Document 4vBMmn3N6LK3O4weRv3359gOQ

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 6 DALLAS, TEXAS FILED 30 APR 24 AM 09:50 REGIONAL HEARING CLERK EPA REGION 6 IN THE MATIER OF: TEXAS METAL CASTrNGS LUFKIN, TEXAS 75904 RESPONDENT s s EPA DOCKET NUMBER EPCRA 06-2024-0503 CONSENT AGREEMENT AND FINAL ORDER CONSENT AGREEMENT The Director of the Enforcement and Compliance Assurance Division of the United States Environmental Protection Agency (EPA), Region 6 (Complainant), and Texas Metal Castings (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 I. This proceeding for the assessment of civil penalties pursuant to Section 325(c) of the Emergency Planning and Community Right-to-Know Act (EPCRA), 42 U.S.C. I 1045(c), is simultaneously commenced and concluded by the issuance of this CAFO against Respondent pursuant to 40 C.F.R. 22. 13(6), and 22. 18(6)(2) and (3). 2. For the purposes of this proceeding, Respondent admits the jurisdictional allegations herein; however, Respondent neither admits nor denies the specific factua l allegations Texas Metal Caslings Docket No. EPCRA 06-2023-0503 contained in this CAFO. Respondent explicitly waives any right to contest the allegations and its right to appeal the proposed Final Order set forth herein and waives all defenses wh ich have been raised or could have been raised to the claims set forth in this CAFO. 3. Compliance with all the terms and conditions of this CAFO shall resolve federal civil liability for only those violations which are set fo rth herein. 4. Respondent consents to the issuance of this CAFO, and to the assessment and payment of the stated civil penalty in the amount and by the method set forth in this CAFO. 5. Respondent represents it is duly authorized to execute this CAFO and the party sign ing this CAFO on behalf of Respondent is duly authorized to bind Respondent to the terms and conditions of this CAFO. 6. Respondent agrees the provisions of th is CAFO shall be binding on its officers, directors, employees, agents, servants, authorized representatives, successors, and assigns. 7. Respondent hereby certifies that as of the date of the execution of this CAFO, Respondent has corrected the violations alleged in this CAFO and is now, to the best of its knowledge, in compliance with all applicable requirements ofSection 3 13 of EPCRA, 42 U.S.C. 11 023, and 40 C.F.R. Part 372. II. STATUTORY AND REGULATORY BACKGROUND 8. Section 313 of EPCRA, 42 U.S.C. 11 023, 40 C.F.R. 372.22 and 372.30 require the owner or operator of a faci lity with: (a) ten or more full-time employees; (b) a Standard Industrial Classification (S IC) major group or industry code listed in 40 C.F.R. 372.23(a), for which the corresponding North American Industry Classification System (NAICS) subsector or industry codes are listed in 40 C.F.R. 372.23(b) or (c); and (c) a toxic chemical listed under Subsection 3 I3(c) of EPCRA and Page 12 Texas Metal Castings Docket No. EPCRA 06-2023-0503 40 C.F.R. 372.65, that manufactured, processed, or otherwise used the chemical in excess of the threshold quantity establi shed under Subsection 3 I3(f) of EPCRA, 42 U.S.C. 11023(f), and 40 C.F.R. 372.25, 372.27, or 372.28, to complete and submit a toxic chemical release inventory Form R, for each toxic chemical known by the owner or operator to be " manufactured, processed, or otherwise used" in quantities exceeding the established threshold quantity, to the Administrator of EPA and to the State in which the facility is located by July I, for the preceding calendar year. 9. Pursuant to Section 3 I3(a) of EPCRA, 42 U.S.C. 11023(a), the owner or operator of a facility shall complete a toxic chemical release form for each toxic chem ical listed under Section 3 I 3(c) of EPCRA, 42 U.S.C. 11023(c) that was manufactured, processed, or otherwise used in quantities exceeding the toxic chem ical threshold quantity established by Section 3 I3(f) of EPCRA, 42 U.S.C. 11023(f) during the preceding calendar year at such