Document da75LDyGRVYrMJ1Emz1BO5q9b

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION6 1445 ROSS AVENUE, SUITE 1200 DALLAS TX 75202-2733 ... VIA CERTIFIED MAIL RETURN RECEIPT REQUESTED 7009 2820 00018284 4614 AND E-MAIL- pmbork@dow.com Mr. Paul Bork Lead Counsel The Dow Chemical Company 332 SH 332 E Lake Jackson, Texas 77566 Re: Consent Agreement and Final Order - The Dow Chemical Company, Docket No. CAA-06-2018-3317 Dear Mr. Bork: Enclosed is a copy of a fully executed Consent Agreement and Final Order (CAPO) for The Dow Chemical Company (Dow). As provided in the CAFO, Dow will have thirty (30) days from the effective date of the CAFO to pay the civil penalty of$260,349. lfyou have any questions, please feel free to contact Evan L. Pearson, Senior Enforcement Counsel, by phone at (2 14) 665-8074, or via e-mail at pearson.evan@epa.gov. Sincerely, Cheryl T. Seager Director Compliance Assurance and Enforcement Division Region 6 Enclosure cc: Michael De La Cruz, Manager Air Enforcement Section Enforcement Division, Office of Compliance & Enforcement Texas Commission on Environmental Quality P.O. Box 13087 Austin, TX 781 1-3087 Michael.delacruz@tceq. texas.gov Internet Address (URL) http:/lwww.epa.gov/reglon6 Recycled/Recyclable Printed with Vegetable Oil Based Inks on 100% Postconsumer, Process Chlorine Free Recycled Paper UNITED STATES FILED ENVIRONMENTAL PROTECTION AGENCY REGION 6 zr19 :::.:: -4 r I -~: 1 J DALLAS, TEXAS ~. l t lu L I ,' r. 1. .. . ' ,;I I J I ) IN THE MAITER OF: ) ) THE- DOW CHEMICAL COMPANY ) FREEPORT, TEXAS ) ) R_E_S_P_O_N_D_E_N_T____________________)) DOCKETNO. CAA-06-2018-3317 CONSENT AGREEMENT AND FINAL ORDER The Director of the Compliance Assurance and Enforcement Division of the United States Environmental Protection Agency (EPA), Region 6 (Complainant) and The Dow Chemical Company (Respondent) in the above-referenced proceeding, hereby agree to resolve this matter through the issuance of this Consent Agreement and Final Order (CAFO). I. PRELIMINARY STATEMENT 1. This proceeding for the assessment of civil penalties is brought by EPA pursuant to Section 113(d) of the Clean Air Act (CAA), 42 U.S.C. 7413(d), and is simultaneously commenced and concluded through the issuance of this CAFO pursuant to 40 C.P.R. 22.13(b), 22.18(b)(2) and (3), and 22.34. 2. For the purposes of this proceeding, the Respondent admits the jurisdictional allegations contained herein; however, the Respondent neither admits nor denies the specific factual allegations contained in this CAFO. 3. The Respondent explicitly waives any right to contest the allegations and its right to appeal the proposed Final Order set forth therein and waives all defenses which have been raised or could have been raised to the claims set forth in this CAFO. Docket No. CAA-06-2018-3317 4. Compliance with all the terms and conditions of this CAFO shall only resolve the Respondent's liability for Federal civil penalties for those violations and facts which are set forth herein. 5. The Respondent consents to the issuance of this CAFO, to the assessment and payment of the civil penalty in the amount and by the method set forth in this CAFO, and to the conditions specified in this CAFO. 6. Each undersigned representative ofthe parties to this agreement certifies that he or she is fully authorized by the party represented to enter into the tetms and conditions of this agreement, to execute it, and to legally bind that party to it. 7. This CAFO shall apply to and be binding upon the Respondent, its officers, directors, servants, employees, agents, authorized representatives, successors and assigns. II. FINDINGS OF FACT AND CONCLUSIONS OF LAW A. PRELIMINARY ALLEGATIONS 8. The Dow Chemical Company (Respondent) is a Delaware corporation authorized to do business in the State of Texas. 