How Business Facilities Using Hazardous Chemicals Can Avoid EPA Enforcement Actions

Recent EPA Enforcement action emphasizes need to review how your facilities report and maintain hazardous and extremely hazardous chemicals. Many businesses have facilities that use hazardous chemicals daily in their operations. The use of those hazardous chemicals may come with reporting and proper maintenance requirements intended to reduce the risk of chemical accidents and aid local emergency response planning. This article outlines two regulations that businesses with facilities using hazardous chemicals should be aware of: the Emergency Planning and Community Right to Know Act (EPCRA) and the General Duty Clause of the Clean Air Act (General Duty Clause).

EPCRA Section 312 requires facilities to annually submit a Tier II form, reporting the presence of hazardous chemicals. The facilities covered by Tier II filings are any facility that is required to maintain a Safety Data Sheet under the Occupational Safety and Health Administration (OSHA) regulations for hazardous chemicals stored or used in a workplace. Facilities with hazardous chemicals in quantities that equal or exceed the following thresholds must report: (i) for extremely hazardous substances, either 50 lbs. or the Threshold Planning Quantity, whichever is lower; and (ii) for all other hazardous chemicals, 10,000 lbs.

The General Duty Clause requires facilities using extremely hazardous substances, such as anhydrous ammonia, to:

1. identify hazards which may result from accidental releases using appropriate hazard assessment techniques;
2. design and maintain a safe facility taking steps to prevent accidental releases; and
3. minimize the consequences of accidental releases.

The General Duty Clause applies to any stationary source producing, processing, handling, or storing extremely hazardous substances.

If you have a business with facilities that use either hazardous or extremely hazardous substances, compliance with the EPCRA and General Duty Clause may be required. A failure to comply, may subject your business to an enforcement action by the U.S. Environmental Protection Agency (EPA), which is what recently happened to the Powder Ridge Mountain Park and Resort facility (Powder Ridge).

Power Ridge is an outdoor sports recreation park and resort. The company uses an ice-making unit to lay an ice foundation for the addition of synthetic snow. The unit uses an ammonia refrigeration system that contains approximately 1,200 pounds of anhydrous ammonia.

The EPA inspected the Powder Ridge facility for compliance with EPCRA and the General Duty Clause, and according to the EPA, the “inspection revealed violations of the General Duty Clause requirements, including the failure to identify the hazards posed by the refrigeration system.” Following the inspection, EPA entered into an Administrative Order on Consent with Powder Ridge. To correct the violation, Powder Ridge performed a Process Hazard Review for the refrigeration system, and worked with local emergency responders to plan for a possible accidental release of anhydrous ammonia.

The Clean Air Act also currently allows EPA to assess penalties of up to a maximum of $48,192.00 per day of violation.

If you have a business with facilities that use either hazardous or extremely hazardous chemicals, verify you are in compliance with the EPCRA and the General Duty Clause. Taking these steps will help your business avoid an enforcement action by the EPA. If you need assistance determining if these regulations apply to your business or with creating a compliance plan, reach out to one of our environmental law attorneys.