Document 8Rg8YkeqrnX3JvyL46jaLvZm5

FIL ED UNITED STATES 20 13HAY- 7 PH 2: 2 1~ ENVIRONMENTAL PROTECTION AGENCY REGION 6 ~ .... fd 0 i'l l. L M\ :;.: G r. 1 Ec" t. 1> "" BEFORE THE ADMINISTRATOR ".~ !..!; J u," Yl In the Matter of: Vann Energy Services, LLC., Respondent EPA Docket No. CAA-06-2013- 3323 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 Vann Energy Services LLC., ("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 . Thi s proceeding for the assessment of civil penalties is brought by EPA pursuant to sections ll3(a)(3) and ll3(d)(l)(B) of the Clean Air Act, as amended (" Act" or "CAA''), 42 U.S.C. 7413(a)(3) and 7413(d)(1 )(B), and is simultaneously commenced and concluded through the issuance of this CAFO pursuant to 40 C.F.R. 22.13(b)(2) and (3), and 22.34. 2. For purposes of this proceeding, Respondent admits the jurisdictional allegations contained herein; however Respondent neither admits nor denies the specific factual allegations contained in this CAFO. Docket No. CAA-06-201 3-3323 3. Respondent explicitly waives any ri ght to contest the allegations and its right to appeal the proposed Final Order set forth herein , and waives all defenses which have been raised or could have been raised to the claims set forth in this CAFO. 4. Compliance with all the terms and conditions of this CAFO shall resolve only those violations which are set forth herein. 5. Respondent consents to the issuance of th is CAFO and to the assessment and payment of the stated civil penalty in the amount and by the method set forth in this CAFO. II. ALLEGATIONS 6. Respondent is a limited liability company authori zed to do business in the State of Texas. 7. Respondent owns and operates a trucking and oil field support servtce company at the facility located at 120 W. 3rd Street, Nixon, Texas 781 40 ("Faci lity"). 8. The Respondent provides trucking and oil field support services, which at the time of the incident included the cleaning of fracturing tanks at the Facility. Respondent is no longer cleaning fracturing tanks. 9. Specialty tanks used for fracturing oil and gas wells were brought to the Faci li ty and backed up to a pit where liquid was drained into the pit during cleaning. 10. The pit was used to hold the fluid that was cleaned out of the tanks before being pumped out into large tra ilers and hauled to a hazardous materi al disposal site. 11 . On May 16, 201 2, at approximately 2:30 am, a fire and explosion occurred at the Facility. Page 2 of 12 Docket No. CAA-06-2013-3323 12. As a result, two men suffered severe burns, one ofwhich had to be airlifted to San Antonio Military Medical Center. 13. Three trailers used to transport fracturing fluid parked adjacent to a cleaning ramp and the fluid disposal pit were involved in the incident. 14. Also involved in the incident were damaged portable light fixtures, a blown out manhole cover on one of the tanks, and the fluid pit that contained di sposal releases from the tanks. 15. The explosion occurred while Respondent's employees were preparing to clean a tank. Flammable and explosive fumes within the tank ignited, leading to additional explosions and fires in surroundi ng tanks and the pit area. 16. Pursuant to section 11 2(r)( l) of the CAA, 42 U.S.C. 74 12(r)(l), an owner/operator of a stationary source producing, processing, handling or storing substances listed pursuant to section 112(r)(3) ofthe CAA, 42 U.S.C. 7412(r)(3), or any other extremely hazardo us substance, has a general duty to: (1) identify hazards which may result from acciden tal releases of such substances using appropriate hazard assessment techniques; (2) design and maintain a safe facility, taking such steps as are necessary to prevent releases; and (3) minimize the consequences of accidental releases that do occur. 17. Respondent is a "person" as that term is defined by section 302(e) of the CAA, 42 U.S .C. 7602(e). 18. The Facility is a "stationary source" as that term ts defined by section 11 2(r)(2)(C) of the CAA, 42 U.S.C. 7412(r)(2)(C). Page 3 of12 Docket No. CAA-06-20 13-3323 19. Respondent is the "owner or operator" as those terms are defined by section 11 2(a)(9) of the CAA, 42 U.S.C. 7412(a)(9), of a stationary source. 