A facility buys anhydrous ammonia in railcar quantities, which the Railroad delivers the ammonia to its site, after which it is off-loaded either into “bulk trucks” for delivery, or to stationary ammonia storage tanks. The anhydrous ammonia eventually is sold as both a refrigerant and fertilizer. The company filed a “Tier II Report” identifying its operation under the standard industrial code 42269. These admissions by respondent establish that its facility is a stationary source.
However, the company argues that its facility is not a stationary source because the ammonia at the site is stored at the site only “incident to transportation” and thus exempt from regulatory coverage. Respondent is correct that Section 68.3’s definition of “stationary source” specifically excludes regulated substances, or other extremely hazardous substances, that are stored incident to transportation. (40 C.F.R. 68.3). Respondent, however, fails to show that such is the case here. Indeed, the evidence is to the contrary.
First, the company does not cite to (or provide) any evidence to establish its “storage incident to transportation” exemption defense. It simply argues that such is the case here. Second, the “Executive Summary” that was provided to EPA by the company actually establishes the converse. This Executive Summary details a stationary storage operation and not storage of anhydrous ammonia “incident to transportation” as the company claims is the case. Next, for purposes of EPA’s summary judgment motion, it is an important consideration that anhydrous ammonia is identified at 40 C.F.R. 68.130, Table A, as a “Regulated Toxic Substance” with a “Threshold Quantity For Accidental Release Prevention” of 10,000 lbs. Again, respondent admits to satisfying this threshold amount. In a letter to the EPA Administrator, dated September 4, 2002, the Owner and General Manager of the company, stated, “ I can however responsibly and accurately attest that its levels fluctuate between 40,000-360,000 pounds – well above the threshold level of 10,000# within the span of every month on the calendar since June 1999.”
Accordingly, as set forth above, EPA has shown that the company was required to file a Risk Management Plan and that its submission was due no later than June 21, 1999. [40 C.F.R. 68.150(a) & (b)]. The company failed to submit the RMP as required by Section 68.150(a), thereby violating Section 112(r) of the Clean Air Act. EPA is therefore entitled to summary judgment as to Count 1.
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