Document Eq9kva8ZxLym2Lypk5Xd31z7V

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REG IO N 6 1445 ROSS AVENUE, SUITE 1200 DALLAS TX 75202-2733 May 3, 20 13 CERTIFIED MAIL - RETURN RECEIPT REQUESTED: 70 113500 0000 0359 6334 Jennifer F. Gallagher Nexeo Solutions, LLC. 220 1 Lake Woodlands Dr. The Wood lands, TX 77380 Re: Consent Agreement and Final Order, EPA Docket No. CAA-06-2013-3325 in the Matter ofNexeo Solutions, LLC Ms. Gallagher: Enclosed is a copy of the Consent Agreement and Final Order (CAFO) filed with the Regional Hearing Clerk in the matter referenced above. As provided in the CAFO, Nexeo is required to pay the civil penalty of$37,500.00 within thirty (30) days from the effective date of the CAFO. If you have any questions regarding this CAFO, please contact Jeffrey Clay, Assistant Regional Counsel, at (214) 665-7297. Sincerely, Enclosure i ctor ompliance Assurance and Enforcement Division Internet Address (URL) http://www.epa.gov/ region6 Recycl ed/Recyclable Printed with Vegetable Oil Based Inks on 100% Recycled Paper, Process Chlorine Free UN !T ED STATES EN VIRON M ENTAL PROTECT ION AGENCY REG ION 6 BEFORE TH E ADMI N ISTRATOR FIL EO 2013HAY - 6 Pf1 ~ : O J ;; 1:. CI0 /' l .. . "' ( li'. EP/1. ~olliiON YI L '" In the Matter of: Nexeo Solutions, LLC, Garland, Texas Respondent EPA Docket No. CAA-06-20 13-3325 CONSENT AGREEMENT AND FINAL ORDER The Director of the Comp liance Assurance and Enfo rcement Div is ion o f the United States Environme nta l Protectio n Agency (''EPA"), Region 6 ("Complainant" ) and Nexeo Solut ions, LLC ("' Responde nt") in the a bove-referenced proceeding, he reby agree to reso lve this matter through the issuance of this Consent Agreement a nd Fina l Order ("'CAFO"). I. PRELIMINARY STATEMENT I. T his proceeding fo r the assessment of civil pena lties is bro ught by EPA pursuant to sections I 13(a)(3) and I 13(d)( I)(B) of the C lean Air Act, as a mended ("Act" o r ''CAA"), 42 U.S.C. 741 3(a)(3) a nd 74 13(d)( I)(B), and is s imultaneous ly commenced and concluded thro ug h the issuance o f th is CA FO pursuant to 40 C.F.R. 22. 13, 22. 18, and 22.34. 2. For purposes of this proceeding, Respondent admits the jurisdictional a llegations conta ined he re in ; however, Respo ndent ne ither admits no r den ies the specific factua l a llegations conta ined in thi s CAFO. Docket No . CJ\J\-06-20 13-3325 3. Respo nde nt explic itly waives any rig ht to contest the a llegatio ns and its rig ht to appea l the pro posed Final Order set fo rth here in, and waives a ll defenses, w hich have been ra ised o r could have been ra ised to the c laims set forth in this CAFO . 4. Compliance w ith a ll the terms and conditio ns of th is CA FO sha ll reso lve on ly those vio latio ns, w hi ch are set forth herein . 5. Respondent consents to the issuance of this CA FO and to the assessment and payment of the stated c ivil pena lty in the amo unt and by the method set forth in this CAFO. II. ALLEGATIONS 6. Respo nde nt is a De laware Limited Liabil ity Company authorized to do bus iness in the State of Texas . 7. Respondent owns a nd operates a chemical and oil storage, bl ending, packagi ng and who lesa le distribution facility, and Resource Conservation and Recovery Act (RCRA) permitted waste storage facility, located at 3 10 I Wood Drive in Garla nd, Texas ('' Facility"). 8. The Respondent handles a variety of chemicals including haza rdo us wastes. These chem ica ls inc lude Toluene, Lacolene, and o ther fl ammable hydrocarbon mixtures. 9. On November 16,20 12, a fire started du ring truck tank fill ing and blend ing activ ities. A blend of75% To luene a nd 25% Laco le ne was being loaded at the t ime of the fire. I 0. Air was introduced into the tank truck leading to the c reation of a flammable a t m o s phe re. II . Ign itio n was caused by static electric discharge fro m the n owing liquid. Page 2 o f I 1 Docket No. CAA-06-20 13-3325 12. Pursuant to section I 12(r)( I) of the CAA, 42 U.S.C. 741 2(r)( I), an owne r/operator of a stationary source producing, process ing, handling or s toring s ubstances listed pursuant to section 11 2(r)(3) of the CAA , 42 U.S.C. 741 2(r)(3), or any other extremely hazardous substance, has a general duty to: (I) identify hazard s which may result from accidental re leases of s uch substances usi ng appropriate hazard assessment techni ques; (2) design and mainta in a safe facility , taking such steps as are necessary to preve nt re leases; and (3) minimize the consequences of accidental releases that do occur. 