9. "Person" is defined in Section 302(e) of the CAA, 42 U.S. C. 7602(e), as "an individual, corporation, partnership, association, State, municipality, political subdivision of a State, and any agency of the United States and any officer, agent, or employee thereof." 10. The Respondent is a "person" as defined by Section 302(e) of the CAA, 42 U.S.C. 7602(e). II. The Respondent operates a manufacturing facility located at 2301 North Brazosport Boulevard, Freeport, Texas 77541-3257. 12. "Stationary source" is defined by Section 112(r)(2)(C) of the CAA, 42 U.S.C. 2 Docket No. CAA-06-2018-3317 7412(r)(2)(C), and 40 C.P.R. 68.3 as meaning: any buildings, structures, equipment, installations or substance emitting stationary activities which belong to the same industrial group, which are located on one or more contiguous properties, which are under the control ofthe same person (or persons under common control), and from which an accidental release may occur. 13. The Respondent's facility identified in Paragraph 11 is a "stationary source" as that term is defined by Section 112(r)(2)(C) of the CAA, 42 U.S.C. 7412(r)(2)(C), and 40 C.P.R. 68.3. 14. The Respondent is the owner and/or operator ofthe stationary source identified in Paragraph 11. 15. The following substances are each a "regulated substance", as set forth in 40 C.P.R. 68.130: A Ethylene oxide [Oxirane]; B, Methane; C. Hydrogen; D. 1,3-Butadiene; E. Propane; P. Isopropyl chloride [Propane, 2-chloro-]; G. Ammonia (anhydrous); H. 2-Butene; I. Acrylonitrile [2-Propenenitrile]; J. Propylene oxide [Oxirane, methyl-]; K. 1-Chloropropylene [!-Propene, 1-chloro-]; L. Epichlorohydrine [Oxirange, (chloromethyl)-]; M. Sulfur dioxide (anhydrous); N. Butane; 0. 2-Chloropropylene [!-Propene, 2-chloro-]; P. Trimethylamine [Methanamine, N-N-dimethyl-]; Q. Isobutane; R. Ammonia (cone 20% or greater); S. Hydrogen chloride (anhydrous) [Hydrochloric acid]; T. Chlorine; U. Ethylenediamine [1,2-Ethanediamine]; V. Vinyl chloride [Ethene, chloro-]; W. Propylene [!-Propene]; X. 2-Butene; 3 Docket No. CAA-06-2018-3317 Y. Ethylene [Ethene]; Z. Ethane; AA. Methyl ether [Methane, oxybis-]; BB. Methyl chloride [Methane, chloro-]; CC. Methylamine [Methanamine]; DD. Propyne [1-Propyne]; EE. 1-Butene; FF. Formaldehyde (solution); GG. Isoprene [1,3-Butadiene, 2-methyl-]; HH. Vinylidene chloride [Ethene, 1,1-dichloro-]; II. 2-Methylpropene [!-Propene, 2-methyl-]; JJ. Phosgene [Carbonic dichloride]; KK. Isopropyl chloride [Propane, 2-chloro-]; and LL. Pentane. 16. "Process" is defined in 40 C.F.R. 68.3 as meaning any activity involving a regulated substance including any use, storage, manufacturing, handling, or on-site movement of such substances, or combination of activities. For the purpose ofthis definition, any group of vessels that are interconnected, or separate vessels that are located such that a regulated substance could be involved in a potential release, shall be considered a single process. 