§ 53.2.3.4.3 citing § 11.1

At the time of the Inspection, electrical code violations that were identified, included: electrical box covers had been removed, which exposed electrical wiring and connectors;  an electrical conduit was corroded and broken, with exposed electrical wiring; and, corroded electrical shut-off boxes were observed.

It is standard industry practice for the integrity of electrical equipment and connections to be maintained such that there are no damaged parts that may adversely affect safe operation or mechanical strength of the equipment such as parts that are broken, bent, cut, or deteriorated by corrosion, chemical action, or overheating. See e.g., NFPA 70 (2011 ed.), supra,§ 110.12. Also, an extension cord was used to provide power to moored vessels outside of the Facility. It is standard industry practice for extension cords not to be used as a substitute for permanent wiring. See e.g., NFPA 1 (2012 ed.), supra,§ 11.7.6.

At the time of the Inspection, a small ammonia leak was detected in the ammonia refrigeration equipment portion of the ice making system at the Facility. It is standard industry procedure to find the source of an ammonia leak if it is observed and to investigate and repair the leak. See e.g., IIAR Bull. 109, supra, § 4.10.8.

ALLEGED VIOLATIONS

A final determination has not been made about the quantity of anhydrous ammonia present in the Process. Respondent is subject to 40 C.F .R. Part 68 if it has more than 10,000 pounds of the chemical in the Process, whereas Respondent is only subject to the General Duty Clause if the Process has fewer than 10,000 pounds. Accordingly, this CAFO cites to both 40 C.F.R. Part 68 and the General Duty Clause.

 

Count 1: Failure to register as an RMP facility in accordance with 40 C.F.R. §§ 68.10, 68.12, 68.150(a), and 68.150(b)(3). Pursuant to 40 C.F.R. § 68.10, the owner or operator of a facility that has more than a threshold quantity of a regulated substance in a process shall comply with the requirements of 40 C.F.R. Part 68 no later than the latest of:

(a) June 21, 1999;

(b) three years after the date on which a regulated substance is first listed under 40 C.F .R. § 68.130; or

(c) the date on which a regulated substance is first present about a threshold quantity in a process.

Pursuant to 40 C.F.R. § 68.12, the owner or operator of a facility that is subject to 40 C.F.R. Part 68 shall submit a single RMP, as provided by 40 C.F.R. §§ 68.150 to 68.185, including a registration that reflects all covered processes at the facility.

As described above, EPA alleges that Respondent failed to comply with the RMP facility registration requirements of 40 C.F.R. §§ 68.10 and 68.12 by failing to submit its RMP to EPA by the date on which anhydrous ammonia was first present above the threshold quantity of 10,000 pounds in the Process at the Facility. The previous tenant at the Facility submitted an RMP for the Facility, and Respondent’s initial Tier II reporting for the Facility reported that Respondent used greater than 10,000 pounds of ammonia at the Facility. EPA alleges that Respondent deregistered the Facility from the RMP program on February 4, 2010 and has failed to submit a current RMP for the Facility. Respondent failed to comply with RMP facility registration requirements by failing to submit its RMP to EPA by the date on which anhydrous ammonia was first to present above the threshold quantity of 10,000 pounds in the Process at the Facility, which was at least by 2017 when EPA inspected the Facility. EPA’s calculations indicate that the Facility’s ammonia capacity exceeds 10,000 pounds and that normal operations at the Facility would require the use of greater than 10,000 pounds of ammonia. Accordingly, if the Process at the Facility contains at least 10,000 pounds of ammonia, then Respondent failed to comply with RMP registration requirements in violation of 40 C.F.R. §§ 68.10, 68.12, 68.150(a), and 68.150(b)(3) and Section l 12(r)(7)(E) of the CAA, 42 U.S.C. § 7412(r)(7)(E), from at least 2017, when the Facility’s Process included over 10,000 pounds of ammonia, until the present.