facility. Such form shall be submitted to the Administrator and to an offic ial or offic ials of the State designated by the Governor on or before July I, 1988, and annually thereafter on July I and shall contain data reflecting releases during the preceding calendar year. I0. Pursuant to Section 3 I3(f) of EPCRA , 42 U.S.C. 11 023(f), and 40 C.F.R. 372.25, the threshold amount for reporting under Section 3 I3(b) of EPCRA, 42 U.S.C. 11023(b), and 40 C.F.R. 372.30, is 25,000 pounds for any toxic chem ical manufactured or processed, and I0,000 pounds for any toxic chemical otherwise used for the appl icable calendar year. A lternative reporting thresholds are set forth in 40 C.F.R. 372.27 and 372.28. 11. 40 C.F.R. 372.30(a) requires that for each toxic chemical known by the owner or Page I3 Texas Metal Castings Docket No. EPCRA 06-2023-0503 operator to be manufactured (including imported), processed, or otherwise used in excess of an applicable threshold quantity in 40 C.F.R. 372.25, 372.27, or 372.28 at its covered faci lity described in 40 C.F.R. 372.22 for a calendar year, the owner or operator must submit to EPA and to the State in which the faci lity is located a completed EPA Form R (EPA Fann 9350-1 ), or EPA Form A (EPA Form 9350-2), and, for the d ioxin and d ioxin-like compounds category, EPA Form R Schedule 1 (EPA Form 93503) in accordance with the instructions referred to in subpart E of this part. 12. Pursuant to Section 3 I3(g)( I)(C)(iii) of EPCRA, 42 U.S.C. 11 023(g)( I)(C)(iii), and 40 C.F.R. 372.85(b)( l6), the Form R s hall include in format ion re lative to waste treatment, including the type of waste stream containing the reported chemical, the treatment method applied to the waste stream, and an estimate of the efficiency of the treatment. III. FINDINGS OF FACT AND CONCLUSIONS OF LAW A. PRELIMINARY ALLEGATIONS 13. Respondent is a corporation organized under the laws of the State of Texas and authorized to do business in the State of Texas. 14. Respondent is a " person" as defined by Section 329(7) of EPCRA, 42 U.S.C. 11 049(7). Respondent owns and operates the fac ility at 5400 Lotus Lane Lufkin 75904. 15. Respondent' s fac ility identified in Paragraph 14 is a "facility" as that term is defined by Section 329(4) ofEPCRA, 42 U.S.C. 11 049(4), and 40 C.F.R. 372.3. 16. At the time of the violation(s), Respondent' s fac ility had ten ( I0) or more " full-time employees" as that term is defined by 40 C.F.R. 372.3. 17. Respondent' s facil ity is in primary NA ICS code 33 1523 (Nonfe rrous Metal Die-Casting Foundries), which is listed in 40 C.F.R. 372.23(b). 18. Lead is a " toxic chemical" within the meaning of 40 C.F.R. 372.3 and 372.65. Page J 4 Texas Aleta/ Castings Docket No. Ef'CRA 06-2023-0503 19. During Reporting Year (RY) 202 1 the toxic chemical in Paragraph 18 was "manufacturecl, processed, or otherwise used," as those terms are defined by Section 3 I3(b) of EPCRA, 42 U.S.C. 11023(b), and 40 C.F.R. 372.3, at Respondent's faci lity. 20. O n or about January 15, 2024, an off-site investigation was initiated to determine compliance of Respondent's Lufkin, Texas faci lity w ith Section 3 13 of EPCRA. During the off-site investigation, EPA a lleged the fac ility had failed to timely report the aforementioned TRI chemical in paragraph 18 for the 202 1 Re porting Year on or before the applicable due date o f July I, 2022. B. VIOLATIONS 21. Complainant hereby restates and incorporates by reference Paragraphs I through 20. 22. During calendar year 202 1 Respondent manufactured, processecl, or othenvise used the TRI chemical identified in Paragraph 18, at the Respondent's fac il ity, in excess of the applicable threshold quantities for reporting. 