Case 3:22-cv-00468-SDD-RLB Document 1 07/13/22 Page 1 of 36
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF LOUISIANA
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`______________________________________
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`UNITED STATES OF AMERICA,
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`and
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`) No.
`LOUISIANA DEPARTMENT OF
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`)
`ENVIRONMENTAL QUALITY,
`
`)
`
`
`
`
`
`
`)
`
` Plaintiffs,
`)
`
`
`v.
`
`
`
`)
`) CIVIL COMPLAINT
`)
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`
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`
`)
` PCS NITROGEN FERTILIZER, L.P.,
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`)
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` Defendant.
`______________________________________ )
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`The United States of America, by authority of the Attorney General of the United
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`States and through the undersigned attorneys acting at the request of the Administrator of
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`the United States Environmental Protection Agency (“EPA”), together with the Louisiana
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`Department of Environmental Quality (“LDEQ”), acting with the concurrence of the
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`Louisiana Attorney General and through the undersigned attorneys, file this Complaint
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`and allege as follows:
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`NATURE OF THIS ACTION
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`This is a civil action brought pursuant to Section 3008(a) and (g) of the Resource
`
`1.
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`Conservation and Recovery Act (“RCRA”), 42 United States Code (“U.S.C.”) § 6928(a)
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`and (g), and pursuant to the Louisiana Environmental Quality Act (“EQA”),
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`La.R.S.30:2025, and the Louisiana Administrative Code, (“LAC”), 33:V.107 against PCS
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`Nitrogen Fertilizer, L.P., (“PCS Nitrogen” or “Defendant”). The United States and
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`
`
`
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF LOUISIANA
`
`
`______________________________________
`
`
`
`
`
`
`)
`
`
`
`
`
`
`)
`UNITED STATES OF AMERICA,
`)
`and
`
`
`
`
`
`) No.
`LOUISIANA DEPARTMENT OF
`
`)
`ENVIRONMENTAL QUALITY,
`
`)
`
`
`
`
`
`
`)
`
` Plaintiffs,
`)
`
`
`v.
`
`
`
`)
`) CIVIL COMPLAINT
`)
`
`
`
`
`
`
`)
` PCS NITROGEN FERTILIZER, L.P.,
`)
`
`
`
`
`
`
`)
`
`
`
`
` Defendant.
`______________________________________ )
`
`
`
`
`
`
`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”), together with the Louisiana
`
`Department of Environmental Quality (“LDEQ”), acting with the concurrence of the
`
`Louisiana Attorney General and through the undersigned attorneys, file this Complaint
`
`and allege as follows:
`
`NATURE OF THIS ACTION
`
`This is a civil action brought pursuant to Section 3008(a) and (g) of the Resource
`
`1.
`
`Conservation and Recovery Act (“RCRA”), 42 United States Code (“U.S.C.”) § 6928(a)
`
`and (g), and pursuant to the Louisiana Environmental Quality Act (“EQA”),
`
`La.R.S.30:2025, and the Louisiana Administrative Code, (“LAC”), 33:V.107 against PCS
`
`Nitrogen Fertilizer, L.P., (“PCS Nitrogen” or “Defendant”). The United States and
`
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`Case 3:22-cv-00468-SDD-RLB Document 1 07/13/22 Page 2 of 36
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`LDEQ (“Plaintiffs”) seek injunctive relief and the assessment of civil penalties for
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`environmental violations at PCS Nitrogen’s fertilizer manufacturing facility, which is
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`located in Louisiana on Highway 3115 between Highways 74 and 75 near Geismar, LA
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`70734, in Iberville and Ascension Parishes (the “Facility”).
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`2.
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`As set forth below, Defendant has violated the statutory and regulatory
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`requirements applicable to the management and disposal of solid and/or hazardous waste,
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`found at La. R.S. 30:2171 et seq. and Title 33 of the LAC Part V, Chapters 1 through 51,
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`(the corresponding federal citations are Sections 3004 and 3005 of RCRA, 42 U.S.C.
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`§§ 6924 and 6925, and the regulations promulgated thereunder, including (40 C.F.R.
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`Parts 260, 261, 262, 264, 265, 268, and 270).
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`PARTIES
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`3.
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`4.
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`Plaintiffs are the United States of America and LDEQ.
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`Defendant PCS Nitrogen is registered as a limited partnership in the State of
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`Delaware and is licensed to do business in Louisiana.
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`5.
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`PCS Nitrogen is, and at all times relevant to this lawsuit has been, the owner and
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`operator of the Facility.
