Document aLxY1kdwEbZwwNKEvp70BKO9

UNITED STATES ENVIRONMENTAL PROTECTION,AGENCY , REGIONS 1445 ROSS AVENUE, SUITE 1200 DALLAS, TX 75202-2733 March 12, 2013 CERTIFIED MAIL- RETURN RECEIPT REQUESTED: 7008 0150 0003 0411 6365 Mr. Daniel J. Diller Louisiana Downriver Site Manager Air Products and Chemicals, Inc. 14700 Intercoastal Drive New Orleans, LA 70129 Re: Consent Agreement and Final Order, EPA Docket No. CAA-06-2013-3308 In the Matter ofAir Products and Chemicals, Inc. Dear Mr. Diller: Enclosed is a copy of the Consent Agreement and Final Order (CAPO} filed with the Regional Hearing Clerk in the matter referenced above. As provided in the CAFO, Air ProductS and Chemicals, Inc. is required to pay the civil penalty of Thirty-Five. Thousand Dcllars ($35,000) within thirty (30) days from the effective date of the CAFO. If you have any questions regarding this CAPO, please contact Jeffrey Clay, Assistant Regional Counsel, at (214) 665~7297. Enclosure Compliance Assurance and Enforcement Division R&cyclfldiRGoYCiable Prl!ded Wllh V~klbl& 01 Based lflks 011 100% Recycled P~r (40% Postoons\IIJ'Kir) L!I\ITED STAThS rJL ED ENYIRO:--IMENTAL PROTECTION AGEN<ZMJ 11;'1{ I 3 l':i C ''l REGIOI\ 6 BEFORE TilE ADMINISTRATOR ',-.._l ~.i ,,;__ ,);~_ ,.. 1 v: In the Matter of: Air Products and Chemicals. Inc., Luling, Louiswna EPA Docket No. CAA-06-2013-3308 - - - - - - - - - - - - - - - - - - - _________, CONSENT AGREEMENT AND FINAL ORDER The Director of the Compliance Assurance and Enforcement Division of the L'nitcd States Environmental Protection Agency ("EPA''), Region 6 ("Complmnani'') and Air Products and Chemicab, Inc. ("Respondent") in the above-referenced proceeding, hereby agree to resolve this matter through the issuance of this Consent Agreement and Final Order i"CAFO"). I. PREI.UUNARY STATBIEI\T I. This pwcced1ng for the assessment of civil penalties is brought hy EPA pursuant to sections lll(a)(3) and 113(d)( I)(B) of the Clean Air Aet, as amended {"Act" or "CAA"), 42 U.S.C. ** 7413(a)(3) and 7413(d)(l l(B), and is ~imultancously commenced and concluded through the issuance of this CAFO pursuant lo 40 C.F.R. ** 22.13(b)(2) and (31, and 22.34. 1. For purposes of this proceeding, Respondent admits the jurisdictional allegatitlll.S contained herein; however Respondent neither admit-; nor denies the specific factual allegations contained in this CAFO. Docket No. CAA-06-20 13-33W3 ~ Respondent explicitly waive~ any rightlo conlcsl lhe allegations and its right to appeal the proposed Final Order set forth herein, and waives all defenses which have been rmscd or could have been raised to the claims set forth in this CAFO. 4. Compliance with all the term~ and conditions of this CAI-'0 shall resolve only those violatiOns which arc set forth herein. 5. Rcspom.lcnt consents to the issuance of this CAFO and to the asscs~mcnt ami payment of the stated civil penally in the amount and by the method set forth in this CAFO. II. ALLEGATIONS 6. Respondent is a corporation authorized to do hu<>iness in the State of I"ouJsiana. 7. Respondent O\VIlS and operates the Luling Hydrogen Plant, located at 12501B River Road, Luling, Saint Charles Parish, Louisiana 70070 ("Facility"). 8. The Respondent produces, processes. stores, and treat~ hydrogen gas, which is an extremely hazardous substance. 9. On March 26,2012, there was an incident at the Facility involving the release of hydrogen gas to ambient air from a newly installed process vessel. 10. Specifically, the new vessel had :.Jlranspurtation (neoprene) gasket improperly installed hy the manufacturer and the gasket failed releasing hydrogen gas to the ambient air. 1 I. One worker was scriomly injured in thc inc1dcnt and one worker sustained minor inJuries. 