EPA and DOJ have announced a $5.6 million settlement with a manufacturer of pesticides to resolve violations of federal chemical accident prevention laws at its facility where an explosion killed two people in 2008. Under the settlement, the company committed to spending $4.23 million to improve emergency preparedness and response in Institute and protect the Kanawha River, pay a $975,000 penalty, and spend approximately $452,000 to implement a series of measures to improve safety at chemical storage facilities across the United States. Under the settlement, the company will implement a series of steps to prevent future chemical releases at its facilities in West Virginia, Texas, Missouri and Michigan by improving inspections to identify potential safety issues and standardize facility safety operating procedures. At the facility in Institute, the company will conduct emergency response exercises with local responders and ensure proper certification of facility environmental management systems. The company must complete the majority of these actions within three years. The nearly $4.23 million for environmental projects will benefit the Institute community by improving mobile communications for local first responders, providing emergency response equipment and training for local fire and police departments, shelter-in-place training and hazardous waste collections at local public schools and installing equipment to prevent pollution from water used in the manufacturing process from reaching the Kanawha River. Local emergency responders may start receiving equipment as early as December 2015. The complaint details numerous problems that arose at the pesticide manufacturing facility where the company did not comply with its standard operating procedures designed to prevent accidental releases. In 2008, a new digital control system (DCS) was installed, but a safety interlock associated with the control system was not properly engaged at startup. Employees were not fully trained to understand or operate the system and failed to follow procedures for sampling, temperature control and flow safeguards. The result was an uncontrollable buildup in a treatment unit causing a chemical reaction resulting in the explosion, fire and loss of life. During the incident, the company delayed emergency officials trying to access the plant and failed to provide adequate information to 911 operators.
Here is a breakdown of the citations…
As of August 28, 2008, Defendant operated five processes that were subject to the Chemical Accident Prevention Provisions of 40 C.F.R. part 68. One of the five processes subject to the provisions of 40 C.F.R. part 68 was called the Methomyl Process and was identified as Process ID 71240. The Methomyl Process was carried out in a production line known as the Methomyl Unit. Defendant no longer operates the Methomyl Unit. At the Methomyl Unit, Defendant used methyl isocyanate (Chemical Abstract Services (“CAS”) Number 624-83-9) and methyl mercaptan (CAS Number 74-93-1) in the production of methomyl.
Defendant developed and implemented a prevention program pursuant to 40 C.F.R. part 68, subpart D for the Methomyl Process. This prevention program included the compilation of process safety information, a process hazard analysis, written operating procedures, training, a mechanical integrity program, management of change procedures, and pre-startup safety review procedures.
From at least 2003 until at least August 28, 2008, Defendant handled, stored, and used methyl isocyanate and methyl mercaptan at the Plant. Methyl isocyanate is toxic, extremely flammable, corrosive to the skin, eyes, and respiratory tract, and it reacts violently with water. When stored in a pressurized container, it poses an explosion hazard if the tank is punctured or exposed to fire, or if the contents of the tank are exposed to water.
At all times relevant to this Complaint, Defendant had the capacity to store approximately 35,000 pounds of methyl isocyanate. At the time of the explosion on August 28, 2008, there were approximately 13,600 lbs. of methyl isocyanate in the day tank at the Methomyl Unit or the West Carbamoylation Center. At all times relevant to this Complaint, Defendant had the capacity to store 290,000 pounds of methyl mercaptan.
Defendant replaced the old residue treater tank, made of carbon steel, with a new tank, made of stainless steel, in the summer of 2008, while the process was shut down. The residue treater had a vent that was prone to blockages. When the vent became blocked, pressure inside the residue treater would rise. When the pressure rose, the operator would direct an outside operator to attach a temporary steam line to the vent in order to clear the blockage.
Defendant replaced the electronic control system for the Methomyl Unit in 2008. Defendant was not operating the Methomyl Unit for at least the four months prior to August 25, 2008. On or about August 25, 2008, Defendant restarted the Methomyl Unit. On or about August 26, 2008, Defendant fed the first batch of methomyl and solvent into a centrifuge in the Methomyl Unit. However, when the solution left the centrifuge, there were few to no methomyl crystals in the centrifuge basket. Because the methomyl failed to crystallize and failed to be collected in the centrifuge basket, the mother liquor leaving the centrifuges had an abnormally high concentration of methomyl.