13. Respondent is a "person" as that term is defi ned by section 302(e) of the CAA, 42 U.S.C. 7602(e). 14. The Fac ility is a "stationary source" as that term is defined by section 11 2(r)(2)(C) of the CAA, 42 U.S.C. 741 2(r)(2)(C). 15. 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. 16. At the Facili ty, Respondent processes, handles, or stores substances lis ted in, or pursuant to, CAA I 12(r)(3) or other extremely hazardous substances identified as s uch due to tox ic ity, reactivity, fl ammability, volati lity, or corrosivity. 17. T he re lease of Particulate Matter, Volatile Organic Compounds, Sulfur Dioxide , Nitrous O xides, Carbon M onoxide, Hydrogen s ulfide, Po lycyc lic Aromatic Hydrocarbons, and othe r Hazardous Air Po llutants at the Faci lity on November 16, 201 2 , constituted an "accidental release'' as that term is defined by section I 12(r)(2)(A) of the CAA, 42 U.S.C. 74 12(r)(2)(A). 18. Respondent fail ed to design and mainta in a safe faci lity and did not take the necessary ste ps to prevent the accidenta l re lease that occurred on November 16, 201 2. Page 3 of 11 Docket No. CAA-06-20 13-3325 19. Responde nt's fa ilure constitutes a vio lation of the genera l duty c lause in section 112(r)( l ) ofthe CAA, 42 U.S.C. 74 12(r)( l). 20. Respondent is therefore subject to the assessment of pena lties purs uant to sectio ns 113(a)(3) and 11 3(d)( I)(B) o fthe CAA, 42 U.S.C. 74 13(a)(3) and 74 13(d)( I)(B), for at least one day o f violation of the gene ra l duty clause o f sectio n 11 2(r)( l ) of the CAA, 42 U.S.C. 741 2(r)( l ). III. TERMS OF SETTLEMENT A. CIVIL ADMINISTRATIVE PENALTY 2 1. Pursua nt to the autho rity granted in sections 11 3(a)(3) and 113(d)( I)(B) of the C AA, 42 U.S.C. 741 3(a)(3) and 74 13(d)( I)(B), and taking into consideratio n the s ize o f the Respondent's business, the economic impact of the pe na lty o n the Responde nt's business, the Respondent' s fu ll compliance history and good faith effo rts to comp ly, the duration of the vio lation, payment by Respondent of penalties prev io usly assessed fo r t he same vio lation (if any), the economic benefit of noncompliance, and the serio usness of the v io latio n, as we ll as other factors whic h j ustice may req uire, EPA and Respo ndent agree that an appropri ate penalty to settle thi s matter is $37,500. 22. Responde nt shall pay the assessed pena lty w ith in thirty (30) days of the effective da te of this CAFO. Respondent sha ll pay the assessed civ il pena lty by certified check, cashier's check, or wire tra nsfer, made payable to "Treasure r, U ni ted States of A merica, EPA - Region 6." Payment sha ll be remitted in one of three ways: regular U.S. Postal ma il (inc luding certified ma il), or U.S. Postal Serv ice express ma il - the c heck should be remitted to : Page 4 of 11 Docket No. CAA-06-20 13-3325 U.S. Environmenta l Protection Agency Fines and Pena lties Cinc innati Finance Center P. O. Box 979077 St. Louis, MO 63 197-9000 For o ve rnight ma il (no n-U .S. Posta l Service), the check should be remitted to: U.S. Bank Government Lockbox 979077 U.S. EPA , Fines and Penalties I005 Convention Plaza SL-M O-C2-G L St. Loui s, MO 63 10 I Phone No. (3 14) 4 18-1 028 For w ire transfer, the payme nt s ho uld be remitted to: Federal Rese rve Bank ofNew York ABA : 02 1030004 Account No. 680 I0727 SWIFT address = FRNYUS33 33 Libe rty Street New York, NY I0045 Fie ld Tag 4200 o f the Fedwirc message should read ' D 680 I0727 Environ me nta l Protectio n Agency" PLEASE NOTE: Docket number CAA-06-2013-3325 shall be clearly typed on the check to ensure proper credit. If payment is made by check, the check sha ll a lso be accompanied by a transmitta l lette r and sha ll reference the Respondent's na me and address, the case name, and