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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`BEAUMONT DIVISION
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`_______________________________________
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`UNITED STATES OF AMERICA
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`AND STATE OF TEXAS,
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`Plaintiffs,
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`v.
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`E. I. DU PONT DE NEMOURS AND
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`COMPANY, and
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`PERFORMANCE MATERIALS,
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`NA, INC.
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`Defendants.
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`______________________________________ )
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` Civil Action No.
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`COMPLAINT
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`The United States of America, by the 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 the
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`United States Environmental Protection Agency (“EPA”), and the State of Texas, by the
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`authority of the Attorney General of Texas and through the undersigned attorneys, acting at the
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`request of the Texas Commission on Environmental Quality (“TCEQ”), file this complaint and
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`allege as follows:
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`NATURE OF THE ACTION
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`1.
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`This is a civil action brought against E.I. du Pont de Nemours and Company
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`(“DuPont”) and Performance Materials NA, Inc. (“PMNA”) (collectively “Defendants”)
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`pursuant to Section 3008(a) and (g) of the Resource Conservation and Recovery Act (“RCRA”),
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`42 U.S.C. § 6928(a) and (g); Section 309 of the Clean Water Act (“CWA”), 33 U.S.C. § 1319;
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`Section 113(b)(2) of the Clean Air Act (“CAA”), 42 U.S.C. § 7413(b)(2); Section 7.002 of the
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`Texas Water Code, Tex. Water Code § 7.002; and regulations promulgated thereunder, for
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`injunctive relief and the assessment of civil penalties. The violations that are the subject of this
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`complaint occurred at Defendants’ Sabine River facility located at 3055 Farm Road 1006,
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`Orange, Orange County, Texas (“Facility”).
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`2.
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`The violations that are the subject of this Complaint relate to: Defendants’ failure
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`to comply with RCRA and the Texas Solid Waste Disposal Act (Tex. Health & Safety Code ch.
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`361), and other regulatory requirements, with respect to the generation, treatment, storage, and
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`disposal of hazardous waste at the Facility; Defendants’ discharge of pollutants to the air of the
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`United States and failure to comply with other regulatory requirements in violation of the CAA
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`and the Texas Clean Air Act (Tex. Health & Safety Code ch. 382); and DuPont’s violations of
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`the Texas Pollution Discharge Elimination System permit issued pursuant to the CWA and
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`Chapter 26 of the Texas Water Code, Tex. Water Code ch. 26.
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`3.
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`As a result of Defendants’ failure to comply with federal and state regulations,
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`excess pollutants have been and are being emitted into the environment from the Facility. These
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`pollutants, and some of their harmful effects, include, inter alia: corrosive materials (pH less
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`than 2.0 or greater than 12.5), which cause irritation, blistering, and burns to tissue upon contact;
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`benzene, which is a known human carcinogen and volatile organic compound (“VOC”); and
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`other VOCs found in the ethylene process. VOCs contribute to the formation of ground-level
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`ozone, a major constituent of smog.
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`JURISDICTION
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`4.
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`This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.
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`§§ 1331, 1345 and 1355; Section 3008(a) of RCRA, 42 U.S.C. § 6928(a); Section 309(b) of the
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`CWA, 33 U.S.C. §§ 1319(b); and Section 113(b) of the CAA, 42 U.S.C. § 7413(b). This Court
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`has supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367.
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`5.
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`This Court has personal jurisdiction over Defendants because the Facility is
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`located in Orange County, Texas, meaning it is presently within the jurisdictional boundaries of
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`the federal district court for the Eastern District of Texas, as established by Congress under
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`28 U.S.C. § 124(c).
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`VENUE
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`6.
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`Venue is proper in this Judicial District under 28 U.S.C. §§ 1391(b) and 1395(a);
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`Section 3008(a)(1) of RCRA, 42 U.S.C. § 6928(a)(1); Section 309(b) of the CWA, 33 U.S.C.
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`§ 1319(b); and Section 113(b) of the CAA, 42 U.S.C. § 7413(b), because the violations alleged
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`in the Complaint are alleged to have occurred in, and Defendants conduct business in, this
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`Judicial District.