Defendant fed the over-concentrated mother liquor into the solvent flashers. Defendant sampled the mother liquor in the flasher. The sampling results indicated that the concentration was as high as 3.7%, but the operators did not review the lab results. After separating most of the hexane and MIBK solvents in the flasher, the flasher bottoms normally contained up to 22% methomyl. On August 28, 2008, because the mother liquor was over-concentrated, the flasher bottoms had a concentration as high as 40% methomyl. At approximately 4:30 a.m. on August 28, 2008, Defendant began feeding the over-concentrated flasher bottoms into the residue treater.
At approximately 6:28 p.m. on August 28, 2008, Defendant began heating the contents of the residue treater. Defendant did not sample the contents of the residue treater prior to heating it. Conditions inside the residue treater triggered a runaway chemical reaction. At 10:25 pm on August 28, 2008, the high pressure alarm for the residue treater sounded at the operator’s work station. The operator sent two employees to check the vent for the residue treater and clear any blockages, if necessary. At 10:33 pm on August 28, 2008, the residue treater exploded. The explosion released extremely hazardous substances from the residue treater into the atmosphere.
The highly flammable contents of the residue treater ignited. The combustion of the contents of the residue treater released other extremely hazardous substances into the atmosphere. The explosion severed piping and damaged other equipment at the West Carbamoylation Center, releasing chemicals, including extremely hazardous substances, into the atmosphere.
One employee of Defendant died from blunt force trauma and burn injuries sustained at the scene. A second employee of Defendant died 41 days later in a burn center. The explosion damaged homes and other buildings outside the Institute Plant. The explosion caused a fire that burned for more than four hours.
As a result of the explosion:
- more than 40,000 area residents, including the residents at the adjacent University, were sheltered-in-place for more than three hours;
- he state police and local law enforcement authorities closed roads and highways near the Institute Plant, which disrupted traffic for hours; and
- the U.S. Coast Guard closed a portion of the Kanawha River to maritime traffic following the explosion.
A memorandum written by Union Carbide in 1984 identified the potential for a runaway chemical reaction inside the residue treater causing an explosion. Defendant’s process hazardous analysis mentioned the potential for a runaway chemical reaction inside the residue treater causing an explosion. Defendant’s written operating procedures for the Methomyl Unit identified the potential for a runaway chemical reaction inside the residue treater causing an explosion.
COUNT 1
Failure to Comply with Standard Operating Procedures in Violation of 40 C.F.R. § 68.69(a)
Pursuant to 40 C.F.R. § 68.69(a), the owner or operator of a stationary source subject to 40 C.F.R. part 68 “shall 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.”
SOPs for the residue treater stated, “No deviations should be made from the normal operating procedures without R&D, Engineering and Production Staff input.” (VI.A.2 at 13.)
At various times between August 25, 2008 and August 28, 2008, BCS failed to comply with its SOPs for the Methomyl Unit, including but not limited to the following:
- Defendant failed to prefill the residue treater with clean MIBK;
- Defendant failed to sample the residue treater before beginning to heat it;
- Defendant heated the residue treater when it contained more than 0.5% methomyl;
- Defendant failed to fully preheat the residue treater before adding flasher bottoms;
- Defendant bypassed the safety interlock for temperature;
- Defendant bypassed the operational interlock for flow;
- Defendant failed to comply with its SOPs for communications between operators;
- Defendant failed to comply with its SOPs for taking samples;
- Defendant failed to review the results of the samples it did take;
- Defendant failed to follow the SOPs for what to do in the event that the concentration of methomyl in the residue treater exceeded a critical operating parameter.
BCS did not obtain input from R&D, Engineering and Production Staff prior to deviating from its SOPs.
Each of the deviations identified caused or contributed to the explosion on August 28, 2008.
