IN THE UNI TED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA

________________________________________ UNITED STATES OF AMERICA ) Plaintiff, ) Civil Action No. 15-186

v. ) MILLARD REFRIGERATED SE RVICES, LLC )

Defendant. ) COMPLAINT The United States of America, by authority of the Attorney General of the United States and through the undersigned attorneys, ac ting at the request of the Admi nistrator of the United States Environmental Protection Agency (hereafter U.S. EPA or EPA), files this complaint and alleges as follows:

NATURE OF THE ACTION 1. This is a civil action for penalties and in junctive relief brought pursuant to Section 113(b) of the Clean Air Act (Act), 42 U.S. C. § 7413(b); Section 325 of the Emergency Planning and Community Right-to-Know Act (EPCRA), 42 U.S.C. §11045; and Section 109(c) of the Comprehensive Environmental Response, Comp ensation and Liability Act (CERCLA), 42 U.S.C. § 9609(c), against Defendant Millard Re frigerated Services, LLC (Millard or Defendant) for viol ations of Sections 112(r)(1) and 112(r)(7) of the Clean Air Act, 42 U.S.C. § 7412(r)(1) & (r)(7); and viola tions of the emergency release notification requirements of Section 103 of CERCLA, 42 U.S.C. § 9603; and Section 304 of EPCRA, 42 U.S.C. § 11004, at the facili ty located in Theodore, Alabama formerly owned by the Defendant (the Facility). 1JURISDICTION AND VENUE 2. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331, 1345, and 1355; and Section 113( b) of the CAA, 42 U.S.C. § 7413(b); Section 109(c) of CERCLA, 42 U.S.C. § 9609(c); a nd Section 325(b)(3) of EP CRA, 42 U.S.C. § 11045(b)(3). 3. Venue is proper in this District under Section 113(b) of the Clean Air Act, 42 U.S.C. § 7413(b); Section 109(c) of CERCL A, 42 U.S.C. § 9609 (c); Section 325(b)(3) of EPCRA, 42 U.S.C. § 11045(b)(3); and 28 U.S.C. §§ 1391(b) and (c) and 1395(a), b ecause the Defendant does business in, and these cl aims arose within, this judicial district. 4. Notice of commencement of this action ha s been given to the State of Alabama pursuant to Section 113(b) of the Clean Air Act, 42 U.S.C 7413(b).

PARTIES 5. Plaintiff is the United States of America, acting at the request of the EPA, an agency of the United States. 6. Defendant is a corporation organized under the laws of the State of Georgia, and is doing business in this judicial district. 7. Defendant is a “person” within the m eaning of Section 302 (e) of the CAA, 42 U.S.C. § 7602(e); Section 101( 9) of CERCLA, 42 U.S.C. § 9601(9); and Section 329(7) of EPCRA, 42 U.S.C. § 11047(7). 8. Defendant was the “operator” of a refr igerated food processing facility in Theodore, Alabama (the Facility) within the meaning of Section 112(a)(9) of the CAA,

242 U.S.C. § 7412(a)(9) from the time of its construction in 2005 until July 2013 when its parent company Millard Holdings Inc. closed the refrigerated porti on of the Facility. Millard Holdings Inc. currently uses the Fac ility as an unrefrigerated warehouse.

STATUTORY AND REGULATORY FRAMEWORK A. The Clean Air Act 9. In 1990, Congress added Section 112(r) to the Clean Air Act, see Pub. L. 101-549 (Nov. 15, 1990), in response to a 1984 catastroph ic release of methyl isocyanante in Bhopal, India that killed more than 3, 400 people, caused over 200,000 to suffer injuries, and caused damage to crops and livestock. S. Rep. No. 101-228 (Dec. 20, 1989), reprinted in 1990 U.S.C.C.A.N. 3385, 3519. The objective of Section 112(r) of the Clean Air Act, and its implementing regulations, is “to preven t the accidental release and to minimize the consequences of any such release” of any extremely hazardous substance. 42 U.S.C. § 7412(r)(1). 10. An “extremely hazardous substance” is any chemical which may, as a result of short-term exposures because of releases to th e air, cause death, injury or property damage due to its toxicity, reactivity, flammability, volatility or corrosivity. S. Rep. No. 228, 101st Cong., 1st Sess. 211 (1989). Extremely hazardou s substances include, but are not limited to, substances listed pursuant to Section 112( r)(3) of the CAA, 42 U. S.C. § 7412(r)(3), at 40 C.F.R. § 68.130, and chemicals on the list of extremely hazardous substances published under Section 302 of the Emergency Pla nning and Community Right-to-Know Act (EPCRA), 42 U.S.C. § 11002, at 40 C. F.R. Part 355, Appendices A and B. 11. Anhydrous ammonia (also known as NH 3 ) is a listed extremely hazardous substance under Section 112(r)(3) of the CAA, 42 U.S.C. § 7412(r)(3) and 40 C.F.R. 3§ 68.130. 12. The term “accidental release” is defined by CAA Sec tion 112(r)(2)(A), 42 U.S.C. § 7412(r)(2)(A), as an unanticipated emission of a regulated substance or other extremely hazardous substance into the ambien t air from a stationary source. 13. Section 112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1), mandates three distinct general duty of care requirements for owne rs and operators of stationary sources producing, processing, handling or storing specific hazardous substances, including extremely hazardous substances. In pert inent part, Section 112(r)(1) provides: It shall be the objective of the regulat ions and programs authorized under this subsection to prevent the acci dental release and to minimize the consequences of any such release of any substance listed pursuant to paragraph (3) or any other extremely hazardous substance. The owners and operators of stationary sour ces producing, processing, handling or storing such substances have a gene ral duty in the same manner and to the same extent as Section 654 of Title 29 [29 U.S.C. § 654)] to identify hazards which may result from such releases using appropriate hazard assessment techniques, to design and ma intain a safe facility taking such steps as are necessary to preven t releases, and to minimize the consequences of accidental releases which do occur. 42 U.S.C. § 7412(r)(1) (her einafter the General Duty Clause). 14. Section 112(r)(7) of the Act, 42 U.S. C. § 7412(r)(7), provides that the Administrator of the EPA is authorized to promulgate regulations requiring owners or operators of a stationary source at which an extremely hazardous substance is present in more than a threshold amount to, among othe r things, prepare and implement a risk management plan to detect and prevent or minimize accidental releases of extremely hazardous substances from the stationary s ource, and to provide a prompt emergency response to any such releases in order to protect human health and the environment.
415. EPA has promulgated regulations to implem ent Section 112(r)(7), codified at 40 C.F.R. Part 68 (RMP Regulations), that re quire owners and opera tors of stationary sources that have more than a threshold quant ity of a regulated subs tance in a process to develop and implement a risk management pr ogram which must be described in a risk management plan submitted to EPA and which includes, among other things, a management system, a hazard assessment, and a prevention program. 16. Section 112(r)(2)(C) of the CAA, 42 U.S. C. § 7412(r)(2)(C), and 40 C.F.R. § 68.3, define a “stationary source” as any buildi ngs, structures, equipment, installations, or substance emitting stationary activities whic h belong to the same industrial group, are located on one or more contiguous properties, are under the control of the same person, and from which an accidental release may occur. 17. “Process” is defined in 40 C.F.R. § 68.3 to mean “any activity involving a regulated substance including any use, stor age, manufacturing, handling, or on-site movement of such substances, or any combina tion of these activities.” “Covered Process” means “a process that has a regulated hazardous substance present in more than a threshold quantity as determined under [40 C.F.R.] § 68.115.” 40 C.F.R. § 68.3. 18. The regulations at 40 C.F.R. Part 68 sepa rate the covered processes into three categories, designated as Pr ogram 1, Program 2, and Program 3, and set forth specific requirements for owners and operators of statio nary sources with processes that fall within the respective programs.