12. Pur~uant to section ! 12(r)( 1) of the CAA. 42 L.S.C. *7412(r)( I), an owner/operator of a stationary source producing, processing, handling or storing Page 2 of JO Docket No. CAA-06-2013-3308 sub~tanccs listed pursuant to sectiun ll2(r)(3) of the CAA, 42 U.S. C.* 7412(r)l3L or any other extremely hazardous substance. lias a general duty to: ( 1) identify hazards which may result from accidental releases of such substances using appropriate hazard assessment techniyues; (2) design and maintain a safe facility. taking such steps as arc necessary to prevent releases; and (3) minimize the conse4uences of accidental rclcuses that do occur. 13. Respondent is a "person" as that term i-, defined by section 302(e) of the CAA, 42 LJS.C. 7602(e). 14. The Facility is a "stationary source" as that term is defined hy section 112(r)(2)(C) of the CAA, 42 U.S.C. 7412(r)(2)(C). 15. Respondent is the "owner or operator" as those terms arc defined by section ll2(a)(9) of the CAA, 42 U.S.C. R7412(a)(9), of a stationary source. 16. At the Facility, Respondent produces, processes, Jumdlcs. or stores substances listed in, or pursuant to, CAA ~ 112(r)(3) or other extremely hazardous substances identified as such due to toxicity, reactivity, flammability, volatility. or corro~ivity. 17. The release of hydrogen at the Facility on March 26, 2012, con~tituted an "accidental release" as thaltcrm is defined by section 112(r)(2)(A) of the CAA. 42 U.S.C. ~ 7412iri(2)1A]. 18. Respondent failed to design and maintain a safe facility and did not take such necessary steps to prevent accidental releases hy not fully utilizing commonly available and accepted practices to ensure salely. 19. Respondent's failure constitutes a violation of the general duty clause in section 112(r)( I) of the CAA, 42 L:.S.C. s 7412(r)( I). Page 3 of 10 Docket No. CAA-06-2013-3308 20. Respondent i:-. therefore suhjectlu the assessment of penal tic.~ pursuant to sectiOns II ](o)(l) and II ](d)( I )(B) of the CAA, 42 U.S C. RR 741 J(a)(l) and 74!3(J)(l )(B), for at least one day of violation of the general duty cl:.iuse of section 112(r)( I) of the CAA, 42 U.S.C. *7412(r)( I). III. TERMS OF SETTLEMENT A. CIVIL PENALTY 21. Pursuant to the authority granted in <;CCI ions 113(a)(3) and 113(d)( I )(B) of the CAJ\, 42 C.S.C 7413(a)(3) and 7411(d)(l)(B), and taking into consideration the size of the Respondent's husiness, the economic impact of the penalty on the Respondent's business, the Responcknt's full compliance history and good faith efforts to comply, the duration of the violation, payment by Respondent of penalties previously assessed for the same violation (if any), the e<.:onomic benefit of noncompliance, amlthc seriousness of the violation, as well as other factors which justice may require, EPA and Respondent agree that an appropriate penalty to settle this matter is $35,000. 22. Respondent shall pay the assessed penalty within thirty (30) days of the effective date of this CAFO. Respondent shall pay the assessed civil penally by company, certified check, cashier's check, or wire transfer, made payable to "Treasurer, United States of America, EPA- Region 6.'' Paymenl shall be remitted in one of three ways: regular U.S. Postal mail (including certified mail), or U.S. Postal Service express mail -the check should be rcmiucd to: li.S. Environmental Protection Agency Fines and Penalties Cincinnati Finance Center P.O. Box 979077 St. Louis, MO 63197-9000 For overnight mail (non-U.S. Postal Scrvi<.:c), the check should be remitteU to: Page 4 nf 10 Docket No. CAA-06-2013-3308 U.S. Bank Government Lockbox 979077 US EPA Fine.