 

Count 2: Failure to Comply with Process Safety Information Requirements

Pursuant to 40 C.F.R. § 68.65, the owner or operator of a Program 3 process is required, among other things, to compile written process safety information before completing the 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 and information pertaining to the technology and equipment of the process. This compilation of process safety information enables appropriate identification and understanding of hazards posed by regulated substances in the process and the technology and equipment of the process. In addition, the owner or operator must document that equipment complies with RAGAGEP, and that any equipment that was designed according to outdated standards is designed, maintained, and inspected, tested, and operated in a safe manner. 40 C.F.R. § 68.65(d)(2) and (3).

Respondent failed to document that the Process equipment complied with applicable RAGAGEP or that any equipment that was designed according to outdated standards is designed, maintained, inspected, tested, and operated in a safe manner.

Accordingly, if the Process at the Facility contained at least 10,000 pounds of anhydrous ammonia, Respondent violated 40 C.F.R. § 68.65 and Section 112(r)(7)(E) of the CAA, 42 U.S.C. § 7412(r)(7)(E) by failing to comply with process safety information requirements. However, if the Process contained fewer than 10,000 pounds of anhydrous ammonia, the failures to maintain this critical information and to comply with recognized and generally accepted good engineering practices for the Process are a violation of the requirement to design and maintain a safe facility and/or a violation of the requirement to minimize the consequences of a release as required by the General Duty Clause, Section 112(r)(1) of the CAA.

 

Count 3: Failure to Comply with Mechanical Integrity Requirements for the Covered Process

Pursuant to 40 C.F.R. § 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 train employees accordingly. 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. The owner or operator must also document the inspections or tests on process equipment, correct deficiencies, ensure that any new equipment is installed properly, and ensure that maintenance materials and spare parts are suitable for the process application. 59. As described in Paragraph 46(c), at the time of the Inspection, Respondent failed to comply with the mechanical integrity requirements for the Process, including failing to establish a program to perform appropriate checks and inspections of the entire covered Process to ensure that equipment was installed properly and consistently with design specifications, the manufacturer’s instructions, and RAGAGEP, and failing to correct deficiencies in equipment that are outside acceptable limits.

Accordingly, if the Process at the Facility contained at least 10,000 pounds of anhydrous ammonia, Respondent violated 40 C.F.R. § 68.73 and Section l 12(r)(7)(E) of the CAA, 42 U.S.C. § 7412(r)(7)(E) by failing to establish and implement a sufficient mechanical integrity program and by not correcting equipment deficiencies before further use or in a safe and timely manner. However, if the Process at the Facility contained fewer than 10,000 pounds of anhydrous ammonia, then the failure to establish and implement a sufficient mechanical integrity program and to correct deficiencies in a timely manner is a violation of the requirement to design and maintain a safe facility and a violation of the requirement to minimize the consequences of a release as required by the General Duty Clause, Section 112(r)(1) of the CAA

 

Count 4: Failure to Design and Maintain a Safe Facility Pursuant to the General Duty Clause, Section 112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(l), owners and operators of stationary sources producing, processing, handling, or storing extremely hazardous substances also have a general duty to design and maintain a safe facility, taking such steps as are necessary to prevent releases.

If the Process at the Facility contains fewer than 10,000 pounds of ammonia, then the deficiencies identified above in Paragraphs 46(b) and 46(c) constitute violations of the General Duty Clause. Respondent’s failure:

  • to maintain process safety information for the Facility’s Process;
  • to comply with recognized and generally accepted good engineering practices for the Process; and,
  • to establish and implement a sufficient mechanical integrity program and to correct deficiencies in a timely manner constitute a violation of the requirement to design and maintain a safe facility as required by the General Duty Clause, Section 112(r)(1) of the CAA

Count 5: Failure to Minimize the Consequences of a Release Pursuant to the General Duty Clause, Section 112(r)(1) of the CAA, owners and operators of stationary sources producing, processing, handling, or storing extremely hazardous substances also have a general duty to design and maintain a safe facility, taking such steps as are necessary to prevent releases.

