The U.S. Department of Justice and the EPA have entered into a consent decree with an agricultural cooperative to address alleged chemical accident prevention and preparedness violations under the Risk Management Program of the Clean Air Act. The alleged violations relate to the companies’ management of anhydrous ammonia at nine facilities, which have a combined inventory of more than 4.3 million pounds of the chemical. Under the settlement agreement, the business will assure that its accident prevention program complies with all applicable Clean Air Act requirements, will install emergency shutoff equipment at 53 facilities, and will pay a civil monetary penalty of $850,000.
Violations
The Consent Decree addresses list numerous violations of the Clean Air Act’s Risk Management Program requirements (Section 112(r)(7), 42 U.S.C. § 7412(r)(7)) at nine (9) fertilizer distribution facilities. The case falls within EPA’s National Enforcement Initiative for Chemical Accident Risk Reduction. Among the most common alleged violations, it failed to:
- implement procedures to maintain mechanical integrity;
- recognize in the hazard review (an assessment aimed at identifying hazards associated with an accidental release of an extremely hazardous substance) and address, promptly, all the hazards of the process;
- develop and implement written operating procedures that provide clear instructions for safely conducting activities; and
- report accidental releases that injured MFA employees when submitting its risk management plans.
Injunctive Relief
The business must create and implement corporate policies and engineering specifications for the storage and handling of anhydrous ammonia and a corporate-wide inventory maintenance system. It must also
- inspect and remedy any problems found within certain parts of its process equipment.
- update the information it provides to EPA on accidental releases, and I
- create and maintain a publicly available portion of its website listing accidents/releases that occur post-lodging.
Finally, the Consent Decree requires the business to hire an independent, third-party auditor to conduct RMP audits at 20 of its facilities to identify and correct any potential violations of its risk management program under the Clean Air Act.
The business will install emergency electronic shutoff systems at no fewer than 53 of its facilities. The electronic shutoff systems must include emergency stop buttons, and a remote stop transmitter, which can be worn by an employee to reduce response time to a potential release. The systems are designed to close all shutoff valves and shut down liquid and vapor pumps facility-wide. The estimated cost to implement these systems is about $400,000.
The nine facilities identified in the settlement have a combined inventory of 4,386,760 pounds of anhydrous ammonia on-site, and the compliance actions required by the Consent Decree will reduce the likelihood of releases of the ammonia stored at these facilities. Further, the extensive third-party audits at 20 facilities will help to eliminate the risk of future anhydrous ammonia releases. Lastly, the SEP at no fewer than 53 facilities will also reduce the risk of future releases.
Comment Period
The proposed settlement, lodged in the U.S. District Court for the Western District of Missouri, is subject to a 30-day public comment period and final court approval. Information on submitting comment is available at the Department of Justice website.
The the business facilities are subject to “Program 2” requirements within the meaning of 40 C.F.R. §§ 68.10(c) and 68.12(c). The facilities distribute anhydrous ammonia to farmers, who inject it into the ground as fertilizer. The facilities store large amounts of anhydrous ammonia in bulk tanks and transfer it to nurse tanks. As a result, employees, the surrounding public, and the environment are at risk of exposure to this extremely hazardous substance if it is released.
EPA examined records that the business produced on October 31, 2014, in response to an information request from EPA pursuant to Section 114 of the Act, relating to compliance with the risk management program regulations at 40 C.F.R. Part 68. In these records, the business admits that it operates all of the Facilities and owns the Facility One, Facility Three, Facility Four, Facility Five, Facility Six, Facility Eight and Facility Nine.
As a result of its examination and inspections, EPA identified numerous violations of the risk management program regulations and numerous releases of anhydrous ammonia resulting in injuries.
Facility One
On or about September 4, 2009, there was a release of anhydrous ammonia on or about September 4, 2009 constituted an “accidental release” within the meaning of Section 112(r)(2)(A) of the Act. 42 U.S.C. § 7412(r)(2)(A). As a result of this release, at least one person was injured onsite.
On September 19, 2012, EPA inspected the facility. The inspector noted, among other things, that the business failed to possess accurate safety information pertaining to equipment listed onsite; evaluate hazards; use proper saddles supporting bulk vessels that comply with recognized and generally accepted good engineering practices; address in the hazard review any steps used or needed to detect or monitor releases; resolve in a timely manner corrective actions identified in the facility’s hazard review; possess standard operating procedures for temporary operations and for how to use valves; and possess accurate three-year audits.