Failure to prefill the residue treater with clean MIBK
Defendant’s written SOPs state “Initial system start-up will be with MIBK. An adequate amount of MIBK should be added to the treatment tank to allow the residue pump to establish circulation through the heater and cooler.” (VI.A.2 at 12)
Clean MIBK was available at the facility to be added to the residue treater. Defendant failed to add clean MIBK to the residue treater before adding flasher bottoms.
Failure to sample the residue treater before reheating it
Defendant’s written SOPs for the residue treater stated “If the tank is allowed to cool below 130°C for any reason, it must be sampled before being heated up again.” The SOPs further state, “If the Methomyl analysis is below 0.5% the circulation heater steam can be put in service and the tank slowly heated to its normal operating temperature of 135°C.” The SOPs explicitly direct the operator to “Sample treater to the lab, and when the sample results return and if the tank concentration is below 0.5% Methomyl, put the steam supply to the heater in service and bring the treater up to normal operating temperature.” (VI.B.2 at 11.)
On August 27, 2008, the temperature of the residue treater was below 130°C.
On August 28, 2008, at approximately 6:15 pm, Defendant began to heat up the residue treater.
Defendant did not sample the residue treater prior to applying heat on August 28, 2008.
Heating the residue treater when it contained more than 0.5% methomyl
Defendant’s SOPs allowed the residue treater to be heated only if the concentration of methomyl in the residue treater was less than 0.5%. At the time Defendant began to heat the residue treater on August 28, 2008, the concentration of methomyl in the residue treater was greater than 0.5% and may have been 40%
or higher.
Failure to fully preheat the residue treater before adding flasher bottoms
Defendant’s written SOPs state that flasher bottoms can be introduced “[o]nce normal operating temperature, and pressure are reached.” Normal operating temperature is 135°C. At 4:30 a.m. on August 28, 2008, when Defendant began adding flasher bottoms to the residue treater, the temperature of the residue treater was approximately 63°C. Defendant added flasher bottoms to the residue treater before normal operating temperature and pressure were reached.
Bypassing the safety interlock for temperature
Defendant had a safety interlock that would prevent adding flasher bottoms to the residue treater when the temperature of the tank was below 130°C. Defendant’s written SOPs state “[t]he interlocks should prevent feeding the tank when it is cold, but if methomyl concentration is above 1.3%, a run away reaction could result upon heating the tank.” The safety interlock for temperature was turned off when operators began to put the Methomyl Unit in service on August 25, 2008. Defendant never turned on the safety interlock for temperature. Operating the Methomyl Unit with the safety interlock for temperature turned off was inconsistent with Defendant’s SOPs.
Bypassing the operational interlock for flow
Defendant had an operational interlock intended to prevent the addition of flasher bottoms to the residue treater until circulation of clean MIBK was established through the heating and cooling circulation loop. Defendant had the ability to bypass the operational interlock for restricting flow, but doing so required a supervisor password being entered into the electronic control system. Defendant bypassed the interlock for restricting flow prior to the explosion. Bypassing the interlock for flow was inconsistent with Defendant’s written SOPs.
Failure to comply with SOPs for communication between shift changes
Defendant’s written SOPs state that operators must keep written notes on, interalia, “changes, upsets, and unusual occurrences in the process, including actions to be taken.” Defendant uses these written notes to communicate information between operators. The aforementioned deviations from the SOPs were all “changes, upsets, and unusual occurrences in the process” that should have been documented in written notes. The operator on duty during the night shift beginning on August 27, 2008 and ending on the morning of August 28, 2008, did not make notes about the aforementioned deviations from the SOPs. The operator on duty from the night shift beginning on August 27, 2008 and ending on the morning of August 28, 2008 did not communicate orally with the operator arriving for the day shift on August 28, 2008.
Failure to comply with SOP for taking samples
Defendant’s SOPs state “To confirm Methomyl is decomposing at the desired level of less than 0.5 weight percent in the treatment tank, samples should be taken on a regular basis, per the sample schedule.” Section X of Defendant’s SOPs provides sampling schedules, including for the Methomyl Unit. Section X of Defendant’s SOPs states that samples of the residue treater tails should be taken at sampling point 25-5 every day at 0700 hours. Section X of Defendant’s SOPs states that samples of the flasher bottoms for methomyl, among other parameters, should be taken at sampling point 25-2 every day at 0700 and 1500 hours. Defendant did not take all the samples as required by its SOPs.