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`NOTICE
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`7.
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`Notice was given to the State of Texas (“Texas”) prior to the commencement of
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`this action as required by Section 3008(a)(2) of RCRA, 42 U.S.C. § 6928(a)(2); Section 309(b)
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`of the CWA, 33 U.S.C. § 1319(b); and Section 113(b) of the CAA, 42 U.S.C. § 7413(b). Texas is
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`a co-plaintiff in this action.
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`DEFENDANTS
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`8.
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`DuPont was founded in 1802 and was incorporated in Delaware in 1915. At all
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`times relevant to this action, DuPont is and has been a corporation organized under the laws of
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`the State of Delaware and doing business in Texas. DuPont was owner and operator of the
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`Facility from 1946 through January 2019.
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`9.
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`PMNA is a wholly owned subsidiary of The Dow Chemical Company and was
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`incorporated in Delaware in 2018. PMNA is the current owner and operator of the Facility
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`through a Special Warranty Deed transfer of the Facility from DuPont to PMNA on or about
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`February 1, 2019.
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`10.
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`At all times relevant to this action, each Defendant has been a “person” within the
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`meaning of Section 1004(15) of RCRA, 42 U.S.C. § 6903(15); Section 502(5) of the CWA, 33
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`U.S.C. § 1362(5); Section 302(e) of the CAA, 42 U.S.C. § 7602(e); Tex. Health & Safety Code
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`§§ 361.003(23) & 382.003(10); and Tex. Water Code § 26.001(25).
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`STATUTORY AND REGULATORY FRAMEWORK
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`A.
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`RESOURCE CONSERVATION AND RECOVERY ACT
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`11.
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`RCRA, 42 U.S.C. § 6901 et seq., establishes a comprehensive program to be
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`administered by the Administrator of EPA (“Administrator”), regulating the generation,
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`transportation, treatment, storage, and disposal of hazardous waste.
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`12.
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`Pursuant to its authority under RCRA, EPA promulgated regulations at 40 C.F.R.
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`Parts 260 through 272 that are applicable to generators, transporters, and treatment, storage, and
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`disposal facilities. These regulations provide detailed requirements governing the activities of
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`persons who generate hazardous waste. These regulations generally prohibit the treatment,
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`storage, and disposal of hazardous waste without a permit or equivalent “interim status.” These
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`regulations also prohibit land disposal of certain hazardous waste.
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`13.
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`Pursuant to Section 3006 of RCRA, 42 U.S.C. § 6926, and 40 C.F.R. Part 271, the
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`Administrator may authorize a state to administer a RCRA hazardous waste program in lieu of
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`the federal program when he or she deems the state program to be substantially equivalent to the
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`federal program. When a state obtains such authorization, federally-approved state regulations
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`apply in lieu of the federal RCRA regulations in that state. Federally-approved state RCRA
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`regulations are enforceable by the United States pursuant to Section 3008(a) of RCRA, 42 U.S.C.
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`§ 6928(a).
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`14.
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`The Administrator granted final authorization to Texas to administer its
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`Hazardous Waste Management Program in lieu of the federal program on December 12, 1984,
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`effective December 26, 1984. 49 Fed. Reg. 48300; see also 40 C.F.R. § 272.2201. There have
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`been subsequent revisions to the federal program, with corresponding revisions to the authorized
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`State program.
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`15.
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`In Texas, the authorized hazardous waste program is managed by the TCEQ,
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`pursuant to the Texas Solid Waste Disposal Act, Tex. Health & Safety Code ch. 361, and the
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`rules and regulations promulgated thereunder at 30 Texas Administrative Code (Tex. Admin.
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`Code) Chapter 335. For ease of reference, the Texas regulations are cited below followed by the
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`applicable federal hazardous waste regulation.
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`16.
