Case 4:20-cv-02423 Document 1 Filed on 07/09/20 in TXSD Page 1 of 60
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF TEXAS
`HOUSTON DIVISION
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`__________________________________________
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`E. I. DU PONT DE NEMOURS AND
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`COMPANY,
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`Defendant.
`__________________________________________§
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`Civil Action No. _______________
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`UNITED STATES OF AMERICA and
`STATE OF TEXAS,
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`Plaintiffs,
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`v.
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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” or “Defendant”) pursuant to Section 3008(a) and (g) of the Resource Conservation
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`and Recovery Act (“RCRA”), 42 U.S.C. § 6928(a) and (g); the Texas Solid Waste Disposal Act
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`(Tex. Health & Safety Code ch. 361); Section 113(b) of the Clean Air Act (“CAA”), 42 U.S.C.
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`§ 7413(b); the Texas Clean Air Act (Tex. Health & Safety Code ch. 382); Section 311 of the
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`Clean Water Act (“CWA”), 33 U.S.C. § 1321; and Section 7.002 of the Texas Water Code, Tex.
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`Water Code § 7.002, for injunctive relief and the assessment of civil penalties. The violations
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`that are the subject of this complaint have occurred at Defendant’s La Porte facility located at
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`12501 Strang Road, La Porte, Harris County, Texas (the “Facility”).
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`2.
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`The violations that are the subject of this Complaint relate to Defendant’s failure
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`to comply with RCRA and the Texas Solid Waste Disposal Act, and regulations promulgated
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`thereunder, with respect to the generation, treatment, storage, and disposal of hazardous waste at
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`the Facility; Defendant’s failure to comply with regulatory requirements in violation of the CAA
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`and the Texas Clean Air Act, and regulations promulgated thereunder; and Defendant’s failure to
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`comply with regulatory requirements in violation of the CWA and regulations promulgated
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`thereunder.
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`3.
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`As a result of Defendant’s failure to comply with federal and state laws and
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`regulations, excess hazardous air pollutants and hazardous wastes have been and are being
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`emitted, discharged or released into the environment from Defendant’s Facility. These
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`hazardous air pollutants and hazardous wastes, and some of their harmful effects, include:
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`carbamate, which is toxic to fish, aquatic invertebrates, and mammals and highly toxic to insects;
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`methylene chloride, which is a carcinogen; methomyl, which is highly toxic to fish, birds, and
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`mammals; methyl isocyanate, which is toxic to wildlife; and volatile organic compounds
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`(“VOCs”), which contribute to the formation of ground-level 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)(1) of RCRA, 42 U.S.C. § 6928(a)(1); Section 113(b)
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`of the CAA, 42 U.S.C. § 7413(b); and Section 311(b)(7)(E) and (n) of the CWA, 33 U.S.C.
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`§ 1321(b)(7)(E) and (n). This Court has supplemental jurisdiction over the state law claims
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`pursuant to 28 U.S.C. § 1367.
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`5.
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`This Court has personal jurisdiction over the Defendant because Defendant’s
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`Facility is located in Harris County, Texas, meaning it is presently within the jurisdictional
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`boundaries of the United States District Court for the Southern District of Texas, as established
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`by Congress under 28 U.S.C. § 124(b).
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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)-(c) and
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`1395(a); Section 3008(a)(1) of RCRA, 42 U.S.C. § 6928(a)(1); Section 113(b) of the CAA, 42
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`U.S.C. § 7413(b); and Section 311(b)(7)(E) and (n) of the CWA, 33 U.S.C. § 1321(b)(7)(E) and
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`(n), because the violations alleged in the Complaint are alleged to have occurred in, and
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`Defendant conducts business in, this Judicial District.
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`NOTICE
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`7.
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`Notice was given to the State of Texas (“State”) 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) and Section
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`113(b) of the CAA, 42 U.S.C. § 7413(b). Texas is a co-plaintiff in this action.
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`PARTIES
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`8.
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`At all times relevant to this action, DuPont is and has been a corporation
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`organized under the laws of the State of Delaware and doing business in Texas.
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`9.