Failure to Review Sampling Results
Defendant sampled the mother liquor on August 27, 2008, at 10:17 a.m., on August 28, 2008, at 7:00 a.m., and on August 28, 2008, at 8:00 p.m. Defendant did not review the results of the laboratory analysis of those samples. If Defendant had reviewed the results of the samples, it would have seen that the concentration of the methomyl in the mother liquor was abnormally high.
Failure to comply with SOPs regarding Critical Operating Parameters
Part VI.E of Defendant’s SOPs is entitled “Emergency Procedures.” The second topic in part VI.E of Defendant’s SOPs is entitled “Critical Operating Parameters.” Defendant’s sixth critical operating parameter is entitled “High Methomyl Concentration in Residue Treater.” Defendant’s sixth critical operating parameter states that a concentration of methomyl in the residue treater of more than 1% by weight is an “unsafe/uncertain level.” On information and belief, the concentration of methomyl in the residue treater on or about August 28, 2008 exceeded 1% by weight and may have been 40% or higher. Defendant’s sixth critical operating parameter states, “[A] runaway methomyl decomposition reaction in the residue treater could over pressure and rupture it. The safety relief valve system will protect the treater if the concentration of Methomyl in the residue treater is 1% or less and the treater is subject to a fire or loss of cooling.” Pursuant to the critical operating parameters section of Defendant’s SOPs, Defendant must shut off the feed of flasher bottoms if the concentration of methomyl in the residue treater exceeds 0.4% by weight. On information and belief, Defendant did not shut off the feed of flasher bottoms after the concentration of methomyl in the residue treater exceeded 0.4% by weight. In violation of its sixth critical operating parameter SOP, Defendant failed to monitor the concentration of methomyl in the residue treater after the concentration exceeded 0.4% by weight. Defendant’s sixth critical operating parameter identifies specific actions that should be taken if the concentration of methomyl in the residue treater exceeds 0.5% by weight.
Pursuant to that portion of the SOPs, Defendant must, among other things:
- Cut back other users of the 80°C tempered water system;
- Clear the area around the residue treater of non-essential personnel;
- Add hot MIBK to the residue treater after the concentration of methomyl in the residue treater exceeded 0.5% by weight; and
- Notify the shift supervisor and department head.
On information and belief, Defendant did not cut back other users of the 80°C tempered water after the concentration of methomyl in the residue treater exceeded 0.5% by weight.
Defendant failed to clear the area of nonessential personnel after the concentration of methomyl in the residue treater exceeded 0.5% by weight. In fact, Defendant directed two operators to approach the residue treater after the high-pressure alarm sounded at 10:25 pm on August 28, 2008. Both operators died as a result of injuries sustained in the explosion and ensuing fire. Defendant failed to add hot MIBK to the residue treater after the concentration of methomyl in the residue treater exceeded 0.5% by weight. Defendant failed to notify the shift supervisor and department head after the concentration of methomyl in the residue treater exceeded 0.5% by weight.
COUNT 2
Failure to Develop Adequate Operating Procedures in Violation of 40 C.F.R. § 68.69(a)
Plaintiff incorporates by reference all other paragraphs of this Complaint as if fully set forth herein. Pursuant to 40 C.F.R. § 68.69(a), the owner or operator of a stationary source subject to 40 C.F.R. part 68 “shall 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.” Defendant’s written operating procedures for the Methomyl Unit did not address all the hazards that were, or should have been, identified in Defendant’s process hazard analysis. Defendant’s written operating procedures for the Methomyl Unit did not provide clear instructions for safely conducting activities involved in the Methomyl Process. Each of Defendant’s failures to address hazards and to provide clear instructions for safely conducting activities involved in the Methomyl Process is a separate violation of 40 C.F.R. § 68.69(a).
