throbber
Case 5:20-cv-00411-JSM-PRL Document 1 Filed 09/02/20 Page 1 of 16 PageID 1
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`UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF FLORIDA
`OCALA DIVISION
`
`
`
`UNITED STATES OF AMERICA,
`
`
`
`
`
`
`
`
`Plaintiff,
`
`
`
`
`
`
`
`
`v.
`
`
`
`
`
`
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`
`
`
`FERRELLGAS, INC.,
`
`
`
`
`
`
`
`
`
`
`Defendant.
`
`
`
`)
`)
`)
`)
`) Civil Action No.
`)
`
`)
`
`)
`)
`
`COMPLAINT
`
`The United States of America, by authority of the Attorney General of the
`
`United States and through the undersigned attorneys, acting at the request of the
`
`Administrator of the United States Environmental Protection Agency (“EPA”),
`
`alleges as follows:
`
`NATURE OF THE ACTION
`
`1. This is a civil action for civil penalties pursuant to Section 113(b) of the
`
`Clean Air Act (“Act”), 42 U.S.C. § 7413(b), against Defendant Ferrellgas, Inc.,
`
`doing business as Blue Rhino (“Blue Rhino” or “Defendant”), for violations of the
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`General Duty of Care imposed by Section 112(r)(1) of the Clean Air Act, 42 U.S.C.
`
`§ 7412(r)(1), with respect to a facility at 300 County Road 448, Tavares, Florida (the
`
`“Facility”).
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`
`
`1
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`

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`Case 5:20-cv-00411-JSM-PRL Document 1 Filed 09/02/20 Page 2 of 16 PageID 2
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`JURISDICTION AND VENUE
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`2. This Court has jurisdiction over the subject matter of this action, pursuant
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`to 28 U.S.C. §§ 1331, 1345, and 1355, and Section 113(b) of the Clean Air Act, 42
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`U.S.C. § 7413(b).
`
`3. Venue is proper in this District under Section 113(b) of the Clean Air
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`Act, 42 U.S.C. § 7413(b), and 28 U.S.C. §§ 1391(b) and (c) and 1395(a), because
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`the Defendant does business in and the claims arose in this judicial district.
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`THE DEFENDANT
`
`4. The Defendant is a Delaware corporation with its principal place of
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`business in Overland Park, Kansas.
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`5. The Defendant is a retail marketer of propane in the United States and a
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`provider of propane via cylinder exchange programs under the “Blue Rhino” brand.
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`The Defendant conducts its business at the Facility under the Blue Rhino name.
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`6. The Defendant is a “person” within the meaning of Section 302(e) of the
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`Clean Air Act, 42 U.S.C. § 7602(e).
`
`STATUTORY AND REGULATORY FRAMEWORK
`
`7.
`
`In 1990, Congress added Section 112(r) to the Clean Air Act, see Pub. L.
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`101-549 (Nov. 15, 1990), in response to a 1984 catastrophic release of methyl
`
`isocyanate in Bhopal, India that resulted in 3,400 fatalities, 200,000 injuries, and
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`
`
`2
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`

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`Case 5:20-cv-00411-JSM-PRL Document 1 Filed 09/02/20 Page 3 of 16 PageID 3
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`damage to property. S. Rep. No. 101-228 (Dec. 20, 1989), reprinted in 1990
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`U.S.C.C.A.N. 3385, 3519. The objective of Section 112(r) of the Clean Air Act, and
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`its implementing regulations, is “to prevent the accidental release and to minimize
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`the consequences of any such release” of any extremely hazardous substance. 42
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`U.S.C. § 7412(r)(1).
`
`8.
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`“Extremely hazardous substances” include, but are not limited to,
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`substances listed pursuant to Section 112(r)(3) of the CAA, 42 U.S.C. § 7412(r)(3),
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`at 40 C.F.R. § 68.130, and chemicals on the list of extremely hazardous substances
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`published under Section 302 of the Emergency Planning and Community Right-to-
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`Know Act (“EPCRA”), 42 U.S.C. § 11002, at 40 C.F.R. Part 355, Appendices A and
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`B. An extremely hazardous substance is any chemical which may, as a result of
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`short-term exposures because of releases to the air, cause death, injury or property
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`damage due to its toxicity, reactivity, flammability, volatility or corrosivity. S. Rep.
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`No. 228, 101st Cong., 1st Sess. 211 (1989), reprinted in 1990 U.S.C.C.A.N. 3385,
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`3519.
`
`9. The term “accidental release” is defined by Section 112(r)(2)(A) of the
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`Clean Air Act, 42 U.S.C. § 7412(r)(2)(A), as “an unanticipated emission of a
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`regulated substance or other extremely hazardous substance into the ambient air
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`from a stationary source.”
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`3
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`

