United States v. E.I. Du Pont De Nemours & Co.
| Decision Date | 18 January 2022 |
| Docket Number | Criminal No. H-21-16 |
| Citation | 580 F.Supp.3d 462 |
| Parties | UNITED STATES of America, v. E.I. DU PONT DE NEMOURS AND CO. and Kenneth J. Sandel, Defendant. |
| Court | U.S. District Court — Southern District of Texas |
John Raymond Lewis, US Department of Justice, Appellate Division, Financial Litigation, U.S. Attorney's Office, Houston, TX, for United States of America.
David Gerger, Ashlee Caligone McFarlane, Gerger Hennessy & McFarlane, Houston, TX, Lily N. Chinn, Baker Botts, San Francisco, CA, Nadira Clarke, Baker Botts, Washinton, DC, Steven P. Solow, Baker Botts, Washington, DC, for Defendant E.I. Du Pont De Nemours and Co.
Amy E. Craig, Miles F. Ehrlich, Ramsey & Ehrlich LLP, Berkeley, CA, David Gerger, Gerger Hennessy & McFarlane, Houston, TX, for Defendant Kenneth J. Sandel.
This prosecution arises from the deaths of four DuPont workers after they were exposed to hazardous gas at the DuPont plant in LaPorte, Texas in November 2014. On January 7, 2021, the grand jury returned a three-count indictment against DuPont and Kenneth Sandel. Counts One and Two alleged knowing violations of the regulations designed to prevent accidental releases. Count Three alleged the negligent release of an extremely hazardous substance. As a result of tolling agreements, limitations reach back to November 7, 2014. DuPont moves to dismiss Count One of the indictment based on the five-year statute of limitations. The court held argument on the motion. Based on the thorough briefs and arguments from all parties and the applicable law, the court dismisses Count One. The reasons are stated below.
The Clean Air Act imposes criminal penalties against: [a]ny person who knowingly violates any requirement or prohibition of ... section 7412 of this title ... including a requirement of any rule, order, waiver, or permit promulgated or approved under such sections. 42 U.S.C. § 7413(c)(1). Congress required the EPA to publish regulations aimed at preventing and mitigating accidental releases of hazardous substances. See 42 U.S.C. § 7412(r)(7). The EPA regulations at issue state:
The owner or operator shall develop and implement safe work practices to provide for the control of hazards during operations such as lockout/tagout; confined space entry; opening process equipment or piping; and control over entrance into a stationary source by maintenance, contractor, laboratory, or other support personnel. These safe work practices shall apply to employees and contractor employees.
40 C.F.R. § 68.69(d) (emphasis added).
Count One alleges that DuPont and Sandel, the Unit Operations Leader of the Insecticide Business Unit, (together, "DuPont") violated 42 U.S.C. § 7413(c)(1) and 42 U.S.C. § 7412(r)(7) by knowingly violating the 40 C.F.R. § 68.69(d) requirement to "implement safe work practices to provide for the control of hazards during operations" at its Insecticide Business Unit in LaPorte. (Docket Entry No. 1 at 7).
Methyl Mercaptan (MeSH) is a toxic, colorless gas with a pungent odor. It is used in large quantities as a raw material in industrial products such as pesticides. The EPA classified MeSH as an extremely hazardous substance under 42 U.S.C. § 11002(a)(2). The indictment alleges that a high concentration of MeSH will result in a quick death by asphyxiation
Count One alleges that DuPont violated § 68.69(d), a regulation promulgated under § 7412(r)(7), "[b]eginning on or about July 2011 and continuing to November 15, 2014," by failing to implement safe work practices to provide for the control of hazards during operations. (Docket Entry No. 1 at 7). The hazards and operations involved draining a MeSH Vent Header in the Insecticide Business Unit of the LaPorte plant. The MeSH Vent Header is a pipe system that carried waste gas to the plant incinerators. The indictment alleges that the MeSH Vent Header was a "hazardous system" under DuPont's corporate standards because it "could contain material that is hazardous on contact or inhalation." (Docket Entry No. 1 at 8).
DuPont created the LaPorte Line Break Procedure, which specified steps for carrying out line breaks. The Line Break Procedure required a qualified employee to prepare a written job plan before opening any hazardous system. The job plan would identify the hazards of the line break, explain how to control them, describe the necessary personal protective equipment, and provide contingency plans. (Docket Entry No. 1 at 5). The Line Break Procedure required a supervisor and other DuPont employees working on the operation to sign off on the job plan and issue a line break permit. (Docket Entry No. 1 at 5).