20. At the Facility, Respondent produces, processes, hand les, or stores substances listed in, or pursuant to, CAA ll 2(r)(3) or other extremely hazardous substances identified as such due to toxicity, reactivity, flammabi lity, volati lity, or corrosivity. 21. The release from the explosive vapors and flammable liquids from the fractu ring fluid at the Facility on May 16, 20 12, constituted an "accidental release" as that term is defined by section 11 2(r)(2)(A) ofthe CAA, 42 U.S .C. 741 2(r)(2)(A). 22. Respondent failed to design and maintain a safe facility and did not take such necessary steps to prevent accidental releases by not fully util izing commonly available and accepted practices to ensure safety while cleaning fracturing tanks. 23. Respondent's fai lure constitutes a violation of the general duty clause in section 11 2(r)(1) ofthe CAA, 42 U.S.C. 741 2(r)(l ). 24. Respondent is subj ect to the assessment of penalties pursuant to sections 113(a)(3) and 11 3(d)(I)(B) of the CAA, 42 U.S.C. 7413(a)(3) and 74 13(d)( l )(B), for at least one day of violation of the general duty clause of section 112(r)(l) of the CAA, 42 U.S .C. 74 12(r)(l ). III. TERMS OF SETTLEMENT A. CIVIL PENALTV 25. Pursuant to the authority granted in sections 11 3(a)(3) and ll 3(d)( l )(B) of the CAA, 42 U.S.C. 7413(a)(3) and 7413(d)(l )(B), and taking into consideration the statutory factors identified in the Clean Air Act, the EPA and Respondent agree that an appropriate penalty to settle this matter is $35,000. Page 4 of 12 Docket No. CAA-06-2013-3323 26. Respondent shall pay the assessed penalty on the schedul e identified by this paragraph. Respondent shall make four equal payments of $8,750. The payments shall be made every six months starting on June 1, 20 13. Respondent shall pay $8,750 within 30 days of each following date - June 1, 2013; December 1, 20 13; June 1, 2014; and December 1, 2014. 27. 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 ways: regular U.S. Postal mail (including certified mail ), or U.S. Postal Service express mail, the check should be remitted to: U.S. Environmental Protection Agency Fines and Penalties Ci ncinnati Finance Center P.O. Box 979077 St. Louis, MO 63197-9000 For overnight mail (non-U.S. Postal Service), the check should be remitted to : U.S. Bank Government Lockbox 979077 US EPA Pines and Penalties I005 Convention Plaza SL-MO-C2-GL St. Louis, MO 631 01 Phone No. (3 14) 418-1028 For wire transfer, the payment should be remitted to: Federal Reserve Bank ofNew York ABA: 021030004 Account No. 68010727 SWIFT address = FRNYUS33 33 Liberty Street New York, NY 10045 Field Tag 4200 of the Fedwire message should read "D 68010727 Environmental Protection Agency" Page 5 of 12 Docket No. CAA-06-2013-3323 PLEASE NOTE: Docket number CAA-06-2013-3323 shall be clearly typed on the check to ensure proper credit. If payment is made by check, the check shall also be accompanied by a transmittal letter and shall reference the Respondent's name and address, the case name, and the docket number of this CAFO. If payment is made by wire service, the wire transfer instructions shall reference the Respondent's nan1e and address, the case name, and the docket number of this CAFO. The 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 following: Chief, Surveillance Section (6EN-AS) Compliance Assurance and Enforcement Division U.S. EPA Region 6 1445 Ross Avenue, Suite 1200 Dallas, TX 75202-2733 Lorena Vaughn Regional Hearing Clerk (6RC-D) U.S. EPA, Region 6 1445 Ross Avenue, Suite 1200 Dallas, TX 75202-2733 Respondent' s adherence to these instructions will ensure that proper credit is given when penalties are received in the Region. 28. 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 to the United States T reas ure r. 29. Pursuant to 31 U.S.C. 3717 and 40 C.F.R. 13.11 , unless otherwise prohibited by law, EPA will assess interest and late payment penalties on outstanding debts owed to the United States and a charge to cover the costs of processing and handling a delinquent claim. Interest on the civil penalty assessed in this CAFO wi ll Page 6 of 12 Docket No. CAA-06-201 3-3323 begin to accrue thirty (30) days after the effective date of the CAFO and will be recovered by EPA on any amount of the civil penalty that is not paid by the 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. ll(a). Moreover, the costs of the Agency's administrative handling of overdue debts will be charged and assessed monthly throughout the period the debt is overdue. See 40 C.F.R. 13. 