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`JURISDICTION AND VENUE
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`6.
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`This Court has jurisdiction over the parties and the subject matter of this action
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`pursuant to RCRA Section 3008(a), 42 U.S.C. § 6928(a), and 28 U.S.C.
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`§§ 1331 (federal question jurisdiction), 1332 (diversity), 1345 (jurisdiction when the
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`United States is a plaintiff), 1355 (jurisdiction over penalties arising under federal
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`claims), and 1367 (supplemental jurisdiction).
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`7.
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`Venue is proper in this judicial district pursuant to 28 U.S.C. §§ 1391(b) and
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`1395(a), and RCRA Section 3008(a)(1), 42 U.S.C. § 6928(a)(1), because Defendant is
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`located and is doing business in this District and the violations occurred in this District.
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`8.
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`Authority to bring this civil action is vested in the Attorney General of the United
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`States and the Administrator of EPA pursuant to Section 3008(a) of RCRA, 42 U.S.C.
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`§ 6928(a), and 28 U.S.C. §§ 516 and 519.
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`9.
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`Authority to bring this civil action is vested in LDEQ with the concurrence of the
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`Louisiana Attorney General pursuant to La.R.S.30:2025, and LAC 33:V.107.
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`10.
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`The United States has provided notice to the State of Louisiana prior to the
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`commencement of this action in accordance with RCRA Section 3008(a)(2), 42 U.S.C.
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`§ 6928(a)(2).
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`STATUTORY AND REGULATORY BACKGROUND
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`11.
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`Federal regulation of hazardous waste is primarily based on RCRA, enacted on
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`October 21, 1976 to amend the Solid Waste Disposal Act, and on the Hazardous and
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`Solid Waste Amendments (“HSWA”) enacted by Congress in 1984 to further amend the
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`Solid Waste Disposal Act. RCRA establishes a “cradle-to-grave” program to be
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`administered by the Administrator of EPA and authorized states for regulating the
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`generation, transportation, treatment, storage, and disposal of hazardous waste. See 42
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`U.S.C. § 6901 et seq.
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`12.
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`RCRA’s Subchapter III (RCRA §§ 3001-3024, 42 U.S.C. §§ 6921-6939(g),
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`known as “Subtitle C”) required EPA to promulgate regulations establishing performance
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`standards applicable to facilities that generate, transport, treat, store, or dispose of
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`hazardous wastes. Together, RCRA Subtitle C and its implementing regulations, set
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`forth at 40 C.F.R. Parts 260 – 279, comprise EPA’s RCRA hazardous waste program.
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`13.
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`RCRA Section 3006, 42 U.S.C. § 6926, allows the Administrator to authorize a
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`state to administer its own hazardous waste program in lieu of the federal program when
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`the Administrator deems the state program to be equivalent to and consistent with the
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`federal program.
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`14.
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` On January 24, 1985, the State of Louisiana received final authorization for its
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`base Hazardous Waste Management Program (50 Fed. Reg. 3348). Pursuant to Section
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`3006(b) of RCRA, 42 U.S.C. § 6926(b), the state of Louisiana was granted final
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`authorization by EPA to administer and enforce a hazardous waste program on February
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`7, 1985 (50 Fed. Reg. 3348). LDEQ is the designated state agency to implement the
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`authorized RCRA program in Louisiana.
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`15.
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`Subsequent revisions have been made to the Louisiana Hazardous Waste Program
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`and authorized by EPA. Except as otherwise provided, all citations found within this
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`Complaint are to the “EPA-Approved Louisiana Statutory and Regulatory Requirements
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`Applicable to the Hazardous Waste Management Program” dated November 2015,
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`incorporated by reference under 40 C.F.R. § 272. 951(c)(1)(i), effective on December 26,
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`2018. 83 Fed. Reg. 66143 (December 26, 2018); 40 C.F.R. 272. 951; Louisiana State-
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`Administered Program: Final Authorization. In July 2020, the LDEQ promulgated new
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`regulations and re-codified existing regulations applicable to generators of hazardous
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`waste resulting in the migration of specific hazardous waste generator regulations from
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`LAC 33:V.Chapter 11 into LAC 33:V.Chapter 10. Therefore, due to the dates of
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`allegations herein, regulatory citations included in this document may differ from
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`analogous regulatory citations in the current Louisiana Hazardous Waste Code (LAC 33:
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`Part V). The corresponding C.F.R. citations are also provided.
