According to a proposed consent decree filed in the Eastern District of Texas late last week, the U.S. Environmental Protection Agency (EPA), the regional arm of the U.S. Department of Justice, and the Texas Commission on Environmental Quality (TCEQ) announced a settlement with E.I. Du Pont de Nemours and Company (DuPont) and Performance Materials NA Inc. (PMNA). The settlement resolves alleged violations of hazardous waste and clean air and water laws at the PMNA Sabine River chemical manufacturing facility in Orange, Texas.
The complaint, filed simultaneously with the proposed consent decree, explains that DuPont was the owner and operator of the facility from 1946 through February 2019. PMNA, a wholly owned subsidiary of DuPont established in 2018, has reportedly owned and operated the facility since February 2019 when it obtained a special warranty deed transfer from DuPont.
The lawsuit claims that the defendants violated the Resource Conservation and Recovery Act (RCRA), the Clean Water Act (CWA), the Clean Air Act (CAA), and Texas analogue statutes. The EPA reportedly uncovered violations during two compliance inspections, one in 2009 and the other in 2015.
The defendants allegedly violated the RCRA by, among other things, failing to make hazardous waste determinations, treating, storing, or disposing of hazardous wastes without a permit, and failing to execute “land disposal determinations” to meet applicable treatment standards. The defendants allegedly violated CWA strictures by discharging process wastewater and treated domestic wastewater without authorization, failing to report sample results, and failing to comply with permit conditions for its pond treatment system. The plaintiffs also alleged CAA abuses, including failure to comply with national emission standards for hazardous air pollutants.
The injunctive relief required by the pending consent decree obligates DuPont and PMNA to make certain changes. In particular, the defendants would have to retain a third-party auditor to evaluate the facility’s hazardous waste management compliance and wastewater treatment systems, investigate various aspects of the facility including its pH excess and whether “constituents of concern” exist in certain areas, report to the TCEQ on the nature and extent of contamination and, if necessary, submit a response plan. In addition to the civil penalty, the defendants will pay attorney’s fees to the State of Texas.
