A gas distributor and its parent company have agreed to pay $257,000 to settle RMP violations discovered during inspections following a fatal 2013 explosion at a Texas facility. On the morning of February 9, 2013, at the La Porte #1 facility, there were explosions and a fire. The Incident occurred in the Gravimetric Unit (“Unit”) at the facility, where the blending or filling of cylinders with flammable gases and liquids took place. The gases used for blending are located in cylinders staged outside of the Unit, cylinders inside of the Unit, and gas sources that are piped directly into the Unit from storage vessels. At the time of the Incident, cylinders located both in and outside of the Unit contained substances including propane, propylene, ethane, ethylene, chlorine, isobutene, methane, hydrogen, and hydrogen sulfide, which are listed substances in 40 C.F.R. § 68.130.
The explosion took place during an attempt by two (2) plant employees to blend a proprietary chemical, a hydrocarbon and oxygen mixture. The Incident caused the physical destruction of much of the building housing the Gravimetric Unit, as well as the gas cylinders located therein, and caused the release of listed substances identified above. The resulting fire burned for more than several hours.
GENERAL ALLEGATIONS
At all times relevant to this Complaint, Defendant #1, was the “owner and operator” of the La Porte #1 facility within the meaning of CAA Section 112(r)
At all times relevant to this Complaint, Defendant #2 was the “owner and operator” of the La Porte #2 facility, as well as the Freeport and Bayport Pasadena facilities
Each of the four facilities is a “stationary source” as defined in CAA Section 112(r)(2)(C) and 40 C.F.R. § 68.3. At all times relevant to this Complaint, Defendants produced, processed, handled, and stored “regulated substances” as defined in CAA Section 112(r)(2)(B) and as listed in 40 C.F.R. § 68.130, Tables 1, 2, 3 and 4, at their respective facilities.
The La Porte #1 facility sits on an approximately 140-acre parcel of land. Dozens of businesses with hundreds of employees are located within a three-mile radius of the facility, and more than 15,000 residents live within a five-mile radius of the facility. This facility, which operated on a 24-hour basis, blended different specialty gases and industrial gases with widely varying chemical characteristics pursuant to customer orders. The blending facility was largely destroyed in the 2013 explosion and never resumed operations.
In its operations at the La Porte #1 facility, Defendant #1 utilized propane, propylene, ethane, ethylene, chlorine, isobutene, methane, hydrogen and hydrogen sulfide, which are regulated hazardous substances listed in 40 C.F.R. § 68.130.
At all times relevant to this Complaint, Defendant #1 was subject to the General Duty Clause of CAA Section 112(r)(1), regarding the prevention of “accidental releases” at its facility, as defined in CAA Section 112(r)(2)(A) and 40 C.F. R. § 68.3.
At all times relevant to this Complaint, Defendants were subject to the requirements of the Chemical Accident Prevention Provisions at their facilities and were required to timely submit a RMP for the covered processes at their facilities.
The EPA inspections conducted on April 14-16, 2015 at Laporte #1, on April 15-16 at La Porte #2, on June 29-July 1, 2015 at Bayport, and on July 13-14, 2015 at Freeport revealed violations of the Chemical Accident Prevention Provisions at Defendants’ facilities and provide the basis for the Claims for Relief stated in this Complaint.
The Incident
On the morning of February 9, 2013, at the La Porte #1 facility, there were explosions and a fire. The Incident occurred in the Gravimetric Unit (“Unit”) at the facility, where the blending or filling of cylinders with flammable gases and liquids took place. The gases used for blending are located in cylinders staged outside of the Unit, cylinders inside of the Unit, and gas sources that are piped directly into the Unit from storage vessels. At the time of the Incident, cylinders located both in and outside of the Unit contained substances including propane, propylene, ethane, ethylene, chlorine, isobutene, methane, hydrogen and hydrogen sulfide, which are listed substances in 40 C.F.R. § 68.130.