23. EPA finds Respondent violated 42 U.S.C. I 1023(g)(l)(B), and 40 C.F.R. 372.85(b)(2) by fai ling to submit 202 1TRI reporting forms for the aforeme ntioned TRI chem icals in paragraph 18 on or before July I , 2022. Page 15 Texas Metal Castings Docket No. EPCRA 06-2023-0503 IV. TERMS OF SETTLEMENT A. CIVIL PENALTY 24. For the reasons set forth above, Respondent has agreed to pay a civ il penalty which has been determined in accordance with Section 325(c) of EPCRA, 42 U.S.C. I I045(c), wh ich authorizes EPA to assess a civi l penalty of up to Fifty-Five Thousand Nine Hundred and Seven Dollars ($55,907) per day per violation of EPCRA. 1 Upon consideration of the entire record herein, including the Findings of Fact and Conclusions of Law, which are hereby adopted and made a part hereof, and upon consideration of the nature, circumstances, extent and gravity of the alleged violations, and with respect to Respondent' s ability to pay, history of prior EPCRA Section 3 13 violations, the degree of culpability, economic benefit or sav ings (if any) resulting from the violations, and other factors as justice may require, it is ORDERED that Respondent be assessed a civil penalty of nine thousand one-hundred eighty-six dollars and no cents ($9,186.00). 25. Within thirty (30) days of the effective date of this CAFO, Respondent shall pay the assessed civil penalty by certified check, cashier' s check, or wire transfer, made payable to "Treasurer, United States of America, EPA - Region 6". Payment shall be remitted in one of three (3) ways: regular U.S. Postal Service mail (including certified mail), overnight mail, or wire transfer. For U.S. Postal Service mail, the check(s) should be remitted to: 1 The statutory maximum penalty level under Section 325(c) of EPCRA, 42 USC 11045(c) has been adjusted over ti me as required by the Federal Civil Penalties Inflation Adjustment Act of 1990 (28 U.S.C. 246 1 note; Pub. L. 10 1-4 10), as amended by the Debt Collection Improvement Act of 1996, and most recently, by the Federal Civil Penalties Inflatio n Adjustment Act Improvements Act of 2015 (28 U.S.C. 246 1 note; Pub. L.114-74, Section 70 I). EPA implements these adjustments through rulemaking which are codified in 40 CFR Part 19. As adjusted by the Amendments to the EPA 's Civil f'enalty Policies to Account for Inflation (effective Januwy /5, 20/8) and 7iansmittal ofthe 2018 Civil i\;/oneta1y Penalty Inflation Acljustment Rule (20 18 Rule) (83 Fed. Reg. 1194), 40 C.F.R. 19.4, the Administrator may assess a civil penalty of up to $55,907 per violation per day of violation occurring after November 2, 20 15 and ,vhe re penalties are assessed on or after January 15, 2018. Page I6 Texas Metal Castings Docket No. EPCRA 06-2023-0503 U.S. Environmental Protection Agency Fines and Penalties C incinnati Finance Center P.O. Box 979078 St. Louis, MO 63 197-9000 For overnight mai l (non-U.S. Postal Service, e.g., Fed Ex), the check(s) should be remitted to: U.S. Environmental Protection Agency Government Lockbox 979078 3 180 Rider Trail S. Earth City, MO 63045 For w ire transfer, the payment should be remitted to: Federal Reserve Bank of New York ABA = 02 1030004 Account = 680I0727 SWIFT address = NYUS33 33 Liberty Street New York, NY 10045 Field Tag 4200 of the Fedwire message should read " D 680 I0727 Environmental Protection Agency." In addition to the above methods of pay ments : Payments may a lso be made electronica lly. For inforn1ation on e lectron ic payments, please visit. https:llwwlv.epa.govl financial/makepavment The above web site may also be referenced fo r making payments via credit card for any dollar amount up to $24,999.99. There is no limit for checking accounts or debit cards. PLEASE NOTE: Docket number EPCRA 06-2024-0503 shall be clearly typed on the check, or other method of payment, to ensure proper credit. In addition, for further accounting clarification, please preface the above Docket number with the acronym: Page 17 Texas Metal Castings Docket No. EPCRA 06-2023-0503 CAFO, e.g., CAFO EPCRA 06-2024-0503 on the method of payment. If payment is made by check, the check shall a lso be accompanied by a transmittal letter and sha ll reference Respondent' s name and address, the case name, and