519. Pursuant to 40 C.F.R. § 68.10(d), a covered process is subject to Program 3 requirements if the process does not meet one or more of the Program 1 eligibility requirements set forth in 40 C.F.R. § 68.10(b), an d if either of the following conditions is met: (a) the process is listed in one of the specific North American Industry Classification System codes found at 40 C.F.R. § 68.10(d)(1); or (b) the process is subject to the United States Occupational Safety and Health Admini stration (OSHA) process safety management standard set forth in 29 C.F.R. § 1910.119. 20. Pursuant to 40 C.F.R. § 68.12(d) the owner or operator of a stationary source that is subject to Program 3 prevention requireme nts must undertake certain tasks including, but not limited to: development and implementation of a management system (as provided in 40 C.F.R. § 68.15); the development and implementation of prevention program requirements, which include the compilation of process safety information, written standard operating procedures, training, a m echanical integrity program, management of change procedures, and pre-star tup safety review procedures (as provided in 40 C.F.R. §§ 68.65-68.87 ); and the development and impl ementation of an emergency response program as provided in 40 C.F.R. §§ 68.90-68.95. 21. CAA Section 113(b), 42 U.S.C. § 7413(b) , as amended by 28 U.S.C. § 2461 and 31 U.S.C. § 3701 and 40 C.F.R. § 19.4, provides that the Administrator of EPA shall, in the case of a person that is the owner or operator of a major stationary source, and may, in the case of any other person, whenever such person violates any requirement or prohibition of Subchapter I of the Act (42 U.S.C. §§ 7401- 7515), commence a civil action for injunctive relief and to assess and recover a civil penalty of up to $25,000 per day for each such violation.
622. Under the Federal Civil Penalties Inflat ion Adjustment Act of 1990, 28 U.S.C. § 2461 (DCIA), as amended by the Debt Collection Impr ovements Act of 1996, 31 U.S.C. § 3701, and pursuant to EPA’s Civil Monetary Penalty Inflation Adjustment Rule, 69 Fed. Reg. 7,121 (Feb. 13, 2004) and 40 C.F.R. Part 19, 73 Fed. Reg. 75,340 (Dec. 11, 2008), promulgated pursuant to the DCIA, the maximu m amount of the civil penalties provided under Section 113(b) of the Clean Air Act is $32,500 per day for each violation occurring from March 15, 2004 until January 12, 2009, and $37,500 per day for each violation occurring after January 12, 2009.

B. Comprehensive Environmental Response, Compensation, and Liability Act 23. Section 103(a) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) states that “[a] ny person in charge of . . . an . . . onshore facility shall, as soon as he has knowledge of any release. . . of a hazardous substance in quantities equal to or greater than those dete rmined pursuant to [section 102 of CERCLA], immediately notify the National Respons e Center.” 42. U.S.C. § 9603(a). 24. Section 109(c) of CERCLA provides as follows: The President may bring an action in the United States district court for the appropriate district to assess and collect a penalty of not more than $25,000 per day for each day during which the violation (or failure or refusal) continues in the case of . . . (1) A violation of the notice requirements of section 9603(a) of this title . . .. In the case of a second or subsequent violation (or failure or refusal), the amount of such penalty may be not more than $75,000 for each day during which the violation (or failure or refusal) continues. 42 U.S.C. 9609(c). 25. Pursuant to Section 109 of CERCLA, 42 U.S.C. § 9609(a) as modified by

728 U.S.C. § 2461 and 31 U.S.C. § 3701 and 40 C.F.R. § 19.4, any person who violates a reporting requirement of Section 103 of CERCLA shall be liable for a civil penalty of up to $32,500 per day for each violation that occu rred after March 15, 2004 and through January 12, 2009, and $37,500 per day for each violati on that occurred after January 12, 2009.

C. Emergency Planning and Co mmunity Right-to-Know Act 26. Section 304 of EPCRA, 42 U.S.C. § 11004, and the regulations set forth at 40 C.F.R. § 355.40 require the owner or opera tor of a facility at which a hazardous chemical is produced, used, or stored to notif y certain government aut horities when there is a release equal to or greater than the re portable quantity of any EPCRA extremely hazardous substance or hazardous substances listed under the CE RCLA. Specifically, Section 304(b) of EPCRA requires that the owner and operator immediately notify the State Emergency Response Commission (SERC) of any state likely to be affected by the release and the emergency coordinator fo r the Local Emergency Planning Committee (LEPC) for any area likely to be affected by the release. Additionally, Section 304(c) requires the owner/operator to submit to the LEPC and SERC, as soon as practicable, a written emergency follow-up notice updating the information required under Section 304(b). 27. Pursuant to Section 325(b)(3) of EPCRA , 42 U.S.C. § 11045(b) , and 40 C.F.R. § 19.4, any person who violates a reporting requ irement of Section 304 of EPCRA shall be liable for a civil penalty of up to $32,500 per day for each violation that occurred after March 15, 2004 and through January 12, 2009, and $37,500 per day for each violation that occurred after January 12, 2009.

8GENERAL ALLEGATIONS RELATING TO VIOLATIONS AT THE MILLARD THEODORE FACILITY 28. At all relevant times, Defendant ow ned and operated a refrigerated food processing facility located at 7730 Deer River Road, Theodore, Alabama, 36582 (the Facility). The Facility size is over 2 40,000 square feet with 199,000 square feet of refrigeration and freezing space, consisting of five freezers, two blast tunnels and a blast freezer. 29. At all relevant times, Defendant maintained a refrigeration syst em at the Facility which utilized anhydrous ammonia (NH 3 ) in an amount in excess of 100,000 pounds. The Facility was built in 2005, and then the NH 3 refrigeration system was expanded in 2006, increasing the amount of NH 3 in process by more than 50 percent. 30. At approximately 8:15 a.m. on Apr il 25, 2007, Defendant experienced an accidental release of NH 3 from its ammonia refrigeration sy stem at the Facility (April 2007 Release). Approximately 110 pounds of NH 3 was released. The release was caused by a weld crack on a piping component known as th e suction header loca ted on the roof the Facility. 31. Defendant reported that th e weld cracked as a result of hydraulic shock. Hydraulic shock is an internal pressure stress on a piping system which occurs as a result of a sudden change in liquid velocity. This occu rs when cold liquid meets hot gas, and this can occur when the defrost cycle on the NH 3 refrigeration system is interrupted. Hydraulic shock results in a hammering effect on system piping. 32. At approximately 7:00 a.m. on January 6, 2010, Defendant investigated an ammonia alarm and found a weld crack on a su ction header located on an evaporator (a

9part of the NH 3 refrigeration system) at the Facility (January 2010 Release). This release of approximately 31.05 pounds of NH 3 was also caused by hydraulic shock. 33. Another release occurred on August 23, 2010. Prior to the release, Millard reported that on August 22, 2010, the NH 3 refrigeration system at the Facility had been shut-down as a result of a power failure. Th e plant engineer arrive d at the Facility in response to the loss of power. The plant engin eer cleared enough system alarms to restart the blast and high temperature systems, but di d not take the measures necessary to allow the freezer portion of the Refrigeration Control System (RCS) to be safely restarted. Millard reported that the plant engineer left the Facility without achieving safe operations on all systems. Before leaving the Facilit y, the plant engineer al so overrode the RCS automatic shutdown mode which allowed additio nal ammonia to build up in the piping ultimately leading to the August 23, 2010 Release. 34. On the morning of August 23, 2010, some time before 8:45 a.m., Defendant experienced an accidental release of NH 3 from the roof of its Facility. Over 32,000 pounds of NH 3 was released through a cr acked pipe on the roof of the Facility (August 2010 Release). 35. None of the released NH 3 was contained during the August 2010 release. It flowed through the ambient air traveling southe ast towards the mouth of the Theodore Ship Channel and over the Deepwater Horizon Dec ontamination Staging Area located at the nearby marine facility. Approximately one hun dred and fifty-two people were treated for symptoms of ammonia exposure at several hospi tals in the Mobile ar ea and four of those people were admitted into intensive care units.

