EPA v. MARSH SUPERMARKET, INC.

Case summary

CERCLA/EPCRA CASE INVOLVING ANHYDROUS AMMONIA RELEASE. BACKGROUND: SOMETIME BETWEEN JULY 3RD AND JULY 7TH, 1997, MARSH EXPERIENCED A RELEASE OF APPROXIMATELY 1,000 POUNDS OF ANHYDROUS AMMONIA. IN AN INFORMATION REQUEST RESPONSE MARSH CLAIMED THEY HAD KNOWLEDGE OF THE RELEASE OF A REPORTABLE QUANTITY OF AMMONIA AT 9:00 A.M., BUT DID NOT NOTIFY THE PROPER AUTHORITIES UNTIL AROUND 2:00 P.M., 5 HOURS AFTER DISCOVERY. THE PROPOSED PENALTIES WERE CALCULATED BASED ON A 5 HOUR DELAY IN NOTIFICATION. SETTLEMENT: DURING SETTLEMENT DISCUSSIONS MARSH PRESENTED A DIFFERENT ACCOUNT OF WHAT HAPPENED ON JULY 7TH. SOMETIME BETWEEN 9:00 A.M. AND 11:30 A.M. ON THE 7TH, AN EMPLOYEE NOTIFIED HIS SUPERVISOR THAT HE SMELLED AMMONIA. AT FIRST THEY THOUGHT THAT THE AMMONIA SMELL WAS FROM THE NEIGHBORING FARMS, SINCE THEY ALSO USE AMMONIA AS A FERTILIZER. HIS SUPERVISOR BEGAN MONITORING THE TEMPERATURE OF THE REFRIDERA TION ROOM. AT FIRST THERE WAS NO FLUCTUATION IN THE TEMPERA TURE, SO IT WAS BELIEVED THAT THE AMMONIA SMELL WAS NOT FROM THEIR FACILITY. HOWEVER, SHORTLY AFTERWARDS THE TEMPERATURE IN THE ROOM BEGAN TO FALL. THE SUPERVISOR IMMEDIATELY BEGAN SEARCHING FOR THE CAUSE OF A RELEASE. MARSH CLAIMED THE INVESTIGATION TOOK SOME TIME SINCE THIS FACILITY OCCUPIES APPROXIMATELY 120,000 SQUARE FEET. SHORTLY BEFORE 12:00 P.M A PRESSURE RELIEF VALVE WAS DISCOVERED TO BE MALFUNCTIONING ON THE ROOF OF THE BUILDING. AT AROUND 12:00 P.M. THE REFRIGERATION SYSTEM WAS SHUT DOWN, AND THE AMMONIA WAS COLLECTED BACK IN THE TANK IN A LIQUID FORM. AT THIS TIME THE SIGHT GLASS ON THE TANK SHOWED THAT THERE WAS AN AMMONIA RELEASE, AND MARSH BEGAN TO CALCULATE THE QUANTITYLOST. ONCE THEY DETERMINED THE QUANTITY LOST THEY MADE THE PROPER NOTIFICATIONS. MARSH WAS ADVISED THAT THEY HAD AN OBLIGATION TO DETERMINE IF THEY HAD A RELEASE AT THE TIME THE AMMONIA WAS SMELLED, AND THAT WE DID NOT FEEL THAT THE TIME IT TOOK TO DISCOVER AND CALCULATE THE QUANTITY RELEASED WAS REASONABLE. MARSH ADVISED US THAT THEY WERE IN THE PROCESS OF REVISING THEIR PROCEDURES TO ENSURE THAT THIS DELAY WOULD NOT OCCUR SHOULD THEY EXPERIENCE ANOTHER RELEASE OF AMMONIA. THEY ALSO SUGGESTED THAT THEY WOULD BE WILLING TO HAVE LANGUAGE TO ENSURE A MORE TIMELY NOTIFICATION IN THE FUTURE IN THE CONSENT AGREEMENT. U.S. EPA WOULD NOT BE ABLE TO PROVE AT A HEARING EXACTLY WHEN BETWEEN 9:00 A.M. AND 11:30 A.M. THE EMPLOYEE FIRST SMELLED THE AMMONIA. IT WOULD ALSO BE DIFFICULT TO PROVE THAT THEIR INVESTIGATION SHOULD HAVE TAKEN LESS TIME THAN IT DID WITHOUT AN EXPERT TESTIFYING REGARDING THEIR FACILITY, WHICH WOULD BE DIFFICULT TO FIND. WE RECOGNIZED THAT THERE WOULD BE SIGNIFICANT LITIGATION RISKS IN THIS AREA IF WE PROCEED TO A HEARING. MARSH OFFERED TO SETTLE THE MATTER FOR $23,663. THIS OFFER INCLUDED LOWERING THE FIRST THREE COUNTS TO ONE MATRIX BOX LOWER IN THE ENFORCEMENT RESPONSE POLITY AND FULL PAY- MENT FOR COUNTS FOR AND FIVE, MINUS A 10% REDUCTION FOR A QUICK SETTLEMENT AND 25% REDUCTION FOR COMING INTO COMPLI- ANCE BEFORE OUR INVESTIGATION AND COOPERATING THROUGHOUT THE INVESTIGATION AND ENFORCEMENT PROCESS. BECAUSE OF THE ABOVE MENTIONED LITIGATION RISK, WE AGREED TO LOWER THE PROPOSED PENALTY ONE MATRIX BOX, AND AGREED TO THE 10% QUICK SETTLEMENT ADJUSTMENT ACCORDING TO THE ENFORCE MENT RESPONSE POLICY, HOWEVER, WE DID NOT AGREE WITH THE 25% ADJUSTMENT FOR ATTITUDE. MARSH DID NOT PROVIDE ADEQUATE EXPLANATIONS REGARDING THE INFORMATION REQUESTS WHICH REQUIRED FOLLOW UP LETTERS TO BE SENT. THEREFORE, WE REDUCE D THE ATTITUDE ADJUSTMENT TO 20%, FOR A TOTAL ADJUSTMENT OF 30% RATHER THAN 35%. MARSH AGREED TO SETTLE THIS MATTER FOR $25,483.

Defendants (1)

• MARSH SUPERMARKET, INC.Named in complaintNamed in settlement

Facilities (1)

• MARSH SUPERMARKETS PRODUCE WAREHOUSE

  2801 MARSH AVE, YORKTOWN, IN, 47396

  Registry ID: 110000568323

Statutes cited

• CERCLA 103A — Notification of Hazardous Reportable Quantity Release
• EPCRA 304C — Emerg. Plan. & Commun. Right To Know Act

Enforcement conclusions (1)

• MARSH SUPERMARKET, INC.entered 1999-03-30

  Primary law: EPCRA

  Federal penalty: $25,483

Timeline (4 milestones)

• 1998-07-02Enforcement Action Data Entered
• 1998-11-24Complaint Filed/Proposed Order
• 1999-03-30Final Order Issued
• 1999-04-20Enforcement Action Closed