Subject to a reasonable opportunity for further investigation or discovery, the Incident took place during an attempt by two (2) plant employees to blend a proprietary chemical called “Flam Ox,” a hydrocarbon and oxygen mixture. The Incident caused the physical destruction of much of the building housing the Gravimetric Unit, as well as the gas cylinders located therein, and caused the release of listed substances identified above. The resulting fire burned for more than several hours.
Subject to a reasonable opportunity for further investigation or discovery, no alarm sounded prior to or during the Incident to indicate a gas leak in or around the Unit. Video footage from the surveillance camera present in the Unit indicates that the incident occurred in that location.
Once the fire began in the Unit, it fueled multiple explosions. The sources of the explosions were cylinders containing flammable gasses as well as other vessels located nearby. There were 13 employees working on the day of the accident. Seven employees were tending to operations outside of the building and six were inside of the building. Of the six employees working inside the building, two employees were working in the Unit, completing gas work-order blends, while another employee was working nearby.
According to Defendant #1, the Unit was equipped with three carbon monoxide (“CO”) sensors. The sensors were programmed to give a red warning light at 50 ppm, which is the Occupational Safety and Health Administration permissible exposure limit for carbon monoxide. But the sensors were not designed or equipped to detect lower explosive limits (“LEL”) for other gases or to provide an audible alarm, which would have immediately let operators know that conditions in the Unit were approaching unsafe limits and emergency conditions.
According to witness statements of employees present at the facility at the time of the incident, there was no alarm that sounded before, during or after the Incident. Of the two employees working in the Unit at the time of the incident, one was killed and the other sustained severe burns or an “injury,” as that term is defined at 40 C.F.R. § 68.3. The Unit was destroyed, as were most of the buildings containing the Unit. The facility has not operated since the date of the Incident.
On the day of and the day before the Incident, Defendant #1 failed to take adequate steps to design and maintain a safe facility, in violation of the General Duty Clause and it failed to take steps to “minimize the consequences of any accidental releases which do occur” in violation of 42 U.S.C. § 7412(r)(1).
During the Incident, regulated substances listed at 40 C.F.R. § 68.130 were released into the ambient air from the facility. The release of these regulated hazardous substances, which included regulated flammable substances, constituted an “accidental release” under CAA Section 112(r)(2)(A). Following the Incident, the EPA conducted an inspection of the La Porte #1 facility on April 14-16, 2015. At all relevant times, the maximum quantity of hydrogen in process at the facility exceeded the threshold quantity specified in 40 C.F.R. § 68.130. At all relevant times, the hydrogen in process at the facility was located in vessels such that releases from them could affect other storage vessels containing listed substances. At all relevant times, the storage vessels containing listed substances constituted a covered process as defined under 40 C.F.R. § 68.3 at this facility.
On the day of and the day before the Incident, the La Porte #1 facility did not have a RMP in place at the facility on February 9, 2013, as the EPA determined during its April 14-16, 2015 inspection.
FIRST CLAIM FOR RELIEF
General Duty Clause-Failure to Design and Maintain a Safe Facility
La Porte #1 Facility
Prior to, and on, February 9, 2013, Defendant #1 operated the blending operation at the La Porte #1 facility in violation of the General Duty Clause under CAA Section 112(r)(1).
Defendant #1 violated CAA Section 112(r)(1) by failing to design and maintain a safe facility and to ensure operation of an adequate or working emergency notification system to minimize the consequences of any accidental release of a listed substance.
Defendant #1 knew or should have recognized the risk of an accidental release of listed or extremely hazardous substances, including regulated flammable substances, used in the fill operation in the Unit. Feasible means existed by which the Defendant could have eliminated or reduced this hazard, including, for example, ensuring the proper functioning of a device adequate to detect the release of listed substances and to provide an audible alarm to alert individuals present of the need to evacuate to a safe location. No alarm sounded before, during or after the Incident.