11 (b). 30. EPA will also assess a $15.00 administrative handling charge for admini strative 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 tmpaid. 1n addition, a penalty charge of up to six percent per year will be assessed monthl y 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 from the fi rst day payment is delinquent. See 31 C.F.R. 901.9(d). Other penalties for failure to make a payment may al so apply. B. PARTIES BOUND 3 1. 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 represents to enter into the terms and conditions of this CAFO and to execute and to legally bind that party to it. Page 7 ofl2 Docket No. CAA-06-2013-3323 C. RETENTION OF ENFORCEMENT RIGHTS 32. EPA does not waive any rights or remedies available to EPA for any other violations by the Respondent of Federal or State laws, regulations, or permitting cond ition s. 33. Nothing in this CAFO shall relieve the Respondent of the duty to comply with all applicable provisions of section 11 2(r) of the CAA, 42 U.S.C. 7412(r), and 40 C.P.R. Part 68. 34. 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, po11utants, or contaminants at or from the Facility. Furthermore, nothing in this 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 penalties or injunctive relief under other Federal, State, or local laws or regulations. 35. In any subsequent administrative or judicial proceeding initiated by the Complainant or the United States for injunctive relief, civil penalties, or other appropriate relating to the Facility, Respondent shall not assert, and may not maintain, any defense or claim based upon the principles of waiver, res judicata, collateral estoppel, issue preclusion, claim-splitting, or other defenses based upon any contention that the claims raised by the Complainant or the United States in the subsequent proceeding were or should have been brought in the instant case, except with respect to the claims that have been specifically resolved pursuant to this CAFO. Page 8 of12 Docket No. CAA-06-2013 -3323 D. COSTS 36. 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. E. EFFECTIVE DATE 37. This CAFO becomes effective upon filing with the Regional Hearing Clerk. Page 9 ofl2 Docket No. CAA-06-201 3-3323 THE UNDERSIGNED PARTIES CONSENT TO THE ENTRY OF THIS CONSENT AGREEMENT AND FINAL ORDER: FOR THE RESPONDENT: 5 /- /..J Date FOR THE COMPLAINANT: 7 I~ Date Director Compliance Assurance and Enforcement Division Page 10 of 12 Docket No. CAA-06-2013-3323 FINAL ORDER Pursuant to section 113(d) ofthe CAA, 42 U.S.C. 7413(d), and the Consolidated Rules of Practice Governing the Administrative Assessment of Civil Penalties, 40 C.F.R. Part 22, the foregoing Consent Agreement is hereby ratified. This Final Order shall not in any case affect the right of EPA or the United States to pursue appropriate injtmctive or other equitable relief or criminal sanctions for any violations of law. This Final Order shall resolve only those causes of action alleged in this CAFO. Nothing in this Final Order shall be construed to waive, extinguish, or otherwise affect Respondent's (or its officers, agents, servants, employees, successors, or assigns) obligation to comply with all applicable federal state, and local statutes and regulations, including the regulations that were the subject of this action. The Respondent is ordered to comply with the terms of settlement as set forth in the Consent Agreement. Pursuant to 40 C.F.R. 22.3 1(b), thi s Final Order shall become effective , on filing wi-th the Regional Hearing Clerk. Date: 5 - l - \3 Patrick Rankin Regional Judicial Officer Page 11 of 12 Docket No. CAA-06-20 13-3323 CERTIFICATE OF SERVICE I hereby 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. EPA- Region 6, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733, and that a true and correct copy of the CAFO was placed in the United States Mail, to the fo llowing by the method indicated: Mr. Trace Blair Haynes and Boone, LLP 11 2 E. Pecan Street Suite 1200 San Antonio, TX 78205- 1524 CERTIFIED MAIL- RETURN RECEIPT REQUESTED: # 1tJ03050D0QD3Drt7SJ/)t:) Date: 6/ 1-JO l3 U.S. EPA, Reg"o Dallas, Texas Page 12 of 12