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`16.
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`Pursuant to its authority under Subtitle C of RCRA, 42 U.S.C. § 6922(a), EPA has
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`promulgated regulations applicable to solid and hazardous waste generators at 40 C.F.R.
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`Parts 261 and 262; to owner/operators of hazardous waste facilities at 40 C.F.R. Parts 264
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`and 265; and to land disposal of solid and hazardous waste at 40 C.F.R. Part 268. LDEQ,
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`like EPA, has promulgated regulations applicable to these persons and practices, which
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`are found at Title 33 of the LAC Part V, Chapters 1 through 51. Unless specified
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`otherwise, LDEQ has incorporated by reference all federal regulations cited in this
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`Complaint.
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`17.
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`Although EPA has granted the State authority to enforce its own hazardous waste
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`program, EPA retains jurisdiction and authority to initiate an independent enforcement
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`action, pursuant to Section 3008(a)(2) of RCRA, 42 U.S.C. § 6928(a)(2).
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`18.
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`As the authorized provisions of Louisiana’s hazardous waste program operate in
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`lieu of the federal RCRA program, the citations for the violations of those authorized
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`provisions alleged herein will be the authorized Louisiana program; however, for ease of
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`reference, the federal citations will follow in parentheses.
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`19.
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`LAC 33:V.109, (40 C.F.R. § 261.2), defines a “solid waste” as any discarded
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`material that is not otherwise excluded under LAC 33:V.105.D, (40 C.F.R. § 261.4(a)), or
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`that is not excluded by variance. A material is discarded if it is abandoned (and not used,
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`re-used, reclaimed, or recycled) by being disposed of, or burned or incinerated, except
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`where the material is being burned as a fuel for the purpose of recovering usable energy;
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`or physically, chemically, or biologically treated (other than burned or incinerated) in lieu
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`of or prior to being disposed of. Materials are solid waste, as defined in LAC 33:V.109,
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`(40 C.F.R. § 261.2), if they are abandoned by being disposed of, burned or incinerated, or
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`accumulated, stored, or treated (but not recycled) before, or in lieu of, being abandoned
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`by being disposed of, burned, or incinerated.
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`20.
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`A solid waste is a hazardous waste if it is not excluded from regulation as a
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`hazardous waste under LAC 33:V.109, (40 C.F.R. § 261.4(b)), and it exhibits any of the
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`characteristics of hazardous waste identified in LAC 33:V.109, (40 C.F.R. Part 261,
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`Subpart C), or it is listed in LAC 33:V.109, (C.F.R. Part 261, Subpart D).
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`21.
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`Characteristic hazardous wastes are assigned “D” codes in LAC 33:V.4903, (40
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`C.F.R. Part 261, Subpart C) depending on the specific hazardous characteristic that the
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`waste exhibits. A hazardous waste with a pH of less than or equal to 2.0 or greater than
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`or equal to 12.5 exhibits the characteristic of corrosivity and is assigned the D002
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`hazardous waste code. A hazardous waste that exhibits the characteristic for toxicity has a
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`specific EPA waste code that corresponds to the toxic contaminant pursuant to LAC
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`33:V.4903.C and E (40 C.F.R. §§ 261.22 and 261.24).
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`22.
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`Certain solid wastes from the extraction, beneficiation, and processing of ores and
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`minerals to generate a saleable product (“mineral processing”) are excluded from the
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`definition of hazardous wastes pursuant to LAC 33:V.105.D.2(h), (40 C.F.R. §
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`261.4(b)(7)) (the “Bevill Exclusion”).
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`23.
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`“Materials that are saleable, either as raw materials to other types of industrial
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`processes (e.g. chemical manufacturing such as Poly-N) or as finished products, are
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`considered final products.” [54 Fed. Reg. 36,620, September 1, 1989].
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`24. While the first saleable product for the phosphoric acid industry is typically
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`clarified 52% to 54% phosphoric acid with less than 1% solids, which is known as
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`merchant grade acid (“MGA”), EPA made it clear during the 1990 rule-making that the
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`Bevill Exclusion can end before MGA is produced if intermediate mineral products are
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`used as feedstocks to other industrial processes, such as Ammonium Phosphate fertilizer.
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`Id.
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`25.
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` For a mineral processing waste to be excluded under the Bevill Exclusion, it must
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`fall into one of the twenty specific categories of excluded wastes listed at LAC
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`33:V.105.D.2(h)(ii), (40 C.F.R. § 261.4(b)(7)(ii)(D)).
