Anhydrous Ammonia Release Kills Worker – U.S. DOJ Sues Company Under the Clean Air Act
By Ruder Ware Alumni
December 30, 2015
Companies that use anhydrous ammonia as a refrigerant may be regulated by the U.S. Environmental Protection Agency’s (“EPA”) Risk Management Plan program under the Clean Air Act and by OSHA’s Process Safety Management program under the Occupational Safety and Health Act. Section 112(r)(1) of the Clean Air Act provides that owners and operators of stationary sources of listed extremely hazardous substances in quantities above specified threshold quantities have the same general duty as under OSHA’s Process Safety Management program. That duty is to identify hazards that may result from releases using appropriate hazard assessment techniques, to design and maintain a safe facility by taking such steps as are necessary to prevent releases, and to minimize the consequences of accidental releases that do occur.
In 2012 a supervisor at a California winemaking company accidentally opened the wrong valve, which allowed anhydrous ammonia to be released. The supervisor was not able to shut off the flow. He ordered the wine cellar to be evacuated, but an employee encountered the cloud and was killed. The EPA Administrator requested the Environmental Enforcement Section, Environmental & Natural Resources Division of the U.S. Department of Justice (“DOJ”) to file suit against the winemaker under the Clean Air Act and the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). Suit was filed in the Eastern District of California on December 19, 2015.
The suit alleges that 284 pounds of anhydrous ammonia were released. The suit further alleges the following Clean Air Act Risk Management Plan violations: inadequate equipment labeling; inaccurate ammonia inventory; inadequate documentation of design and construction standards; failure to have acceptable engineered systems in place; failure to have written standard operating procedures in place; failure to train and evaluate employees; failure to inspect and maintain the mechanical integrity of process equipment; failure to conduct a compliance audit at least every three years; failure to have an emergency response plan; and, failure to provide adequate emergency response training and equipment. The suit also alleges failure under CERCLA to immediately notify the EPA and the applicable State Emergency Response Commission of the release.
There is a reason why the suit was brought under the Clean Air Act and CERCLA: the monetary penalties available under those statutes can be astronomical, much higher than are available under the OSH Act. Employers may not have top-of-the-mind awareness to think of a fatal accident to a worker as an environmental offense, but OSHA, EPA, and the DOJ do. In fact, some OSHA inspectors have been trained to identify environmental regulatory violations and notify the EPA of them. So for extremely hazardous substances such as anhydrous ammonia, the careful employer must keep environmental law, as well as worker safety law, in mind.
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