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Dairy Company Settles Clean Air Act General Duty Clause and RMP Allegations for Refrigeration System Violations and Leaks

A dairy company in EPA Region 2 has agreed to pay a $275,000 civil penalty and to implement a Supplemental Environmental Project (SEP) valued at more than $3 million to resolve alleged violations of the Clean Air Act’s (CAA) General Duty Clause and Risk Management Plan (RMP) requirements. This latest settlement serves yet another reminder to companies that utilize anhydrous ammonia in industrial and commercial refrigeration systems (e.g., food service industry, warehousing and distribution, bakeries, cold storage, and pharmaceutical), as well as those that store anhydrous ammonia for use as an agricultural fertilizer (farm-supply companies and cooperatives), that EPA is aggressively enforcing the CAA regulations.

On September 28, 2012, EPA and DOJ entered into a Consent Decree with Suiza Dairy in Puerto Rico, pending public comment and court approval, alleging more than 40 violations of the RMP regulations and the General Duty Clause associated with, among other things, corrosion of the dairy’s refrigeration transfer lines, deficiencies in the alarm system, improper labeling of equipment and valves, and improper ventilation. The Consent Decree also resolves allegations concerning two accidental releases of anhydrous ammonia, one of which required nearby residents to seek medical treatment.

Industrial and commercial refrigeration systems that use and store anhydrous ammonia in quantities of 10,000 lbs. or more are subject to both:

These regulatory programs establish a framework of requirements designed to prevent accidental releases of RMP extremely hazardous substances and PSM highly hazardous chemicals.

Notably, EPA’s and DOJ’s enforcement action includes allegations of the Clean Air Act General Duty Clause which provides, at Section 112(r)(1), 42 U.S.C. 7412(r)(1), “The owners and operators of stationary sources producing, processing, handling or storing such substances [i.e., a chemical in 40 CFR part 68 or any other extremely hazardous substance] have a general duty in the same manner and to the same extent [as the OSHA general duty clause] to identify hazards which may result from such releases using appropriate hazard assessment techniques, to design and maintain a safe facility taking such steps as are necessary to prevent releases, and to minimize the consequences of accidental releases which do occur.”

If your business uses anhydrous ammonia, you will want to ensure your company is in compliance with the RMP regulations. Mr. Brought frequently presents on topics associated with chemical accident prevention and preparation including EPA’s RMP Program, OSHA’s PSM Program, and the OSHA/CAA General Duty Clause. A copy of Mr. Brought’s 2011 presentation on the Clean Air Act 112(r) RMP Enforcement to the Kansas City Chapter of the Air and Waste Management Association can be found here.