docket number of the CAFO. Jf payment is made by wire transfer, the wire transfer instructions sha ll reference Respondent's name and address, the case name, and docket number of the CAFO. Respondent shall also send a simultaneous notice of such payment, including a copy of the check and transmittal letter, or wire transfer instructions to the fol lowing: Morton E. Wakeland, Jr., Ph.D. EPCRA 313 Enforcement Coordinator U.S. EPA, Region 6 Toxic Enforcement Section (ECDST) 120 I Elm Street, Su ite 500 Dallas, TX 75270-2102 wake/and. morlon@epa.gov and Lorena Vaughn Regional Hearing Clerk U.S. EPA, Region 6 120 I Elm Street, Su ite 500 Dallas, TX 75270-2102 vaughn. lorena@epa.gov Respondent' s adherence to this request will ensure proper credit is g iven when penalties are received by EPA and acknowledged in the Region. Respondent agrees not to claim or attempt to claim a federal income tax deduction or credit covering a ll or any part of the civi l penalty paid to the United States T reasurer. 26. If Respondent fa ils to submit the full payment with in thirty (30) days of the effective date of this Order, Respondent may be subject to a civi l action to collect the penalty in full , in an appropriate district court of the United Stated pursuant to Section 325(f) of EPCRA, 42 u.s.c. 11045(f). Page I 8 Texas Metal Castings Docket No. EPCRA 06-2023-0503 27. Pursuant to 3 I U.S.C. 37 17 and 40 C.F.R. 13.11 , unless otherwise prohibited by law, EPA will assess interest and late payment penalties on outstand ing debts owed to the United States and a charge to cover the costs of processing and handl ing a delinquent claim. Interest on the civil penalty assessed in this CAFO will begin to accrue thirty (30) days after the effective date of the CAFO and wi ll be recovered by EPA on any amount of the civil penalty that is not paid by the respective due date. Interest will be assessed at the rate of the United States Treasury tax and loan rate in accordance with 40 C.F.R. 13. 11 (a). Moreover, the costs of the Agency's administrative handling of overdue debts will be charged and assessed month ly throughout the period the debt is overdue. See 40 C.F.R. 13. 11 (b). 28. EPA will also assess a $ 15.00 administrative handling charge for administrative costs 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 (6%) per yea r will be assessed month ly on any portion of the debt which remains delinquent more than ninety (90) days. See 40 C.F.R. 13.11 (c). Should a penalty charge on the debt be required, it shall accrue fro m the first day payment is delinquent. See 31 C.F.R. 90 I.9(d). Other penalties for failure to make a payment may also apply. 29. This Consent Agreement and Final Order shall not relieve Respondent of its obligation to comply with all applicable provisions of federa l, state, or local law, nor shall it be construed to be a ruling on, or determination of, any issue related to any federal , state, or local permit. 30. This document is a " Final Order" as that term is defined in the "Enforcement Response Page I 9 Texas Metal Castings Docket No. EPCRA 06-2023-0503 Policy for Section 3 13 of the Emergency Planning and Community Right-to-Know Act ( 1986) and Section 6607 of the Pollution Prevention Act ( 1990)," dated August 10, 1992 (Amended: 1996, 1997, and 200 1; and updated in accordance with the 20 16 C ivil Monetary Penalty Inflation Adjustment Rule on February 24, 20 17) for the purpose of demonstrating a history of " prior such violations." B. RETENTION OF ENFORCEMENT RIGHTS 3 1. EPA does not waive any rights or remedies available to EPA for any violations by Respondent of Federal or State laws, regulations, or permitting conditions. 32. Nothing in this CAFO shall rel ieve Respondent of the duty to comply with all applicable provisions of Section 3 13 of EPCRA, 42 U.S.C. 11023, and 40 C.F.R. Part 372. 