United States v. E.I. Du Pont De Nemours & Co.
| Docket Number | CRIMINAL NO. H-21-16 |
| Decision Date | 18 August 2022 |
| Parties | UNITED STATES of America, v. E.I. DU PONT DE NEMOURS AND CO. and Kenneth J. Sandel, Defendants. |
| Court | U.S. District Court — Southern District of Texas |
John Raymond Lewis, US Department of Justice, Houston, TX, Appellate Division, Financial Litigation, U.S. Attorney's Office, Houston, TX, for United States of America.
David Gerger, Ashlee Martin, Gerger Hennessy & Martin, Houston, TX, Lily N. Chinn, Baker Botts, San Francisco, CA, Nadira Clarke, 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 & Martin, Houston, TX, for Defendant Kenneth J. Sandel.
Four DuPont workers died when 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, the Unit Operations Leader of the Insecticide Business Unit where the gas release took place. Counts One and Two alleged knowing violations of the safety regulations designed to prevent accidental releases of toxic substances into the atmosphere. Count Three alleged the negligent release of an extremely hazardous substance. As a result of tolling agreements, limitations reach back to November 7, 2014.
The court previously dismissed Count One on the ground that the government had failed to allege a violation of 40 C.F.R § 68.69(d). The court concluded that the failure to follow a safety procedure was different from the failure to implement the procedure, and the indictment alleged only failures to follow specific safety procedures designed to prevent toxic gas releases during line breaks. The government filed a motion to reconsider the dismissal of Count One, this time providing Fifth Circuit authority supporting the government's contention that the allegations of failures to follow the procedure for line breaks sufficiently alleged a failure to implement that policy, making dismissal of the indictment improper. DuPont responded, and now also moves to dismiss Counts Two and Three of the indictment.
The court held argument on the motions. Based on the thorough briefs and arguments from all parties and the applicable law, the court grants the government's motion for reconsideration of the dismissal of Count One and denies the defendants' motions to dismiss Counts Two and Three. 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). Section 7412(r)(7) requires the Environmental Protection Agency to publish regulations aimed at preventing and mitigating accidental releases of hazardous substances. 42 U.S.C. § 7412(r)(7). The EPA issued a set of regulations known as the Risk Management Program. 40 C.F.R. Part 68. One Risk Management Program requirement, titled Operating Procedures, provides that:
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). Another, titled Management of Change, provides:
§ 68.75 (emphasis added).
Count One alleges that DuPont violated 42 U.S.C. § 7412(r)(7) by knowingly violating § 68.69(d)'s requirement to "implement safe work practices to provide for the control of hazards during operations" at its Insecticide Business Unit in LaPorte, Texas. (Docket Entry No. 1-1 at 7). Count Two alleges that DuPont knowingly violated 42 U.S.C. § 7412(r)(7) by knowingly violating § 68.75 by "failing to implement written procedures to manage changes." (Docket Entry No. 1-1 at 12). Count Three alleges that DuPont "negligently released and caused the release into the ambient air of an extremely hazardous substance listed pursuant to Title 42, United States Code, Section 11002(a)(2), that is, methyl mercaptan, and at the time negligently placed another person in imminent danger of death and serious bodily injury." (Docket Entry No. 1-1 at 17).
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 because of its ability to cause serious health effects. The indictment alleges that a high concentration of MeSH will result in asphyxiation.
Count One alleges that DuPont violated § 68.69(d), "[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 hazard involved the draining of a MeSH Vent Header in the Insecticide Business Unit of the LaPorte plant. A line break is when "hazardous processes and systems" are opened to the atmosphere. The indictment alleges that the MeSH Vent Header was a "hazardous system" as defined by DuPont's corporate standards, because the Vent Header was a line "that could contain material that is hazardous on contact or inhalation." As required under § 68.69(d), DuPont established company-wide safety practices for line breaks. These practices were published in a document titled the "SHE Standard S27G Line Breaks." DuPont also developed the LaPorte Line Break Procedure, which described the safety protocols for line breaks at the LaPorte plant. This Procedure required a qualified employee to prepare a written job plan before opening any hazardous system. The plan would identify the hazards created by the line break and explain how to control them. The plan had to describe the required personal protective equipment and provide contingency plans for problems that arose. The Line Break Procedure required a supervisor and other DuPont employees to sign off on the plan and grant a line break permit. (Docket Entry No. 1 at 4-5).
The indictment alleges that in 2011, DuPont installed a new incinerator for waste gas, the NOx Reducing Scrubbed incinerator. The MeSH Vent Header carried waste gas to this incinerator. After the new incinerator was installed, "a dark liquid of unknown composition" accumulated at points in the MeSH Vent Header, which blocked the gas flow. The indictment alleges 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." The indictment alleges that the workers did this without implementing the Line Break Procedure and without any safety review or plan. The indictment alleges that LaPorte employees drained valves without safe work practices set out in a Line Break Procedure for many years. (Docket Entry No. 1 at 10).
On February 9, 2014, an operator sent Sandel an email 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. The email described a method for draining the Vent Header. The following day, DuPont employees directed the operators to follow the method described in the email. The indictment alleges that this method was another instance in a long practice of violating the Line Break Procedure, because the method required the workers to "open a drain valve to the atmosphere on a hazardous system without first clearing the system of chemical hazards." (Docket Entry No. 1-1 at 11). The indictment alleges that Sandel "was responsible for making sure [Insecticide Business Unit] employees took the critical safety steps required by the LaPorte [L]ine [B]reak [P]rocedure and did not release toxic chemicals inappropriately to the environment." The indictment alleges that Sandel knew that the MeSH Vent Header had the potential to contain hazardous gases, knew that operators "routinely" violated the LaPorte Line Break Procedure, and that Sandel routinely failed to implement the Procedure. (Docket Entry No. 1-1 ¶¶ 13-15).
On November 13, 2014, Insecticide Business Unit workers discovered that MeSH could not flow through the MeSH feed line to the MeSH storage tank and to the MeSNa Cooler. This was the first time that the feed...
To continue reading
Request your trial