On or about October 31, 2014, the business submitted its response to EPA’s information requests pursuant to Section 114 of the Act. Among other things, the business’s answers revealed nurse tanks with improperly functioning gauges and a failure to report in the RMP the accidental release referred to above.
On April 27, 2015, EPA again inspected the facility. The inspector noted, among other things, that the business failed to possess standard operating procedures for normal daily start up or shut down processes and for filling dual nurse tanks; have up-to-date operating procedures that reference the emergency equipment that the facility actually uses and clearly identify the procedure associated with the equipment; describe the steps required to correct or avoid deviations in operating procedures; test and replace pressure relief valves and underground piping; and write an accurate description of its emergency response program.
Facility Two
On or about April 14, 2010, there was a release of anhydrous ammonia at the facility. The release of anhydrous ammonia on or about April 6 14, 2010 constituted an “accidental release” within the meaning of Section 112(r)(2)(A) of the Act. As a result of this release, at least one person was injured onsite.
On or about October 31, 2014, the business responded to EPA’s information request. Among other things, the business’s answers revealed its failure to report the accidental release within six months of its occurrence and to include any mention of the accidental release that resulted in on-site injuries in the five year accident history section of the RMP submitted on July 18, 2014.
Facility Three
On or about May 6, 2010, there was a release of anhydrous ammonia at the facility. The release of anhydrous ammonia constituted an “accidental release” within the meaning of Section 112(r)(2)(A) of the Act. 42 U.S.C. § 7412(r)(2)(A).
As a result of this release, at least one person was injured onsite.
Among other things, the business’s Section 114 response revealed a failure to report in the RMP an accidental release from a process that resulted in on-site injuries at the facility.
Facility Four
On or about January 18, 2012, there was a release of anhydrous ammonia at the facility. The release of anhydrous ammonia constituted an “accidental release” within the meaning of Section 112(r)(2)(A) of the Act.
As a result of this release, at least one person was injured onsite. Among other things, the business’s Section 114 response revealed a failure to report in the RMP an accidental release from a process that resulted in on-site injuries at the facility.
Facility Five
On or about March 24, 2014, there was a release of anhydrous ammonia at the facility. The release of anhydrous ammonia constituted an “accidental release” within the meaning of Section 112(r)(2)(A) of the Act. 42 U.S.C. § 7412(r)(2)(A). As a result of this release, at least one person was injured onsite.
Among other things, the business’s Section 114 response revealed a failure to report in the RMP an accidental release from a process that resulted in on-site injuries at the facility. Its response also revealed a failure to ensure that employees are trained to operate valves.
Facility Six
On September 12, 2012, EPA inspected the facility. The inspector noted, among other things, that the business failed to maintain adequate equipment specifications to determine safe upper and lower flow limits; properly maintain bulk storage vessels in a way that complied with recognized and generally accepted good engineering practices; and conduct a compliance audit every three years.
Facility Seven
On September 25, 2012, EPA inspected the facility. The inspector noted, among other things, that Defendants failed to include any consequences of deviation within its standard operating procedures.
On April 1, 2015, EPA again inspected the facility. The inspector noted, among other things, that Defendants failed to use proper equipment, including vehicle barriers, a bulk tank saddle, nurse tank, and emergency water containers that complied with recognized and generally accepted good engineering practices. The inspector also noted that Defendants failed to recognize the hazard of underground piping in the facility hazard review; possess standard operating procedures that contain accurate information on safety procedures; replace pressure relief valves and hoses in compliance with industry standards; and accurately describe the facility’s emergency response and facility coordinator within its RMP.
Facility Eight
On November 14-15, 2012, EPA inspected the facility. The inspector noted, among other things, that the business failed to use proper equipment that complied with recognized and generally accepted good engineering practices, including piping that would trigger excess flow valves; recognize the hazard of a nearby highway in its hazard review; identify safeguards including properly functioning excess flow valves in its hazard review; identify any steps used or needed to detect or monitor releases in the hazard review; replace pressure relief valves in compliance with industry standards; and improperly certified its three year audits.
Facility Nine
On December 12, 2012, EPA inspected the facility. The inspector noted, among other things, that the business failed to resolve in a timely manner corrective actions identified in the facility’s hazard review and develop a report of audit findings and document the responses to the audit and deficiencies corrected.
On April 28, 2015, EPA again inspected the facility. The inspector noted, among other things, that the business again failed to properly address the findings of a compliance audit. EPA also noted that the business failed to recognize the hazard of underground piping; possess standard operating procedures for normal daily start up and shut down processes; describe the steps required to correct or avoid deviations in operating procedures; replace pressure relief valves, vapor hoses, and hydrostatic relief valves in compliance with industry standards; and accurately describe the facility’s emergency response in its RMP.