1036. Defendant reported that there were four possible causes of the August 2010 Release: (A) Hydraulic shock to the roof pipi ng as a result of an ear ly termination of the defrost cycle; (B) Design shortcoming in that too many evaporators we nt into defrost mode simultaneously; (C) Failure of the RCS because of early termination of a defrost cycle; (D) Human factors in terms of operator erro r in the actions leading up to the failure. COUNTS 1 - 36
SECTION 112(r )(7) OF THE CLEAN AIR ACT 37. Paragraphs 1-22 and 28-36 are incor porated herein by reference. 38. Section 112(r)(7) of the CAA, 42 U. S.C. § 7412(r)(7), requires owners or operators of stationary sources at which a regulated substan ce is present in more than a threshold quantity to prepare and implement a Risk Management Plan to detect and prevent or minimize accidental releases of such subs tances from the stationary source, and to provide a prompt emergency response to any such releases in order to protect human health and the environment. The owner or operator of a stati onary source must submit an initial Risk Management Plan by the date on which a regulated substance is first present at the facility above the threshold quantity in a process. 40 C.F.R. § 68.150(b)(3). 39. The Facility is a stationary source. “S tationary source” means, in relevant part, “any buildings, structures, equipment, installations or substance emitting stationary activities...from which an accidental release ma y occur.” Section 112(r)(2)(C), 42 U.S.C. § 7412(r)(2)(C). 40. Defendant is an owner and operator of the Facility, a stationary source which handles, stores, and uses NH 3 .

1141. NH 3 is among the listed hazardous substances in 40 C.F.R. Part 150, with a regulatory threshold amount of 10,000 pounds. 42. COUNTS 1 – 6 set forth below pertain to the portion of the regulations found at Subpart D- The Program 3 Prevention Program , 40 C.F.R. § 68.65. Millard’s refrigeration process at the Facility is a covered proce ss because a regulated hazardous substance (NH 3 ) is present in more than a th reshold quantity (10,000 pounds). The covered process at the Millard Facility is subject to RMP Program 3 re quirements because it is also subject to the OSHA process safety management standards set forth in 29 C.F.R. § 1910.119. Counts 1-6 pertain to the RMP requirements under 40 C.F. R. § 68.65(a) which require the owner or operator to complete a compilation of written proce ss safety information (“PSI”) before conducting any process hazard analysis. 43. COUNT 1 - Pursuant to 40 C.F.R. § 68.65( c)(1)(i), Defendant was required to compile a block flow diagram or simplified proce ss flow diagram in its PSI compilation. However, the process flow diagrams in effect at the time of the August 2010 release did not match Millard’s then current operation. The temperature, pressure and mass flow rates of the accumulator vessel and evaporators whic h had been added at the time of the 2006 Facility expansion were not described in the diagrams at the time of the August 2010 Release in violation of 40 C.F.R. § 68.65(c) (1)(i). 44. COUNT 2 - Pursuant to 40 C.F.R. § 68.65(c) (1)(iii), Defendant was required to compile in its PSI the maximum intended inventory. However, in violation of 40 C.F.R. § 68.65(c) (1)(iii), at the time of the Augus t 2010 Release Defendant listed its maximum inventory as 143,000 pounds when receipts dated August 2005, August 2006, and October 2006, showed that Tanner Industries, In c, pumped 197,480 pounds of ammonia into
12Millard’s system. Therefore, Defendant’s maximum intended inventory exceeded the amount listed in its PSI. 45. COUNT 3 - Pursuant to 40 C.F.R. § 68.65( c)(1)(iv), Defendant was required to include in its PSI information pertaining to safe upper and lower limits for temperatures, pressures, flows or compositions.

. However, in violation of 40 C.F.R. § 68.65(c) (1)(iv), Defendant’s PSI incorrectly listed high stage discharge pressure upper limit as 270 psig when the correct pressure is 210 psig. 46. COUNT 4 - Pursuant to 40 C.F.R. § 68.65(d)(1)(ii), Defendant‘s PSI was required to include accurate information pertaining to the equipment in process including complete piping and instrument diagrams (P&IDs). Howe ver, in violation of 40 C.F.R. § 68.65(d) (1)(ii), Defendant’s P&IDs in effect at the time of the August 2010 release did not include or reference the instrument contro l loops and associ ated diagrams. 47. COUNT 5 - Pursuant to 40 C.F.R. § 68.65(d) (1)(iv), Defendant was required to include in its PSI a relief system design a nd design basis. However, in violation of 40 C.F.R. § 68.65(d) (1)(iv), Defendant’s PSI in effect at the time of the August 2010 Release did not document the design basis for its relief system. Specifically, Defendant failed to provide the loads and sizes of the reli ef system and failed to provide any analysis for how it determined that the inlet and outlet sizes chosen for the relief valves were the appropriate sizes for the system . Defendant failed to provide American Society of Heating and Refrigeration and Air Conditioning Engineers (”ASHRAE”) number 15 standard calculations for its relief valves and headers. 48. COUNT 6 - Pursuant to 40 C.F.R. § 68.65(d) (1)(viii), Defendant was required to compile in its PSI information on safety syst ems (e.g. interlocks, detection or suppression
13systems). However, in violation of 40 C.F.R. § 68.65(d) (1)(viii), Defe ndant’s PSI in effect at the time of the August 2010 Release included none of that information. 49. COUNTS 7 – 10 set forth below pertain to the portion of the regulations found at Subpart D- The Program 3 Prevention Progr am, 40 C.F.R. § 68.67, and requirements that the Defendant conduct periodic process haza rd analyses (PHAs) appropriate to the complexity of the process. Under these regu lations, the Defendant was required to identify, evaluate and control the hazards involv ed in each process at the Facility. 50. COUNT 7 - Pursuant to 40 C.F.R. § 68.67( a) owners or operators of covered sources subject to Program 3 requirements sha ll perform a PHA that is appropriate to the complexity of the process and shall identify, evaluate, and co ntrol the hazards involved in the process. Millard’s 2007 and 2010 PHAs di d not adequately addr ess the control of hydraulic shock. Therefore, in violation of 40 C.F.R. § 68.67(a), Defendant’s PHA did not control the hazards involved in the process. 51. COUNT 8 - 40 C.F.R. § 68.67(c) required Defendant to prepare a process hazard analysis which: (a) addressed the hazards of the process; (b) identified any previous incident which had a likely potential for catastrophic consequences; (c) addressed engineering and administrative controls appl icable to the hazards; (d) addressed the consequences of failure of engineering and ad ministrative controls; (e) addressed the siting of the stationary source ; (f) addressed human factors; (g) and provided a qualitative evaluation of the possible safety and health e ffects of a failure of controls. Defendant violated 40 C.F.R. § 68.67(c) by failing to identify and evalua te the following, as part of the PHA conducted subsequent to the April 2007 Release: (1) human factors; (2) hazards of process such as control system failures, fa ilure of piping to mainta in its pressure rating,
14loss of instrumentation, failure of the solenoid valve, and loss of electricity; and (3) siting of the stationary source next to an active ship wharf. 52. COUNT 9 - 40 C.F.R. § 68.67(e) requires the owner or operator to establish a system to promptly address the finding and recommendations from the PHA and to assure that the recommendations are resolved in a timely manner and to document the resolution. Defendant failed to assure re solution of the PHA recommendations related to the April 2007 Release, including a recommen dation that testing of the NH 3 system was needed to safeguard against a unit rupture in vi olation of 40 C.F.R. § 68.67(e). 53. COUNT 10 - 40 C.F.R. § 68.67(f) require d Defendant, as part of the PHA process, to update and revalidate the initial PHA at least every five (5) years after the completion of the initial process hazard analysis to assure that the process hazard analysis is consistent with the curren t process. Defendant’s May 2010 PHA five year review did not assure that the PHA was consistent with th e current processes. Specifically, the review did not include any new or updated analysis or changes even though process changes occurred after the April 2007 release and th e Defendant had signi ficantly expanded its facility in 2006. Therefore, Defendant did not assure that the revised PHA was consistent with its current process in vi olation of 40 C.F.R. § 68.67(f). 54. COUNTS 11 – 13 set forth below pertain to the portion of the regulations found at Subpart D- The Program 3 Prevention Pr ogram, 40 C.F.R. § 68.69, and requirements pertaining to operating procedur es at Defendant’s facility. 55. COUNT 11 - 40 C.F.R. § 68.69(a)(1)(vii) required Defendant to develop and implement operating procedures that provide clear instructions for safely conducting activities involved in each Covered Process cons istent with the PSI from each process at
15the Facility and shall addre ss startup after an emergency shutdown. At the time of the August 2010 Release, the operating procedures only required the operator to clear all alarms and errors There was no requirement in the operating procedures that the operator achieve safe operations after clearing the alar ms. As a result, the operator did not safely restart the freezer system. This resulte d in the release of over 32,000 pounds of NH 3 . Therefore, Defendant’s operati ng procedures did not provide procedures to achieve safe operation after an emergency shutdown in violation of 40 C.F.R § 68.69(a)(1)(vii). 56. COUNT 12 - 40 C.F.R. § 68.69(c) required Defendant to review the operating procedures as necessary to assure that they reflect current operating pr actice, and to certify annually that these operating procedures were current and accurate. Defendant’s 2006 certification was due on November 8, 2006, how ever Defendant did not certify until January 16, 2008. Defendant was 14 months late in certifying procedures. Defendant failed in violation of 40 C.F.R. § 68.69(c), to certify annually that its operating procedures were current and/or accurate and had been reviewed as required. This is a continuing violation from November 8, 2006, until it was remedied on January 16, 2008. 57. COUNT 13 - 40 C.F.R. § 68.69(d) required Defendant to develop and implement safe work practices to provide for the cont rol of hazards during operations. Defendant failed, in violation of 40 C.F.R. § 68.69(d) , to implement safe work practices in at least 5 ways - (a) Failed to include specific valve num bers in the operating procedure for the High Pressure Receiver; (b) Failed to show that it conducted and documented lock-out/tagout annual inspections for 2006 through 2010; (c) Fa iled to demonstrate it completed a daily motor room log verifying inspection activities; (d) Failed to provide compressor “facility

