United States v. E.I. Du Pont De Nemours & Co., Civil Action No. 2:14-25143

• Decision Date: 24 April 2015
• Docket Number: Civil Action No. 2:14-25143
• Court: U.S. District Court — Southern District of West Virginia
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. E.I. Du PONT de NEMOURS AND COMPANY Defendant.

UNITED STATES OF AMERICA, Plaintiff,
v.
E.I. Du PONT de NEMOURS AND COMPANY Defendant.

Civil Action No. 2:14-25143

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA AT CHARLESTON

April 24, 2015

MEMORANDUM OPINION AND ORDER

Pending are the United States' unopposed motions (1) to enter the proposed consent decree, filed October 17, 2014, and (2) to substitute the proposed consent decree, filed November 12, 2014.

In seeking to substitute the proposed consent decree with a revised copy submitted November 12, 2014, the United States seeks merely to correct a single typographical error. In paragraph 64 on page 26, there is an incorrect reference to an "SLM Unit"; "SLM" should instead be "SAR" Unit. The error was noticed by DuPont's counsel, who has not appeared herein, but who "contacted the United States' counsel and identified . . . [the] typographical error . . . ." (Mot. at 1). It is ORDERED that the motion to substitute the proposed consent decree be, and hereby is, granted.

Page 2

I.

A. The Underlying Conduct

E.I. DuPont de Nemours and Company ("DuPont") operates a chemical production facility in Belle, West Virginia ("Belle Facility"). The Belle Facility is located on a plot of approximately 700 acres of land along the Kanahwa River. It is roughly eight miles east of Charleston. Approximately 50 individuals live within 0.2 miles of the Belle Facility, which is located in an area that consists of industrial, commercial, and residential land use. The Belle Facility produces, processes, handles, stores, and disposes of "hazardous substances and extremely hazardous substances" within the meaning of Section 112(r)(1) and (3) of the Clean Air Act ("Act"). (Compl. ¶ 42).

During all relevant times, the Belle Facility had eight regulated processes under title 40 of the Code of Federal Regulations, which deals with environmental protection. For these processes, DuPont was required to submit a risk management plan ("RMP") to certain federal regulators. Two of the regulated processes at the Belle Facility were the Sulfuric Acid

Page 3

Recovery unit ("SAR Unit") and the Phosgene operations ("Phosgenation Process") at the Small Lots Manufacturing unit ("SLM Unit"). The SAR Unit and the Phosgenation Process at the SLM Unit ceased operations in 2010 and 2011, respectively.

This action centers primarily on three releases of toxic substances. First, on January 17, 2010, a production unit at the Belle Facility was restarted after extended maintenance. Methyl chloride was one substance produced in a reaction vessel in the unit. The substance was accidentally released when it flowed through a blown ruptured disc. It also escaped from the weep hole in a vent line which allowed toxic gases to accumulate into an unsafe location in the building where the process was housed. The release triggered an alarm designed to notify Belle Facility operators of an over pressurization. The alarm was activated in the Belle Facility's control room. The methyl chloride release and alarm, however, continued for five days from and after January 17, 2010, before the defendant adequately responded to it. The defendant was aware of the release by 5:00 a.m. on January 22, 2010. It did not notify the West Virginia Department of Environmental Protection Spill Hotline until 2:15 p.m. Approximately 2,045 pounds of methyl chloride escaped. The unit continues to operate.

Page 4

Second, in the early morning hours on January 23, 2010, a release of oleum, a concentrated form of sulfuric acid produced by the SAR unit, occurred. According to the United States' complaint, "Oleum is an extremely corrosive substance that causes severe eye and skin burns and is deadly if inhaled. It is reactive with metals and may react to form explosive hydrogen gas." (Compl. ¶ 64). Over the passage of time, the oleum corroded piping in the SAR Unit and created a hole. The substance then escaped through the hole. Workers discovered the resulting vapor cloud shortly after 7:00 a.m. on January 23, 2010. Approximately 22 pounds of oleum was released into the environment. The SAR unit process is said not to have been restarted after this event.

An oleum leak had previously occurred at the Belle Facility on January 27, 2009. That incident resulted in a company recommendation to conduct regular maintenance piping inspections. The recommendation was not carried out for the line that leaked. DuPont has no records of performing visual external inspections or thickness testing of that piping.

