Document 9L47v59Z9793LpRxX3qKRekY7

DOCKET NO. RCRA-06-2020-0965 FILED March 9, 2021 3:00 P.M. U.S. EPA Region VI, Regional Hearing Clerk UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 6 DALLAS, TX IN THE MATTER OF: Fort Worth Independent School District RESPONDENT Administrative Compliance Order on Consent USEPA Docket No. RCRA-06-2020-0965 ADMINISTRATIVE COMPLIANCE ORDER ON CONSENT I. PRELIMINARY STATEMENT 1. This Administrative Compliance Order on Consent ("ACOC") is entered into by the United States Environmental Protection Agency, Region 6 ("EPA") and Respondent, the Fort Worth Independent School District, a political subdivision of the state of Texas and a legally constituted independent school district ("Fort Worth Independent School District" or "Respondent"), and concerns the facility located at 2808 Tiller Street, Fort Worth, TX 76107 (the "Facility"). 2. Notice of this action has been given to the state of Texas, under Section 3008(a)(2) of RCRA, 42 U.S.C. 6928(a)(2)1. 1 On December 26, 1984, the State of Texas received final authorization for its base Hazardous Waste Management Program (49 FR 48300). Subsequent revisions have been made to the Texas Hazardous Waste Program and authorized by the EPA. Except as otherwise provided, all citations found within this order are to the "EPA-Approved Texas Statutory and Regulatory Requirements Applicable to the Hazardous Waste Management Program" dated December 2015, incorporated by reference under 40 C.F.R. 272.2201(c)(1)(i) effective on April 10, 2020. 85 Fed. Reg. 20190 (April 10, 2020); 40 C.F.R. 272.2201: Texas State-Administered Program: Final Authorization. References and citations to the "EPA-Approved Texas Statutory and Regulatory Requirements Applicable to the Hazardous Waste Management Program" may vary slightly from the State of Texas' published version. The corresponding C.F.R. citations are also provided. RCRA-06-2020-0965 Fort Worth Independent School District 3. For the purpose of these proceedings, Respondent admits the jurisdictional allegations herein related to this ACOC; however, Respondent neither admits nor denies the specific factual allegations and conclusions of law contained in this ACOC. This ACOC states a claim upon which relief may be granted. 4. Respondent explicitly waives any right to contest the allegations and its right to appeal the proposed final order contained in this ACOC and waives all defenses that have been raised or could have been raised to the claims set forth in the ACOC. 5. Respondent consents to the issuance of the ACOC hereinafter recited and consents to the specific stated Compliance Order, Section VI, of this ACOC. II. JURISDICTION 6. This ACOC is issued by the EPA pursuant to Section 3008(a) of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. 6928(a), as amended by the Hazardous and Solid Waste Amendments of 1984 ("HSWA") and is simultaneously commenced and concluded through the issuance of this ACOC under 40 C.F.R. 22.13(b) and 22.18(b)(2) and (3). 7. Respondent agrees to undertake and complete all actions required by the terms and conditions of this ACOC. In any action by the EPA or the United States to enforce the terms of this ACOC, Respondent agrees not to contest the authority or jurisdiction of the EPA to issue or enforce this ACOC and agrees not to contest the validity of this ACOC or its terms or conditions. 2 RCRA-06-2020-0965 Fort Worth Independent School District III. STATEMENT OF PURPOSE 8. This ACOC provides for the resolution of the EPA Region 6's investigation of Respondent's Facility. 