Table 1 CAA Violations
40 C.F.R. § 68.42: The owner or operator shall include in the five-year accident history all accidental releases from covered processes that resulted in … injuries … .
The business submitted an RMP that failed to report in its five-year accident history a release that injured an employee.
40 C.F.R. § 68.48: (a) The owner or operator shall compile and maintain the following up-to-date safety information related to the regulated substances, processes, and equipment: … (3) Safe upper and lower … flows … .
The business failed to maintain up-to-date safety information regarding safe upper flow rates.
40 C.F.R. § 68.48: (b) The owner or operator shall ensure that the process is designed in compliance with recognized and generally accepted good engineering practices.
The business failed to use a saddle that extended over 1/3 of the circumference of its bulk tank, in violation of ANSI K61.1-1999 Section 6.4.2.
40 C.F.R. § 68.50: (a) The owner or operator shall conduct a review of the hazards associated with the regulated substances, process, and procedures. The review shall identify the following: … (2) Opportunities for equipment malfunctions or human errors that could cause an accidental release; and (4) Any steps used or
needed to detect or monitor releases.
The business failed to evaluate hazards that could arise from train accidents from nearby train tracks and to identify steps used or needed to detect or monitor releases.
40 C.F.R. § 68.50: (c) The owner or operator shall document the results of the review and ensure that problems identified are resolved in a timely manner.
The business failed to address 3 findings of the hazard review until 10 days after the time it provided for addressing these findings and failed to address 10 findings until 427 days after the time it provided for addressing them.
40 C.F.R. § 68.52: (a) The owner or operator shall prepare written operating procedures that provide clear instructions or steps for safely conducting activities associated with each covered process consistent with the safety information for that process. (b) The procedures shall address the following: (1) Initial startup; (2) Normal operations; (3) Temporary operations; (4) Emergency shutdown and operations; (5) Normal shutdown; . . . (7) Consequences of deviations and steps required to correct or avoid deviations.
The business failed to prepare standard operating procedures for seven of the eight sets of valves used to fill the facility’s nurse tanks, for addressing temporary operations, for the compressor or liquid pump start up or valve configuration, for filling dual vessel nurse tanks despite their different plumbing from single vessel nurse tanks, for shutting down the transfer equipment, for steps required to correct or avoid deviations.
The business’s operating procedures instructed employees to don gas masks but this activity requires a respirator program which the facility does not have. And the procedures failed to identify which emergency shutdown procedure corresponded to the different risers.
40 C.F.R. § 68.56(a): The owner or operator shall prepare and implement procedures to maintain the on-going mechanical integrity of the process equipment. The owner or operator may use procedures or instructions provided by covered process equipment vendors or procedures in Federal or state regulations or industry codes as the basis for stationary source maintenance procedures.
The business failed to implement procedures to maintain the on-going mechanical integrity of the process equipment because the business failed to change the pressure relief valves on tanks #19 and # 34 after the five year replacement required by the industry standard, in violation of ANSI K61.1-1999 Section 5.8.16.
40 C.F.R. § 68.58(a): The owner or operator shall certify that they have evaluated compliance with the provisions of this subpart for each covered process, at least every three years to verify that the procedures and practices developed under the rule are adequate and are being followed.
The business certified compliance with the provisions of this subpart without verifying that the procedures and practices developed under the rule were being followed because it certified that the facility: (1) was designed in accord with accepted engineering practices, (2) established safe flow rates, (3) identified opportunities for equipment malfunctions, human errors, and steps to detect releases in the hazard review, and (4) prepared procedures for conducting activities safely and addressing temporary operation.
But the facility had not done (1), (2), (3), or (4).
40 C.F.R. § 68.155: The owner or operator shall provide in the RMP an executive summary that includes a brief description of the following elements: … (e) the emergency response program.
The executive summary of the business’s RMP failed to accurately reflect how the facility deals with emergency responses.
Table 2 CAA Violations at a Facility
40 C.F.R. § 68.42: The owner or operator shall include in the five-year accident history all accidental releases from covered processes that resulted in … injuries … .
The business submitted an RMP that failed to report in its five-year accident history a release that injured an employee.
40 C.F.R. § 68.155: The owner or operator … shall correct the RMP as follows:
(a) New accident history information — For any accidental release … , the owner or operator shall submit the data required . . . with respect to that accident within six months of the release or by the time the RMP is updated … , whichever is earlier.