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`At all times relevant to this action, DuPont is and has been a “person” within the
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`meaning of Section 1004(15) of RCRA, 42 U.S.C. § 6903(15); Section 302(e) of the CAA, 42
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`U.S.C. § 7602(e); Section 502(5) of the CWA, 33 U.S.C. § 1362(5); and Tex. Health & Safety
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`Code §§ 361.003(23) & 382.003(10).
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`10.
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`The United States, on behalf of the EPA, is a Plaintiff in this action.
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`11.
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`The State of Texas, on behalf of the TCEQ, is a Plaintiff in this action.
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`STATUTORY AND REGULATORY FRAMEWORK
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`A. RCRA
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`12.
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`RCRA, 42 U.S.C. § 6901 et seq., was enacted on October 21, 1976, and
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`establishes a comprehensive program to be administered by the Administrator of EPA
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`(“Administrator”), regulating the generation, transportation, treatment, storage, and disposal of
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`hazardous waste.
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`13.
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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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`14.
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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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`15.
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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. 48,300; see also 40 C.F.R. § 272.2201. There have
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`been subsequent authorized revisions to the base program.
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`16.
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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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`17.
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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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`18.
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`Pursuant to 30 Tex. Admin. Code § 335.1(73) [40 C.F.R. § 261.3], a solid waste,
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`as defined in 30 Tex. Admin. Code § 335.1(146) [40 C.F.R. § 261.2], is “hazardous waste” if it is
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`“identified or listed as a hazardous waste by the administrator of the United States Environ-
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`mental Protection Agency in accordance with the federal Solid Waste Disposal Act, as amended
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`by the Resource Conservation and Recovery Act, 42 United States Code, §§6901 et seq.”
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`19.
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`Pursuant to 40 C.F.R. § 261.3, a solid waste is a hazardous waste if it meets any
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`of the following criteria listed in 40 C.F.R. § 261.3(a)(2)(i)-(iv): generally, if it exhibits any of
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`the characteristics of hazardous waste (ignitability, corrosivity, reactivity, or toxicity); if it is
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`listed; or if it is a mixture of a solid waste and one or more hazardous waste(s) and has not been
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`excluded from regulation as a hazardous waste under 40 C.F.R. § 261.4(b).
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`20.
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`Pursuant to 40 C.F.R. § 261.3(a)(2)(iv) and (b)(2), if a listed hazardous waste
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`(other than a waste listed solely because it exhibits the characteristic of ignitability, corrosivity,
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`and/or reactivity) is mixed with a solid waste, the resulting mixture is a listed hazardous waste.
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`21.
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`Pursuant to 40 C.F.R. § 261.32, “K156” waste, which is defined as “[o]rganic
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`waste (including heavy ends, still bottoms, light ends, spent solvents, filtrates, and decantates)
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`from the production of carbamates and carbamoyl oximes” is a hazardous waste.
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`22.
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`Pursuant to 40 C.F.R. § 261.32, “K157” waste, which is defined as “[w]astewater
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`(including scrubber waters, condenser waters, washwaters, and separation waters) from the
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`production of carbamates and carbamoyl oximes,” is a hazardous waste.
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`23.
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`Pursuant to 40 C.F.R. § 261.31, “F002” waste, which includes the spent
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`halogenated solvent methylene chloride, is a hazardous waste.
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`24.
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`Pursuant to 40 C.F.R. § 261.31, “F003” waste, which includes the spent non-
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`halogenated solvent methanol, is a hazardous waste.
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`25.
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`Pursuant to 40 C.F.R. § 261.21, a solid waste exhibits the hazardous characteristic
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`of ignitability if it is a liquid (other than an aqueous solution containing less than 24 percent
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`alcohol by volume) and has a flash point less than 60º C (140º F).
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`26.
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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 30 Tex. Admin Code ch. 335 (“Industrial Solid Waste and
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`Municipal Hazardous Waste”), subject to certain exceptions not relevant here.
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`27.
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`Pursuant to 30 Tex. Admin. Code § 335.61 [40 C.F.R. § 262.10(g)], a generator of
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`hazardous waste must follow the requirements prescribed in Subchapter C, Chapter 335, Part 1,
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`Title 30, of the Texas Administrative Code [40 C.F.R. Part 262].
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`28.
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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.
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`29.