9. In entering into this ACOC, the mutual objectives of the EPA, Region 6 and Respondent are to remedy, and/or prevent the potential endangerment to human health and/or the environment from activities involving solid waste and hazardous waste, and to ensure that the injunctive relief that Respondent will complete as described in the Section VI, Compliance Order, is protective of human health and/or the environment. IV. STATUTORY AND REGULATORY BACKGROUND 10. Federal regulation of hazardous waste is primarily based on RCRA, enacted on October 21, 1976 to amend the Solid Waste Disposal Act, and HSWA enacted by Congress in 1984 to further amend the Solid Waste Disposal Act. RCRA establishes a "cradle-to-grave" program to be administered by the Administrator of the EPA and authorized states for regulating the generation, transportation, treatment, storage, and disposal of hazardous waste. See 42 U.S.C. 6901 et seq. 11. RCRA's Subchapter III (RCRA 3001-3023, 42 U.S.C. 6921-6940, known as "Subtitle C") required the EPA to promulgate regulations establishing performance standards applicable to facilities that generate, transport, treat, store, or dispose of hazardous wastes. Together, RCRA Subtitle C and its implementing regulations, set forth at 40 C.F.R. Parts 260 - 279, comprise the EPA's RCRA hazardous waste program. 12. Pursuant to its authority under RCRA, the EPA has promulgated regulations at 40 C.F.R. Parts 260 through 272 applicable to generators, transporters, and treatment, storage, and 3 RCRA-06-2020-0965 Fort Worth Independent School District disposal facilities. These regulations generally prohibit treatment, storage, and disposal of hazardous waste without a permit or equivalent "interim status." They prohibit land disposal of certain hazardous wastes, and provide detailed requirements governing the activities of those who generate hazardous waste and those who are lawfully permitted to store, treat, and dispose of hazardous waste. 13. Pursuant to 40 C.F.R. 261.2, a "solid waste" is any discarded material that is not otherwise excluded under 40 C.F.R. 261.4(a), or that is not excluded by variance. A discarded material is any material which is abandoned, recycled, inherently waste-like, or a military munition. Materials are solid waste, as defined in 40 C.F.R. 261.2, if they are abandoned by being disposed of, burned or incinerated, or accumulated, stored, or treated (but not recycled) before, or in lieu of, being abandoned by being disposed of, burned, or incinerated. 14. A solid waste is a hazardous waste if it is not excluded from regulation as a hazardous waste under 40 C.F.R. 261.4(b), and it exhibits any of the characteristics of hazardous waste identified in 40 C.F.R. Part 261, Subpart C, or it is listed in 40 C.F.R. Part 261, Subpart D. 15. Characteristic hazardous wastes are assigned "D" codes in 40 C.F.R. Part 261, Subpart C, depending on the specific hazardous characteristic that the waste exhibits. 16. An ignitable hazardous waste has a flash point of less than 60 degrees centigrade (140 degrees Fahrenheit) and is assigned the D001 hazardous waste code pursuant to 40 C.F.R. 261.21. 17. A corrosive hazardous waste has a pH of less than or equal to 2.0 or greater than or equal to 12.5 and is assigned the D002 hazardous waste code pursuant to 40 C.F.R. 261.22, and a 4 RCRA-06-2020-0965 Fort Worth Independent School District reactive hazardous waste is assigned the D003 hazardous waste code pursuant to 40 C.F.R. 261.23. 18. Listed wastes are assigned with "F", "K", "P", and "U" codes in 40 C.F.R. Part 261, Subpart D, depending on the specific waste generated from a non-specific source, a specific source, or discarded commercial chemical products, off-specification species, container residues and spill residues therefrom. 19. 40 C.F.R. Parts 264 and/or 265 applies to owners and operators of facilities that treat, store and/or dispose of hazardous waste. 20. The relevant RCRA statutory and regulatory requirements to this ACOC require that generators of solid waste and hazardous waste must, among other things: A. Determine whether their generated solid wastes are hazardous, pursuant to 40 C.F.R. 262.11; B. Comply with the statutory notification requirements of Section 3010 of RCRA, 42 U.S.C. 6930; C. Comply with the manifest requirements, pursuant to 40 C.F.R. 262.20; and D. Determine its generator status by meeting the exemption conditions set forth at 40 C.F.R. 262.34 or comply with the specific requirements set forth at 40 C.F.R. 270.10. V. FINDINGS OF FACT AND CONCLUSIONS OF LAW 21. Respondent is a political subdivision of the state of Texas, and a legally constituted independent school district with its administrative offices located at 100 N. University Dr., Fort Worth, TX 76107. 