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`26.
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`The Bevill Exclusion applies to only two wastes generated from phosphoric acid
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`mineral processing operations: “(p)hosphogypsum from phosphoric acid production,”
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`LAC 33:V.105.D.2(h)(ii)(d), (40 C.F.R. § 261.4(b)(7)(ii)(D)), and “process wastewater
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`from phosphoric acid production” operations through concentration to MGA. LAC
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`33:V.105.D.2(h)(ii)(p), (40 C.F.R. § 261.4(b)(7)(ii)(P)).
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`27.
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`Chemical manufacturing wastes, cleaning wastes, air pollution control device
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`(“scrubber”) wastes, and wastes generated after production of the first saleable product
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`(or intermediate products routed to chemical processing) are not “process wastewater
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`from phosphoric acid production” and do not qualify for the Bevill Exclusion.
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`28. When Bevill-excluded phosphogypsum and process wastewater from phosphoric
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`acid production are mixed with hazardous non-excluded wastes, if the resulting mixture
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`continues to exhibit a hazardous characteristic of the non-excluded waste, then the entire
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`mixture is a hazardous waste pursuant to the Bevill Mixture Rule, promulgated at LAC
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`33:V.109, (40 C.F.R. § 261.3(a)(2)(i)).
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`29.
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`In addition, if a Bevill-excluded waste is mixed with a listed hazardous waste, the
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`resultant mixture is a listed hazardous waste pursuant to LAC 33:V.109, (40 C.F.R.
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`§ 261.3(a)(2)(i)).
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`30.
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`LAC 33:V., Chapters 15 and 43, (C.F.R. Parts 264 and/or 265) apply to owners
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`and operators of facilities that treat, store and/or dispose of hazardous waste.
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`31.
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`EPA’s and LDEQ’s regulations (as relevant to this lawsuit) require that generators
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`of solid waste and hazardous waste must, among other things:
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`
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`a. Determine whether generated solid wastes are hazardous, LAC 33:
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`V.1103, (40 C.F.R. § 262.11);
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`b. Keep records of hazardous waste determinations, LAC 33:V.1111.A.3,
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`(40 C.F.R. § 262.40(c));
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`c. Treat, store, and dispose of hazardous waste in compliance with a permit
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`and other applicable regulatory requirements, or, if they qualify for interim
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`status, with interim status requirements, including obtaining financial
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`assurance where applicable, LAC 33:V.Chapter 3, (Section 3005(a) of RCRA,
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`42 U.S.C. § 6925(a), 40 C.F.R. § 270), and;
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`d. Meet certain requirements for waste treatment prior to placement or
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`disposal of hazardous waste on the land, LAC 33:V., Chapter 22 Subchapter
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`A, (40 C.F.R. Part 268).
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`32.
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`Pursuant to Sections 3008(a) and (g) and 3006(g) of RCRA, 42 U.S.C. §§ 6928(a)
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`and (g) and 6926(g), the United States may enforce the federally-approved Louisiana
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`hazardous waste program, as well as the federal regulations that remain effective in
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`Louisiana, by filing a civil action in United States District Court seeking civil penalties
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`not to exceed $25,000 per day per violation (prior to January 30, 1997) and injunctive
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`relief.
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`33.
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`Pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, 28
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`U.S.C. § 2461, as amended by 31 U.S.C. § 3701, and as provided in 40 C.F.R. Part 19,
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`the amount specified in the foregoing Paragraph increases to $27,500 per day for each
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`violation occurring on and after January 31, 1997, further increases to $32,500 per day
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`for each violation occurring on or after March 15, 2004, further increases to $37,500 per
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`day for each violation occurring after January 12, 2009 through November 2, 2015, and
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`further increases to $75,867 per day for each violation occurring after November 2, 2015,
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`and assessed on or after January 13, 2020, and further increases to $81,540 per day for
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`each violation occurring after November 2, 2015 and assessed on or after January 12,
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`2022. Each day of such violation constitutes a separate violation pursuant to Section
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`3008(g) of RCRA, 42 U.S.C. § 6928(g).
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`34.
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`Pursuant to La.R.S.30:2025(E)(1)(a), LDEQ is authorized to enforce its hazardous
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`waste regulations and to seek judicial imposition of penalties of up to $32,500 per day for
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`each violation.
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`THE PCS NITROGEN FACILITY AND PROCESS DESCRIPTION
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`35. At all times relevant to this Complaint, Defendant owned and operated the
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`Facility.. The Facility consisted of two connected and related sites:
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`a.