16specific” operating parameters; and (e) Fail ed to provide contractor M&M compressor start-up documents from the vendor for 2005 and 2006. 58. COUNTS 14 – 15 set forth below pertain to the portion of the regulations found at Subpart D- The Program 3 Prevention Pr ogram, 40 C.F.R. § 68.71, and requirements pertaining to training of employees in the ope rating procedures at De fendant’s facility. 59. COUNT 14 - 40 C.F.R. § 68.71(b) require d Defendant to provide refresher training at least every three years to each employee involve d in operating a process to assure that the employee understands and adhere s to the current operati ng procedures of the process. Defendant failed to provide operator refresher training for the plant engineer in 2008 in violation of 40 C.F.R. § 68.71(b). 60. COUNT 15 - 40 C.F.R. § 68.71(c) required Defendant to ascertain that each employee involved in operating a process has re ceived and understood the training required by this paragraph and to prepar e a record which contains the identity of the employee, the date of training, and the means used to verify that the employee understood the training. Of the Defendant’s three refriger ation operators, Defendant c ould not produce training records that two of the three operators had been trained on the safety and health hazards associated with the process. As operators were not trai ned in the safety and health considerations involved in operating a process, th e Defendant violated 40 C.F.R. § 68.71(c). Defendant also could not produce training records fo r RCS software changes in 2007 and 2010 or any training documents showing the means used to verify that the employee understood the training, in violation of 40 C.F.R. § 68.71(c). 61. COUNTS 16 –19 set forth below pertain to the portion of the regulations found at Subpart D- The Program 3 Prevention Pr ogram, 40 C.F.R. § 68.73, and requirements
17pertaining to the mechanical integrity of the specific proc ess equipment used in the Covered Process. 62. COUNT 16 - 40 C.F.R. § 68.73(b) required De fendant to establish and implement written procedures to maintain the ongoing inte grity of process equipment. Millard failed to establish and implement written proce dures for the following process equipment: 1) process RCS interlocks, and 2) “Receiver” and “Low Low Temperature Accumulator,” in violation of 40 C.F.R. § 68.73(b). 63. COUNT 17 - 40 C.F.R. § 68.73( d)(1) required Defendant to perform inspections and tests on process equipment. Defendant failed in at least 8 ways to perform inspections and tests on process equipment in violation of 40 C.F.R. § 68.73(d)(1). The list of failures are: (a) no 6 month relief valv e inspection in July 2010: (b) no evidence that an oil and vibration analysis for the sc rew processors was performed annually; (c) no evidence that ammonia was tested for purity on a bi-annua l basis; (d) no evidence that the shaft alignment was checked on the screw compressors on an annual basis; (e) no evidence of maintenance on the liquid pumps on either a mont hly or annual basis; (f) no evidence that monthly evaporator checks took place; (g) no evidence that inspections and tests were conducted on RCS interlocks; (h) no evidence th at Defendant performed the required July 2010 annual test on its key switche s and kill button, just prio r to the August 2010 Release.

64. COUNT 18 - 40 C.F.R. § 68.73( d)(2) required Defendant to follow recognized and generally accepted good engineering practices for its inspections and testing procedures in order to maintain the mechan ical integrity of its process equipment. Defendant failed, in violation of 40 C.F.R. § 68.73(d)(2), in at least four ways to follow recognized and generally accepted good engineeri ng practices: (a) Failed to show that it 18conducted the IIAR Bulletin No. 109 inspections fo r all pressure vessel s to help identify cracked and damaged vessels; (b) Failed to mark /label its piping to meet the ammonia pipe labeling requirements of IIAR’s Bulletin No. 14, Guidelines for Identification of Ammonia Refrigeration Piping and Safety Components; (c) Failed to sh ow that it performed the annual test on its emergency ventilation system in July 2010 (just before the August 2010 Release). A testing schedule for the mechanical ventilation systems is required by IIAR 2

- 2008 Section 13.3.12.1; (d) Failed to provide mate rial certification documents (U-1, U-1A, U-2) for all the screw compressor oil filter housings, screw compressor cooler thermosyphon oil coolers, intercool ers, accumulators, and oil pots.

65. COUNT 19 - 40 C.F.R. § 68.73( f)(2) required Defendant to make appropriate checks and inspections to assure proper equi pment installation consistent with design specifications and the manufacturer's instructions . Defendant failed in 2007 and 2010, in violation of 40 C.F.R. § 68.73(f)(2) to follow its own certification proc edures for original system start up by failing to provide pressure tests and vacuum tests for pipe installation as specified by the equipment manufacturers.