Third, on January 23, 2010, phosgene was released. Phosgene is one of the raw materials used in the SLM Unit to produce five isocyanate intermediate products for

Page 5

pesticides. The phosgene was received and stored in 2000 pound cylinders. The United States' complaint alleges as follows:

Phosgene is an industrial toxin once used as a chemical weapon in World War I. Phosgene is a severe pulmonary irritant and exposure [that] causes a buildup of fluid in the lungs that may not materialize until hours after exposure. Phosgene is highly toxic because it contains a lethal concentration equal to or less than 200 parts per million ("ppm") in air when administered via inhalation for one hour. A lethal concentration of phosgene is five ppm for one hour of exposure. Exposure to 20 ppm for five minutes may be fatal.

(Compl. ¶ 75).

The subject release involved at least two pounds of phosgene. The cause of the release was the failure of a braided stainless steel transfer hose in the SLM Unit. The transfer hose was connected to a one-ton cylinder of phosgene. The phosgene cylinders were stored in a single story, partially walled structure called the phosgene shed, which was open to the atmosphere. Inside each hose was a liner made of Teflon.

During use, the Phosgene cylinders were connected to other equipment with the transfer hoses. As one cylinder empties, an alarm sounds and the operator closes the valves to the empty cylinder and opens the valves to a second full cylinder. The transfer hoses connected to the empty cylinder are then purged of the Phosgene with nitrogen.

Page 6

On the day prior to the phosgene release, operators were experiencing flow problems with one of the cylinders. They began switching between the cylinders to avoid disruption to the chemical process. During the course of switching cylinders, the valves were closed on a partially full cylinder. Unfortunately, the transfer hose was not purged. This allowed pressure to build as the liquid phosgene was undergoing thermal expansion due to ambient air temperature increase.

Consequently, sometime between 1:45 p.m. and 2:00 p.m. on January 23, 2010, a worker was inspecting one of the cylinders when the pressurized transfer hose suddenly burst. The worker was sprayed across the chest and face with a lethal dose of phosgene. Another worker was exposed to the phosgene gas and a third was potentially exposed. The worker receiving the fatal dose was transported to a local hospital. His condition progressively deteriorated and he perished the next day.

The phosgene release occurred approximately 6 hours after the oleum release. It happened approximately 21 hours after DuPont contends that it learned of the methyl chloride release. DuPont's standard operating procedure ("SOP") required replacement of phosgene hoses every two months. The failed transfer hose had not been replaced for over 7 months.

Page 7

A recommendation from experts employed by DuPont, dating to 1987, urged the use of Monel, a strong metal alloy lined hose, for phosgene service. That recommendation appears to have been ignored. DuPont had other opportunities to prevent an accidental phosgene release. For example, in 2004, it developed a plan to fully enclose the phosgene shed and equip it with a scrubber by 2005. This plan also was apparently ignored. In 2011, DuPont shut down the phosgene operation at the Belle Facility.

Between January 25, 2010, and September 2011, the Occupational Safety and Health Administration ("OSHA"), the United States Chemical Safety Board ("CSB") and the Environmental Protection Agency ("EPA") investigated the circumstances that led to the methyl chloride, oleum and phosgene releases. The CSB found that the releases were preventable incidents caused by deficiencies in plant safety management systems relating to maintenance and inspections, alarm recognition and management, accident investigation, emergency response and communications, and hazard recognition. DuPont paid a $43,000 administrative penalty to resolve the OSHA citations it received. EPA also directed DuPont to address certain violations, which it accomplished in December 2011.

Page 8

In addition to the aforementioned incidents, the complaint alleges other misconduct by DuPont at the Belle Facility. At 3:20 a.m., on May 4, 2006, a disc ruptured in the ethyl carbamoyl phosphate process in building 114 at the Belle Facility. Over a period of two to three days, approximately 8,100 pounds of ethyl chloride ("ECl"), a listed hazardous substance with a 100 pound reportable quantity, were vented to the atmosphere. The release migrated off-site. DuPont did not discover the release until over two days later, on May 6, 2006, at 8:00 a.m. Despite that knowledge, it failed to notify the National Response Center ("NRC") of the release until 12:21 p.m. on May 6, 2006.

Second, on December 9, 2006, there were three releases of trimethylamine at 4:30 p.m., 5:45 p.m. and 7:20 p.m., from the methylamine unit at the Belle Facility. Trimethylamine is a listed hazardous substance with a reportable quantity of 100 pounds. Citizens in Charleston complained of odors between 6:00 p.m. and 9:00 p.m. on December...