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`Pursuant to 30 Tex. Admin. Code § 335.1(146)(A) [40 C.F.R. § 261.2(a)(1)],
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`“solid waste” is defined as any discarded material, “including solid, liquid, semisolid, or
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`contained gaseous material resulting from industrial, municipal, commercial, mining, and
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`agricultural operations, and from community and institutional activities,” subject to certain
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`exceptions not applicable here. Pursuant to 30 Tex. Admin. Code § 335.1(146)(B) [40 C.F.R.
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`§ 261.2(a)(2)], a discarded material is any material which is abandoned, recycled, considered
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`inherently waste-like, or a military munition. Pursuant to 30 Tex. Admin. Code § 335.1(146)(C)
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`[40 C.F.R. § 261.2(b)], materials are solid wastes if they are abandoned by being (1) disposed of,
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`(2) burned or incinerated, (3) accumulated, stored, or processed (but not recycled) before or in
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`lieu of being abandoned by being disposed of, burned, or incinerated; or (4) sham recycled.
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`17.
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`Pursuant to 30 Tex. Admin. Code § 335.1(73), a solid waste is a “hazardous
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`waste” if it is “identified or listed as a hazardous waste by the Administrator of the United States
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`Environmental Protection Agency in accordance with the federal Solid Waste Disposal Act, as
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`amended by the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.” Pursuant to
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`40 C.F.R. § 261.3, a solid waste is a hazardous waste if it meets any of the criteria listed in 40
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`C.F.R. § 261.3(a)(2)(i)-(iv): generally, if it exhibits any of the characteristics of hazardous waste
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`(ignitability, corrosivity, reactivity, or toxicity); if it is listed; or if it is a mixture of a solid waste
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`and one or more hazardous waste(s), and has not been excluded from regulation as a hazardous
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`waste under 40 C.F.R. § 261.4(b).
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`18.
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`Pursuant to 30 Tex. Admin. Code § 335.1(73) [40 C.F.R. § 261.22(a)(1)], a solid
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`waste exhibits the hazardous characteristic of corrosivity if it is aqueous and has a pH less than
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`or equal to 2 or greater than or equal to 12.5.
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`19.
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`Pursuant to 30 Tex. Admin. Code § 335.1(73) [40 C.F.R. § 264.24(b)], a solid
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`waste exhibits the hazardous characteristic of toxicity if it has a benzene concentration equal or
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`greater than 0.5 milligrams per liter (mg/L) or parts per million (ppm).
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`20.
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`Pursuant to 30 Tex. Admin. Code § 335.1(67) [40 C.F.R. § 260.10], a “generator”
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`is defined as “[a]ny person, by site, who produces municipal hazardous waste or industrial solid
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`waste; any person who possesses municipal hazardous waste or industrial solid waste to be
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`shipped to any other person; or any person whose act first causes the solid waste to become
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`subject to regulation” under the Industrial Solid Waste and Municipal Hazardous Waste
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`Regulations, subject to one exception not relevant here.
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`21.
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`Pursuant to 30 Tex. Admin. Code § 335.61(a) [40 C.F.R. § 262.10(a)], a generator
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`of hazardous waste must follow the requirements prescribed in Subchapter C, Chapter 335, Part
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`1, Title 30, of the Texas Administrative Code, 30 Tex. Admin. Code ch. 335, subch. C [40
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`C.F.R. Part 262].
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`22.
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`Pursuant to Sections 3005(a) and (e) of RCRA, 42 U.S.C. § 6925(a) and (e), and
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`30 Tex. Admin. Code §§ 335.2(a) and 335.43(a) [40 C.F.R. § 270.1], hazardous waste shall not
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`be stored, processed (treated), or disposed of without a permit or interim status.
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`23.
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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 Texas hazardous
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`waste program, as well as the federal regulations that remain effective in Texas, by filing a civil
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`action in United States District Court seeking civil penalties, and/or injunctive relief.
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`24.