66. COUNTS 20 – 22 set forth below pertain to the portion of the regulations found at Subpart D- The Program 3 Prevention Progr am, 40 C.F.R. § 68.81, and requirements for investigation of the April 2007 Release, the January 2010 Release and the August 2010 Release, which resulted or could reasonably ha ve resulted in a catas trophic release of a regulated substance.

67. COUNT 20 - 40 C.F.R. § 68.81( d)(4) required Defendant to prepare a report of each investigation involving any in cident which resulted in, or could have resulted in a 19release, which report was require d to include the factors that contributed to the release. Defendant failed, in violation of 40 C.F.R. § 68.81(d)(4), to determine and document all factors that contributed to the April 2007 Release. Speci fically, Defendant failed, in violation of 40 C.F.R. § 68.81(d)(4), to adequately perform and document an engineering/hazard analysis to determine the root cau se of the hydraulic shock event. In particular, Defendant failed, in violation of 40 C.F.R. § 68.81(d)(4), to identify power loss and process re-start as contri buting factors. For the January 2010 release, Defendant failed in violation of 40 C.F.R. § 68.81( d)(4), to perform/conduct any engineering/hazard analysis to determine the root cause of the crack discovered on the suction header.

68. COUNT 21 - 40 C.F.R. § 68.81( d)(5) required Defendant to prepare a report of each investigation required by 40 C.F.R. § 68.81 , which report was required to include recommendations resulting from th e investigation. Defendant failed, in violation of 40 C.F.R. § 68.81(d)(5), to include any reco mmendations resulting from the April 2007 Release investigation in its report required under 40 C.F.R. § 68.81(d)(5).

69. COUNT 22 - 40 C.F.R. § 68.81(e) required Defendant to establish a system to promptly address and resolve the report findings and recommendations from the investigation of the April 2007 Release. Defendant fa iled, in violation of 40 C.F.R. § 68.81(e), to establish a system to addre ss and resolve the April 2007 Release report findings.

70. COUNTS 23 – 24 set forth below pertain to the portion of the regulations found at Subpart E- Emergency Response, 40 C.F.R. § 68.95, and Subpart F – Regulated Substances for Accidental Release Prevention, 40 C.F.R. § 68.180. Under these regulations Defendant 20was required to develop and implement an emergency response program for the purpose of protecting human health and the environment.

71. COUNT 23 - 40 C.F.R. §§ 68.95(a)(1) and 68.180(a)(2) required Defendant to develop an emergency response plan which in cluded specific actions to be taken in response to an accidental release of a regulated substa nce. However, in violation of 40 C.F.R. §§ 68.95(a)(1) and 68.180(a)(2), Defenda nt’s evacuation procedures included a statement that “Small ammonia leaks are nor mal in the operation of the refrigeration system and do not require an evacuation.” De fendant’s emergency response plan does not specify that any action should be taken for sma ll leaks. Defendant’s failure to have an emergency response procedure for a small leak is a violation of 40 C.F.R. §§ 68.95(a)(1) and 68.180(a)(2).

72. COUNT 24 - 40 C.F.R. § 68.95(a )(3) required Defendant to provide training to all of its employees on relevant emergency re sponse procedures. Defendant failed, in violation of 40 C.F.R. § 68.95(a)(3), to implem ent training for all employees in relevant emergency response procedures. Defendant ’s 24-hour emergency response personnel failed to complete the annual refresher training course in 2009 and 2010 in violation of 40 C.F.R. § 68.95(a)(3).

73. COUNT 25 - 40 C.F.R. § 68.95(c) require d Defendant to coordinate its emergency response plan with the community emergency response plan. Defendant failed, in violation of 40 C.F.R. § 68.95( c), to coordinate its emerge ncy response plan (ERP) with the community response plan. Defendant’s ERP did not clearly identify the roles and responsibilities of the Emergency Response Team members, the local HAZMAT team 21and/or the Fire Dept. Failure to identify these roles indicated a lack of coordination with the community response plan in violation of 40 C.F.R. § 68.95(c).

74. COUNTS 26 – 29 set forth below pertain to the portion of the regulations found at Subpart G –Risk Management Plan - 40 C.F.R. §§ 68.165(a)(2); 68.175; 68.180 and 68.190 and set forth the requirements for preparation and submittal of a Risk Management Plan.

75. COUNT 26 - 40 C.F.R. § 68.165(a)(2)(b) require d Defendant to submit in its Risk Management Plan a worst-case release scenario to repr esent all regulated toxic substances held above the threshold quant ity and one worst-case release scenario to represent all regulated flammable substances he ld above the threshold quantity. Defendant failed in 6 ways to submit a worst case scenario representa tive of all regulated t oxic substances held above the regulated quantity: (a) Maximum in tended inventory numbers were lower than actual inventory received; (b) Li sted release rate was not co mpliant with RMP Regulations in violation of 40 C.F.R. § 68.165(a)(2)(b)(7); (c) Listed release duration was not compliant with RMP Regulations in violation of 40 C.F.R. § 68.165(a)(2 )(b)(8); (d) Listed distance to endpoint was not compliant with RMP Regulations in violation of 40 C.F.R. § 68.165(a)(2)(b)(11); (e) Estimated residential populations and schools within the distance to endpoint were inaccurate as it did not include public and environmental receptors within the distance in violation of 40 C.F.R. § 68.165(a)(2)(b)(12) ; a nd (f) Passive mitigation was not considered in violation of 40 C.F.R. § 68.165(a)(2)(b)(13).

76. COUNT 27 - 40 C.F.R. § 68.175 requir ed Defendant to provide specific information as part of its Risk Management Plan that it submits to EPA. Defendant failed in 6 ways to meet all the Prevention Program 3 requirements in the its Risk Management 22Plan Report dated April 23, 1020: (a) No ev idence of a PHA Study for the August 1, 2005, PHA in violation of 40 C.F.R. § 68.175(e) which requires the date of completion of the most recent PHA or update; (b) No date listed for the most recent changes that triggered a Management of Change Procedur es in violation of 40 C.F.R. §68.175(i); (c) No date listed for the most recent evaluations of contractor M&M safety performance in violation of 40 C.F.R. §68.175(p); (d) No date listed for the most recent investigat ion of a release in violation of 40 C.F.R. § 68.175(l); (e) Invalid date listed for latest compliance audit in violation of 40 C.F.R. § 68.175( k); (f) Invalid date listed for latest Emergency Response training in violation of 40 C.F.R. §68.175(g).

77. COUNT 28 - 40 C.F.R. § 68.180(a)(5) required Defendant to provide the date of the most recent review or update of the emer gency response plan. Defe ndant stated its most recent update of the plan was on April 9, 2009, but was unable to provide this plan. Defendant violated 40 C.F.R. § 68.180 by failing to have the date of the most recent plan in its RMP.

78. COUNT 29 - 40 C.F.R. § 68.190 required Defendant to update its Risk Management Plan within 6 months of a cha nge that requires a revised PHA. Defendant failed to update its Risk Management Plan within 6 months of expanding Defendant’s Facility by adding new compressors, evaporator s, blast cells, piping and controls at its Facility in 2006. Defendant failed to update the plan. Th is failure is a violation of 40 C.F.R. §68.190(b)(5).

79. COUNT 30 - Subpart A - Management 40 C.F.R. § 68.15(c) – required Defendant to prepare an organization chart or simila r document showing the lines of authority 23regarding the development, implementation, and integration of the Risk Management Plan. Defendant failed, in violation of 40 C.F.R. § 68.15(c), to defi ne the all of the lines of authority and the supervisory chai n in the Risk Management Plan.