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`Case 5:20-cv-00411-JSM-PRL Document 1 Filed 09/02/20 Page 4 of 16 PageID 4
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`10. Section 112(r)(1) of the Clean Air Act, 42 U.S.C. § 7412(r)(1), mandates
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`three distinct general duty of care requirements for owners and operators of
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`stationary sources producing, processing, handling or storing specific hazardous
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`substances, including extremely hazardous substances. In pertinent part, Section
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`112(r)(1) provides:
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`It shall be the objective of the regulations and programs authorized
`under this subsection to prevent the accidental 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 sources
`producing, processing, handling or storing such substances have a
`general 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 maintain a safe facility taking such steps
`as are necessary to prevent releases, and to minimize the
`consequences of accidental releases which do occur.
`
`42 U.S.C. § 7412(r)(1) (hereinafter the “General Duty Clause” or “General Duty of
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`Care”).
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`11. The term “stationary source” means “any buildings, structures,
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`equipment, installations or substance emitting stationary activities (i) which belong
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`to the same industrial group, (ii) which are located on one or more contiguous
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`properties, (iii) which are under the control of the same person (or persons under
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`common control), and (iv) from which an accidental release may occur.” 42 U.S.C. §
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`7412(r)(2)(C).
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`
`4
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`

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`Case 5:20-cv-00411-JSM-PRL Document 1 Filed 09/02/20 Page 5 of 16 PageID 5
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`12. Pursuant to the General Duty Clause, an owner/operator of a stationary
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`source has a general duty to (1) identify hazards which may result from accidental
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`releases of extremely hazardous substances, using appropriate hazard assessment
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`techniques; (2) design and maintain a safe facility, taking such steps as are necessary
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`to prevent accidental releases of extremely hazardous substances; and (3) minimize
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`the consequences of accidental releases of extremely hazardous substances. These
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`duties are known as the first, second, and third prongs of the General Duty Clause,
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`respectively.
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`13. Section 113(b) of the Clean Air Act, 42 U.S.C. § 7413(b), provides that
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`the Administrator of EPA shall, in the case of a person that is the owner or operator
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`of a major stationary source, and may, in the case of any other person, whenever
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`such person violates any requirement or prohibition of Subchapter I of the Act (42
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`U.S.C. §§ 7401-7515), commence a civil action for injunctive relief and to assess
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`and recover a civil penalty of up to $25,000 per day for each such violation.
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`14. Under the Federal Civil Penalties Inflation Adjustment Act of 1990, 28
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`U.S.C. § 2461, as amended by the Debt Collection Improvements Act of 1996, 31
`
`U.S.C. § 3701 (“DCIA”), and pursuant to EPA’s Civil Monetary Penalty Inflation
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`Adjustment Rule at 40 C.F.R. Part 19, promulgated pursuant to the DCIA, the
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`maximum amount of the civil penalties provided under Section 113(b) of the Clean
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`
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`5
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`