~ and Penalties I005 Convention Plaza SL-MO-C2-GL St. Louis, MO 63101 Phone No. (314) 418-1028 For wire transf~r, the payment should he remitted to: Federal Reserve Bank of New York ABA: 021030004 Account No. 68010727 SWIFr address:::: FRNYUS33 33 Liberty Street :-.lew York, NY 10045 Field Tag 4200 of the FeU wire message should read 'D 680107:27 Environmental Protection Agency" PLEASE NOTE: Docket number CAA~06-2013-3308 shall be clearly typed on the check to ensure proper credit. Jf paymentJS made by check, the check shall also be accompanied by a transmittal letter and ~hall reference the Respondent's name ami address, the case name, and the docket number of this CAPO. 1f payment is made by wire service, the wire tran>.fer instructJons shall reference the Respondent's name and address, the case name, anU the docket number of this CAFO. The Respondent shall also -;end a simultaneous notice of such payment, including a copy of the check and transmittallcller or wire trunsJCr instructions to the following: Samuel Tates Chief, Surveillance Section (6EN~AS) Compliance Assurance and Enforcement Division U.S. EPA Rcg10n 6 144.5 Ross A venue, Suite 1200 Dalla,, TX 75202-2733 Lorena Vaughn Regional Hearing Clerk (6RC~D) U.S. EPA, Region 6 1445 R()SS A venue, Suite 1200 Dallas, TX 75202-2713 Page 5 of 10 Docket :'\Jo. CAA-06-2013-330!:5 Re~pondent's adherence to these instructions will en.o:,ure that proper credit i~ given when penalties are received in the Region. 23. Respondent agrees not to claim or attempt to claim a federal income tax deduction or credit covering all or any part of the civil penalty paid tn the United States Treasurer. 24. Pursuant to 31 U.S.C. ~ 3717 and 40 C.F.R. ~ 13.11, unles<; 0therwise prohibited by law, EPA 1-vill assess interest and late payment penalties on outstanding debts owed to the United State~ and a charge to cover the cost:-. of processing and handling a delinquent claim. Interest on the civil penalty assesserJ in this CAFO will begin lO accrue thirty (30) days after the effective dutc of the CAFO and will be recovered by EPA on any amountllf the civil penalty that!S not paid by the due date. Interest wlil he assessed at the rate of the United St<.ltes Treasury tax and loan rate in accordance with 40 C.F.R. ~ 13.ll(a). Moreover, the costs of the Agency'<; administrative handling of overdue debts will be charged and assessed monthly throughout the period the debt is overdue. See 40 C. FR. 13.1l(b). 25. EPA will aha assess a $1.5.00 administrative handling charge for administrative cost~ on unpaid penalties for the first thirty (30) day period after the payment is due and an additional $15.00 for each subsequent thirty (30) day period that the penalty remains unpaid. In addition, a penalty charge of up to six percent per year will be assessed monthly on any portion of the debt which remains delinquent more than ninety (90) days. See 40 C.F.R. ~ 13. I J (c). Should a penalty charge on the debt be rel]uired, it shall accrue from the first day payment is delinquent. Sec 31 C.F.R. ~ 901.9(d). Other penalties for failure to make a payment may also apply. Page (, of 10 Docket Nn. CAA-06-20 !3-::;30X II. PARTIES BOUND 26. The provisions of this CAFO shall apply to and be binding upon the parties to this action, their officers, directors, agents. employees, successors, and assigns. The undersigned representative of each party to this CAFO certifies that he or she is fully authorized by the party whom he or she rcprcsr.:nls to enter into the terms and conditions of this CAFO ami to exct:utc and to legally bind that party toiL C. RETENTION OF E:>IFORCEMENT RIGHTS 27. EPA docs not waive any rights or remedies available to EPA for any other violation'> by the Respondent of Federal or State laws, regulations, or permilling conditions. 