80. COUNT 31 - Subpart D – Program 3 Pr evention Program - 40 C.F.R. § 68.75 Management of Change (MOC) required Defendant to establish and implement written procedures to manage changes to proce ss equipment, chemicals and technology. Defendant failed in at least four ways to meet the MOC requirements: (a) Failed to develop and implement MOC documents for th e RCS changes (i.e. limiting the number of evaporators which can go into defrost at one time); (b) Failed to develop and implement MOC documents following the August 2010 Release for a the installation of a pipe elbow at the end of a pipe; (c) Did not complete a temporary MOC procedure (PHA, Safety and Health Checklist & Pre-Start Up Safety Review (PSSR)) for the defrost test; (d) Failed to conduct a Process Hazard Analysis regarding th e effect of the changes to the process design logic or programming of the refrigeration control system and include that analysis in its Management of Change documentation. Each of thes e failures is a violation of 40 C.F.R. § 68.75. 81. COUNT 32 - Subpart D – Program 3 Prev ention Program - 40 C.F.R. § 68.77 PreStartup Review- required Defendant to conduc t pre-start-up safety reviews for new stationary sources and for modi fied stationary sources when the modification is significant enough to require a change in th e process safety information. Defendant failed, in violation of 40 C.F.R. § 68.77, to show th at it conducted any pre-start- up safety review prior to operating with the modifications it made to its control system following the April 2007 Release and the August 2010 Release. 2482. COUNT 33 - Subpart D – Program 3 Prev ention Program - 40 C.F.R. § 68.79(d)

- Compliance Audits – required Defendant to promptly determine and document an appropriate response to each of the findings of the compliance audit and document that the deficiencies have been corrected. The Augus t 4, 2008 audit listed 10 deficiencies which Defendant failed to provide an appropriate response to, in violation of 40 C.F.R. § 68.79(d). 83. COUNT 34 - Subpart D – Program 3 Preven tion Program - 40 C.F.R. § 68.83(b) Employee Participation required Defendant to consult with em ployees and their representatives on the conduct a nd development of process hazards analyses (“PHAs”) and other elements of process safety management. De fendant failed, in violation of 40 C.F.R. § 68.83(b), to consult with employees on the conduct and development of PHAs. 84. COUNT 35 - Subpart D – Program 3 Prev ention Program - 40 C.F.R. § 68.85- Hot Work Permit—required Defendant to issu e a hot work permit for hot work operations conducted on or near a covered process and to document in the permit that the fire prevention and protection sta ndards of 29 C.F.R. § 1910.252(a) have been implemented prior to the beginning of the hot work opera tions. Defendant failed, in violation of 40 C.F.R. § 68.85, to issue a hot work permit for hot work operations or to document that the fire prevention and protection requi rements had been implemented. 85. COUNT 36 - Subpart D – Program 3 Preven tion Program - 40 C.F.R. § 68.87(b) – Contractors- required the Defe ndant to evaluate the safety performance and programs of contractors prior to selection of the contractor. Defendant could not produce the refrigeration contractor sa fety performance and programs documentation for its two contractors M&M and ASI who worked on the ammonia refrigeration system at the
25Facility. Therefore, Defendant failed to provi de evidence that, as part of the selection of these contractors, it had evaluated informa tion regarding each contractor's safety performance and programs as required by 40 C.F.R. § 68.87(b).

86. Section 113(b) of the CAA, 42 U.S.C. § 7413(b), as amended by 28 U.S.C. § 2461 and 31 U.S.C. § 3701, provides that the Admi nistrator of EPA shall, in the case of a person which is the owner or ope rator of a major stationary so urce, and may, in the case of any other person, whenever such person viol ates any requirement or prohibition of Subchapter I of the Act (42 U.S.C. §§ 7401- 7515), commence a civil action for injunctive relief and to assess and recover a civil penalty of up to $27,500 per day for each such violation.

87. Under the Federal Civil Penalties In flation Adjustment Act of 1990, 28 U.S.C. § 2461, as amended by the Debt Collection Im provements Act of 1996 (DCIA), 31 U.S.C. § 3701, and pursuant to EPA’s Civil Monetary Pe nalty Inflation Adjustment Rule (Inflation Adjustment Rule), 69 Fed. Reg. 7,121 (Feb. 13, 2004) and 40 C.F.R. Part 19, 73 Fed. Reg. 75,340 (Dec. 11, 2008), promulgated pursuant the DCIA, Defendant is liable for assessment of a civil penalty of up to $32,500 per day for each violation of the RMP Regulations that occurred after March 15, 2004 through Janu ary 12, 2009, and up to , and up to $37,500 per day for each violation that occurred after January 12, 2009.

26COUNTS 37, 38, and 39
SECTION 112(r)(1) OF THE CLEAN AIR ACT 88. Paragraphs 1-13 and 27-41 are incor porated herein by reference. 89. COUNT 37 - Defendant failed in its general duty of ca re to identify hazards which may result from an accidental releas e of anhydrous ammonia in that Defendant failed to: (A) identify and analyze all known risks associ ated with the hydraulic shock hazard; (B) assess risks of an NH 3 release to the community surrounding the Faci lity; (C) analyze the impact of its Facility expa nsion in January 2006 when the Facility’s ammonia capacity was increased by 50 percent.

90. COUNT 38(A) - Defendant failed in its general duty to design and maintain a safe facility in that Defendant faile d to address the caus es of and risks associated with hydraulic shock by: (A) designing an NH 3 refrigeration system at the F acility to avoid piping failures caused by hydraulic shock; (B) having redundant systems or layers of protection in place so that if piping is breached a nd/or the automatic control shut down system malfunctions there is an alternate method of c ontainment; (C) having an adequate maintenance program for the piping and automatic control shut down sy stem; and (D) failing to design a refrigeration control system to account for th e impacts of a power failure.

91. COUNT 38(B) - Defendant also failed in its general duty to design and maintain a safe facility in that Defendant failed to a ddress known design flaws that contributed to hydraulic shock events – Defendant noted in its September 22, 2010 Incident Report pertaining to the August 2010 Rel ease that the root cause of the failure was a design flaw involving its RCS or process controls and the defrost cycle. Millard was aware of its
27flawed process design at least as of the April 2007 Release which occurred as a result of a power outage and a restart of the system at the wrong stage in the defrost cycle. Yet, Millard did nothing to address the problem until after the same event occurred in August of 2010 (power outage and restart of the sy stem caused a catas trophic release).

92. COUNT 39 - Defendant failed in its general duty of care to minimize the consequences of the accidental release of anhydrous ammonia which occurred on April 25, 2007 and August 23, 2010, by failing: (A) to design any type of containment system for the NH 3 once released, or any sprinkler system to mitigate potential harm; and (B) provide the plant engineer with the training nece ssary to handle an emergency situation.

93. The defendant violated the general duty of care under Section 112(r)(1) of the CAA every day it operated its refrigeration syst em without a means to adequately control occurrences of hydraulic shock or without conduc ting an adequate hazard identification, or without having adequate measures in pl ace to respond to a ca tastrophic release

.
94. Section 113(b) of the CAA, 42 U.S.C. § 7413(b), as amended by 28 U.S.C. § 2461 and 31 U.S.C. § 3701, provides that the Admi nistrator of EPA shall, in the case of a person which is the owner or ope rator of a major stationary so urce, and may, in the case of any other person, whenever such person viol ates any requirement or prohibition of Subchapter I of the Act (42 U.S.C. §§ 7401- 7515), commence a civil action for injunctive relief and to assess and recover a civil penalty of up to $27,500 per day for each such violation.