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`Case 5:20-cv-00411-JSM-PRL Document 1 Filed 09/02/20 Page 6 of 16 PageID 6
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`Air Act was increased to $37,500 per day for each violation occurring from January
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`12, 2009 through November 2, 2015. After November 2, 2015, the maximum
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`penalty amount per day for each violation is $101,439, depending on the date when
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`penalties are assessed. 85 Fed. Reg. 1751, 1756 (January 13, 2020).
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`GENERAL ALLEGATIONS
`
`15. Blue Rhino sells liquid propane in 20-pound (3.5 gallon) metal cylinders.
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`The cylinders are available at retail locations where customers exchange empty tanks
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`for a refilled Blue Rhino brand cylinder for a fee. The Facility refills empty
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`cylinders and returns the refilled cylinders to the retail locations.
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`16. Cylinders waiting to be refilled and refilled cylinders are stored in pallets
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`at a four to five acre asphalt yard located behind the production buildings at the
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`Facility. Blue Rhino uses permanent, full-time employees and temporary contract
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`employees at the Facility, including in the yard.
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`17. Blue Rhino uses a standardized process to refill cylinders. All returned
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`cylinders are first inspected inside the production building for damage or defects,
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`including paint damage. Cylinders that need no additional work are sent directly to
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`be refilled and restacked in the yard on pallets for distribution to retail locations.
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`Most of the cylinders need no additional work and can be refilled without repair or
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`repainting.
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`6
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`Case 5:20-cv-00411-JSM-PRL Document 1 Filed 09/02/20 Page 7 of 16 PageID 7
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`18. Empty cylinders needing additional work, such as valve replacement or
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`painting, must be emptied of any residual liquid propane before the work can be
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`done. At the Facility, such tanks are sent to an automated propane removal system
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`(“APRS”) station inside an explosion proof building where cylinders are placed
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`upside down for removal by gravity of any remaining liquid propane through an
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`opened valve on the cylinder.
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`19. If the cylinder valve is defective, however, and it is not possible to open
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`the valve to remove any remaining liquid propane through the APRS, a bleeder
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`screw on the valve can be opened by screwdriver to allow for evacuation of the
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`remaining propane without use of the APRS. When loosened by a screwdriver, the
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`bleeder screw allows propane to vent into the atmosphere.
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`20. In 2013, Blue Rhino employees identified several pallets of refilled
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`cylinders in the yard that included some cylinders with paint blemishes. These
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`pallets were segregated at one location in the yard. Blue Rhino planned to repaint the
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`cylinders with paint defects, which required that the cylinders first be emptied of
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`liquid propane.
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`21. On the night of July 29, 2013, the painting system for the Facility needed
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`repair and operations at the plant came to a halt.
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`22. To save time on the removal of the liquid propane from the cylinders with
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`7
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`Case 5:20-cv-00411-JSM-PRL Document 1 Filed 09/02/20 Page 8 of 16 PageID 8
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`blemished paint, four Facility workers began opening the bleeder screws on all of
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`those cylinders at the same time, venting the propane to the atmosphere. The
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`workers intended to open the bleeder valves and leave for the night.
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`23. A forklift was directed to the area to retrieve the pallets. The forklift
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`arrived and turned off the engine. Upon restarting the forklift, a spark from the
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`ignition system ignited vented propane causing a fire.
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`24. The heat from the fire caused the propane in other cylinders to expand,
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`causing the pressure relief valves in those cylinders to open, releasing additional
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`propane. This added fuel to the fire and led to a chain reaction and explosions.
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`25. Cylinders were propelled into the air and fell on the Facility and the
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`surrounding area through a series of explosions. Flames grew as high as 200 feet. At
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`the time, the yard contained approximately 79,696 propane cylinders, including
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`approximately 38,052 refilled cylinders, some of which released propane and added
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`to the fire/chain reaction explosion.
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`26. Five workers were severely injured, and one suffered minor injuries as a
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`result of the accidental release. Four of the severely injured workers were
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`hospitalized with second-degree and third-degree burns, and were comatose for
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`approximately two months.
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`27. The release resulted in approximately $3.5 million in property damage,
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`8
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`Case 5:20-cv-00411-JSM-PRL Document 1 Filed 09/02/20 Page 9 of 16 PageID 9
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`including damage to six businesses and one residence.
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`28. The propane distribution business recognizes industry standards designed
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`to prevent accidental releases of hazardous materials, including explosions. The
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`National Fire Protection Association (“NPFA”) publishes such industry standards.
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`NFPA 58 requires written operating procedures for all aspects of liquid propane gas
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`transfer, as appropriate for a facility, and must include detail on operator actions to
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`be taken if flammable concentrations of flammable liquids or gases are detected in
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`the facility using fixed detectors, portable detectors, operating malfunctions, or the
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`human senses.
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`29. Operating procedures (“Standard Operating Procedures” or “SOPs”)
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`provide employees specific information on how to conduct the operations they are
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`required to do as part of their jobs. These include preconditions, health hazards, and
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`personal protective equipment, if required. There should be verification that
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`operating procedures are being followed, either by formal audits or informal
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`observation of operations.
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`30. In addition, NFPA 58 requires training to prevent releases and
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`explosions. Along with initial training requirements, NFPA 58 requires refresher
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`training at least every 3 years.
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`31. At all relevant times, the Defendant owned and operated the Facility.
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`9
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`Case 5:20-cv-00411-JSM-PRL Document 1 Filed 09/02/20 Page 10 of 16 PageID 10
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`32. The buildings, structures, equipment, installations and substance emitting
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`stationary activities from which an accidental release might have occurred belonged
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`to the same industrial group, were located on one contiguous property, and were
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`under the control of Blue Rhino. Therefore, the Facility is and was a “stationary
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`source” within the meaning of Section 112(r)(2)(C) of the Clean Air Act, 42 U.S.C.
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`§ 7412(r)(2)(C).
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`33. The Facility processes, handles, and stores propane, an extremely
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`hazardous substance within the meaning of Section 112(r)(1) of the Clean Air Act,
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`42 U.S.C. §§ 7412(r)(1).
`
`34. Releases of propane to the air can cause death, injury or property damage
`
`due to its flammability. Propane is therefore an extremely hazardous substance.
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`35. At the time of the explosion, the Defendant had no SOPs expressly
`
`prohibiting employees from venting propane cylinders, including in the yard and
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`including when the APRS was not used for any reason.
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`36. At the time of the explosion, the Defendant had no SOPs on how to
`
`handle leaking cylinders, including in the yard.
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`37. At the time of the explosion, the Defendant had inadequate training on
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`whether or how to vent propane cylinders, including in the yard and including when
`
`the APRS is not functioning for any reason.
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`10
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`