33. Nothing in this CAFO shal l 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 env ironment, or prevent, abate, or minimize an actual or threatened release of hazardous substances, pollutants, contaminants, hazardous substances on, at, or from Respondent' s fac ility. Furthermore, nothing in this CAFO shall be construed to prevent or limit EPA 's c ivil and crimina l authorities, or that of Federal, State, or local agencies or departments to obtain penalties or injunctive relief under Federal, State, or local laws or regulations. C. COSTS 34. Each party shall 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. D. EFFECTIVE DATE 35. T his CAFO becomes effective upon filing with the Regional Hearing C lerk. Page I 10 Texas Metal Castings Docket No. EPCRA 06-2023-0503 36. The EPA and Respondent agree to the use of electronic signatures for this matter. The EPA and Respondent further agree to electronic service of this Consent Agreement and Final Order, pursuant to 40 C.F.R. 22.6, by emai l to the fo llowing addressees: To EPA: wake/and. morton(@epa.gov To Respondent: mpope@texasmetalcasling.com Page I 11 Texas Metal Castings Docket No. EPCRA 06-2023-0503 THE UNDERSIGNED PARTIES CONSENT TO THE ENTRY OF THIS CONSENT AGREEMENT AND FINAL ORDER: FOR THE RESPONDENT: Date: _ _ _ _ _ _ __ Digitally signed by Mark A Mark A Pope 6~: 20240425 11,51 41 . 0500 Mark Pope President Texas Metal Castings 5400 LOT US LN Lufkin, TX 75904 FOR THE COMPLAINANT: Date: _ _ _ __ __ Digitally signed by Cheryl T. Seager Date: 2024.04.2614:30:18 -osoo Cheryl T. Seager Director Enforcement and Compliance Assurance Division U.S. EPA Region 6 Page I 12 Texas Metal Castings Docket No. EPCRA 06-2023-0503 FINAL ORDER Pursuant to Section 325(c) o f EPCRA, 42 U.S.C. 11045(c), and the Consolidated Rules of Practice Governing the Administrative Assessment of C ivil Pe na lties, 40 C.F.R. Part 22, the foregoing Consent Agreement is hereby ratified. This Fina l Order shall not in any case affect the right of EPA or the United States to pursue appropriate injunctive or other equitable rel ief or criminal sanctions for any violations of law. This Final Order shall resolve only those causes of action a lleged in the Consent Agreement. Nothing in this Final Order shall be construed to waive, extingu ish, or otherwise affect Respondent' s (or its officers, agents, servants, employees, successors, or assigns) obligation to comply with a ll applicable federa l, state, and local statutes and regulations, including the regulations that were the subject of this action. Respondent is ordered to comply with the te rms of settlement and the civi l penalty payment instructions as set forth in the Consent Agree ment. In accordance with 40 C.F.R. 22.3 1(b), this Final Order shall become effective upon filing with the Regional Hearing C lerk. Date : _ _ __ _ _ __ _ Digitally signed by THOMAS THOMAS RUCKI RUCKI Date: 2024.04.29 13:44:20 -04'00' Thomas Rucki Regional Judicia l Officer U.S. EPA Region 6 Dal las, Texas 75270-2102 Page 113 Texas Aleta! Castings Docket No. EPCRA 06-2023-0503 CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing Consent Agreement and Final Order was filed with me, the Regional Hearing Clerk, U.S. EPA - Region 6, 120 I Elm Street, Suite 500, Dallas, Texas 75270-2102, and that I sent a true and correct copy on this day in the fo llowing manner to the below email addresses: Copy via Email to U.S. EPA Region 6 and Complainant: wakeland.morton@epa.gov Morton E. Wakeland, Jr. ("Mort"), Ph.D. EPCRA Section 3 13 Enforcement and TRI Program Coordinator U.S. EPA Region 6 Compliance Assurance and Enforcement Division (ECD) Waste Enforcement Branch (ECDS) Toxics Section (ECDST) Dallas, Texas 75270 (2 14) 665-8116 Copy via Email to Respondent: m p o pe @texasm e ta/casting. com Mark Pope, President Texas Metal Castings 5400 LOT US LN Lufkin, TX 75904 insert year insert month I day Dated this day of_ _ _ _ _ __ LORENA VAUGHN Digitally signed by LORENA VAUGHN Date: 2024.04.30 09:51:33 -05'00' Lorena Vaughn Regional Hearing C lerk U.S. EPA Region 6 Dallas, TX Page I 14