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`The main plant, including the phosphoric acid manufacturing plant, has
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`operated since 1967 and covers approximately1050 acres. The main plant is
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`located along the East Bank of the Mississippi River at River Mile 187;
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`b.
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`Amongst various operations and activities at the main plant, PCS Nitrogen
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`operates or operated a sulfuric acid production plant, a phosphoric acid plant,
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`and a nitrogen products plant;
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`c.
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`In June 2015, PCS Nitrogen ceased operation of the sulfuric acid production
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`plant;
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`d.
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`In December 2018, PCS Nitrogen ceased operation of the phosphoric acid
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`production plant; and
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`e.
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`PCS Nitrogen disposed of certain wastes from the main plant in
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`phosphogypsum stacks (“Phosphogypsum Stacks”), which are located
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`between Highway 30 & Highway 3115, Geismar, LA 70734.
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`36.
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`Operations at the Facility that generated wastes fall in several categories, only
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`some of which constitute mineral processing under RCRA.
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`
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`Former Phosphate Area
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`37.
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`The phosphate area of the main plant contained two production plants: the sulfuric
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`acid plant; and the phosphoric acid plant. Chemicals produced at the sulfuric acid plant
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`include sulfuric acid, oleum, and chlorosulfonic acid. The phosphoric acid and sulfuric
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`acid plants have been decommissioned and dismantled. The chemicals that were
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`produced at the phosphoric acid plant included phosphoric acid, super phosphoric acid
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`(“SPA”), and ammonium poly-phosphate (“Poly-N”). The production processes involved
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`the use of several tanks, tanks systems, lagoons, and equipment, as further described
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`below.
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`Former Sulfuric Acid Operations
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`38.
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`PCS Nitrogen purchased elemental sulfur on the commercial market. The sulfur
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`was delivered to the Facility via barge or truck.
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`39.
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`Liquid elemental sulfur was passed through a sulfur burner, where sulfur was
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`converted to SO2 by burning it in forced excess air. SO2 produced in the sulfur burner
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`reacted with oxygen (O2) from the air in presence of a catalyst (Vanadium pentoxide
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`[V2O5]) in a convertor to form sulfur trioxide (SO3). The SO3 produced flows into an
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`absorbing tower, where it was dissolved in concentrated sulfuric acid (“H2SO4”) to form
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`fuming sulfuric acid (or oleum). Subsequently, oleum was reacted with water to produce
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`concentrated sulfuric acid.
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`40.
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`The sulfuric acid plant also produced chlorosulfonic acid (“CSA”) by reacting
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`anhydrous hydrochloric acid (“HCl”) with SO3.
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`41.
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`Production of chlorosulfonic acid is a chemical manufacturing process, not a
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`mineral processing activity, and wastes generated by this process are not subject to the
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`Bevill Exclusion.
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`42.
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`Concentrated sulfuric acid was used on-site, shipped to neighboring facilities, and
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`sold on the open market. Oleum from the manufacturing process was also sold to
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`neighboring facilities.
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`43.
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`PCS Nitrogen also used sulfuric acid to clean production and storage equipment,
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`mainly pipes and tanks.
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`44.
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`Cleaning with sulfuric acid as a cleaning agent is not a mineral processing
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`activity, and cleaning wastes generated thereby are not subject to the Bevill Exclusion.
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`Former Phosphoric Acid Operations
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`45. Washed phosphate rock was conveyed to an agitated, multi-compartment reactor
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`(also known as an “Attack Tank”) where sulfuric acid and recycled phosphoric acid were
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`added to digest the phosphate rock, producing a slurry of phosphoric acid and a by-
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`product, hemi-hydrate phosphogypsum. Fluorine emissions from the Attack Tank were
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`controlled by a fume scrubber.
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`46.
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`The slurry was sent to a tilting pan filter (also known as a “Prayon Filter”) where
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`the 40% P2O5 phosphoric acid was separated from the solid hemi-hydrate gypsum. The
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`filtered solids were washed in three stages to recover residual phosphoric acid from the
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`gypsum solids.
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`47.