The business failed to correct the RMP within six months of an accidental release.
Table 3 CAA Violations at a Facility
40 C.F.R. § 68.42: The owner or operator shall include in the five-year accident history all accidental releases from covered processes that resulted in … injuries … .
The business submitted an RMP that failed to report in its five-year accident history a release that injured an employee.
Table 4 CAA Violations at a Facility
40 C.F.R. § 68.42: The owner or operator shall include in the five-year accident history all accidental releases from covered processes that resulted in … injuries … .
The business submitted an RMP that failed to report in its five-year accident history a release that injured an employee.
Table 5 CAA Violations at a Facility
40 C.F.R. § 68.42: The owner or operator shall include in the five-year accident history all accidental releases from covered processes that resulted in … injuries … .
The business submitted an RMP that failed to report in its five-year accident history a release that injured an employee.
40 C.F.R. § 68.54: (a) The owner or operator shall ensure that each employee presently operating a process, and each employee newly assigned to a covered process have been trained or tested competent in the operating procedures provided in § 68.52 that pertain to their duties.
A business employee suffered injuries when he improperly uncoupled hoses. The incident investigation calls for retraining employees. Accordingly, the business failed to ensure its employees were trained to slowly and completely bleed acme couplers.
Table 6 CAA Violations at a Facility
40 C.F.R. § 68.48: (a) The owner or operator shall compile and maintain the following up-to-date safety information related to the regulated substances, processes, and equipment: … (3) Safe upper and lower … flows … .
The business maintained inaccurate flow information.
40 C.F.R. § 68.48: (b) The owner or operator shall ensure that the process is designed in compliance with recognized and generally accepted good engineering practices.
During inspection, inspector identified that the bulk storage vessel showed rust in violation of ANSI K61.1-1999 Section 5.12.
40 C.F.R. § 68.58: (a) The owner or operator shall certify that they have evaluated compliance with the provisions of this subpart for each covered process, at least every three years to verify that the procedures and practices developed under the rule are adequate and are being followed.
The business failed to conduct an audit and certify its compliance at least once every three years.
Table 7 CAA Violations at a Facility
40 C.F.R. § 68.48(b): The owner or operator shall ensure that the process is designed in compliance with recognized and generally accepted good engineering practices.
The business
- failed to provide effective barriers between the trucks and nurse tanks in violation of ANSI K61.1-1999 Section 6.7,
- failed to use a saddle that extended over 1/3 of the circumference of its bulk tank in violation of ANSI K61.1-1999 Section 6.4.2,
- failed to provide or provided inadequate emergency water for 9 nurse tanks in violation of ANSI K61.1-1999 Section 11.6.2,
- failed to maintain the painted surfaces of its nurse tanks in good condition in violation of ANSI K61.1-1999 Section 5.12.
40 C.F.R. § 68.50(a): The owner or operator shall conduct a review of the hazards … . The review shall identify the following: … (2) Opportunities for equipment malfunctions or human errors that could cause an accidental release.
The business failed to recognize the hazard of underground piping and of having the liquid and vapor lines painted the same color.
40 C.F.R. § 68.52(a): The owner or operator shall prepare written operating procedures that provide clear instructions or steps for safely conducting activities … . (b) The procedures shall address the following: … (2) Normal operations … (4) Emergency shutdown and operations … and (7) Consequences of deviations and steps required to correct or avoid deviations.
The business provided unclear procedures because there were multiple sets of procedures for a single activity.
The business failed to provide instructions for safe emergency response because it told employees to don gas masks that were expired, and the business failed to include any steps required to correct or avoid deviations.
40 C.F.R. § 68.56(a): The owner or operator shall prepare and implement procedures to maintain the on-going mechanical integrity of the process equipment.
The owner or operator may use procedures or instructions provided by covered process equipment vendors or procedures in Federal or state the business failed to implement procedures to maintain the on-going mechanical integrity of the process equipment because the business failed to change the pressure relief valves after the five year replacement required by the industry standard, in violation of ANSI K61.1-1999 Section 5.8.16 and failed to change vapor hoses before the replacement date stamped on the regulations or industry codes as the basis for stationary source maintenance procedures.
40 C.F.R. § 68.155: The owner or operator shall provide in the RMP an executive summary that includes a brief description of the following elements: … (e) the emergency response program.
The executive summary of the business’s RMP failed to accurately reflect how the facility deals with emergency responses.
Table 8 CAA Violations at a Facility
40 C.F.R. § 68.48(b): The owner or operator shall ensure that the process is designed in compliance with recognized and generally accepted good engineering practices.