COUNT 3
Failure to Review Operating Procedures in Violation of 40 C.F.R. § 68.69(c)
Pursuant to 40 C.F.R. § 68.69(c), operating procedures shall be reviewed “as often as necessary to assure that they reflect current operating practice, including changes that result from changes in process chemicals, technology, and equipment . . . .” At least as of August 2008, Defendant’s written operating procedures did not reflect current operating practice for the Methomyl Unit in at least the following respect:
- portions of the written SOPs directed operators to notify “shift supervisors” of problems, but the
- position of “shift supervisor” had not existed since 2005.
Defendant failed to adequately review its written operating procedures prior to August 28, 2008
Each of Defendant’s failures to review its operating procedures and to identify differences between its operating practice and its written operating procedures is a separate violation of 40 C.F.R. § 68.69(c).
COUNT 4
Failure to Annually Certify Operating Procedures in Violation of 40 C.F.R. § 68.69(c)
Plaintiff incorporates by reference all other paragraphs of this Complaint as if fully set forth herein. Pursuant to 40 C.F.R. § 68.69(c), the owner or operator of a stationary source subject to 40 C.F.R. part 68 must “certify annually” that its operating procedures are “current and accurate.” Defendant certified its SOPs on April 27, 2004. Defendant did not certify its SOPs between April 27, 2004 and at least August 29, 2008. Defendant’s failure to certify its written operating procedures is a violation of 40 C.F.R. § 68.69(c).
COUNT 5
Failure to Conduct Compliance Audit in Violation of 40 C.F.R. § 68.79(a)
Plaintiff incorporates by reference all other paragraphs of this Complaint as if fully set forth herein. Pursuant to 40 C.F.R. § 68.79(a), the owner or operator of a process must certify, at least every three years, that it has evaluated compliance with the provisions of 40 C.F.R. part 68, subpart D, entitled “Program 3 Prevention Program” in order to ensure “that procedures and practices developed under [subpart D] are adequate and being followed.”
Defendant failed to detect that operators had regular practices for starting up the Methomyl Unit that differed from the written operating procedures. Therefore, either Defendant did not conduct a compliance audit, or conducted a compliance audit that was not adequate to verify compliance, as required by 40 C.F.R. § 68.79(a).
Defendant’s failure to conduct an adequate compliance audit is a violation of 40 C.F.R. § 68.79(a).
COUNT 6
Failure to Complete an Adequate Process Hazard Analysis in Violation of 40 C.F.R. § 68.67(e)
Pursuant to 40 C.F.R. § 68.67(a), the owner or operator of a process shall perform a “process hazard analysis (hazard evaluation)” on all covered processes. Pursuant to 40 C.F.R. § 68.67(c), the process hazard analysis shall address, among other things, “(1) The hazards of the process; (2) The identification of any previous incident which had a likely potential for catastrophic consequences; (3) Engineering and administrative controls applicable to the hazards… (4) Consequences of failure of engineering
and administrative controls; … [and] (6) Human factors.”
Pursuant to 40 C.F.R. § 68.67(e) the owner or operator shall establish a system to promptly address the findings and recommendations of the process hazard analysis. Among other things, the recommendations in the process hazard analysis must be documented and “resolved in a timely manner.” Actions taken in connection with the process hazard analysis must be completed “as soon as possible.”
Defendant performed a process hazard analysis for the Methomyl Process in 2004. Defendant failed to comply with 40 C.F.R. § 68.67 in at least the following respects:
- As of August 28, 2008, Defendant’s process hazard analysis revalidation did not result in developing a risk sheet related to the potential for a rupture of the residue treater due to the concentration of methomyl in the residue treater, among other potential causes; and
- As of August 28, 2008, although there were no recommendations related to the residue treater, Defendant had not fully addressed the findings and recommendations of the process hazard analysis revalidation.
Defendant’s failures to complete an adequate process hazard analysis, to promptly address the findings and recommendations of the process hazard analysis, and to complete actions as soon as possible are violations of section 112(r)(7) of the Clean Air Act and 40 C.F.R. § 68.67.