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`The hemi-hydrate gypsum was converted to the more stable di-hydrate gypsum in
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`two transformation tanks using sulfuric acid (or a substitute for sulfuric acid). The
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`washed gypsum from the filter was sluiced with process wastewater (addressed below)
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`down a chute to the ‘A’ Transformation Tank. Sulfuric acid or Raffinate (which contains
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`15% to 20% sulfuric acid), a by-product stream from a neighboring plant was added to
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`the agitated A Transformation Tank. This tank overflowed to the agitated ‘B’
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`Transformation Tank. The B Transformation Tank overflowed to the Gypsum Slurry
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`Tank from which the gypsum slurry was pumped through a pipeline to the
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`Phosphogypsum Stacks and decanted to the Active Clearwell.
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`48.
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`The 40% - Phosphorus Pentoxide granular (“P2O5”) acid from the filter was
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`pumped to the Day Tank (know as well as the “40% Tank”). This tank overflow fed the
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`1st stage evaporators (also called the weak evaporators). The underflow (high solids acid)
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`from this tank was pumped back to the reactor to recover additional phosphoric acid. The
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`acid concentration leaving the weak evaporation stage was typically 50 to 54% P2O5.
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`49.
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`The product acid from the evaporators was pumped to the #4 Storage Tank for
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`solids removal. The overflow from this tank was usually pumped to the #3 Storage Tank
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`for additional solids removal. The 54% acid from the #3 Storage Tank was pumped to
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`one of three “strong” acid evaporators. The strong acid evaporator product, which
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`contains up to 62% P2O5, was pumped to the #2 Storage Tank. The overflow from this
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`tank was pumped to the #1 Storage Tank.
`
`50.
`
`The acid overflow from the #1 Storage Tank was the final mineral processing
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`product, called GQ-54. The underflow from both #1 and #2 Storage Tanks was pumped
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`back to the 40% Tank for additional phosphoric acid recovery.
`
`51.
`
`Super Phosphoric Acid (“SPA”) was also produced in the process by passing the
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`60% phosphoric acid through a natural gas-fired burner. The phosphoric acid was
`
`converted into a gas then hydrated in an entrainment separator. SPA was filtered through
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`pressure filters and mixed with clarified water to produce 73% phosphoric acid, which
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`was sold commercially as SPA on the open market.
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`52.
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`SPA was also reacted with ammonia to produce another chemical product called
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`Poly-N, which was also sold commercially. Poly-N was produced by reacting SPA with
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`ammonia in a pipe reactor to produce an ammonium phosphate compound (1.5:1
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`ammonia:phosphate).
`
`53.
`
`The SPA production unit used a Dynawave fume scrubber to treat residual
`
`fluorides and carbon monoxide (“CO”). A built-in mist eliminator in the Dynawave fume
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`scrubber captures emissions before emitting gases to the atmosphere.
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`13
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`Case 3:22-cv-00468-SDD-RLB Document 1 07/13/22 Page 14 of 36
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`54.
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`Contaminants were accumulated in the water used throughout production of
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`phosphoric acid, resulting in aqueous wastes referred to as “process wastewater.” Prior
`
`to reuse in the various processes, the process wastewater must be cooled, and
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`contaminants and solids must be removed. Most of the solids and contaminants
`
`precipitated (settle) from the water in the Phosphogypsum Stacks. The water was
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`decanted from the Phosphogypsum Stacks to the Active Clearwell.
`
`55.
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`Process wastewater was cooled in a forced draft cooling tower. Process
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`wastewater from the Active Clearwell was pumped to the cooling tower basin. This
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`process wastewater was then pumped to the Flash Cooler barometric condensers and to
`
`the evaporator barometric condensers and inter-condensers.
`
`56.
`
`The process wastewater used at the Flash Cooler and #1 Evaporator flowed to the
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`Filter Wash Tank. Water from this tank was used at the Tilting Pan Filter for gypsum
`
`sluice water, final filter wash, and for high pressure spray cloth wash. Excess water
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`flowed to the Effluent Tank where it combined with water from the #2 and #4
`
`evaporators. This water was returned to the cooling tower and used as make-up water in
`
`the Prayon Filter wash-down tank.
`
`57.
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`The plant had one gypsum line and two process wastewater return lines. The
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`wastewater lines could serve as a gypsum line if the main gypsum line needed to be
`
`cleaned, unplugged or repaired.
`
`58.
`
`From at least August 2004 until December 2012, PCS Nitrogen sold 60%
`
`phosphoric acid to Innophos Inc., a neighboring facility, which it transfered by pipe.
