EPA v. DIAMOND SHAMROCK

Case summary

NATURE OF THE CASE: DIAMOND SHAMROCK IS A DIVERSIFIED INTERNATIONAL CORP MINISTRATIVE, MARKETING & PRODUCTION FACILITIES THROUGH- OUT THE US & IN APPROX 30 OTHER NATIONS. THE CO'S DEER PARK WORKS CONSISTS OF THE SEVERAL FACILITIES WHICH MANU- FACTURE & PROCESS ORGANIC & INORGANIC CHEMICALS. CAUSE OF ACTION: THIS ASE INVOLVES A DISCHARGE OF APPROX 19,400 PDS CHLORINATED HYDROCARBONS OVER A 48 HR PD FROM DIAMOND SHAMROCKS DEER PARK WORKS IN VIOL OF SEC 301 & 311 OF THE CWA. THE CO STATED IN ITS COMPLIANCE REPORT THAT THE CAUSE OF THE DISCHARGE WAS ALEAK IN AN ETHLYENE DICHLOR- IDE(EDC) REACTOR COOLING COIL. AT THE RELEVANT OUTFALL (003), THE DAILY MAXIMUM EFFLUENT LIMITATION FOR CHLORIN- ATED HYDROCARBONS IS 900 PDS/DAY. ON 12/26/80, APPROX 18,366 PDS OF CHLORINATED HYDROCARBONS WERE DISCHARGED FROM 003, & ON 12/27/80, APPROX 1,162 PDS WERE DISCHARGED . IN ADDITION TO CONSTITUTING 2 DAILY MAXIMUM PERMIT VIOL'S, THE DISCHARGE ALSO CONSTITUTED A VIOL OF THE 12/80 DAILY AVERAGE LIMITATION FOR CHLORINATED HYDRO- CARBONS AT 003. ALTERNATIVELY, THE 12/6/80 CHLORINATED HYDROCARBON DISCHARGE( IN THE FORM OF EDC) MAY HAVE CONSTITUTED A VIOL OF SEC 311 OF THE CWA BECAUSE IT WAS OF AN EPISODIC NATURE & WAS IN EXCESS OF THE REPORTABLE QUANTITY FOR EDC. EDC IS A HAZ SUBSTANCE DESIGNATED PURSUENT TO SEC 311(A)(2), & THE REPORTABLE QUANTITY FOR EDC IS 5,000 PDS/DAY. PROPOSED REMEDY: THIS PROPOSED ACTION IS FOR A PLTY FOR THE HAZ SUB- STANCE SPILL. HOWEVER, THE CASE MAY BE AN APPROPRIATE ONE FOR INJUNCTIVE RELIEF PURSUENT TO SEC 301 & 309 IF IT IS DETERMINED DURING THE COURSE OF DISCOVERY THAT THE SUB- JECT VIOL'S RESULTED FROM A FAILURE BY DIAMOND SHAMROCK TO PROPERLY MAINTAIN & OPERATE ITS EQUIPMENT. ISSUES OF NATIONAL OR PRECEDENTIAL SIGNIFICANCE. THIS CASE RAISES THE ISSUE OF THE APPLICABILITY OF SEC 311 OF THE CWA TO AN EPISODIC DISCHARGE FROM AN NPDES PERMITTED OUTFALL. THE 1978 AMENDMENTS TO SEC 311 EX- CLUDED CERTAIN NPDES RELATED DISCHARGES FROM SEC 311 COV- ERAGE. THE 3 EXCLUSIONS TO THE DEFINITION OF DISCHARGE IN SEC 311(A)(2) ESTABLISHED BY THE 1978 AMENDMENTS HAVE TO DATE NEVER BEEN THE SUBJECT OF LITIGATION. THE 1ST EXCLU- SION, WHICH APPLIES TO DISCHARGES IN COMPLIANCE W/A SEC 402 PERMIT, & THE 2ND EXCLUSION, WHICH APPLIES TO DIS- CHARGES WHICH RESULT FROM CIRCUMSTANCES IDENTIFIED IN THE PERMIT ISSUANCE PROCESS & WHICH ARE SUBJECT TO PERMIT CONDITIONS, ARE NOT APPLICABLE TO THE SUBJECT DISCHARGE. HOWEVER, THE 3RD EXCLUSION, SEC 311(A)(2)(C), WILL LIKELY BE ASSERTED BY DIAMOND SHAMROCK AS A DEFENCE TO LIABILITY UNDER SEC 311 FOR THAT DISCHARGE. THE 3RD EXCLUSION APP- LIES TO CONTINUOUS OR ANTICIPATED INTERMITTENT DISCHARGES ORIGINATING ON A MANUFACTURING OR TREATMENT SYSTEM & FLOWING FROM A POINT SORCE FOR WHICH A VALID NPDES PERMIT EXISTS OR A PERMIT APPLICATION HAS BEEN SUBMITTED. WE, HOWEVER, POSIT THAT THESE CIRCUMSTANCES MAY NOT FIT THE EXCLUSION & HAVE PLED THE COMPLAINT IN THE ALTERNATIVE. THE APPLICABILITY OR INAPPLICABILITY OF THE SEC 311 (A)(2)(C) EXCLUSION TO THE SUBJECT DISCHARGE WILL BEECOME MORE ASCERTAINABLE AFTER DISCOVERY. HOWEVER, IF THE SEC 311(A)(2)(C) EXCLUSION IS DETERMINED TO BE APPICABLE TO THAT DISCHARGE, THE CASE WILL PROCEED AS A SEC 309 ENFOR- CEMENT ACTION FOR BOTH THE 12/26 &27/80 PERMIT VIOL'S.

Defendants (1)

• DIAMOND SHAMROCKNamed in complaintNamed in settlement

Facilities (6)

• OXY VINYLS L P DEER PARK VCM PLANT

  1000 TIDAL RD., DEER PARK, TX, 77536

  Registry ID: 110043782788

• OXY VINYLS L P DEER PARK VCM PLANT

  1000 TIDAL RD., DEER PARK, TX, 77536

  Registry ID: 110043782788

• OXY VINYLS L P DEER PARK VCM PLANT

  1000 TIDAL RD., DEER PARK, TX, 77536

  Registry ID: 110043782788

• OXY VINYLS L P DEER PARK VCM PLANT

  1000 TIDAL RD., DEER PARK, TX, 77536

  Registry ID: 110043782788

• OXY VINYLS L P DEER PARK VCM PLANT

  1000 TIDAL RD., DEER PARK, TX, 77536

  Registry ID: 110043782788

• OXY VINYLS L P DEER PARK VCM PLANT

  1000 TIDAL RD., DEER PARK, TX, 77536

  Registry ID: 110043782788

Statutes cited

• CWA 301 — NPDES Discharge without a Permit

Enforcement conclusions (1)

• DIAMOND SHAMROCK CORPentered 1983-04-13

  Primary law: CWA

  Federal penalty: $10,000

Timeline (8 milestones)

• 1981-03-10Referred To Headquarters
• 1981-10-16Referred To Dept Of Justice
• 1983-01-07Referred TO U.S. Attorney
• 1983-01-11Complaint Filed With Court
• 1983-04-13Final Order Lodged
• 1983-04-13Final Order Entered
• 1983-04-13Concluded
• 1983-04-13Enforcement Action Closed