COUNT 7
Failure to Comply with Management of Change Regulations in Violation of 40 C.F.R. § 68.75
Pursuant to 40 C.F.R. § 68.75(e), if a change covered by 40 C.F.R. § 68.75 “results in a change in the operating procedures or practices required by [40 C.F.R.] § 68.69, such procedures or practices shall be updated accordingly.” Prior to August 28, 2008, Defendant made changes to the process technology and equipment in the Methomyl Unit, including but not limited to replacement of the electronic control system. Some or all of the changes were “covered” by 40 C.F.R. § 68.75.
Defendant failed to comply with 40 C.F.R. § 68.75 in at least the following respects:
- Defendant failed to modify its operating procedures as required by 40 C.F.R. § 68.75(e); and
- Defendant failed to train its operators regarding the changes to the process.
Failure To Modify Operating Procedures
Some or all of the changes necessitated review and modification of the operating procedures. Defendant failed to update its operating procedures or practices prior to introducing regulated substances to the Methomyl Unit. Defendant violated 40 C.F.R. § 68.75(e) by failing to update its procedures or practices before starting the unit on August 25, 2008.
Failure To Train Employees
Pursuant to 40 C.F.R. § 68.75(c), employees involved in operating a process whose job tasks will be affected by a covered change must be trained in the change prior to the start-up of the process. Defendant failed to adequately train its employees in the operation of the new electronic control system before starting up the Methomyl Unit on August 25, 2008. Defendant violated 40 C.F.R. § 68.75(c) by failing to adequately train its employees before starting the unit on August 25, 2008.
COUNT 8
Failure to Conduct Pre-startup Safety Review in Violation of 40 C.F.R. § 68.77
Pursuant to 40 C.F.R. § 68.77(a), “The owner or operator shall perform a prestartup safety review for new stationary sources and for modified stationary sources when the modification is significant enough to require a change in the process safety information.”
The Methomyl Unit was modified in at least the following respect: the electronic control system was replaced. The modifications of the Methomyl Unit were “significant enough to require a change in the process safety information.” The process safety review required by 40 C.F.R. § 68.77(a) must be complete “prior to the introduction of regulated substances to a process.” 40 C.F.R. § 68.77(b). Pursuant to 40 C.F.R. § 68.77(b)(1), the pre-startup safety review must ensure that “equipment is in accordance with design specifications.” At the time that the process was re-started, the equipment associated with the Methomyl Unit was not in accordance with design specifications in at least the following respects:
- the alarm system in the processing area was not functioning;
- the safety interlock for temperature was not engaged.
Defendant violated 40 C.F.R. § 68.77 by failing to complete an adequate prestartup safety review that included the Methomyl Unit before introducing regulated substances to the Unit on or before August 25, 2008.
COUNT 9
Failure to Adequately Train Employees in Violation of 40 C.F.R. § 68.71
Pursuant to 40 C.F.R. § 68.71, Defendant must train each employee involved in operating a process in an overview of the process and in the standard operating procedures.
Pursuant to 40 C.F.R. § 68.71(b), Defendant must provide refresher training as often as necessary to ensure that each employee operating a process “understands and adheres to the current operating procedures of the process.” Defendant failed to ensure that its operators understood and adhered to its written operating procedures. Each of Defendant’s failures to provide adequate training is a separate violation of section 112(r)(7) of the Clean Air Act, 42 U.S.C. § 7412(r)(7), and 40 C.F.R. § 68.71 for each employee who operated the Methomyl Unit from August 25, 2008 through August 28, 2008.
COUNT 10
Failure to Ensure Mechanical Integrity of Systems in Violation of 40 C.F.R. § 68.73
The requirements of 40 C.F.R. § 68.73 apply to at least the following process equipment: pressure vessels, relief and vent systems and devices, and controls (including monitoring devices and sensors, alarms, and interlocks). The requirements of 40 C.F.R. § 68.73 apply to the residue treater and the MIC day tank because they are “pressure vessels.” The requirements of 40 C.F.R. § 68.73 apply to the relief valves, vents, control systems, process alarms, and other appurtenances of the residue treater. Pursuant to 40 C.F.R. § 68.73(e), Defendant was required to “correct deficiencies in equipment that are outside acceptable limits (defined by the process safety information in [40 C.F.R.] § 68.55) before further use or in a safe and timely manner when necessary means are taken to assure safe operation.”