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`Pursuant to Section 3008(g) of RCRA, 42 U.S.C. § 6928(g), as amended by the
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`Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. § 2461 note, the Debt
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`Collection Improvement Act of 1996, 31 U.S.C. § 3701 note, and the Federal Civil Penalties
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`Inflation Adjustment Act Improvements Act of 2015, Pub. L. No. 114-74 § 701, 129 Stat. 584,
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`599-60, and as provided in 40 C.F.R. Part 19, Defendant is liable for a civil penalty of up to
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`$32,500 per day for each violation occurring after March 15, 2004 through January 12, 2009, up
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`to $37,500 per day for each violation occurring after January 12, 2009 through November 2,
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`2015, and up to $76,764 per day for each violation occurring after November 2, 2015, and
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`assessed on or after December 23, 2020.
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`25.
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`Pursuant to Tex. Water Code § 7.105, upon the request of the TCEQ, “the
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`attorney general [of Texas] shall institute a suit in the name of the state for injunctive relief…, to
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`recover a civil penalty, or for both injunctive relief and a civil penalty.” This requirement applies
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`generally to any violation of a “commission rule or a provision of a permit issued by the
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`commission,” Tex. Water Code § 7.032; or “a violation of a statute within the commission’s
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`jurisdiction or a rule adopted or an order or permit issued under such a statute.” Tex. Water Code
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`§ 7.101. With respect to violations of the Texas Solid Waste Disposal Act and the regulations
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`promulgated thereunder, Defendant is liable for a civil penalty of “not less than $50 nor greater
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`than $25,000 for each day of each violation as the court or jury considers proper. Each day of a
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`continuing violation is a separate violation.” Tex. Water Code § 7.102.
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`B.
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`CLEAN WATER ACT
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`26.
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`Section 101(a) of the CWA, 33 U.S.C. § 1251(a), provides that the objective of
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`the CWA is to restore and maintain the chemical, physical, and biological integrity of the
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`Nation’s waters.
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`27.
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`To accomplish this objective, section 301(a) of the CWA, 33 U.S.C. § 1311(a),
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`prohibits the “discharge of a pollutant by any person” except as authorized by and in compliance
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`with certain enumerated sections of the CWA, including Sections 301 and 402 of the CWA, 33
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`U.S.C. §§ 1311 and 1342.
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`28.
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`Pursuant to Section 402 of the CWA, 33 U.S.C. § 1342, the Administrator may
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`issue a permit, known as the National Pollutant Discharge Elimination System (“NPDES”)
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`permit, that authorizes the discharge of a pollutant, upon the condition that such discharge meets
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`the requirements of the CWA or other conditions that the Administrator may find are necessary.
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`Typically, such permits include effluent limitations, monitoring and reporting requirements, as
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`well as operating and maintenance requirements.
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`29.
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`The term “effluent limitation” is defined in Section 502(11) of the CWA, 33
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`U.S.C. § 1362(11), to mean “any restriction established by a State or the Administrator on
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`quantities, rates, and concentrations of chemical, physical, biological, and other constituents
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`which are discharged from point sources into navigable waters, the waters of the contiguous
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`zone, or the ocean, including schedules of compliance.”
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`30.
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`Pursuant to 40 C.F.R. § 122.41(e), “the permittee shall at all times properly
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`operate and maintain all facilities and systems of treatment and control (and related
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`appurtenances) which are installed or used by the permittee to achieve compliance with the
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`conditions of the [NPDES] permit.”
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`31.
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`Pursuant to Section 402(b) of the CWA, 33 U.S.C. § 1342(b), a state may
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`establish its own permit program and, after receiving approval of its program by EPA, may issue
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`NPDES permits.
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`32.
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`In 1998, the State of Texas was authorized by EPA to administer the federal
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`NPDES program pursuant to Section 402(b) of the CWA, 33 U.S.C. § 1342(b). The TCEQ’s
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`authority for the issuance of permits is established at Section 26.027 of the Texas Water Code,
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`Tex. Water Code § 26.027; and 30 Tex. Admin. Code ch. 305.
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`33. Where a state is authorized to administer an NPDES program pursuant to Section
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`402(b) of the CWA, 33 U.S.C. § 1342(b), the Administrator retains the authority pursuant to
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`Section 402(i) of the CWA, 33 U.S.C. § 1342(i), to take enforcement action under Section 309 of
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`the CWA, 33 U.S.C. § 1319.
