EPA v. OCCIDENTAL CHEMICAL CORP. (ADDIS)

Case summary

NATURE OF THE CASE OCCIDENTAL OWNS AND OPERATES A POLYVINYL CHLORIDE PLANT IN ADDIS, LOUISIANA. THE PLANT BEGAN OPERATION IN LATE 1979 UNDER THE OWNERSHIP OF FIRESTONE, WHICH SOLD IT TO HOOKER CHEMICALS AND PLASTICS CORP ON 10/30/80. HOOKER SUBSEQUENT- LY CHANGED ITS NAME TO OCCIDENTAL. CAUSE OF ACTION 40 CFR SECTION 61.65(A) PROHIBITS THE DISCHARGE OF VINYL CHLORIDE TO THE ATMOSPHERE THROUGH A RELIEF VALVE, EXCEPT IN EMERGENCIES. DURING THE PERIOD FIRESTONE OWNED THE PLANT, THERE WERE 23 DISCHARGES, 21 OF WHICH REGION VI HAS DETER- MINED TO BE PREVENTABLE AND THEREFORE VIOLATIONS OF SECTION 61.65(A). ADDITIONALLY, FIRESTONE FAILED TO REPORT THESE DISCHARGES WITHIN THE REQUIRED TEN DAY PERIOD, BUT INSTEAD REPORTED ALL OF THEM ON 9/22/81, AFTER THE COMPANY HAD SOLD THE PLANT. SINCE OCCIDENTAL PURCHASED THE PLANT, THERE HAVE BEEN TEN DISCHARGES, NINE OF WHICH ARE CONSIDERED TO BE VIOLATIONS OF THE RELIEF VALVE DISHCARGE STANDARD. OCCIDENTAL REPORTED TWO OF THESE DISCHARGES LATE. PROPOSED REMEDY REGION VI IS SEEKING INJUNCTIVE RELIEF AGAINST OCCIDENTAL FOR IMPROVED OPERATOR TRAINING AND PREVENTATIVE MAINTENANCE PROCEDURES. THE REGION HAS ALSO PROPOSED A CIVIL PENALTY SETTLEMENT FIGURE OF $196,740 FOR FIRESTONE AND $28,100 FOR OCCIDENTAL. THE CIVIL PENALTY POLICY DOES NOT APPLY TO THIS CASE SINCE IT EXPLICITLY EXCLUDES INTERMITTENT VIOLATIONS. HQ HAS APPLIED AN INFORMAL PENALTY SCHEME IN PREVIOUS VINYL CHLORIDE CASES WHICH BASES THE PENALTY ON THE FREQUENCY AND SIZE OF THE DISCHARGES. THIS IS THE FIRST CASE TO INVOLVE VIOLATIONS OF THE REPORTING REQUIREMENT. REGION VI DEVISED A SCHEME FOR CALCULATING THE COMPONENT OF THE PENALTY ATTRIBUTABLE TO REPORTING VIOLATIONS. WHILE I FIND THE NUM- BER GENERATED BY THE REGION ACCEPTABLE, I THINK THERE ARE TWO MAJOR WEAKNESSES IN THEIR SCHEME. FIRST, THE PENALTY FOR FAILING TO REPORT VARIES ACCORDING TO THE SIZE OF THE DISCHARGE, WHICH HAS THE EFFECT OF DOUBLE-COUNTING SINCE THE PENALTY FOR THE DISCHARGE ITSELF ACCOUNTS FOR THE SIZE. SECOND, THE PENALTY VARIES ACCORDING TO THE LENGTH OF TIME THE COMPANY FAILED TO REPORT. I THINK THIS IS APPROPRIATE IF THE COMPANY ULTIMATELY REPORTS VOLUNTARILY, BUT IF IT REPORTS IN RESPONSE TO A SECTION 114 LETTER, THEN THE LENGTH OF TIME IS SIMPLY A FUNCTION OF EPA ACTIVITY. I PROPOSE AN ALTERNATIVE SCHEME. APPLIED TO THIS CASE, IT YIELDS A SLIGHTLY LOWER SETTLEMENT FIGURE: $158,000 FOR FIRESTONE, $15,500 FOR OCCIDENTAL. FINAL DETERMINATION OF A PENALTY SETTLEMENT AMOUNT WILL BE MADE IF AND WHEN A SETTLEMENT IS ACTUALLY PROPOSED BY THE COMPANY. ISSUES OF NATIONAL OR PRECEDENTIAL SIGNIFICANCE AS MENTIONED ABOVE, THIS IS THE FIRST CASE TO INVOLVE VIO- LATIONS OF THE REPORTING REQUIREMENT, SO THE PENALTY ASSIGN- ED ISSUE CONCERNS THE NAMING OF FIRESTONE AS A DEFENDANT. FIRESTONE NO LONGER OWNS OR OPERATES THE PLANT, BUT REGION VI RECOMMENDS, AND I CONCUR, THAT WE SEEK PENALTIES FROM FIRESTONE FOR PAST VIOLATIONS. B

Defendants (2)

• OCCIDENTAL CHEMICAL CORPNamed in complaintNamed in settlement
• FIRESTONE TIRE & RUBBER CO.Named in complaintNamed in settlement

Facilities (1)

• BORDEN CHEMICALS & PLASTICS OPERATING L P

  8600 HWY. 1 S., ADDIS, LA, 70710

  Registry ID: 110000743358

Statutes cited

• CAA 112 — Hazardous Air Pollutants

Enforcement conclusions (1)

• OCCIDENTAL CHEM. & FIRESTONEentered 1986-07-10

  Primary law: CAA

  Federal penalty: $75,000

Timeline (8 milestones)

• 1983-03-31Referred To Headquarters
• 1983-05-03Referred To Dept Of Justice
• 1983-06-30Referred TO U.S. Attorney
• 1983-07-09Complaint Filed With Court
• 1986-07-10Final Order Entered
• 1986-07-10Concluded
• 1986-07-10Final Order Lodged
• 2018-10-23Enforcement Action Closed