If the Process at the Facility contains fewer than 10,000 pounds of ammonia, then the deficiencies identified above constitute violations of the General Duty Clause. Respondent’s failure:

  • to maintain process safety information for the Facility’s Process;
  • to comply with recognized and generally accepted good engineering practices for the Process; and, 
  • to establish and implement a sufficient mechanical integrity program and to correct deficiencies in a timely manner constitute a violation of the requirement to minimize the consequences of a release as required by the General Duty Clause, Section 112(r)(1) of the CAA

Counts 6-8: EPCRA Tier II Reporting Violations Ammonia is an extremely hazardous substance as defined by 40 C.F.R. § 370.66 and as listed in Appendices A and B of 40 C.F.R. Part 355, with a minimum threshold quantity of 500 pounds.

As described above, Respondent used greater than 500 pounds of ammonia at the Facility for the last several years, including reporting years 2015, 2016, and 2017.

Therefore, Respondent was required pursuant to OSHA and regulations promulgated thereunder to prepare or have available onsite SOS for the extremely hazardous chemical present onsite, ammonia.  Pursuant to Section 312(a) of EPCRA, 42 U.S.C. § 11022(a), and 40 C.F.R. §§ 370.10, 370.12, 370.20, 370.40, 370.44, and 370.45, the owner or operator of any facility that is required to prepare or have available a SDS for a hazardous chemical under OSHA and the hazard communication ·standards promulgated thereunder at 29 C.F.R. § 1910.1200(b)(1), must prepare and submit an emergency and hazardous chemical inventory form (“Tier I” or “Tier 11” form) to the LEPC, the SERC, and the local fire department with jurisdiction over the facility.

Pursuant to 40 C.F.R. §§ 370.40 and 370.45, the Tier I or Tier II form must be submitted annually on or before March 1st of each year and is required to contain information with respect to the preceding calendar year. Facilities in Massachusetts must submit Tier II forms instead of Tier I forms.

As described in Paragraph 29, Respondent’s Tier II reporting for the Facility changed over time, with notable decreases and later increases in the reported quantities of anhydrous ammonia in reporting years 2009, 2015, 2017, and 2018. Specifically, Respondent reported the following: a. 18,500 pounds of anhydrous ammonia in reporting year 2006. b. 18,500 pounds of anhydrous ammonia in reporting year 2008. c. 9,999 pounds of anhydrous ammonia in reporting year 2009. d. 9,999 pounds of anhydrous ammonia in reporting year 2010. e. 9,999 pounds of anhydrous ammonia in reporting year 2011. f. 9,999 pounds of anhydrous ammonia in reporting year 2012. g. 9,999 pounds of anhydrous ammonia in reporting year 2013. h. 9,999 pounds of anhydrous ammonia in reporting year 2014. i. 8,000 pounds of anhydrous ammonia in reporting year 2015. J. 8,000 pounds of anhydrous ammonia in reporting year 2016. k. 8,949 pounds of anhydrous ammonia in reporting year 2017. l. 9,041 pounds of anhydrous ammonia in reporting year 2018. As described above, based on the ammonia refrigeration system design and operating information provided by Respondent on September 18, 2018,

EPA’s technical contractor estimated that:

(a) the Facility’s ammonia refrigeration system, including all pressure vessels, condensers, piping, and evaporators, could contain as much as 22,900 pounds of anhydrous ammonia if filled to capacity; and,

(b) under normal operating conditions, the Facility’s entire ammonia refrigeration system would contain approximately 12,958 pounds of anhydrous ammonia

Respondent argued that the Facility contained 7,804 pounds of ammonia in January 25, 2010. As described in Paragraph 33, Respondent admitted adding additional anhydrous ammonia to the Facility’s Process: 200 pounds of anhydrous ammonia in 2014; 100 pounds of anhydrous ammonia in 2015; and 100 pounds of anhydrous ammonia in 2016. If Respondent’s calculations regarding ammonia at the Facility in 2010 were correct, and assuming that there was no loss of ammonia over the course of the three-year period of 2014-2016, the total quantity of anhydrous ammonia at the Facility in 2015 and 2016 would have exceeded 8,000 pounds. Based upon EPA’s assumption of no loss of ammonia, EPA alleges that Respondent’s reports of the quantity of ammonia present at the Facility in its Tier II filings for the years 2015 and 2016 were underestimated.

Furthermore, as described in Paragraphs 34, 36, and 38, Respondent continued to increase its own calculations for the quantity of anhydrous ammonia at the Facility despite not purchasing any additional anhydrous ammonia to add to the Facility’s system.