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`34.
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`A person may request authorization to discharge under an individual NPDES
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`permit by submitting a complete application to EPA or an authorized State in accordance with
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`the requirements of 40 C.F.R. § 122.21(a) and (e). Applications are due at least 180 days prior to
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`the commencement of a new discharge. 40 C.F.R. § 122.21(c). Manufacturing dischargers are
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`required to provide detailed information regarding the nature of the operation and its discharges,
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`including such information as: outfall locations; a line drawing of the water flow through the
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`facility with a water balance, showing operations contributing wastewater to the effluent and
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`treatment units; information on each type of process, operation, or production that is contributing
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`wastewater for each outfall and a description of the treatment the wastewater receives;
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`intermittent flows; potential improvements or equipment upgrades; and effluent characteristics
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`based on quantitative data. 40 C.F.R. § 122.21(g).
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`35.
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`All permittees have a duty to correct mistakes or omissions in a permit application
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`by promptly submitting relevant facts or information. 40 C.F.R. § 122.41(8); 30 Tex. Admin.
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`Code § 305.125(19).
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`36.
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`All samples and measurements taken for the purpose of monitoring compliance
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`with NPDES permit requirements shall be representative of the monitored activity. If a permittee
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`monitors any pollutant more frequently than required by permit, the results of such monitoring
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`shall be included in the calculation and reporting of the data submitted to the permitting
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`authority. 40 C.F.R. §§ 122.41(j)(1) and (l)(4)(ii); see 30 Tex. Admin. Code § 305.125(11)(A).
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`37.
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`Permittees shall report all instances of noncompliance with permit conditions
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`within the time frames established under 40 C.F.R. §§ 122.41(l)(6)-(7); see 30 Tex. Admin. Code
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`§§ 305.125(9) and 305.125(12).
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`38.
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`Section 309(b) of the CWA, 33 U.S.C. § 1319(b), authorizes commencement of a
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`civil action for appropriate relief, including a permanent or temporary injunction, when any
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`person is in violation of any permit condition or limitation in an NPDES permit issued pursuant
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`to Section 402 of the CWA, 33 U.S.C. § 1342, including state permits.
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`39.
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`Pursuant to Section 309(d) of the CWA, 33 U.S.C. § 1319(d), as amended by the
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`Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. § 2461 note, the Debt
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`Collection Improvement Act of 1996, 31 U.S.C. § 3701 note, and the Federal civil Penalties
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`Inflation Adjustment Act Improvements Act of 2015, Pub. L. No. 114-74 § 701, 129 Stat, 584,
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`599-60, and as provided in 40 C.F.R. Part 19, any person who violates any permit condition or
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`limitation in an NPDES permit issued pursuant to Section 402 of the CWA, 33 U.S.C. § 1342,
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`including state permits, shall be subject to a civil penalty of up to $32,500 per day for each such
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`violation occurring after March 15, 2004 through January 12, 2009, up to $37,500 per day for
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`each such violation occurring after January 12, 2009 through November 2, 2015, and up to
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`$56,460 for each such violation occurring after November 2, 2015, and assessed on or after
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`December 23, 2020.
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`1. Enforcement under the Texas Water Code
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`40.
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`Section 7.101 of the Texas Water Code states that, “A person may not cause,
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`suffer, allow, or permit a violation of a statute within the commission’s jurisdiction or a rule
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`adopted or an order or permit issued under such a statute.” Tex. Water Code § 7.101.
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`41.
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`Section 7.102 of the Texas Water Code states, in pertinent part: “A person who
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`causes, suffers, allows, or permits a violation of a statute, rule, order, or permit relating to any …
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`matter within the commission’s jurisdiction to enforce, other than violations of [chapters not
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`relevant here], shall be assessed for each violation a civil penalty not less than $50 nor greater
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`than $25,000 for each day of each violation as the court or jury considers proper. Each day of a
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`continuing violation is a separate violation.” Tex. Water Code § 7.102.
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`42.