Pursuant to 40 C.F.R. § 68.73(f), Defendant was required to assure that new equipment “is suitable for the process application for which [it] will be used.” Upon information and belief, Defendant failed to correct deficiencies in operating equipment and appurtenances associated with the residue treater at the Institute Plant, including but not limited to the malfunctioning process alarm system. Each of Defendant’s failures to correct deficiencies in operating equipment is a separate violation of section 112(r)(7) of the Clean Air Act, 42 U.S.C. § 7412(r)(7), and 40 C.F.R. § 68.73.
COUNT 11
Failure to Ensure That Equipment Complies With Recognized and Generally Accepted Good Engineering Practices in Violation of 40 C.F.R. § 68.65
Pursuant to 40 C.F.R. § 68.65(a), the owner or operators shall complete a compilation of written process safety information, including “information pertaining to the hazards of the regulated substances used or produced by the process, information pertaining to the technology of the process, and information pertaining to the equipment of the process.” Pursuant to 40 C.F.R. § 68.65(d)(1), the information pertaining to the equipment in the process shall include “design codes and standards employed.” Pursuant to 40 C.F.R. § 68.65(d)(2), Defendant was required to document that its equipment complies with recognized and generally accepted good engineering practices. On information and belief, Defendant did not document that its equipment in the Methomyl Unit, including but not limited to the digital control system, complied with recognized and generally accepted good engineering practices. Each of Defendant’s failures to document that its equipment complied with recognized and generally accepted good engineering practices is a separate violation of 40 C.F.R. § 68.65 for each such engineering practice.
COUNT 12
Failure to Develop an Adequate Emergency Response Program in Violation of 40 C.F.R. § 68.95
Pursuant to 40 C.F.R. § 68.90, Defendant must comply with 40 C.F.R. § 68.95 because it operates a Program 3 process that is not exempted from the requirements of 40 C.F.R. § 68.95 by any of the provisions in 40 C.F.R. § 68.90(b). Pursuant to 40 C.F.R. § 68.95, Defendant must “develop and implement an emergency response program for the purpose of protecting public health and the environment.” The emergency response program required by 40 C.F.R. § 68.95(a) must include “an emergency response plan.” 40 C.F.R. § 68.95(a)(1). The emergency response plan must include “[p]rocedures for informing the public and local emergency response agencies about accidental releases.” 40 C.F.R. § 68.95(a)(1)(i). Defendant failed to adequately inform the public and local emergency response agencies about the accidental release on August 28, 2008 in at least the following respects:
- Defendant initially refused to allow the state fire marshal to access the facility;
- Defendant initially refused to allow the deputy director of Kanawha County Emergency Services to access the facility;
- Defendant initially refused to allow the West Virginia chief of homeland security and emergency response to access the facility;
- Defendant failed to provide 911 operators with adequate information.
Defendant’s failures were the result of an inadequate plan or inadequate implementation of its plan, or both. Each of Defendant’s failures to adequately inform the public and local emergency response agencies and officials is a separate violation of 40 C.F.R. § 68.95.
COUNT 13
Failure To Design and Maintain a Safe Facility and To Minimize the Consequences of Releases in Violation of 42 U.S.C. § 7412(r)(1)
Pursuant to section 112(r)(1) of the Clean Air Act, 42 U.S.C. § 7412(r)(1), Defendant had a duty “to identify hazards which may result from [accidental] releases using appropriate hazard assessment techniques, to design and maintain a safe facility taking such steps as are necessary to prevent releases, and to minimize the consequences of accidental releases which do occur.” An accidental release of extremely hazardous substances, including methomyl and MIBK, occurred on August 28, 2008. From at least May 2008 until at least August 28, 2008, Defendant breached its duty pursuant to section 112(r)(1) of the Clean Air Act.
Each breach of Defendant’s duty pursuant to section 112(r)(1) of the Act, 42 U.S.C. § 7412(r)(1), constitutes a separate violation of the Act.
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