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`The regulations at 40 C.F.R. Part 264 (Standards for Owners and Operators of
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`Hazardous Waste Treatment, Storage and Disposal Facilities) apply to facilities that seek and
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`obtain an operating permit for treatment, storage or disposal of hazardous waste. The regulations
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`at 40 C.F.R. Part 265 (Interim Status Standards for Owners and Operators of Hazardous Waste
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`Treatment, Storage and Disposal Facilities) apply to facilities that are in operation at the time the
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`permit requirement is triggered (e.g., when the program was first put in place or when new units
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`or wastes become regulated through newly promulgated regulations) and initiate the permit
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`application process. 40 C.F.R. Part 265 establishes the operating requirements that apply during
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`the period of time between the permit application and permit issuance which, especially when
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`the permit program was first established, could be a significant period of time given the back-log
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`of applicants and the complexity of the permit process. The regulatory classification for facilities
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`governed by Part 265 is known as “interim status.” The Part 265 regulations also apply to those
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`facilities that were eligible for interim status but failed to take the steps necessary to obtain it. In
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`most respects, the regulations in Parts 264 and 265 are similar, if not identical.
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`30.
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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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`31.
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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 $75,867 per day for each violation occurring after November 2, 2015, and
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`assessed on or after January 13, 2020.
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`32.
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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. Clean Air Act
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`33.
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`Title I of the CAA establishes a technology-based control program (i.e., based on
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`Maximum Achievable Control Technology, or “MACT”) to reduce stationary source emissions
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`of hazardous air pollutants (“HAPs”). See CAA Section 112(d), 42 U.S.C. § 7412(d).
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`34.
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`Section 112 of the CAA, 42 U.S.C. § 7412, directs EPA to promulgate standards
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`to reduce emissions of listed HAPs. These standards are collectively referred to as the National
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`Emission Standards for Hazardous Air Pollutants or “NESHAP.”
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`35.
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`The level of control mandated by the CAA for the NESHAP is MACT or:
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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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`See CAA Section 112(d)(2), 42 U.S.C. § 7412(d)(2). The MACT 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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`36.
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`Federal NESHAP provisions for general and specific source categories are found
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`in 40 C.F.R. Part 63.
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`37.
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`Section 112(l) of the CAA enables EPA to approve a state program for
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`implementation and enforcement of the NESHAP program. 42 U.S.C. § 7412(l). As part of its
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`CAA Title V submission, TCEQ stated that it intended to use the mechanism of incorporation by
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`reference to adopt Section 112 of the CAA into its regulations. 60 Fed. Reg. 30,444 (June 7,
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`1995); 61 Fed. Reg. 32,699 (June 25, 1996). On December 6, 2001, EPA promulgated final full
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`approval of Texas’ operating permits program effective November 30, 2001. 66 Fed. Reg.
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`63,318. Texas has incorporated by reference 40 C.F.R. Part 63 in 30 Tex. Admin. Code ch. 113,
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`subch. C. EPA retains concurrent authority to enforce any applicable emission standard or
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`requirement under CAA Section 112. 42 U.S.C. § 7412(l)(7).
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`Pesticide Active Ingredient Production MACT
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`38.
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`In 1999, EPA promulgated the final National Emissions Standards for Organic
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`Hazardous Air Pollutants for Pesticide Active Ingredient Production (“PAI MACT”), codified at
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`40 C.F.R. Part 63, Subpart MMM. 64 Fed. Reg. 33,589 (June 23, 1999). TCEQ incorporates by
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`reference the PAI MACT standards at 30 Tex. Admin. Code § 113.700. The PAI MACT
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`standards are designed to reduce HAP emissions from existing and new facilities that
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`manufacture pesticide active ingredients (“PAI”) that are used in insecticides, herbicides, and
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`fungicides. Pursuant to 40 C.F.R. § 63.1361, a PAI is any material that: (1) is an active
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`ingredient within the meaning of Section 2(a) of the Federal Insecticide, Fungicide, and
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`Rodenticide Act (“FIFRA”), 7 U.S.C. § 136(a); (2) is used to produce an insecticide, herbicide,
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`or fungicide end use pesticide product; (3) consists of one or more organic compounds; and (4)
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`must be labeled in accordance with 40 C.F.R. Part 156 for transfer, sale, or distribution (as
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`required under FIFRA). Sources regulated by the PAI MACT are those with the potential to emit
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`over 10 tons per year (“tpy”) of any particular HAP or 25 tpy of any combination of HAPs. 40
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`C.F.R. §§ 63.1360 and 63.2. Covered PAI process units include the processing equipment, waste
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`management units, heat exchange systems, cooling towers, associated storage vessels, and
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`connected piping and related components that are assembled to manufacture an intended product.