2X. Nothing in this CAFO shall relieve the Respondent of the duty to comply with all applicable provisions of section 1J 2(r) of the CAA, 42 U.S.C. S 7412lr), and 40 C.F.R. Part 68. 29. Nothing in this CAFO shall limit the power and authority of EPA or the United States to take, direct, or order all actions to protect public health, welfare, or the environment, or prevent, abate, or minimize an actual or threatened release of hazardous substances, pollutants, or contaminants at or from the Facility. Furthermore, nothing in !"lw; CAFO shall be construed to prevent or limit EPA's civil and criminal authorities, or that of other Federal, State, or local agencies or departments to obtain penal tic:. ur injundi vc relief under other Federal, State, or local laws or regulations. 30. In any subsequent administrative or judicial proceeding initiated by the Complainant or the Un1ted States for injunctive relief, civil penalties, or other appropriate relating to the Facility, Respondent sh:1ll not assert, ;md may not maintain, any defense or claim hased upon the princ1ples of waiver, res judicata, collateral cs!Pppel, issue Page 7 of 10 Docket No. CAA-06-20 13-3308 precJ usion, claim-spli tting, or other defenses based upon any contention that the cla ims raised by the Complainant or the United States in the subsequent proceeding were o r should have been brought in the instant case, except with respect to the cl aims that have been specificall y resolved pursuant to this CAFO . D. COSTS 31. Each party shaJJ bear its own costs and attorney's fees. Furthermore, Respondent specifically waives its right to seek reimbursement of its costs and attorney's fees under 5 U.S.C. 504 and 40 C.F.R. Part 17. E. EFFECTIVE DATE 32. This CAFO becomes effec tive upon filing with the RegionaJ Hearing Clerk. THE UNDERSIGNED PARTIES CONSENT TO THE ENTRY OF TIDS CONSENT AGREEMENT AND FINAL ORDER: FOR THE RESPONDENT: D a te FOR THE COMPLAINANT: 3/Z/'5 Date Danie l J. Diller Louisiana Downriver Site Manager Compli ance Assurance and Enfo rcement Di vision Page 8 of 10 Docket No. CAA-06-20 I3-33m! FINAL ORDER Pursuant to sect10n Jl3(d) of the CAA, 42 U.S.C. ~ 7413(d), and the Consolidated Rule~ of Practice Governing the Administrative Assessment of Civil Penalties, 40 CF.R. Part :22. the foregoing Consent Agreement is hereby ratified. Tim Final Order shall not in any case a!fcct the right of EPA or the United States to pursue appropriate injunctive or other equitahlc relief or criminal sanctwns for any violations of law. This Final Onlcr shall resolve only those causes of action alleged in this CAFO. Nothing in this Final Order shall be construed to W'-livc, extinguish, or otherwise affect Respondent's (or its officers, agents, servants, employees, successors, or assigns) obligation to comply \Vilh all applicable federal state, and \neal statutes and regulations, including the regulatinns that were the subject of this act JOn. The Respnndent is ordered to comply with the terms of scltlcment as set forth in the Consent Agreement. Pursuant to 40 C.F.R. 22.31 (b), this Final Order shall become effective upon filing with the Regional Hearing Clerk. Date: ,-, f 'I 'I 7 :> , -, _, -~- Regional Judicial Officer Page 9 of 10 Docket No. CAA-06-2013-3308 CEKrii'JCATE OF SERVICE I hcrchy certify that the original and a copy of the foregoing Consent Agreement and Final Order {CAFO) was hand-delivered to the Regional Hearing Clerk, U.S. EPARegion 6, 1445 Rnss Avenue, Suite 1200, Dalla~, Texas 75202-2733, and that a true and correct copy of the C AFO was placeU in the llmted States Muil. to the following by the method indicuted: CERTlHED MAIL- RETURr\ RECEIPT REQUESTED: #IDOffLi/5D{V)D2) (1 ij/1 ~t!Jc5 Page JO of 10