The indictment alleges that DuPont employees drained valves without following the safe work practices set out in the Line Break Procedure, and that this behavior continued for many years. (Docket Entry No. 1 at 10). In 2011, DuPont installed the NOX Reducing Scrubbed incinerator, a new incinerator for waste gas. The MSH Vent Header carried waste gas to this incinerator. Soon after the new incinerator was installed in 2011, "a dark liquid of unknown composition" accumulated at points in the MeSH Vent Header, which blocked the gas flow. (Docket Entry No. 1 at 10). The indictment alleged that "[Insecticide Business Unit] workers periodically opened drain valves on the MeSH Vent Header and let liquid flow out onto the building floor or into a bucket." (Docket Entry No. 1 at 10). The indictment alleged that the workers did this for several years without any safety review of the practice. (Docket Entry No. 1 at 10).
On February 9, 2014, an operator sent an email to Sandel explaining that workers did not have a "safe and effective way" to drain the MeSH Vent Header on the third floor of the manufacturing building. (Docket Entry No. 1 at 10). The email suggested a process for draining the vent header. The following day, DuPont employees directed the operators to follow the process described in the email. (Docket Entry No. 1 at 10). The indictment alleged that this process violated the Line Break Procedure by instructing workers to "open a drain valve to the atmosphere on a hazardous system without first clearing the system of chemical hazards." (Docket Entry No. 1 at 11). The indictment alleged that Sandel "was responsible for making sure [Insecticide Business Unit] employees took the critical safety steps required by the LaPorte line break procedure and did not release toxic chemicals inappropriately to the environment." (Docket Entry No. 1 at 11). Sandel allegedly knew that the MeSH Vent Header had the potential to contain hazardous gases and that operators "routinely" violated the LaPorte Line Break Procedure. (Docket Entry No. 1 at 11).
Count One alleged that DuPont and Sandel violated the Line Break procedure on February 10, 2014, and November 14 and 15, 2014, when operators drained the MeSH Vent Header without implementing safe work practices. (Docket Entry No. 1 at 10–11). The indictment alleged that "[f]ollowing longstanding [Insecticide Business Unit] practice, no one sought a line break permit or took any safety steps required by the LaPorte line break procedure such as creating a written job plan, isolating the MeSH Vent Header, clearing it of chemical hazards, using respiratory protection, making an announcement over the plant public address system or barricading the area." (Docket Entry No. 1 at 16). In the early hours of November 15, 2014, liquid MeSH escaped through open values and vaporized into the air. Four DuPont workers died from asphyxiation
and acute exposure.
DuPont argues that neither the statutes nor the regulations made on the basis of Count One are continuing offenses, meaning the government needed to allege distinct violations within the statute of limitations rather than an ongoing three-year failure to implement safe work practices to control hazards in draining the MeSH Vent Headers. DuPont argues that Count One could be read to charge "many distinct violations taking place over a three-year period, and those instances occurring before November 7, 2014, are untimely." (Docket Entry No. 31 at 7). DuPont argues that Count One could alternatively be read to charge conduct that was completed in 1999 or 2011, which would be outside the limitations period. DuPont argues that to the extent the charge includes timely allegations of failing to follow the Line Break procedures on November 14 and 15, 2014, that conduct does not violate 40 C.F.R. § 68.69(d). DuPont moves to dismiss Count One.
Under Federal Rule of Criminal Procedure 12(b), a party may challenge an indictment for failing to state an offense. United States v. Fontenot , 665 F.3d 640, 644 (5th Cir. 2011) (quoting United States v. Flores , 404 F.3d 320, 324 (5th Cir. 2005) ). "In reviewing a challenge to an indictment alleging that it fails to state an offense, the court is required to take the allegations of the indictment as true and to determine whether an offense has been stated." United States v. Moss , 872 F.3d 304, 308 (5th Cir. 2017) (quoting United States v. Crow , 164 F.3d 229, 234 (5th Cir. 1999) ). "This court interprets regulations in the same manner as statutes, looking first to the regulation's plain language." United States v. Fafalios , 817 F.3d 155, 159 (5th Cir. 2016). "Where the language is unambiguous, we do not look beyond the plain wording of the regulation to determine meaning." Id. (quoting Anthony v. United States , 520 F.3d 374, 380 (5th Cir. 2008) ). "[W]here, as here, a regulatory violation carries criminal penalties, the regulation ‘must be...
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