17. The Respondent has the following processes at the stationary source identified in Paragraph 11 : A. B38 Plastics Pilot Plants (ICR); B. OC Unit 4 PDH-1; C. A-36 PMDI; D. B-34 SOHO RCI Storage; E. B-75 Propylene Oxide Finishing; F. B-46 Urethane Specialties; G. . A-26 Versene; H. B-44 Voranol; I. B-66 Quat Derivatives; J. OC6- LHC 8; K. Ind Gas - Methane & Hz; L. Salt Dome Operation; M. A-40 Terminal Operations; N. A-35 Marine Operations; 0. B41 Polyethylene 4; P. B-8 Thermal Oxidizer; Q. B-35 WWTP; R. LHC Distribution; 4 Docket No. CAA-06-2018-3317 S. Industrial Gas- Ammonia; T. B33 Rotary Kiln; U. Land Tran Storage; V. Glycol B; W. B-13 Polyglycol Amines; X. B-39 Epoxy 5 GMA; Y. EO Distribution; Z. A3200 Picloram/DCP; AA. PDC Hydro; BB. B-72 LHC 7; CC. B43 IPG Plant (ICR); DD. Power 9 (ICR); EE. B6800 APDC (ICR); FF. B38 Market Dev Semi Plant (ICR); GG. B17 PGE (ICR); HI-I. B27 Poly 3 (ICR); II. B9300 Poly 5 & 6: and JJ. OC-200 LHC9. 18. 40 C.P.R. 68.130 specifies the following threshold quantities for the regulated substances listed below: A. Ethylene oxide [Oxirane]- I0,000 pounds; B. Methane- 10,000 pounds; C. Hydrogen- I0,000 pounds;, D. 1,3-Butadiene- 10,000 pounds; E. Propane- 10,000 pounds; F. Isopropyl chloride [Propane, 2-chloro-]-10,000 pounds; G. Ammonia (anhydrous)- 10,000 pounds; H. 2-Butene- 10,000 pounds; I. Acrylonitrile [2-Propenenitrile]- 20,000 pounds; J. Propylene oxide [Oxirane, methyl-]- 10,000 pounds; K. 1-Chloropropylene [!-Propene, 1-chloro-]- I0,000 pounds; L. Epichlorohydrine [Oxirange, (chloromethyl)-]- 20,000 pounds; M. Sulfur dioxide (anhydrous)- 5,000 pounds; N. Butane- 10,000 pounds; 0. 2-Chloropropylene [!-Propene, 2-chloro-]- 10,000 pounds; P. Trimethylamine [Methanamine, N-N-dimethyl-]-10,000 pounds; . Q. Isobutane- 10,000 pounds; R. Ammonia (cone 20% or greater)- 20,000 pounds; S. Hydrogen chloride (anhydrous) [Hydrochloric acid]-10,000 pounds; T. Chlorine- 10,000 pounds; U. Ethylenediamine [1,2-Ethanediamine]-10,000 pounds; V. Vinyl chloride [Ethene, chloro-]-10,000 pounds; 5 Docket No. CAA-06-20 18-3317 W. Propylene [!-Propene]- 10,000 pounds; X. 2-Butene- 10,000 pounds; Y. Ethylene [Ethene]- I 0,000 pounds; Z. Ethane- I 0,000 pounds; AA. Methyl ether [Methane, oxybis-] -10,000 pounds; BB. Methyl chloride [Methane, chloro-]- 10,000 pounds; CC. Methylamine [Methanamine]- 10,000 pounds; DD. Propyne [1-Propyne] -10,000 pounds; EE. !-Butene- 10,000 pounds; FF. Formaldehyde (solution) -15,000 pounds; GG. Isoprene [1,3-Butadiene, 2-methyl-]- 10,000 pounds; HH. Vinylidene chloride [Ethene, I, 1-dichloro-] - I0,000 pounds; II. 2-Methylpropene [!-Propene, 2-methyl-] _: 10,000 pounds; JJ. Phosgene [Carbonic dichloride]- 500 pounds; KK. Isopropyl chloride [Propane, 2-chloro-] - I 0,000 pounds; and LL. Pentane- I 0,000 pounds. 19. The Respondent has exceeded the threshold quantity for one or more of the regulated substances listed in Paragraph 15 at each of the processes identified in Paragraphs 17. 20. 40 C.F.R. 68.130 specifies the following threshold quantities for the flammable regulated substances listed below: A. Ethane- 10,000 pounds; and B. Propane- I0,000 pounds. 21. 40 C.F.R. 68.115(b)(2) provides that if the concentration of a regulated flammable substance is one percent or greater by weight of the mixture, then, for the purposes of determining whether a threshold quantity is present at the stationary source, the entire weight of the mixture shall be treated as the regulated substance unless the owner or operator can demonstrate that the mixture itself does not have a National Fire Protection Association flammability hazard rating of 4. 22. The concentration ofthe regulated flammable substances listed in Paragraph 20 is one percent or greater by weight in a flammable mixture at the Salt Dome Operation process. 