The business failed to have a greater capacity pipe than the rating of its excess flow valve, in violation of ANSI K61.1-1999 Section 5.5.4.
40 C.F.R. § 68.50(a): The owner or operator shall conduct a review of the hazards … . The review shall identify the following: … (2) Opportunities for equipment malfunctions or human errors that could cause an accidental release; (3) The safeguards used or needed to control the hazards or prevent equipment malfunction or human error; and (4) Any steps used or needed to detect or monitor releases.
The business failed to identify the hazard of potential runaway vehicles from the nearby highway, failed to require employees to check pressure relief valves or to ensure that the flow rates will trigger excess flow valves and failed to identify steps used or needed to detect or monitor releases.
40 C.F.R. § 68.56(a): The owner or operator shall prepare and implement procedures to maintain the on-going mechanical integrity of the process equipment. The owner or operator may use procedures or instructions provided by covered process equipment vendors or procedures in Federal or state regulations or industry codes as the basis for stationary source maintenance procedures.
The business failed to implement procedures to maintain the on-going mechanical integrity of the process equipment because the business failed to change the pressure relief valves on tanks #3, #25, #29, #32 and #35 after the five year replacement required by the industry standard, in violation of ANSI K61.1-1999 Section 5.8.16.
40 C.F.R. § 68.58(a): The owner or operator shall certify that they have evaluated compliance with the provisions of this subpart for each covered process, at least every three years to verify that the procedures and practices developed under the rule are adequate and are being followed.
The business certified compliance with the provisions of this subpart without verifying that the procedures and practices developed under the rule were being followed because it certified that the facility (1) was designed in accord with accepted engineering practices, (2) identified steps to detect releases in the hazard review, and (3) maintained its equipment in accordance with accepted practices. But the facility had not done (1), (2), or (3).
Table 9 CAA Violations at a Facility
40 C.F.R. § 68.50(a): The owner or operator shall conduct a review of the hazards … . The review shall identify the following: … (2) Opportunities for equipment malfunctions or human errors that could cause an accidental release.
The business failed to recognize the hazard of underground piping in its 12/18/12 hazard review.
40 C.F.R. § 68.50(c): The owner or operator shall document the results of the review and ensure that problems identified are resolved in a timely manner.
The business failed to address three problems identified in its hazard review until either 12/1/11 or 9/1/12 which is either 548 or 829 days after the time it provided they would be performed.
40 C.F.R. § 68.52(a): The owner or operator shall prepare written operating procedures that provide clear instructions or steps for safely conducting activities . . . . (b) The procedures shall address the following: (1) Initial startup … (5) Normal shutdown; … (7) Consequences of deviations and steps required to correct or avoid deviations.
The business failed to prepare any operating procedure for the normal daily start up or shut down process and failed to include any steps required to correct or avoid deviations.
40 C.F.R. § 68.56(a): The owner or operator shall prepare and implement procedures to maintain the on-going mechanical integrity of the process equipment. The owner or operator may use procedures or instructions
provided by covered process equipment vendors or procedures in Federal or state regulations or industry codes as the basis for stationary source maintenance procedures.
The business failed to change the pressure relief and hydrostatic relief valves after the five year replacement required by the industry standard, in violation of ANSI K61.1-1999 Section 5.8.16 and the business failed to change vapor hoses after the replacement date stamped on the hose, in violation of ANSI K61.1-1999 Section 5.7.8.8.
40 C.F.R. § 68.58(a): The owner or operator shall certify that they have evaluated compliance with the provisions of this subpart for each covered process, at least every three years to verify that the procedures and practices developed under the rule are adequate and are being followed.
The business certified compliance with the provisions of this subpart without verifying that the procedures and practices developed under the rule were being followed because it certified that the facility identified steps used or needed to detect or monitor releases in the hazard review. But the facility had not identified these steps.
40 C.F.R. § 68.58(d): The owner or operator shall promptly determine and document an appropriate response to each of the findings of the compliance audit and document that deficiencies have been corrected.
The business failed to document that it performed the response to its findings in its 2011 and 2014 compliance audits within the sixty days it provided for that response.
40 C.F.R. § 68.155: The owner or operator of a stationary source for which a RMP was submitted shall correct the RMP as follows:
The business failed to correct the RMP within six months of an accidental release.
(a) New accident history information — For any accidental release … , the owner or operator shall submit the data required … with respect to that accident within six months of the release or by the time the RMP is updated … , whichever is earlier.