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`40 C.F.R. §§ 63.1360(a), (f) and 63.1361.
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`39.
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`The PAI MACT defines “process” as “a logical grouping of processing equipment
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`which collectively function to produce a product. . . [including] all, or a combination of, reaction,
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`recovery, separation, purification, treatment, cleaning, and other activities or unit operations
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`which are used to produce a PAI or integral intermediate.” 40 C.F.R. § 63.1361.
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`40.
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`The PAI MACT defines a “process vent” as “a point of emission from processing
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`equipment to the atmosphere or a control device. The vent may be the release point for an
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`individual unit operation, or it may be the release point for emission streams from multiple unit
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`operations that have been manifolded together into a common header. Examples of a process
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`vent include … vents on condensers used for product recovery….” 40 C.F.R. § 63.1361.
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`41.
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`The PAI MACT requires that existing sources subject to the PAI MACT control
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`HAP emissions from their process vents by complying with the provisions at 40 C.F.R.
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`§ 63.1362(b).
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`42.
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`Section 63.1362(b) of the PAI MACT requires organic HAPs from an existing
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`affected source to choose one of two compliance options: (a) the uncontrolled organic HAP
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`emission rate shall not exceed 0.15 Megagrams per year (“Mg/yr”) from the sum of all process
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`vents within a process (40 C.F.R. § 63.1362(b)(2)(i)); or (b) organic HAP emissions from
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`process vents must meet applicable emissions standards as set forth in 40 C.F.R.
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`§ 63.1362(b)(2)(ii) through (iv). These emissions standards include percent-by-weight emissions
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`reductions and the option of sending process vents to a flare that meets the requirements of 40
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`C.F.R. § 63.11(b). 40 C.F.R. § 63.1362(b)(2)(ii).
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`43.
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`For percent-by-weight reductions of uncontrolled HAP emissions, the PAI MACT
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`requires that uncontrolled organic HAP emissions from a process vent be reduced by 98% by
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`weight or greater if the flow-weighted average flow-rate for the vent as calculated in Equation 1
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`of 40 C.F.R. § 63.1362(b)(2)(ii)(A) is less than or equal to that calculated in Equation 2 of that
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`provision, unless it can be demonstrated that the control device cannot meet a 98% destruction
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`efficiency. 40 C.F.R. § 63.1362(b)(2).
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`44.
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`The PAI MACT also establishes standards for emissions of hydrochloric acid
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`(“HCl”) and chlorine (“Cl2”) from existing source process vents. For each HCl or Cl2 process,
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`the owner or operator must choose to comply with one or the other of two options: (A) The sum
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`of all HCl and Cl2 emissions from all process vents and HCl emissions from the combustion of
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`halogenated process vent emissions from all sources within a process shall not exceed 6.8 Mg/yr;
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`or (B) uncontrolled HCl and Cl2 emissions, including the HCl emissions from the combustion of
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`halogenated process vent emissions, from the sum of all process vents within a process must be
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`reduced by at least 94% or to outlet concentrations of no more than 20 parts per million by
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`volume (“ppmv”). 40 C.F.R. § 63.1362(b)(3).
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`45.
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`The PAI MACT, at 40 C.F.R. § 63.1362(d), requires owners or operators of an
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`affected source to meet wastewater requirements set forth in 40 C.F.R. §§ 63.132-63.147, except
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`as differentiated by 40 C.F.R. § 63.1362(d). As set forth in 40 C.F.R. § 63.132(a)(1), a facility is
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`required to determine which wastewater streams need to be controlled for compounds set forth in
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`Table 9 of the provision. 40 C.F.R. Part 63, Table 9. As part of that determination, a facility must
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`determine whether a wastewater stream is a “Group 1” or “Group 2” wastewater stream
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`following the procedures set forth in 40 C.F.R. § 63.132(c) and (e).