`
`Prior to 2017, when Innophos, Inc. settled alleged RCRA violations through a Consent
`
`Decree, Innophos, Inc. returned two waste streams from its operations to PCS Nitrogen’s
`
`14
`
`
`
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`Case 3:22-cv-00468-SDD-RLB Document 1 07/13/22 Page 15 of 36
`
`phosphoric acid plant. One waste stream was called Raffinate and the other was called
`
`Dearsenate. The return of Raffinate and Dearsenate to PCS Nitrogen ceased following
`
`entry of the Innophos Consent Decree.
`
`59.
`
`PCS Nitrogen mixed the Raffinate with the slurried phosphogypsum in the A
`
`Transformation Tank for use as a substitute for sulfuric acid. Raffinate was subsequently
`
`discharged to PCS Nitrogen’s Phosphogypsum Stack and associated impoundments and
`
`other units (“Phosphogypsum Stack System”) along with the phosphogypsum and
`
`process wastewater slurry in the Active Clearwell.
`
`60.
`
`PCS Nitrogen stored approximately 20,000 gallons per day of Dearsenate in Tank
`
`#203 before discharging the Dearsenate to the Phosphogypsum Stacks via the Gypsum
`
`Slurry Tank.
`
`61.
`
`Production of Purified Phosphoric Acid is a chemical manufacturing process, not
`
`a mineral processing activity, and wastes generated from this process are not subject to
`
`the Bevill Exclusion.
`
`Spills & Leaks of Phosphoric Acid
`
`62.
`
`Spills and leaks of phosphoric acid occurred at various areas of the Facility.
`
`Product phosphoric acid spills were reclaimed by placing the material in the Day Tank.
`
`Residuals washed down from spills were pumped to the Phosphogypsum Stacks. PCS
`
`Nitrogen pumped commingled spills and leaks of phosphoric acid and process
`
`wastewater from the production areas to the Phosphogypsum Stacks. Spills and leaks of
`
`process wastewater occurred at and from the Active Clearwell, Inactive Clearwell, and
`
`from other areas of the Facility and Phosphygypsum Stacks, and have migrated beyond
`
`the perimeter ditches and the Facility footprint.
`
`15
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`Case 3:22-cv-00468-SDD-RLB Document 1 07/13/22 Page 16 of 36
`
`63.
`
`Spills and leaks of phosphoric acid are not part of mineral processing and wastes
`
`generated from spills and leaks are therefore not subject to the Bevill Exclusion.
`
`Railcar Cleaning
`
`64.
`
`PCS Nitrogen used railcars to transport GQ-54 to customers.
`
`65. When the railcars are returned for reloading, they were first cleaned by PCS
`
`Nitrogen to remove residual acid and precipitated solids. This cleaning was done by
`
`inserting a revolving nozzle into the tank car and using clarified water to flush acid and
`
`solids out of the car. This liquid was recirculated until the solids concentration required
`
`the mixture be replaced with fresh water.
`
`66.
`
`The resulting cleaning water containing high solids was then sent to a Lagoon
`
`Sump and was subsequently pumped to the gypsum pump tank.
`
`67.
`
`The cleaning of railcars is not part of mineral processing, and such cleaning
`
`wastes are not subject to the Bevill Exclusion.
`
`
`
`Phosphogypsum Stack System
`
`68.
`
`PCS Nitrogen’s Phosphogypsum Stack System is located two miles north of the
`
`production/manufacturing plant. Stacking began in the late 1960s.
`
`69.
`
`The Phosphogypsum Stacks are designated pursuant to the LPDES permit as
`
`Active (phosphogypsum is being deposited into the Phosphogypsum Stack) and Inactive
`
`(Phosphogypsum Stack no longer receiving phosphogypsum).
`
`70.
`
`Two large lined surface impoundments, known as the Active and Inactive
`
`Clearwells, are located west of the Phosphogypsum Stacks. Newly-generated
`
`phosphogypsum was placed on top of previously disposed phosphogypsum in the Active
`
`Phosphogypsum Stack using the Active Clearwell for cooling and settlement of
`
`16
`
`
`
`
`Case 3:22-cv-00468-SDD-RLB Document 1 07/13/22 Page 17 of 36
`
`contaminants and solids. Process wastewater from the Active Clearwell was returned to
`
`the production/manufacturing plant, via pipeline, for re-use in the phosphoric acid
`
`production process.
`
`71.
`
`Stormwater run-off and leachate from the Inactive Phosphogypsum Stacks is
`
`collected in perimeter ditches and directed to the Inactive Clearwell. Wastewater from
`
`the Inactive Clearwell can be discharged to the Mississippi River without treatment from
`
`Outfall 001, via Internal Outfall 301, pursuant to a Louisiana Pollutant Discharge
`
`Elimination System (“LPDES”) Permit No. LA0066257. Process wastewater (i.e.