On its 2017 Tier II filing, Respondent had reported 8,949 pounds of ammonia based on a 2017 pump-down that Respondent contends was performed in accordance with IIAR standards. In 2018, Respondent revised its inventory calculations to 9,056 then 9,041 pounds after reviewing EPA’ s calculations, and after having its consultant perform a series of engineered charge calculations to evaluate EPA’s calculations. Respondent contends that its report of the quantity of anhydrous ammonia at the Facility in its Tier II filing for 2017 was accurate.

Respondent’s failure to submit accurate Tier II reports to the appropriate reporting authorities by the reporting deadlines of March 1st of the subsequent year for calendar years 2015, 2016, and 2017 constituted three violations of Section 3 l 2(a) of EPCRA, 42 U.S.C. § 11022(a), and 40 C.F.R. §§ 370.10, 370.20, 370.40 and 370.42.
Respondent is therefore subject to an assessment of penalties under Section 325(c)(1) of EPCRA.

 

TERMS OF SETTLEMENT As a condition of settlement, Respondent agrees to come into compliance and conduct a pump-down of its ammonia refrigeration system, as described below. Respondent certifies that it will be operating the Facility in compliance with the General Duty Clause, Section 112(r)(1) of the CAA, once Respondent achieves the Key Safety Measures identified below.

Within 120 days of the effective date of this CAFO, Respondent shall submit to EPA a certification that it has achieved the following key safety measures, which EPA has determined should be present at every facility with an ammonia refrigeration system.

These measures also may be viewed at https://www.epa.gov/enforcement/safety-standards-ammonia-refrigeration:

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. o 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.
  • 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 back pressure 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.

Within two years of the effective date of this CAPO, Respondent shall conduct a complete pump-down of its Process, using an IIAR-approved methodology for ensuring that all ammonia is removed from the process. Respondent shall notify EPA 14 days before the pump down and provide its written pump-down plan. Within seven days of the pump-down, Respondent shall provide notification to EPA of the amount of ammonia pumped down. Should the pump-down yield over 10,000 pounds of ammonia, Respondent shall, within 120 days of receipt of the pump-down report, implement an RMP program and submit to EPA an RMP following the RMP*eSubmit procedures at https://www.epa.gov/rmp/how-submit-riskmanagement-plan-rmp-epa.

The parties’ goal is to obtain a definitive ammonia inventory while minimizing cost and business disruptions associated with the pump-down. To achieve that goal, the parties may agree to change the deadlines in this paragraph pursuant to the modification procedures in Paragraph 100. Likewise, if there is a technical alternative to a full pump-down that would meet the goal, the parties may use the modification procedures in Paragraph 100 to define the alternative, obtain advance EPA approval, and complete the work.
If Respondent fails to comply with these provisions, it shall be subject to stipulated penalties as follows: a. For failure to perform the work and submit the documents, in a manner consistent with the terms of this CAFO, or within the time required by this CAFO: $500 per day for the first fifteen (15) days of such violation; $1,000 per day for the sixteenth (16th) through thirtieth (30th) days of such violation; and $1,500 per day for each day of such violation thereafter.

Penalties shall begin to accrue on the day after the complete performance is due or a violation occurs and shall continue to accrue through the day the violation is corrected. Nothing herein shall prevent the simultaneous accrual of separate stipulated penalties for separate violations of this CAFO. Penalties shall continue to accrue regardless of whether EPA has notified Respondent of a violation.

Civil Penalty Payment

An appropriate CAA penalty was derived pursuant to the “Combined Enforcement Policy for Clean Air Act Sections 112(r)(1), (r)(7), and 40 C.F.R. Part 68” (“Enforcement Policy”) dated June 2012. EPA has determined that it is fair and proper to assess a civil penalty of thirty thousand dollars ($30,000) for the violations alleged in this matter. The total penalty shall be apportioned in the following manner: 84% of the penalty ($25,254) for the alleged CAA violations and 16% of the penalty ($4,746) for the alleged EPCRA violations.  Within thirty (30) calendar days of the effective date of this CAFO, Respondent shall pay the total penalty of $30,000

 

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