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Case 4:20-Cv-00463-BGM Document 3-1 Filed 10/28/20 Page 1 of 63 Case 4:20-cv-00463-BGM Document 3-1 Filed 10/28/20 Page 1 of 63 1 Ellen M. Mahan 2 Deputy Section Chief Deborah A. Gitin 3 Senior Counsel 4 Environmental Enforcement Section Environment and Natural Resources Division 5 U.S. Department of Justice 6 450 Golden Gate Ave., Room 7-6714 San Francisco, California 94102 7 (CA Bar No. 284947) Telephone: (415) 744-6488 8 Facsimile: (415) 744-6476 9 Email: [email protected] 10 Attorneys for the United States of America 11 12 (names of additional counsel on following page) 13 IN THE UNITED STATES DISTRICT COURT 14 FOR THE DISTRICT OF ARIZONA 15 16 United States of America, Case No. CV-20-00463-TUC-BGM 17 18 Plaintiff, 19 CONSENT DECREE 20 v. 21 22 Apache Nitrogen Products, Inc., an Arizona corporation, 23 24 Defendant. 25 26 27 28 Case 4:20-cv-00463-BGM Document 3-1 Filed 10/28/20 Page 2 of 63 1 Chris S. Leason Gallagher & Kennedy, PA 2 2575 East Camelback Road 3 Suite 1100 Phoenix, AZ 85016 4 (AZ Bar No. 021887) 5 Telephone: (602) 530-8000 Facsimile: (602) 530-8500 6 Email: [email protected] 7 Attorney for Apache Nitrogen Products, Inc. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii Case 4:20-cv-00463-BGM Document 3-1 Filed 10/28/20 Page 3 of 63 1 2 TABLE OF CONTENTS 3 4 I. BACKGROUND .................................................................................................1 5 II. JURISDICTION AND VENUE ..........................................................................3 6 III. APPLICABILITY ...............................................................................................4 7 IV. DEFINITIONS ....................................................................................................5 8 V. CIVIL PENALTY ...............................................................................................8 9 VI. COMPLIANCE REQUIREMENTS ...................................................................9 10 VII. REPORTING REQUIREMENTS .....................................................................24 11 VIII. STIPULATED PENALTIES .............................................................................28 12 IX. FORCE MAJEURE ...........................................................................................32 13 X. DISPUTE RESOLUTION .................................................................................35 14 XI. INFORMATION COLLECTION AND RETENTION ....................................38 15 XII. EFFECT OF SETTLEMENT/RESERVATION OF RIGHTS .........................40 16 XIII. COSTS ...............................................................................................................42 17 XIV. NOTICES ..........................................................................................................42 18 XV. EFFECTIVE DATE ..........................................................................................44 19 XVI. RETENTION OF JURISDICTION ..................................................................44 20 XVII. MODIFICATION ..............................................................................................44 21 XVIII. TERMINATION ...............................................................................................45 22 XIX. PUBLIC PARTICIPATION ..............................................................................46 XX. SIGNATORIES/SERVICE ...............................................................................47 23 XXI. INTEGRATION ................................................................................................47 24 XXII. FINAL JUDGMENT .........................................................................................48 25 XXIII. HEADINGS .......................................................................................................48 26 XXIV. 26 U.S.C. SECTION 162(F)(2)(A)(II) IDENTIFICATION .............................48 27 XXV. APPENDICES ...................................................................................................48 28 iii Case 4:20-cv-00463-BGM Document 3-1 Filed 10/28/20 Page 4 of 63 1 I. BACKGROUND 2 A. WHEREAS, Plaintiff, United States of America, on behalf of the United States 3 Environmental Protection Agency (“EPA”), has filed a complaint in this action 4 5 (“Complaint”) concurrently with this Consent Decree, alleging that Defendant, Apache 6 Nitrogen Products, Inc. (“ANPI”), violated Sections 112(r)(1) and 112(r)(7) of the Clean 7 Air Act (“CAA”), 42 U.S.C. § 7412(r)(1), (r)(7), Section 103 of the Comprehensive 8 9 Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. 10 § 9603, and Section 304 of the Emergency Planning and Community Right-to-Know Act 11 (“EPCRA”), 42 U.S.C. § 11004, and their implementing regulations, at the chemical 12 manufacturing facility ANPI owns and operates in Cochise County, Arizona (the 13 14 “Facility”). 