5 RCRA-06-2020-0965 Fort Worth Independent School District 22. Respondent is a "person" within the meaning of Section 1004(15) of RCRA, 42 U.S.C. 6903(15); and 30 Texas Administrative Code ("TEX.ADMIN.CODE") 3.2(25), [40 C.F.R. 260.10]. 23. The Facility identified in Paragraph 1 of this ACOC is a "facility" within the meaning of 30 TEX.ADMIN.CODE 335.1(60), [40 C.F.R. 260.10]. 24. Fort Worth Independent School District is a legally constituted independent school district that operates public schools in Tarrant County, Texas. 25. During the period of January through April 2020, the EPA conducted a RCRA investigation and record review ("Investigation") of the Fort Worth Independent School District's performance as a generator of hazardous waste. 26. During the Investigation, the EPA discovered that the Fort Worth Independent School District, at a minimum, generated the following waste during the scope of the time investigated: A. Characteristic of Ignitability: D001 (Ignitability); D002 (Corrosivity) B. Characteristic for multiple toxicity waste: D005 (Barium); D006 (Cadmium); D008 (Lead); D009 (Mercury) C. F002; F003; F005 27. The waste stream identified in Paragraph 26 is "solid waste" and "hazardous waste" as defined in 30 TEX.ADMIN.CODE 335.1 (140) and (70), [40 C.F.R. 261.2 and 260.10 (see also 40 C.F.R. Part 261)]. 6 RCRA-06-2020-0965 Fort Worth Independent School District 28. Fort Worth Independent School District is a "generator" of "hazardous wastes" at the Facility, as those terms are defined in Sections 1004(5) & (6) of RCRA, 42 U.S.C. 6903(5) & (6), 30 TEX.ADMIN.CODE 335.1(66) & (70), [40 C.F.R. Parts 260 and 261]. 29. As a generator of hazardous waste, the Fort Worth Independent School District is subject to Sections 3002 and 3010 of RCRA, 42 U.S.C. 6922 and 6930, and the regulations set forth at 30 TEX.ADMIN.CODE Chapter 335, Subchapter C, [40 C.F.R. Parts 262 and/or 270]. 30. On January 24, 2020, the EPA mailed the Fort Worth Independent School District correspondence entitled "Potential RCRA Violations and Opportunity for Settlement" regarding "Current Areas of Concern." The EPA and the Fort Worth Independent School District subsequently engaged in a process in which the EPA provided an opportunity for the Fort Worth Independent School District to submit additional information or materials, EPA continued its investigation, and, ultimately, the EPA revised the scope of alleged violations to those alleged herein. Claim i. Failure to Comply with the Manifest Requirements 31. The allegations in Paragraphs 1-30 are realleged and incorporated herein by reference. 32. Pursuant to 40 C.F.R. 262.20(a)(1), a generator who transports, or offers for transport, a hazardous waste for offsite treatment, storage, or disposal, or a treatment, storage, and disposal facility who offers for transport a rejected hazardous waste load, must prepare a manifest (OMB Control number 2050-0039) on EPA form 8700-22 and, if necessary, EPA form 8700-22A, according to the instructions found in the Appendix to 40 C.F.R. Part 262. 33. The EPA reviewed manifests prepared by Respondent from 2016 through 2019 and determined certain instances of manifest(s) not including an EPA ID number/waste code and 7 RCRA-06-2020-0965 Fort Worth Independent School District certain instances of manifests listing Respondent's administrative office address rather than the Facility address. EPA asserts that Respondent's errors in completion of EPA Form 870022 violated 40 C.F.R. 262.20(a)(1). VI. COMPLIANCE ORDER 34. Pursuant to Section 3008(a) of RCRA, 42 U.S.C. 6928(a), Respondent is hereby ordered to take the following actions, and within thirty (30) calendar days of the effective date of the settlement agreement, Respondent