6 Docket No. CAA-06-2018-3317 23. "Covered process" is defined in 40 C.F.R. 68.3 as meaning "a process that has a regulated substance present in more than a threshold quantity as determined under 68.115." 24. Each ofthe processes identified in Paragraph 17 is a "covered process" as that term is defined by 40 C.F.R. 68.3. 25. The covered processes identified in Paragraphs 17 and 22 are subject to the "Program 3" requirements of the Risk Management Plan (RMP) regulations and must, among other things, comply with the Program 3 Prevention Program of 40 C.F.R. Part 68, Subpart D. 26. Section 113(d)(1) of the CAA, 42 U.S.C. 7413(d), authorizes EPA to bring an administrative action for penalties that exceed $369,5321 and/or the first alleged date of violation occurred more than twelve (12) months prior to the initiation of the action, if the Administrator and the United States Attorney General jointly determine that the matter is appropriate for administrative action. 27. EPA and the U.S. Department of Justice have jointly determined that the Complainant can administratively assess a civil penalty even though the penalty exceeds the statutory amount and the alleged violations have occurred more than twelve (12) months prior to the initiation ofthe administrative action. 28. On or about January 25-29,2016, representatives of EPA conducted an inspection of the Respondent's facility. 1 The maximum penalty that can be assessed (without a waiver) under Section 113 of the Clean Air Act was increased by the Civil Monetary Penalty Inflation Adjustment Rule codified at 40 C.F.R. Part 19 to $369,532. 7 Docket No. CAA-06-2018-3317 29. On or about November 22, 2017, EPA issued a CAA Section 114 Information Request Letter (Information Request) to the Respondent pursuant to Section 114 of the CAA, 42 U.S.C. 7414. 30. On or about January 4, 2018, February 8, 2018, and February 22,2018, the Respondent submitted its responses to the Information Request. B. VIOLATIONS Count One- Failure to Assure that All Considerations Were Addressed Prior to Startup of the Monomer Tank Shortstop System 31. 40 C.F.R. 68.75 provides the following: (a) The owner or operator shall establish and implement written procedures to manage changes (except for "replacements in kind") to process chemicals, technology, equipment, and procedures; and, changes to stationary sources that affect a covered process. (b) The procedures shall assure that the following considerations are addressed prior to any change: (1) The technical basis for the proposed change; (2) Impact of change on safety and health; (3) Modifications to operating procedures; (4) Necessary time period for the change; and, (5) Authorization requirements for the proposed change (c) Employees involved in operating a process and maintenance and contract employees whose job tasks will be affected by a change in the process shall be informed of, and trained in, the change prior to start-up of the process or affected part of the process. (d) If a change covered by this paragraph results in a change in the process safety information required by 40 C.F.R. 68.65, such information shall be updated accordingly. 32. 40 C.F.R. 68.65(d)(1)(ii) provides that piping and instrument diagrams (P&IDs) are required process safety information. 33. On or about July 9, 2015, the Respondent created a management of change (MOC) for the Monomer Tank Shortstop System (D-801 Shortstop System) (MOC 3082015070009). 8