`
`wastewater from the active impoundment system) is only authorized to be discharged to
`
`the Mississippi River to Outfall 001 after treatment via Internal Outfall 201 except under
`
`emergency conditions described in the LPDES permit.
`
`Permits
`
`72.
`
`LDEQ has issued PCS Nitrogen an LPDES Permit No. LA0066257 pursuant to its
`
`authorized CWA program. The LPDES Permit is renewed every five years, and most
`
`recently on January 1, 2016. PCS Nitrogen timely submitted an application to revoke and
`
`reissue the LPDES permit in August 2019. The Facility also has a Solid Waste Permit,
`
`Permit number No. P-0201R2, as modified, which allows general plant waste from
`
`various operations throughout the Facility to be disposed of at Gyp Stack 7. The Solid
`
`Waste Permit is authorized by the LDEQ and requires sampling of PCS Nitrogen’s
`
`ground water wells.
`
`17
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`Case 3:22-cv-00468-SDD-RLB Document 1 07/13/22 Page 18 of 36
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`GENERAL RCRA ALLEGATIONS
`
`73.
`
`Defendant PCS Nitrogen is a “person” within the meaning of Section 1004(15) of
`
`RCRA, 42 U.S.C. § 6903(15), which includes corporations; and within the meaning of
`
`LAC 33:V.109, (40 C.F.R. § 260.10).
`
`74.
`
`Defendant PCS Nitrogen is an “owner” and “operator” of the Facility within the
`
`meaning of LAC 33:V.109, (40 C.F.R. § 260.10).
`
`75.
`
`The phosphogypsum generated at the Facility meets the definition of
`
`“(p)hosphosypsum from phosphoric acid production” at LAC 33:V.105.D, (40 C.F.R.
`
`§ 261.4(b)(7)(ii)(D)) and is therefore a Bevill-excluded waste. Wastewaters generated at
`
`the Facility from phosphoric acid production processes, including non-ammoniated
`
`animal feed ingredients are also Bevill-excluded pursuant to LAC 33:V.105.D, (40
`
`C.F.R. § 261.4(b)(7)(ii)(P)).
`
`76. Wastewaters generated at the Facility from processes associated with
`
`chlorosulfonic acid production, among others (chemical manufacturing), certain air
`
`pollution control scrubbers, and pipe, tank, or other process equipment cleaning and
`
`maintenance wastes, and railcar cleaning wastes are not Bevill-excluded process
`
`wastewater. When these non-excluded wastes at the PCS Nitrogen Facility exhibit a
`
`hazardous characteristic pursuant to LAC 33:V.4903.C and E (40 C.F.R. Part 261,
`
`Subpart C) they are hazardous wastes.
`
`77. When hazardous wastes identified in Paragraph 76 are mixed with Bevill-
`
`excluded phosphogypsum and process wastewater from phosphoric acid production, if
`
`the resulting mixture continues to exhibit a hazardous characteristic of the non-excluded
`
`18
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`
`
`Case 3:22-cv-00468-SDD-RLB Document 1 07/13/22 Page 19 of 36
`
`waste, then the entire mixture is a hazardous waste pursuant to the Bevill Mixture Rule,
`
`promulgated at LAC 33:V.109, (40 C.F.R. § 261.3(a)(2)(i)).
`
`78.
`
`Since 2004, Defendant has owned, and/or operated, and continues to own and/or
`
`operate a “solid waste management facility” at the Facility within the meaning of LAC
`
`33:V.109, (Section 1004(29) of RCRA, 42 U.S.C. § 6903(29)).
`
`79.
`
`In February 2004 and April 2005, EPA conducted Compliance Evaluation
`
`Inspections (“CEIs”) at the Facility to determine Defendant’s compliance with applicable
`
`State and Federal RCRA requirements. EPA also issued an Information Request to PCS
`
`pursuant to Section 3007 of RCRA on March 5, 2007. EPA received responses from PCS
`
`Nitrogen in May 2007, August 2007, and November 2007. EPA supplemented its
`
`Information Request in November 2007 and received a response from PCS Nitrogen in
`
`February 2008.
`
`
`80.
`
`In December 2017, EPA conducted a site visit to gather samples for analysis at
`
`the Facility to assess Defendant’s ongoing operations and compliance with applicable
`
`State and Federal RCRA requirements.
`
`
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