shall provide in writing the following: A. Respondent shall certify that it has assessed all of its solid waste streams to determine the accurate waste codes and has developed and implemented Standard Operating Procedures ("SOP") to ensure that the Fort Worth Independent School District is operating in compliance with RCRA and the regulations promulgated thereunder, including, but not limited to, procedures for: (a) making hazardous waste determinations; (b) managing hazardous wastes; (c) reporting, transporting, and disposing of hazardous waste; (d) preparing the manifests; and (e) meeting the requirements of the land disposal restrictions; B. Respondent shall certify that it has accurately and adequately complied with its RCRA Section 3010 Notification; and C. Respondent shall provide, with its certification, a copy of Respondent's SOPs as described in subparagraph A above. 35. In all instances in which this ACOC requires written submission to the EPA, the submittal made by Respondent shall be signed by an owner or officer of the Fort Worth Independent School District and shall include the following certification: 8 RCRA-06-2020-0965 Fort Worth Independent School District "I certify under the penalty of law that this document and all of its attachments were prepared by me or under my direct supervision in accordance with a system designed to assure that qualified personnel properly gathered and evaluated the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations." Copies of all documents required by this ACOC shall be sent to the following: U.S. EPA, Region 6 1201 Elm Street, Suite 500 Enforcement and Compliance Assurance Division (ECDSR) ATTN: Joyce Johnson Dallas, Texas 75270-2102 Where possible, notice shall be sent electronically by email to Joyce Johnson, at johnson.joyce-r6@epa.gov. VII. TERMS OF SETTLEMENT i. Modification 36. The terms, conditions, and compliance requirements of this ACOC may not be modified or amended except upon the written agreement of both parties, and approved by a Regional Judicial Officer, and such modification or amendment being filed with the Regional Hearing Clerk. ii. Indemnification 37. Neither the EPA nor the United States Government shall be liable for any injuries or damages to person or property resulting from the acts or omissions of Respondent, their officers, directors, employees, agents, receivers, trustees, successors, assigns, or contractors in carrying out the activities required by this ACOC, nor shall the EPA or the United States 9 RCRA-06-2020-0965 Fort Worth Independent School District Government be held out as a party to any contract entered into by Respondent in carrying out the activities required by this ACOC. iii. Record Preservation 38. Respondent shall preserve, during the pendency of this ACOC, all records and documents in its possession or in the possession of its divisions, employees, agents, contractors, or successors, which in any way relate to this ACOC regardless of any document retention policy to the contrary. iv. Cost 39. 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 the Equal Access to Justice Act (5 U.S.C. 504), as amended by the Small Business Regulatory Enforcement Fairness Act (P.L. 04-121), and any regulations promulgated pursuant to those Acts. v. Reservation of Rights 40. Notwithstanding any other provisions of this ACOC, the EPA retains all of its authority to take, direct, or order any and all actions necessary to protect public health or the environment or to prevent, abate, or minimize an actual or threatened release of hazardous substances, pollutants, or contaminants, or hazardous or solid waste or constituents of such wastes, on, at, or from the Facility, including but not limited to the right to bring enforcement actions under RCRA, CERCLA, and any other applicable statutes or regulations. 