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`Case 5:20-cv-00411-JSM-PRL Document 1 Filed 09/02/20 Page 11 of 16 PageID 11
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`38. At the time of the explosion, the Defendant did not have adequate
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`training on how to properly handle accidental leaks from cylinders, including where
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`to take such leaking cylinders and how to minimize any adverse consequences from
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`such accidental leaks.
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`39. At the time of the explosion, the Defendant had inadequate training on
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`how a propane explosion might occur when propane is vented simultaneously from
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`numerous cylinders, including the chain reaction that can result from even one
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`localized fire.
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`40. At the time of the explosion, the Defendant had not adequately identified
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`hazards in the yard which may result from the release of propane using appropriate
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`hazard assessment techniques.
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`FIRST CLAIM FOR RELIEF
`(Section 112(r) Violations—Failure to Maintain Safe Facility)
`41. Paragraphs 1 through 40 are re-alleged and incorporated by reference.
`
`42. Pursuant to the General Duty of Care, at all relevant times, the Defendant
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`had a duty to maintain a safe facility under Section 112(r)(1). To comply with this
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`statutory duty, the Defendant had a duty to maintain and implement SOPs at the
`
`Facility. These operating procedures were necessary to ensure workers safely
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`conducted operations involving extremely hazardous substances such as propane.
`
`43. During all relevant time periods, the Defendant failed to have or
`
`
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`11
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`

`

`Case 5:20-cv-00411-JSM-PRL Document 1 Filed 09/02/20 Page 12 of 16 PageID 12
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`implement SOPs regarding venting of propane, including in the yard and when the
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`APRS was not used for any reason, in a manner that would ensure safe operation of
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`the Facility, including to prevent a fire, an explosion and a chain reaction.
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`44. During all relevant time periods, the Defendant failed to have or
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`implement SOPs regarding the handling of leaking cylinders, including in the yard.
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`45. The Defendant has modified its SOPs since the incident to comply with
`
`the General Duty of Care.
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`46. Defendant’s failure to have SOPs was a violation of the General Duty of
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`Care under Section 112(r)(1) of the Clean Air Act, 42 U.S.C. § 7412(r)(1).
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`47. In addition, to comply with the statutory duty to maintain a safe facility,
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`pursuant to NFPA 58, the Defendant had to conduct adequate training. Prior to the
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`release in July 2013, the Defendant did not adequately train employees on the basic
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`nature of liquid propane gas and how if accumulated in large quantities, even in an
`
`open yard, the propane gas could explode from a spark such as from the operation of
`
`a forklift and cause a chain reaction. The training that the Defendant did have
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`explained that employees might be burned, but did not explain the risk of an
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`explosion, including a chain reaction from pressure relief valves releasing additional
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`propane. The Defendant’s training also failed to adequately explain whether or how
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`to vent cylinders or to handle leaking cylinders, in the yard or otherwise.
`
`
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`12
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`