15 B. WHEREAS, EPA began an investigation of the Facility after a June 10, 2014, 16 release of anhydrous ammonia that occurred at the facility; on that date, ANPI was 17 18 offloading ammonia from a rail car when a sight glass in the ammonia piping broke, 19 resulting in the release of 52,000 pounds of anhydrous ammonia and injuries to ANPI 20 employees and an ANPI contractor. 21 22 C. WHEREAS, the Complaint against ANPI alleges the following violations of 23 Sections 112(r)(1) and 112(r)(7) of the CAA, 42 U.S.C. § 7412(r)(1), (r)(7), and their 24 implementing regulations: 25 26 a. Failure to establish and implement an appropriate Management System to 27 oversee implementation of a Risk Management Plan (“RMP”), as required by 40 C.F.R. 28 §§ 68.12 and 68.15; 1 Case 4:20-cv-00463-BGM Document 3-1 Filed 10/28/20 Page 5 of 63 1 b. Failure to include all covered RMP Program 3 processes in its Process 2 Hazard Analysis (“PHA”), as required by 40 C.F.R. § 68.67(a); 3 c. Failure to document compliance with recognized and generally accepted 4 5 good engineering practices (“RAGAGEP”), as required by 40 C.F.R. § 68.65(d)(2); 6 d. Failure to establish a system to promptly address findings and 7 recommendations made in a PHA in a timely manner and document the resolution, as 8 9 required by 40 C.F.R. § 68.67(e); 10 e. Failure to adequately establish and implement the Facility’s mechanical 11 integrity program, as required by 40 C.F.R. § 68.73(b) and (d); 12 13 f. Failure to correct deficiencies in equipment in a safe and timely manner, as 14 required by 40 C.F.R. § 68.73(e); 15 g. Failure to adequately establish and implement an emergency response 16 17 program, as required by 40 C.F.R. §§ 68.90, 68.93, and 68.95; 18 h. Failure to certify compliance audits and to promptly respond to the findings 19 of compliance audits, as required by 40 C.F.R. § 68.79(a) and (d); 20 i. Failure to ensure the completeness and accuracy of process safety 21 22 information, as required by 40 C.F.R. § 68.65(a) and (d); 23 j. Failure to develop and implement clear written operating instructions, as 24 required by 40 C.F.R. § 68.69(a); 25 26 k. Failure to update the Facility’s five-year accident history to include 27 accidental releases, as required by 40 C.F.R. §§ 68.195(a), 68.168, and 68.175(l); 28 l. Failure to certify the Facility’s operating procedures annually, as required 2 Case 4:20-cv-00463-BGM Document 3-1 Filed 10/28/20 Page 6 of 63 1 by 40 C.F.R. § 68.69(c); and 2 m. Failure to design and maintain a safe facility with respect to equipment at 3 the Facility’s liquid ammonium nitrate unit, as required by the General Duty Clause of 4 5 the CAA, 42 U.S.C. § 7412(r)(1). 6 D. WHEREAS, the Complaint also alleges that ANPI violated Section 103(a) of 7 CERCLA, 42 U.S.C. § 9603, by failure to timely notify national authorities of an August 8 9 3, 2015 release of anhydrous ammonia, and violated Section 304 of EPCRA, 42 U.S.C. 10 § 11004, by failure to timely notify state and local authorities of that same release. 11 E. WHEREAS, ANPI does not admit any liability to the United States arising out of 12 13 the transactions or occurrences alleged in the Complaint. 14 F. WHEREAS, the Parties recognize, and the Court by entering this Consent Decree 15 finds, that this Consent Decree has been negotiated by the Parties in good faith and will 16 17 avoid litigation between the Parties and that this Consent Decree is fair, reasonable, and 18 in the public interest. 19 NOW, THEREFORE, before the taking of any testimony, without the adjudication 20 or admission of any issue of fact or law except as provided in Section II (Jurisdiction and 21 22 Venue), and with the consent of the Parties, IT IS HEREBY ADJUDGED, ORDERED, 23 AND DECREED as follows: 24 II. JURISDICTION AND VENUE 25 26 1. This Court has jurisdiction over the subject matter of this action, pursuant 27 to 28 U.S.C. §§ 1331, 1345, and 1355, and Section 113(b) of the CAA, 42 U.S.C. 28 § 7413(b), Section 103 of CERCLA, 42 U.S.C. § 9603, Section 304 of EPCRA, 42 3 Case 4:20-cv-00463-BGM Document 3-1 Filed 10/28/20 Page 7 of 63 1 U.S.C. § 11004, and over the Parties. Venue lies in this District pursuant to Section 2 113(b) of the CAA, 42 U.S.C. § 7413(b), Section 113(b) of CERCLA, 42 U.S.C. 3 § 9613(b), Section 325(b)(3) of EPCRA, 42 U.S.C. § 11045(b)(3), and 28 U.S.C. 4 5 §§ 1391(b), 1391(c), 1391(d), and 1395(a), because ANPI’s principal place of business is 6 located in this judicial district, and the violations alleged in the Complaint are alleged to 7 have occurred in this judicial district. For purposes of this Decree, or any action to 8 9 enforce this Decree, ANPI consents to the Court’s jurisdiction over
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