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with these requirements, even in the
absence of a catastrophic accident or
spill, can give rise to hefty penalties and
costly facility upgrades.
For example, the EPA ordered a
company to upgrade its equipment and
systems at three facilities after an anhydrous ammonia release at only one facility, costing the company over $100,000.
The EPA settled with the company for a
penalty of $50,000, which the EPA said
was reduced because the company was
a small business. The settlement also
included “Supplemental Environmental
Projects” (SEPs) valued at $160,000.
EPCRA is not the only environmental
statute that regulates anhydrous ammonia. A few years after the passage of
EPCRA, the Clean Air Act Amendments
of 1990 added Section 112(r), subtitled
“Prevention of Accidental Releases.”
Congress expressly included anhydrous
ammonia among the “regulated substances” under this section.
Section 112(r) imposes both a general
duty and specific requirements for the
prevention and management of chemi-
cal releases. The general duty provision
in subsection (1) was adopted from the
General Duty Clause in the Occupational
Safety and Health Act. The Clean Air Act
general duty provision requires that (i)
owners and operators must maintain a
facility that is free of a hazard; (ii) where
the hazard is recognized by the owner/
operator or by the relevant industry; (iii)
the hazard from an accidental release
is likely to cause harm; and (iv) the
owner/operator could have eliminated or
reduced the hazard.
The General Duty Clause should be
considered a catch-all enforcement
provision to supplement the specif-
ic requirements in subsection ( 7) of
Section 112(r)( 7) and implementing
regulations issued by EPA. Owners or
operators of facilities (stationary sources
under the Clean Air Act) that have pro-
cesses containing more than a threshold
quantity of a regulated substance are
subject to the requirements of the reg-
ulation. Anhydrous ammonia is listed
as a “regulated toxic substance” with a
threshold quantity of 10,000 pounds.
Generally, the chemical accident prevention regulation requires covered facilities to undertake hazard assessment,
develop and implement risk management programs and maintain documentation of these programs. Furthermore,
the facilities must submit risk management plans to EPA and make the plans
available to the public.
EPA has signaled increased focus
on these programs in several recent
enforcement actions, including a 2013
settlement against a large food processing company in the wake of accidental
releases of anhydrous ammonia over
several years. The settlement required
payment of $3.95 million in penalties,
along with implementation of new
pipe-testing and audit procedures, as
well as a SEP requiring the purchase of
$300,000 in emergency response equipment for local fire departments.
In announcing the settlement, the
EPA stated that ammonia refrigeration
facilities have higher accident rates than
other processes, leading the EPA to
focus a significant portion of inspection
resource on such high risk facilities. Elizabeth M. Rothenberg