`

`Case 5:20-cv-00411-JSM-PRL Document 1 Filed 09/02/20 Page 13 of 16 PageID 13
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`48. On information and belief, had the individuals involved in the incident on
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`the night of July 13, 2013, been properly trained, they would not have released a
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`large amount of propane gas through the bleeder screws in the yard.
`
`49. The Defendant has modified its training practices since the incident to
`
`comply with the General Duty of Care.
`
`50. Defendant’s failure to have proper training was a violation of the General
`
`Duty of Care under Section 112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1).
`
`51. Pursuant to Section 113(b) of the Clean Air Act, 42 U.S.C. § 7413(b),
`
`Defendant is liable for civil penalties to be assessed by the Court for each day of
`
`violation and not to exceed the statutory maximum.
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`SECOND CLAIM FOR RELIEF
`(Section 112(r) Violations—Failure to Analyze Hazards)
`52. Paragraphs 1 through 51 are re-alleged and incorporated by reference.
`
`53. Pursuant to the General Duty of Care, Defendant had a duty to identify
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`hazards which may result in accidental releases of extremely hazardous substances
`
`such as propane, using appropriate hazard assessment techniques.
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`54. Defendant had not adequately identified hazards in the yard which may
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`result from the release of propane using appropriate hazard assessment techniques.
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`55. The Defendant has conducted a Process Hazard Analysis of the yard
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`since the incident to comply with the General Duty of Care.
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`13
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`

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`Case 5:20-cv-00411-JSM-PRL Document 1 Filed 09/02/20 Page 14 of 16 PageID 14
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`56. Defendant’s failure to have conducted a proper analysis of hazards was a
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`violation of the General Duty of Care under Section 112(r)(1) of the CAA, 42 U.S.C.
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`§ 7412(r)(1).
`
`57. Pursuant to Section 113(b) of the Clean Air Act, 42 U.S.C. § 7413(b)
`
`Defendant is liable for civil penalties for each day of violation, and not to exceed the
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`statutory maximum.
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`PRAYER FOR RELIEF
`
`WHEREFORE, Plaintiff the United States prays that the Court:
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`1. Enter judgment against the Defendant and in favor of the United States, for
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`a civil penalty for all violations to be determined by the Court within the statutory
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`maximum;
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`2. Award court costs to the United States; and
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`14
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`

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`Case 5:20-cv-00411-JSM-PRL Document 1 Filed 09/02/20 Page 15 of 16 PageID 15
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`3. Grant such other relief as this Court deems just and proper.
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`Respectfully submitted,
`FOR THE UNITED STATES
`
`s/ Ellen M. Mahan
`ELLEN M. MAHAN
`Deputy Section Chief
`Environmental Enforcement Section
`Environment and Natural Resources
`Division
`U.S. Department of Justice
`
`s/ James R, MacAyeal
`JAMES R. MacAYEAL
`Senior Counsel
`Environmental Enforcement Section
`United States Department of Justice
`P.O. Box 7611
`Washington, DC 20044-7611
`jamie.macayeal@usdoj.gov
`
`MARIA CHAPA LOPEZ
`United States Attorney
`Middle District of Florida
`
`
`
`
`
`/s/ Lacy R. Harwell, Jr.
`LACY R. HARWELL, JR.
`
`Assistant United States Attorney
`Florida Bar No. 714623
`Office of the United States Attorney
`For the Middle District of Florida
`400 N. Tampa St., Suite 3200
`Tampa, Florida 33602
`Tel. (813) 274-6000
`Fax (813) 274-6200
`Randy.Harwell@usdoj.gov
`
`
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`15
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`

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`Case 5:20-cv-00411-JSM-PRL Document 1 Filed 09/02/20 Page 16 of 16 PageID 16
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`OF COUNSEL:
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`
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`ERIC TRIPLETT
`
`
`Associate Regional Counsel
`
`
`Office of Regional Counsel
`United States Environmental Protection Agency, Region 4
`61 Forsyth Street, SW
`Atlanta, Georgia 30303-8960
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`16
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`

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