2895. Under the Federal Civil Pena lties Inflation Adjustment Act of 1990, 28 U.S.C. § 2461, as amended by the Debt Collection Im provements Act of 1996 (DCIA), 31 U.S.C. § 3701, and pursuant to EPA’s Civil Monetary Pe nalty Inflation Adjustment Rule (Inflation Adjustment Rule), 69 Fed. Reg. 7,121 (Feb. 13, 2004) and 40 C.F.R. Part 19, 73 Fed. Reg. 75,340 (Dec. 11, 2008), promulgated pursuant the DCIA, Defendant is liable for assessment of a civil penalty of up to $32,500 per day for each violation of the general duty of care that occurred after March 15, 2004 through January 12, 2009, and up to $37,500 per day for each violation that occurred after January 12, 2009.

COUNT 40 SECTION 103 OF CERCLA 96. Paragraphs 23-42 are incorporat ed herein by reference.

97. Section 102(a) of CERCLA, 42 U.S.C. § 9602(a), required the Administrator of EPA to publish a list of substances desi gnated as hazardous substances which, when released into the environment, may present substantial danger to public health or welfare or the environment and to promulgate regulati ons establishing the qua ntity of any hazardous substance the release of which was require d to be reported under Section 103(a) of CERCLA, 42 U.S.C. § 9603(a). EPA has publis hed and amended such a list, including the corresponding reportable quantities (RQ) for those substances. Th is list which is codified at 40 C.F.R. Part 302, was initially publis hed on April 4, 1985 (50 Fed. Reg . 13474) and is periodically amended.

98. Section 103 of CERCLA, 42 U.S.C. § 9603( a), and the regulations found at 40 C.F.R. § 302.6, require a person in charge of a facility or ve ssel to immediately notify the
29National Response Center (NRC), as soon as he or she has knowledge of a release of a hazardous substance from such facility or vesse l in an amount equal to, or greater than the reportable quantity (RQ).

99. Defendant was in charge of the facil ity during the relevant period described below.

100. NH 3 is a listed hazardous substance as that term is defined by Section 101(14) of CERCLA, 42 U.S.C. § 9601(14), with a reportable quantity (RQ) of 100 pounds as specified in 40 C.F.R. § 302.4(a).

101. The release of NH 3 from the Facility on April 25, 2007 was above the reportable quantity of 100 pounds pursuant to 40. C.F.R. § 302.4(a). Yet, Defendant failed to notify the National Response Center (NRC) for over 20 hours.

102. COUNT 40. The Defendant violated the notification requirements of Section 103(a) of CERCLA, 42 U.S.C. § 96 03(a), and the applicable CERCLA regulations, 40 C.F.R. § 302.6, by failing to immediately not ify the NRC as soon as Defendant had knowledge of the release of ammonia in an am ount equal to or grea ter than its RQ at Respondent’s facility.

103. Section 109(c) of CERCLA provides as follows: The President may bring an action in the United States district court for the appropriate district to assess and collect a penalty of not more than $25,000 per day for each day during which the violation (or failure or refusal) continues in the case of . . . (1) A violation of the notice requirements of section 9603(a) of this title . . . . In the case of a second or subsequent violation (or failure or refusal), the amount of such penalty
30may be not more than $75,000 for each day during which the violation (or failure or refusal) continues. 42 U.S.C. § 9606(c). 104. Under the DCIA and the Inflation Adju stment Rule, the $25,000 per day penalty has been increased to $37,500 per day, and the $75,000 per day penalty for subsequent violations has been increased to $107,500 pe r day under Section 109(c) of CERCLA as of January 2009.

105. Defendant is liable for a penalty of $ 37,500 for its failure to timely notify the NRC on April 25, 2007, of releases of hazardous s ubstances above the reportable quantity.

COUNT 41 - 43 SECTION 304 OF EPCRA 106. Paragraphs 23-42 are incorpor ated herein by reference. 107. Section 329(4) of EPCRA, 42 U.S.C. § 11049(4), defines “facility” as buildings, equipment, structures, and other stationary items which are located on a single site or on contiguous or adjacent sites and which are owned or operated by th e same person (or by any person which controls, is controlled by, or under common control with, such person).

108. Defendant has a “facility” as that term is defined by Sec tion 329(4) of EPCRA, 42 U.S.C. § 11049(4).

109. Defendant was the owner or operator of the facility during the relevant period, described below.

31110. At all times relevant to this matter, the facility produced, used, or stored a “hazardous chemical” as defined under EPCRA Section 304(a)(3) of 42 U.S.C. § 11004(a)(3).

111. Ammonia is an “extremely hazardous subs tance” as that term is defined by Section 329(3) of EPCRA, 42 U.S.C. § 11049(3) , with an RQ of 100 pounds, as specified in 40 C.F.R. Part 355, Apps. A & B.

112. On April 25, 2007, Defendant had a releas e of ammonia above the RQ at the facility. The release resulted in the potential for exposure to persons beyond the site on which the facility is located.

113. On August 23, 2010, Defendant had a releas e of ammonia above the RQ at the facility. The release resulted in actual e xposure to persons beyond the site on which the facility is located.

114. 40 C.F.R. § 355, Subpart C, require the owne r or operator of a facility at which hazardous chemicals are produced, used or stored, to immediately notify the State Emergency Response Commission (SERC) and Local Emergency Planning Committee (LEPC) when there has been a release of a CERCLA hazardous substance or an EPCRA extremely hazardous substance in an amount equal to or greater than the RQ.

115. COUNT 41 - Defendant violated the notific ations requirements of Section 304(a) of EPCRA, 42 U.S.C. §11004(a), and the applicable EPCRA regulations of 40 C.F.R § 355, Subpart C, by failing to immediately notify the SERC and LEPC as soon as

32Defendant had knowledge of the release of ammonia on April 25, 2007, in an amount equal to or greater than the reportable quantity at Defendant’s Facility.

116. Section 304(c) of EPCRA, 42 U.S.C. §11004(c) and the regulations found at 40 C.F.R. § 355, Subpart C, require the owner or operator of a facility at which hazardous chemicals are produced, used or stored, to pr ovide a written follow-up emergency notice to the SERC and LEPC when there has been a re lease of a CERCLA hazardous substance or an EPCRA extremely hazardous substance in an amount equal to or greater than the RQ.

117. COUNT 42 - Defendant violated the notif ication requirements of Section 304(c) of EPCRA, 42 U.S.C. § 11004(c), by failing to provide a written follow-up emergency notice to the SERC and LEPC when there ha d been a release of ammonia on April 25, 2007, in an amount equal to or greater th an the RQ at Defendant’s Facility.

118. COUNT 43 – Defendant violated the notif ication requirements of Section 304(c) of EPCRA, 42 U.S.C. § 11004(c), by failing to provide a written follow-up emergency notice to the SERC and LEPC when there ha d been a release of ammonia on August 23, 2010, in an amount equal to or greater than the RQ at the Defendant’s Facility.

119. Under the DCIA and the Inflation Adju stment Rule, the $25,000 per day penalty has been increased to $37,500 per day, and the $75,000 per day penalty for subsequent violations has been increased to $107,500 per day under Section 325(b)(3) of EPCRA.

120. Defendant is liable for a penalty of $37,500 per day for its failure to notify either, the NRC, the SERC or the LEPC, in a timel y manner of the April 25, 2007 release of NH 3 , and is liable for a penalty of $37,500 per day for its failure to make a written follow-up

33report in a timely manner to the SERC and LEPC after the April 25, 2007 Release and the August 23, 2010 Release of NH 3.