As a result of the Defendant’s failure to design and maintain a safe facility, the accidental releases of regulated hazardous substances, which occurred in the Unit area of the facility, went undetected. Had the sensors properly alerted employees for the presence of CO and other regulated gases, the personnel at the facility could have been made aware of an imminent explosion and the consequences of the release could have been minimized.
Defendant’s failure to take adequate steps to design and maintain a safe facility or to minimize the consequences of an accidental release of regulated substances at the facility violated the General Duty Clause of CAA Section 112(r)(1).
SECOND CLAIM FOR RELIEF
RMP Submission (40 C.F.R. § 68.150)(b)(3))
La Porte #1 Facility
40 C.F.R. 68.150(b)(3) requires that the owner or operator of a facility shall submit the first RMP no later than the date on which a regulated substance is first present above a threshold quantity for a covered process. Under 40 C.F.R. 68.130 (Table 3), the threshold quantity of liquid hydrogen is 10,000 lbs. for a covered process.
During its April 14-16, 2015 inspection of the La Porte #1 facility, the EPA determined that the maximum quantity of hydrogen in process at the facility exceeded the threshold quantity specified in 40 C.F.R. § 68.130.
Through its failure to timely submit an RMP for the hydrogen storage vessel covered process, Defendant #1 violated the requirements set forth in 40 C.F.R. 68.150(b)(3).
THIRD CLAIM FOR RELIEF
Operating Procedures for SMR Unit (Addressing Temporary and Emergency Operations) (40 C.F.R. § 68.69(a)(1)(iv))
La Porte # 2 Facility
The SMR unit at the La Porte #2 facility is a “covered process” as defined in 40 C.F.R. § 68.3. The SMR unit is used to manufacture hydrogen and operates under severe operating conditions of high pressure and temperature.
40 C.F.R. § 68.69(a)(1) requires an owner or operator to “develop and implement written operating procedures that provide clear instructions for safely conducting activities involved in each covered process consistent with the process safety information” and to address the steps for each operating phase including initial startup, normal operations, temporary operations, emergency shutdown, emergency operations, normal shutdown and startup following a turnaround, or after an emergency shutdown.
During the EPA’s April 15-16, 2015 Inspection, it determined that Defendant #2 failed to establish written procedures for emergency operations of the SMR unit, in violation of the requirements set forth in of 40 C.F.R. § 68.69(a)(1)(v).
FOURTH CLAIM FOR RELIEF
Operating Procedures for SMR Unit (Addressing Operating Limits) (40 C.F.R. § 68.69(a)(2))
La Porte #2 Facility
The SMR at the La Porte #2 facility is a “covered process” as defined in 40 C.F.R. § 68.3. 40 C.F.R. § 68.69(a)(2), requires an owner or operator to “develop and implement written operating procedures that provide clear instructions for safely conducting activities involved in each covered process consistent with the process safety information” and to address operating limits, including the consequences of deviation and the steps required to correct or avoid a deviation.
During the EPA’s April 15-16, 2015 Inspection, the EPA determined that for the SMR unit, Defendant #2 did not develop and implement written operating procedures for operating limits or for the consequences of deviation from those limits, and steps required to correct or avoid a deviation in violation of the requirements of 40 C.F.R. § 68.69(a)(2). This violation was corrected on May 8, 2015.
FIFTH CLAIM FOR RELIEF
Timely RMP Submission (40 C.F.R. § 68.150)(b)(3))
La Porte # 2 Facility
40 C.F.R. 68.150(b)(3) requires that the owner or operator of a facility shall submit the first RMP no later than the date on which a regulated substance is first present above a threshold quantity in a covered process.
Defendant #2 first RMP submission for the La Porte # 2 Facility was dated March 21, 2013. However, the SMR unit first held a flammable mixture of methane and hydrogen above a threshold quantity and was a “covered process” as defined in 40 C.F.R. § 68.3, at the time the unit started up in January 2012. This information was disclosed to the EPA during the April 14-16, 2015, facility inspection. Therefore, Defendant #2 should have submitted its RMP at or before the time the unit was started up in January 2012.