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`Section 7.032 of the Texas Water Code states, in pertinent part: “The executive
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`director [of the TCEQ] may enforce a commission rule or a provision of a permit issued by the
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`commission by injunction or other appropriate remedy.” Tex. Water Code § 7.032.
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`C.
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`CLEAN AIR ACT
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`43.
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`Title I of the CAA requires EPA to establish emission standards for “hazardous
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`air pollutants” (“HAPs”) in accordance with Section 112 of the CAA, 42 U.S.C. § 7412. These
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`standards are collectively referred to as the National Emissions Standards for Hazardous Air
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`Pollutants and are commonly referred to as “NESHAPs.” The CAA establishes a technology-
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`based control program (i.e., based on Maximum Achievable Control Technology, or “MACT”)
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`to reduce stationary source emissions of hazardous air pollutants (“HAPs”). See CAA
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`Section 112(d), 42 U.S.C. § 7412(d).
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`44.
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`The level of control mandated by the CAA for NESHAPs is:
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`… the maximum degree of reduction in emissions of the [HAP] … that the
`Administrator, taking into consideration the cost of achieving such emission
`reduction, and any nonair quality health and environmental impacts and energy
`requirements, determines is achievable for new or existing sources in the category
`or subcategory to which such emission standard applies….
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`CAA § 112(d)(2), 42 U.S.C. § 7412(d)(2). The NESHAP emissions standards can include the
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`application of measures, processes, methods, systems or techniques including process changes,
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`control equipment, design, work practice or operational changes, or a combination of all of the
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`above.
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`1. The Benzene Waste Operations NESHAP – 40 C.F.R. Part 61, Subpart FF
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`45.
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`Benzene is listed as a HAP under Section 112(b) of the CAA, 42 U.S.C.
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`§ 7412(b). Benzene is a naturally occurring constituent of petroleum products and petroleum
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`wastes. It is a known carcinogen and is highly volatile. In March 1990, EPA promulgated the
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`NESHAP for Benzene Waste Operations applicable to benzene-containing wastes (“BWON”).
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`The benzene regulations are set forth at 40 C.F.R. Part 61, Subpart FF. The TCEQ has received
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`authorization from EPA to administer the BWON program in the State of Texas.
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`46.
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`Pursuant to the BWON, affected facilities are required to tabulate the total annual
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`benzene (“TAB”) content in their wastewater. If the TAB is over 10 megagrams, the facility
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`is required to elect a control option that will require the control of all waste streams, or
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`control of select waste streams. 40 C.F.R. § 61.342(a)-(f). Facilities that elect the control
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`option set forth at 40 C.F.R. § 61.342(c) must manage and treat all facility waste streams
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`with a flow-weighted annual benzene concentration of 10 parts per million (ppmw) or greater
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`in accordance with 40 C.F.R. §§ 61.343 - 61.348, except that up to 2 megagrams
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`(approximately 2.2 tons)1 per year (Mg/yr) of such waste streams may be chosen for
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`exemption from such requirements. This control option is commonly referred to as the “2 Mg
`
`
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`1 A megagram, or metric ton, is equal to 2204.6 pounds or approximately 1.1 U.S. tons.
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`Case 1:21-cv-00516-MJT Document 1 Filed 10/13/21 Page 14 of 76 PageID #: 14
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`Option.”
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`2. Miscellaneous Organic Chemical Manufacturing NESHAP – 40 C.F.R. Part 63,
`Subpart FFFF
`
`47.
`
`On November 10, 2003, EPA promulgated the NESHAP for Miscellaneous
`
`
`
`Organic Chemical Manufacturing (“MON”). The regulations are set forth at 40 C.F.R. Part 63,
`
`Subpart FFFF. The MON establishes emission limits and work practice standards for new and
`
`existing miscellaneous organic chemical manufacturing process units, wastewater treatment and
`
`conveyance systems, transfer operations, and associated ancillary equipment.
`
`48.