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`46. When an owner or operator uses a series of treatment processes to comply with
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`emissions limitations for a Group 1 wastewater stream, the owner or operator must comply with
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`the performance standards for treatment processes set forth at 40 C.F.R. § 63.138(a)(7). Those
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`requirements include the following: each treatment process must meet the applicable
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`requirements of §§ 63.133 – 63.137; the owner or operator must identify and keep records of the
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`combination of treatment processes in a document called a Notification of Compliance Status
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`(“NOCS”); and the owner or operator must conduct a performance test or design evaluation to
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`determine compliance across the entire process. 40 C.F.R. § 63.138(a)(7)(i)(A)-(D). “If a
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`performance test is conducted, the ‘inlet’ shall be the point at which the wastewater stream or
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`residual enters the first treatment process, or the vented gas stream enters the first control device.
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`The ‘outlet’ shall be the point at which the treated wastewater stream exits the last treatment
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`process, or the vented gas stream exits the last control device.” 40 C.F.R. § 63.138(a)(7)(i)(D).
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`47.
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`An owner or operator of a Group 1 wastewater stream or residual may send the
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`stream off-site for treatment if it complies with the requirements of 40 C.F.R. § 63.132(g)(1).
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`These requirements include restrictions on shipping a wastewater stream or residual off-site
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`unless the transferee has submitted to EPA a written certification that the transferee will manage
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`and treat any Group 1 wastewater stream or residual removed from a Group 1 wastewater stream
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`received from a source subject to the requirements of the PAI MACT. 40 C.F.R. § 63.132(g).
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`48.
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`Because the PAI MACT allows a facility several options for compliance with the
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`various emissions standards, sources subject to the PAI MACT must submit a NOCS to inform
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`the relevant authorities of how a facility has chosen to comply with the PAI MACT. 40 C.F.R.
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`§§ 63.1368(a), (f) and 63.9(h). The NOCS must include: the methods used to determine
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`compliance; the results of any performance tests; the methods that will be used for determining
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`continuing compliance; the type and quantity of HAPs emitted by the source; a description of the
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`air pollution control equipment (or method) for each emission point (including each control
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`device/method) for each HAP, as well as the control efficiency; and a statement by the owner or
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`operator “as to whether the source has complied with the relevant standard or other
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`requirements.” 40 C.F.R. § 63.9(h)(2)(i)(A)-(G). Additionally, the NOCS must include “the
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`results of any applicability determinations, emissions calculations, or analyses used to identify
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`and quantify HAP emissions from the affected source,” as well as the information used to
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`demonstrate compliance, such as emissions profiles, performance tests, engineering analysis,
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`design evaluations, or calculations. 40 C.F.R. § 63.1368(f)(1)-(2).
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`Polyether Polyols Production MACT
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`49.
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`In 1999, EPA finalized MACT standards for the polyether polyols production
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`(“PPP”) source category. 64 Fed. Reg. 29,420 (June 1, 1999). Generally, polyether polyols are
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`used in making lubricants, adhesives, sealants, cosmetics, soaps, and feedstock polymers for
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`urethanes production. The final standards, set forth in 40 C.F.R. Part 63, Subpart PPP, regulate
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`HAP emissions from process units and emissions points at a PPP production site, and include
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`emissions standards for storage vessels, process vents, wastewater, and heat exchangers. TCEQ
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`incorporates by reference the PPP MACT standards at 30 Tex. Admin. Code § 113.730. The PPP
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`MACT requirements also contain procedures and methods for determining how the regulations
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`apply to the facility, along with recordkeeping and reporting requirements; startup, shutdown,
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`and malfunction requirements; and other procedural rules common to all source categories
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`regulated under the generic MACT standards.
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`Hazardous Organic NESHAP
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`50.
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`On April 22, 1994, EPA issued the Hazardous Organic NESHAP (commonly
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`referred to as the “HON”) to regulate the emissions of certain organic hazardous air pollutants
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`from synthetic organic chemical manufacturing industry (“SOCMI”) production. The HON was
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`issued as subparts F, G, H, and I in 40 C.F.R. Part 63. See 59 Fed. Reg. 19,402. TCEQ
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`incorporates by reference the HON at 30 Tex. Admin. Code §§ 113.110, 113.120, 113.130 and
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`113.140.
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`51.