Through its failure to timely submit an RMP for the SMR unit process at the facility, Defendant #2 violated the requirements set forth in 40 C.F.R. 68.150(b)(3).
SIXTH CLAIM FOR RELIEF
Operating Procedures for SMR Unit (Addressing Operating Limits) (40 C.F.R. § 68.69(a)(2))
Bayport Facility
The SMR unit located at the Bayport facility is a “covered process” as defined at Paragraph 28 and 40 C.F.R. § 68.3. 93.40 C.F.R. § 68.69(a)(2), requires an owner or operator to “develop and implement written operating procedures that provide clear instructions for safely conducting activities involved in each covered process consistent with the process safety information” and to address operating limits, including the consequences of a deviation from those limits and the steps required to correct or avoid a deviation.
During the EPA’s June 29-July 1, 2015 Inspection of this facility, the EPA determined that Defendant #2 did not list operating limits, consequences of deviation from the limits, and steps required to correct or avoid a deviation addressed within each procedure, for the SMR unit, in violation of the requirements set forth at 40 C.F.R. § 68.69(a)(2). This violation was corrected on October 20, 2015.
SEVENTH CLAIM FOR RELIEF Timely RMP Submission (40 C.F.R. § 68.150)(b)(3))
Bayport Facility
40 C.F.R. § 68.150(b)(3) requires that the owner or operator of a facility shall submit the first RMP no later than the date on which a regulated substance is first present above a threshold quantity in a covered process.
Defendant #2 first RMP submission for the facility was dated July 1, 2013. The SMR at the La Porte #2 facility is a “covered process” as defined in 40 C.F.R. § 68.3.
During the EPA’s June 29-July 1, 2015 inspection of this facility, the EPA discovered that the SMR unit first held a flammable mixture of methane and hydrogen above the threshold quantity at the time the unit started up in January 2006.
Defendant #2 did not submit its first RMP on the date which a regulated substance is first above the threshold quantity. Through its failure to timely submit an RMP for the SMR process at the facility, Defendant #2 violated the requirements set forth in 40 C.F.R. 68.150(b)(3).
EIGHTH CLAIM FOR RELIEF
Operating Procedures (Addressing Operating Limits) (40 C.F.R. § 68.69(a)(2))
Freeport HPU Facility
The HPU located at this facility is identified as a “covered process” as defined in 40 C.F.R. § 68.3. The HPU produces hydrogen from a recovery process that operates under high temperature and pressure.
40 C.F.R. § 68.69(a)(2) requires an owner or operator to “develop and implement written operating procedures that provide clear instructions for safely conducting activities involved in each covered process consistent with the process safety information” and to address operating limits including the consequences of deviation and steps required to correct or avoid a deviation.
During the EPA’s July 13-14, 2015 inspection of this facility, the EPA discovered that Defendant #2 did not list operating limits, the consequences of deviation from the limit, and steps required to correct or avoid a deviation for the HPU unit. Therefore, Defendant #2 violated the requirements set forth at 40 C.F.R. §68.69(a)(2). This violation was corrected on October 21, 2015.
NINTH CLAIM FOR RELIEF
Timely RMP Submission (40 C.F.R. § 68.150)(b)(3))
Freeport HPU Facility
The HPU located at this facility is identified as a “covered process” as defined in 40 C.F.R. § 68.3. 40 C.F.R. 68.150(b)(3) requires that the owner or operator of a facility shall submit the first RMP no later than the date on which a regulated substance is first present above a threshold quantity in a covered process.
Defendant’s first RMP submission for the facility was dated September 13, 2013. However, the HPU unit held the flammable constituents methane and hydrogen above a threshold quantity beginning in January 2012. This information was disclosed to the EPA by facility employees during the September 23, 2015, EPA inspection of this facility. Defendant #2 did not submit its RMP on the date which a regulated substance is first above the threshold quantity.