`
`The MON applies to miscellaneous organic chemical process units (MCPUs)
`
`when: (a) the MCPU is located at, or part of a facility that is a major source of HAP emissions as
`
`defined in Section 112(a) of the CAA, 42 U.S.C. § 7412(a); (b) the MCPU produces material or
`
`a family of materials which includes, but is not limited to, organic chemicals classified using the
`
`1997 version of NAICS Code 325; and (c) the MCPU is not an affected source or part of an
`
`affected source under another subpart of 40 C.F.R. Part 63. 40 C.F.R. § 63.2435. Existing
`
`sources were required to comply with the MON requirements for existing sources no later than
`
`May 10, 2008.
`
`49. MON standards require that process waste streams must comply with the
`
`requirements of 40 C.F.R. §§ 63.132 - 63.148 and the requirements referenced therein, except as
`
`provided in 40 C.F.R. § 63.2485. 40 C.F.R. Part 63, Subpart FFFF, Table 7.
`
`50.
`
`The MON required existing sources to submit a Notification of Compliance
`
`Status Report (“NOCS”) to EPA by October 7, 2008, detailing all operating scenarios and how a
`
`source will comply with the MON, including the results of emissions profiles, performance tests,
`
`and calculations to demonstrate initial compliance with applicable MON standards. 40 C.F.R.
`
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`Case 1:21-cv-00516-MJT Document 1 Filed 10/13/21 Page 15 of 76 PageID #: 15
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`§ 63.2520(d)(1)-(2). Any process changes or changes in any information submitted in the NOCS
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`must be submitted 60 days prior to the scheduled implementation date of any such change. 40
`
`C.F.R. § 63.2520(e)(10).
`
`51. Whenever any person has violated, or is in violation of, any requirement or
`
`prohibition of CAA Section 112(b), the Administrator is authorized under CAA Section 113(b),
`
`42 U.S.C. § 7413(b), as amended by the Federal Civil Penalties Inflation Adjustment Act of
`
`1990, 28 U.S.C. § 2461 note, the Debt Collection Improvement Act of 1996, 31 U.S.C. § 3701
`
`note, and the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Pub.
`
`L. No. 114-74 § 701, 129 Stat. 584, 599-60, and as provided in 40 C.F.R. Part 19, to initiate a
`
`judicial enforcement action for a permanent or temporary injunction, and/or for a civil penalty of
`
`up to $32,500 per day for each such violation occurring after March 15, 2004 through January
`
`12, 2009, up to $37,500 per day for each violation occurring after January 12, 2009 through
`
`November 2, 2015, and up to $102,638 per day for each violation occurring after November 2,
`
`2015, and assessed on or after December 23, 2020..
`
`3. Enforcement under the Texas Clean Air Act
`
`52.
`
`Section 112(l) of the CAA enables EPA to approve a state program for
`
`implementation and enforcement of the NESHAP program. 42 U.S.C. § 7412(l). As part of its
`
`CAA Title V submission, TCEQ stated that it intended to use the mechanism of incorporation by
`
`reference to adopt Section 112 of the CAA into its regulations. 60 Fed. Reg. 30,444 (June 7,
`
`1995); 61 Fed. Reg. 32,699 (June 25, 1996). On December 6, 2001, EPA promulgated final full
`
`approval of Texas’ operating permits program effective November 30, 2001. 66 Fed. Reg.
`
`63,318. Texas has incorporated by reference 40 C.F.R. Part 63 in 30 Tex. Admin. Code ch. 113,
`
`15
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`Case 1:21-cv-00516-MJT Document 1 Filed 10/13/21 Page 16 of 76 PageID #: 16
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`subch. C. Approval of a state program does not preclude the Administrator from enforcing any
`
`applicable emission standard or requirement under CAA § 112, 42 U.S.C. § 7412(l)(7).
`
`53.
`
`The Texas Clean Air Act is codified at Tex. Health & Safety Code ch. 382. The
`
`purpose of the act is “to safeguard the state’s air resources from pollution by controlling or
`
`abating air pollution and emissions of air contaminants, consistent with the protection of public
`
`health, general welfare, and physical property, including the esthetic enjoyment of air resources
`
`by the public and the maintenance of adequate visibility.” Id. § 382.002(a). The Texas Clean Air
`
`Act is to be “vigorously enforced.” Id. § 382.002(b).