RELIEF SOUGHT WHEREFORE, Plaintiff, the United States, resp ectfully prays that this Court provide the following relief:

1. Order Defendant to pay a civil penalty for each day of each violation of the Clean Air Act and the applicable regulations, $32,500 per day fo r each violation that occurred after March 15, 2004 through January 12, 2009, and $37,500 per day for each violation that occurred after January 12, 2009;

2. Order Defendant to pay a penalty of $37,500 for its failure to timely notify the NRC on April 25, 2007, of releases of hazardous subs tances above the reportable quantity;

3. Order Defendant to pay a civil penalty of $37,500 per day for its failure to notify either, the NRC, the SERC or the LEPC, in a timel y manner of the April 25, 2007 release of NH 3 , and is liable for a penalty of $37,500 per day for its failure to make a written follow-up report in a timely manner to the SERC and LEPC after th e April 25, 2007 Release and the August 23, 2010 Release of NH 3.

344. Award the United States its costs of this action; and

5. Grant the United States such further relief as this Court may deem just and proper.

s/ John C. Cruden John C. Cruden DC Bar Number: 261321 Attorney for Plaintiff Assistant Attorney General Environment and Natural Resources Divi sion United States Department Of Justice P.O. Box 7611 Washington, D.C. 20044-7611 Telephone: (202) 514-2701 Fax: (202) 514-0557 E-mail: john.cruden@usdoj.gov

s/Cheryl A. Luke Cheryl A. Luke VA Bar Number: 26331 Attorney for Plaintiff Environmental Enforcement Section Environment & Natural Resources Division United States Department of Justice P.O. Box 7611 Washington, D.C. 20044-7611 Telephone: (202) 514-5466 Fax: (202) 616-2427 E-mail: cheryl.luke@usdoj.gov

35Millard Refrigerated Services, LLC Clean Air Act (CAA) Settlement | Enforcement | US EPA

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# Millard Refrigerated Services, LLC Clean Air Act (CAA) Settlement
(Washington, DC – June 2, 2015) The U.S. Environmental Protection Agency (EPA) and the U.S. Department of Justice announced a Clean Air Act (CAA) settlement with Millard Refrigerated Services, LLC to address three accidental releases of anhydrous ammonia at its Mobile Marine Terminal located in Theodore, Alabama. The most serious of the releases resulted in 152 people being treated at local hospitals. Millard Refrigerated Services, LLC has since been acquired by Lineage Logistics. On this page: Overview of Company Violations Injunctive Relief Pollutant Impacts Health Effects and Environmental Benefits Civil Penalty Contacts 

### Overview of Company Millard Refrigerated Services, LLC (Millard) was founded in 1963 in Millard (now part of Omaha), Nebraska and was incorporated in the State of Georgia. Millard operated numerous cold storage facilities across the United States and Canada. Millard offered refrigeration and distribution services to major retail, food service and food distribution companies for both domestic and international locations. Home Menu We are improving our website to help you find what you're looking for. During this transition some URLs may change. Learn more...

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### Violations On April 25, 2007, an anhydrous ammonia release occurred at the Mobile Marine Terminal. An internal investigation revealed the cause to be failure to control hydraulic shock, a well-known hazard in the ammonia refrigeration industry. On January 6, 2010, a second anhydrous ammonia release occurred at the Mobile Marine Terminal. An internal investigation did not identify a root cause. On August 23, 2010, the Mobile Marine Terminal experienced a third release of anhydrous ammonia when 32,000 pounds of the chemical were released into the environment. The ammonia travelled directly over a site where more than 800 people were working on decontaminating ships responding to the BP oil spill in the Gulf of Mexico. The Mobile, Alabama, Emergency Management Agency ordered an evacuation of the surrounding area and a one mile shelter in place situation following the ammonia release. 152 people working at the site and on ships were treated for symptoms of ammonia exposure at hospitals in the Mobile area, four of whom were admitted into intensive care units. An internal investigation identified the cause of the release as failure to control hydraulic shock. Section 112(r)(7) of the CAA and the implementing regulations at 40 C.F.R. Part 68, require owners and operators of a stationary source that has more than a threshold quantity of a regulated substance in a process to develop and implement a risk management program. The stationary source’s risk management program is to be described in a risk management plan that must be submitted to EPA. The Millard Mobile Marine Terminal was subject to these regulations because the refrigeration systems contained more than the threshold of 10,000 pounds of anhydrous ammonia. EPA inspections and investigation indicated that there were 37 separate violations CAA Section 112(r)(7) and its implementing regulations found at 40 C.F.R. Part 68. Section 304(a) of EPCRA, 42 U.S.C. § 11004(a), requires any person who owns or operates a facility at which a hazardous chemical is produced, used or stored to immediately provide notice of a release of an extremely hazardous substance from the facility (to offsite locations) in an amount equal to or greater than its reportable quantity (RQ), as described in Section 304(b) of EPCRA, 42 U.S.C. § 11004(b). The notification must be given to the State Emergency Response Center (SERC) and the Local Emergency Planning Commission (LEPC). EPA inspections and investigations of the three incidents described above indicated that Millard violated Clean Air Act Section 112(r)(1) by failing to identify the hazards of hydraulic shock and by failing to design its facility to minimize this hazard. Section 304(a) of EPCRA, 42 U.S.C. § 11004(a), requires any person who owns or operates a facility at which an extremely hazardous substance is produced, used or stored to immediately provide notice of a release of such a substance from the facility (to offsite locations) in an amount equal to or greater than its reportable quantity (RQ), as described in Section 304(b) of EPCRA, 42 U.S.C. § 11004(b). The notification must be given to the State Emergency Response Center (SERC) and the Local Emergency Planning Commission (LEPC).Millard Refrigerated Services, LLC Clean Air Act (CAA) Settlement | Enforcement | US EPA

http://www2.epa.gov/enforcement/millard-refrigerated-services-llc-clean-air-act-caa-settlement [10/16/2015 2:23:38 PM] EPA inspections and investigation indicated that Millard violated EPCRA by failing to provide notice to the SERC and to LEPC of the April 2007 release. Section 103(c) of CERCLA similarly requires notification to the National Response Center (NRC) following a release of a hazardous substance in quantities greater that the RQ established pursuant to Section 102, 42 U.S.C. § 6902. EPA inspections and investigations indicated that Millard violated CERCLA by failing to provide notification to the NRC for the April 2007 release.

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### Injunctive Relief There is no injunctive relief as Millard no longer owns the facility, the facility is no longer the Mobile Marine Terminal, and this facility is not being used as a refrigerated warehouse.

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### Pollutant Impacts As the Mobile Marine Terminal is no longer in operation there is no future risk of anhydrous ammonia releases occurring.

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### Health Effects and Environmental Benefits Anhydrous ammonia is considered a poisonous gas. Exposure to its vapors can cause temporary blindness and eye damage, and irritation of the skin, mouth, throat, respiratory tract and mucous membranes. Prolonged exposure to anhydrous ammonia vapor at high concentrations can lead to serious lung damage and even death.

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### Civil Penalty Millard will pay a $3 million penalty to the United States.

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### For more information, contact: Ellen Rouch Office of Environmental Accountability U.S. EPA, Region IV 61 Forsyth Street Atlanta, Georgia 30303 (404) 562-9575Millard Refrigerated Services, LLC Clean Air Act (CAA) Settlement | Enforcement | US EPA

http://www2.epa.gov/enforcement/millard-refrigerated-services-llc-clean-air-act-caa-settlement [10/16/2015 2:23:38 PM] rouch.ellen@epa.gov Dean B. Ziegel Waste and Chemical Enforcement Division U. S. Environmental Protection Agency 1200 Pennsylvania Ave, NW (MC 2249A) Washington, DC 20460 (202) 564-4038 ziegel.dean@epa.gov

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