41. The EPA reserves all of its statutory and regulatory powers, authorities, rights, remedies, both legal and equitable, that may pertain to Respondent's failure to comply with any of the requirements of this ACOC. 10 RCRA-06-2020-0965 Fort Worth Independent School District 42. This ACOC shall not be construed as a covenant not to sue, release, waiver, or limitation of any rights, remedies, powers, claims, and/or authorities, civil or criminal, which the EPA has under RCRA, CERCLA, or any other statutory, regulatory, or common law authority of the United States. 43. EPA reserves the right to initiate an action seeking civil penalties for the same violations and facts set forth herein; as a compliance order, this ACOC does not resolve any potential liability for Federal civil penalties. vi. Termination and Satisfaction 44. When Respondent believes that it has complied with all the requirements of this ACOC, including compliance with the Compliance Order, Respondent shall so certify in writing and in accordance with the certification language set forth in Section VI (Compliance Order). Unless the EPA, Region 6 objects in writing within sixty (60) days of EPA's receipt of Respondent's certification, then this ACOC is terminated on the basis of Respondent's certification. 45. 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 Administrative Compliance Order on Consent, pursuant to 40 C.F.R. 22.6, by email to the following addresses: To EPA: Charlotte Goudeau Goudeau.Charlotte@epa.gov To Respondent: Kent Scribner Kent.scribner@fwisd.org Alexander Athanason Aathanason@fwisd.org 11 RCRA-06-2020-0965 Fort Worth Independent School District With copy to: Ann Greenberg agreenberg@wabsa.com vii. Effective Date of Settlement 46. This ACOC shall become effective upon filing with the Regional Hearing Clerk. 12 RCRA-06-2020-0965 Fort Worth Independent School District THE UNDERSIGNED PARTIES CONSENT TO THE ENTRY OF THIS ADMINISTRATIVE COMPLIANCE ORDER ON CONSENT: FOR THE RESPONDENT: Date: 02/23/2021 _______________________ Fort Worth Independent School District 13 RCRA-06-2020-0965 Fort Worth Independent School District FOR THE COMPLAINANT: Date: ____________ Digitally signed by CHERYL SEAGER DN: c=US, o=U.S. Government, ou=Environmental Protection Agency, cn=CHERYL SEAGER, 0.9.2342.19200300.100.1.1=68001003651793 ____________________D_ate_: 2021.03.05 12:14:54 -06'00' Cheryl T. Seager, Director Enforcement and Compliance Assurance Division 14 RCRA-06-2020-0965 Fort Worth Independent School District FINAL ORDER Pursuant to the Consolidated Rules of Practice Governing the Administrative Assessment of Civil Penalties, 40 C.F.R. Part 22, the foregoing ACOC is hereby ratified. This Final Order shall not in any case affect the right of the EPA or the United States to pursue appropriate civil penalties, injunctive or other equitable relief or criminal sanctions for any violations of law, including those violations alleged herein. 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 Compliance Order, Section VI, and the Terms of Settlement, Section VII, as set forth in this ACOC. Pursuant to 40 C.F.R. 22.31(b) this Final Order shall become effective upon filing with the Regional Hearing Clerk. Date: Rucki, Thomas Digitally signed by Rucki, Thomas DN: cn=Rucki, Thomas, email=Rucki.Thomas@epa.gov Date: 2021.03.08 16:29:16 -06'00' Thomas Rucki Regional Judicial Officer 15 RCRA-06-2020-0965 Fort Worth Independent School District CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing Administrative Compliance Order on Consent was electronically delivered to the Regional Hearing Clerk, U.S. EPA - Region 6, 1201 Elm Street, Suite 500, Dallas, Texas 75270-2102, and that a true and correct copy was sent this day in the following manner to the email addresses: Copy via Email to Complainant: Goudeau.Charlotte@epa.gov Copy via Email to Respondent: Kent.scribner@fwisd.org Aathanason@fwisd.org Copy via Email to: agreenberg@wabsa.com Copy via Email to the EPA, Region 6, Regional Hearing Clerk: Vaughn.Lorena@epa.gov Goudeau, Digitally signed by Goudeau, Charlotte DN: cn=Goudeau, Charlotte, email=Goudeau.Charlotte@epa. Charlotte Date: 2021.03.09 16:15:17 gov -06'00' EPA Region 6 16