Respondent operates enclosed, anaerobic biodigester systems that process food processing, biomass waste streams to produce a biogas intermediate that contains methane. This biogas is further processed (in an enclosed system) to produce a final compressed natural gas that is sold as a transportation fuel. Gaseous hydrogen sulfide has on occasion been released in small concentrations when sulfur-containing waste streams mixed with non-compliant acidic wastewaters. As a result, Respondent produces, processes, handles or stores biogas, methane, and hydrogen sulfide at the Facility. On or about December 14, 2016, at 19:03, an employee drilled a hole into an anaerobic digester, which was producing, processing, handling, and/or storing biogas, methane, and/or hydrogen sulfide, to install a pipe. When the employee’s drilling pierced the anaerobic digester, biogas, methane, and/or hydrogen sulfide were released. The employee was injured as a result of the release and transported to a local hospital for medical treatment.
On February 13 through 15, 2017, EPA Region 7 and the Nebraska Department of Environmental Quality (“DEQ”) inspected Respondent’s facility. EPA Region 7 focused its shared portion of this coordinated inspection on Respondent’s compliance with Section 112(r) of the CAA and 40 C.F.R. Part 68. Pursuant to its delegated authority under the federal Clean Air Act and Clean Water Act, DEQ entered an administrative consent order in June 2017 that addressed Respondent’s compliance with water and air permits issued under the Nebraska Environmental Protection Act. Information collected as a result of the inspection revealed that at the time of the inspection, and at all times relevant to this Consent Agreement and Final Order, Respondent produced, processed, handled or stored biogas, methane and hydrogen sulfide in its processes at the Facility.
On December 22, 2016, EPA transmitted a request for information to Respondent pursuant to Section 114 of the CAA. On January 31, 2017, February 8, 2017, March 22, 2017, March 24, 2017, and in numerous meetings and conference calls in April and May 2017, Respondent provided information related to its compliance with Section 112(r) of the CAA and 40 C.F.R. Part 68. Through these exchanges of information, Respondent documented that the quantity of regulated substances produced, processed, handled or stored at the facility (including methane, biogas and hydrogen sulfide) are below the threshold quantities set forth in Tables 1-4 of 40 C.F.R. Section 68.130. Accordingly, Respondent is not subject to Risk Management Plan (“RMP”) standards pursuant to the requirements at 40 C.F.R. Subpart G.
EPA alleges that at the time of the EPA inspection and information request, Respondent had not completed an adequate or sufficient hazard assessment to identify hazards which may result from releases of biogas, methane, or hydrogen sulfide.
To come into compliance with the GDC, Respondent developed, with concurrent review and comment by EPA, a tailored GDC Plan. BOE’s current GDC Plan includes a formal process hazard analysis that identifies, evaluates, and develops additional controls to address potential risks including chemical releases.
Respondent is subject to the requirements of Section 112(r)(l) of the CAA, 42 U.S.C. § 7412(r)(l), because it is the owner and operator of a stationary source that is producing, processing, handling or storing substances listed pursuant to Section 112(r)(3), 42 U.S.C. § 7412(r)(3) and/or extremely hazardous substances.
Allegation of Violation
Pursuant to Section 112(r)(1) of the CAA, Respondent has a general duty in the same manner and to the same extent as 29 U.S.C. § 654, to: (a) identify hazards which may result from accidental releases of a regulated substance or other extremely hazardous substance, using appropriate hazard assessment techniques, (b) design and maintain a safe facility taking such steps as are necessary and reasonable to prevent releases, and (c) minimize the consequences of accidental releases which do occur.
Based on the information available to the EPA, including the release of biogas, methane, and/or hydrogen sulfide on December 14, 2016, EPA alleges that Respondent failed to identify hazards which may result from releases of biogas, methane, and hydrogen sulfide using appropriate hazard assessment techniques, in violation of Section 112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1).
CONSENT AGREEMENT
Respondent agrees that, in settlement of the claims alleged herein, Respondent shall pay a civil penalty of Ten Thousand Three Hundred Twenty Dollars, ($10,320), as set forth below, and shall perform a Supplemental Environmental Project (SEP) as set forth in this Consent Agreement and Final Order. The projected cost of the SEP is Thirty-Nine Thousand Two Hundred Twenty-Five Dollars ($39,225). The SEP is further described below.
Respondent shall complete the following SEP: donation of emergency response equipment, including an ambulance and necessary associated equipment to outfit the ambulance, as described in Appendix A, which is attached hereto. The SEP shall cost at least Thirty-Nine Thousand Two Hundred Twenty-Five Dollars ($39,225). Respondent agrees that the SEP shall be completed within three (3) months of the Effective Date of this Consent Agreement and Final Order.
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