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`The HON applies to SOCMI process units that: (1) are part of a major source as
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`defined in Section 112(a) of the CAA, 42 U.S.C § 7412(a); (2) produce as a primary product a
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`SOCMI chemical listed in 40 C.F.R. § 63, Subpart F, Table 1; and (3) use as a reactant or
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`manufacture as a product, by-product, or co-product one or more of the organic HAPs listed in
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`40 C.F.R. § 63, Subpart F, Table 2. 40 C.F.R. § 63.100(b). For the SOCMI source category under
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`the HON, a source comprises all SOCMI chemical manufacturing process units that are subject
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`to the HON and are located at contiguous or adjoining properties under common control. 40
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`C.F.R. § 63.101(b) (see the definitions of “Source” and “Plant Site”). Regulated emission points
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`under the HON include, among other things, process vents. 40 C.F.R.§ 63.100(e).
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`52.
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`Under the HON, there are two separately defined types of process vents. A
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`“Group 1” process vent is a process vent with a flow rate greater than or equal to 0.005 standard
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`cubic meters per minute, an organic HAP concentration greater than or equal to 50 parts per
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`million by volume (ppmv), and a Total Resource Effectiveness (“TRE”) index value less than or
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`equal to 1.0. 40 C.F.R. § 63.111(b). “Group 2” process vents are vents that are not Group 1
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`process vents. Id. Facilities have the option of leaving process vents “ungrouped” so long as such
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`ungrouped vents comply with the HON’s process vent control requirements set forth at Section
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`63.113(a). See 40 C.F.R. § 63.113(h).
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`53.
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`Gas from Group 1 or ungrouped process vents must either: (1) be reduced by 98%
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`or be controlled to 20 ppmv, whichever is less stringent; (2) be controlled by a flare; or (3)
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`achieve and maintain a TRE index value greater than 1.0. 40 C.F.R. § 63.113(a).
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`54. Whenever any person has violated, or is in violation of, any requirement or
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`prohibition of CAA Section 112(b), the Administrator is authorized under CAA Section 113(b),
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`42 U.S.C. § 7413(b), as amended by the Federal Civil Penalties Inflation Adjustment Act of
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`1990, 28 U.S.C. § 2461 note, the Debt Collection Improvement Act of 1996, 31 U.S.C. § 3701
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`note, and the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Pub.
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`L. No. 114-74 § 701, 129 Stat. 584, 599-60, and as provided in 40 C.F.R. Part 19, to initiate a
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`judicial enforcement action for a permanent or temporary injunction, and/or for a civil penalty of
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`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
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`November 2, 2015, and up to $101,439 per day for each violation occurring after November 2,
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`2015, and assessed on or after January 13, 2020.
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`55. Whenever any person has violated the Texas Clean Air Act (Tex. Health & Safety
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`Code ch. 382) or the regulations promulgated thereunder, that person is liable for a civil penalty
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`of “not less than $50 nor greater than $25,000 for each day of each violation as the court or jury
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`considers proper. Each day of a continuing violation is a separate violation.” Tex. Water
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`Code § 7.102.
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`C. Clean Water Act
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`Spill Prevention, Control, and Countermeasure Plan
`
`56.
`
`Pursuant to Section 311(j)(1)(C) of the CWA, 33 U.S.C. § 1321(j)(1)(C), the
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`President shall issue regulations “establishing procedures, methods, and equipment and other
`
`requirements for equipment to prevent discharges of oil … from onshore … facilities, and to
`
`contain such discharges….”
`
`57.
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`Initially by Executive Order 11,548, 35 Fed. Reg. 11,677 (July 22, 1970), and
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`most recently by Section 2(b)(1) of Executive Order 12,777, 56 Fed. Reg. 54,757 (Oct. 22,
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`1991), the President delegated to EPA the authority under Section 311(j)(1)(C) of the CWA, 33
`
`U.S.C. § 1321(j)(1)(C), to issue the regulations referenced in the preceding Paragraph for non-
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`transportation-related onshore facilities.
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`58.
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`Pursuant to Section 311(j)(1)(C) of the CWA, 33 U.S.C. § 1321(j)(1)(C), EPA
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`promulgated Spill Prevention, Control, and Countermeasure Plan (“SPCC Plan”) regulations,
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`codified at 40 C.F.R. Part 112, which establish requirements for procedures, methods, and
`
`equipment to prevent discharges of oil and hazard