`
`54.
`
`The TCEQ is authorized to issue permits relating to the emission of air
`
`contaminants. Id. § 382.051.2 The TCEQ is also authorized to issue administrative orders, id.
`
`§ 382.023; and to adopt administrative rules under the Texas Clean Air Act, id. § 382.017(a).
`
`55.
`
`Except as authorized by a rule or order of the TCEQ, a person may not cause,
`
`suffer, allow, or permit the emission of any air contaminant or the performance of any activity
`
`that causes or contributes to, or that will cause or contribute to, air pollution in Texas. Tex.
`
`Health & Safety Code § 382.085(a). Likewise, a person may not cause, suffer, allow, or permit
`
`the emission of any air contaminant or the performance of any activity in violation of the Texas
`
`Clean Air Act or of any rule or order of the TCEQ. Id. § 382.085(b).
`
`56.
`
`Pursuant to 30 Tex. Admin. Code § 101.20, a person owning or operating a source
`
`of air contaminants in Texas must comply with standards and conditions established by EPA in
`
`
`
`2 Some TCEQ permits apply to “federal sources” and are styled “Federal Operating Permits.” Id.
`§§ 382.051(a)(3), 382.051(b). Despite this nomenclature, the authority to issue such permits is delegated from the
`Texas Legislature to the TCEQ through a state statute. Id.
`
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`Case 1:21-cv-00516-MJT Document 1 Filed 10/13/21 Page 17 of 76 PageID #: 17
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`Sections 111 and 112 of the Federal Clean Air Act and conditions of any permit issued by the
`
`EPA pursuant to 40 C.F.R § 52.21.
`
`57.
`
`Likewise, pursuant to 30 Tex. Admin. Code § 122.143(4), a person holding an air
`
`permit in Texas must “comply with all terms and conditions codified in the permit and any
`
`provisional terms and conditions required to be included with the permit.” A person holding a
`
`permit, special permit, standard permit, or special exemption must comply with all special
`
`conditions contained in the permit document, pursuant to 30 Tex. Admin. Code § 116.115(c).
`
`58.
`
`Further, “any noncompliance with either the terms or conditions codified in the
`
`permit or the provisional terms and conditions, if any, constitutes a violation of the [Federal
`
`Clean Air Act] and the [Texas Clean Air Act] and is grounds for enforcement action [and other
`
`penalties].” 30 Tex. Admin. Code § 122.143(4).
`
`59. Whenever any person has violated the Texas Clean Air Act (Tex. Health & Safety
`
`Code ch. 382) or the regulations promulgated thereunder, that person is liable to the State for a
`
`civil penalty of “not less than $50 nor greater than $25,000 for each day of each violation as the
`
`court or jury considers proper. Each day of a continuing violation is a separate violation.” Tex.
`
`Water Code § 7.102. The State may also seek injunctive relief to “restrain the violation or threat
`
`of violation,” pursuant to Tex. Water Code § 7.032(b).
`
`GENERAL ALLEGATIONS
`
`60.
`
`The Facility operates various production areas, a cogeneration unit, the Sabine
`
`River Regional Incinerator, and a wastewater treatment facility. PMNA acquired the Facility
`
`from DuPont in April 2019 and continues operations there. The Facility has been operated by
`
`DuPont and PMNA to produce ethylene that is used onsite to manufacture low-density
`
`17
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`Case 1:21-cv-00516-MJT Document 1 Filed 10/13/21 Page 18 of 76 PageID #: 18
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`polyethylene and ethylene copolymers, or is delivered via pipeline for sale to other industrial
`
`users.
`
`61.
`
`The Facility also produces low-density polyethylene polymers and various
`
`specialty polymers at its C, D, and G Units. The Facility’s North American Industrial
`
`Classification (NAICS) Codes are 325110, 325211, and 562211.
`
`62.
`
`In addition, Defendants have o