the docket number of thi s C AFO. If payment is made by w ire service, the wire transfer in structions sha ll refe rence the Responde nt's name and address, the case name, and the docket number of this CA FO. T he Responde nt s ha ll a lso send a s imu lta neous notice of such pay ment, inc luding a copy of the check and trans mitta l letter or w ire transfer instructi ons to the fo llowing: Page 5 o f 11 Docket No. CAA-06-20 13-3325 Samue l Tates C hief, Surveillance Section (6EN-AS) Compli ance Assurance and Enforcement Div ision U.S. EPA, Region 6 1445 Ross A venue, Suite 1200 Da llas, TX 75202-2733 Lore na Vaughn Regiona l Hearing C lerk (6RC-D) U.S. EPA, Region 6 1445 Ross Avenue, Suite 1200 Dallas, TX 75202-2733 Respondent' s adhe rence to these instructions w ill ensure that proper credit is g iven when pena lties are received in the Regio n. 23. Responde nt agrees not to c laim or attempt to cla im a fede ra l income tax deductio n or credi t covering a ll or any part of the civ il pena lty pa id to the United States T reas urer. 24. Pursuant to 3 1 U.S.C. 37 17 and 40 C.F.R. 13. 11 , unless otherwise prohibi ted by law, EPA w ill assess interest a nd late payment pena lties on o utsta nding debts owed to the United States and a cha rge to cover the costs of processing and handli ng a de linq uent c la im . Interest on the civil pena lty assessed in thi s CA FO w ill begi n to accrue thirty (30) days after the effective date of the CAFO and w ill be recovered by EPA on any amo un t of the c ivil pena lty that is not paid by the due date. Inte rest w ill be assessed at the rate of the United States Treasury tax and loan rate in accordance with 40 C.F. R. 13. 11 (a). Mo reover, the costs of the Agency's adm inistrati ve handling of overd ue debts w ill be c harged and assessed mo nthl y thro ughout the peri od the debt is overdue. See 40 C.F. R. 13. l l(b). 25 . EPA w ill a lso assess a $ 15.00 administrative handl ing cha rge fo r ad m inistrative costs on unpaid pena lties fo r the first thirty (3 0) day period after the pay ment is due and an additi ona l $ 15.00 for each subseq uent thirty (30) day period that Page 6 o fll Docket No. CAA-06-20 13-3325 the pe na lty remains unpaid . In add itio n, a penalty charge of up to s ix percent per yea r w ill be assessed monthly o n any portio n of the debt w hich remai ns del inquent mo re than ninety (90) days. See 40 C.F. R. 13. 1I(c). Sho uld a penalty charge on the debt be req ui red, it s hall accrue from the first day payment is de linque nt. See 3 1 C.F .R. 90 1.9(d). Other penalt ies for failure to make a payment may also a pply. B. PARTIES BOUND 26. The provi s ions of thi s CAFO sha ll app ly to and be bind ing upon the parties to this acti on, their officers, directors, agents, employees, successors, and ass igns. The unde rs igned representati ve of each party to thi s CAFO certifies that he or s he is fully au thorized by the party w ho m he or s he represents to enter into the terms a nd conditi ons of thi s CAPO and to execute a nd to legall y bind that party to it. C. RETENTION OF ENFORCEMENT RIGHTS 27. EPA does not waive any rig hts o r remed ies available to EPA for any other violations by the Respondent o f Federa l or State laws, regulations, or permitting cond itions. 28. Nothing in thi s CAFO shall re lieve the Respondent of the d uty to comply w ith a ll applicable provis io ns of sectio n 11 2(r) of the CAA, 42 U.S.C. 74 12(r), and 40 C.P. R. Part 68. 29. Nothing in this CAFO sha ll limit the power and authority of EPA o r the United States to take, direct, o r order a ll actio ns to protect public health, we lfare, o r the env iro nment, o r prevent, abate, o r minimize an actua l o r threatened release of hazardous subs tances, pollutants, o r contam inan ts at or from the Facil ity. Furthermore, no th ing in thi s CAPO s hall be construed to prevent or limit EPA 's c ivil and crimi na l autho rities, or that of o the r Federal, State, or loca l agencies o r departments to obta in penalties o r Page 7 of II Doc ket No. C /\A-06-20 13-3325 injunctive relief under other Federal, State, o r local laws or regu la tio ns. 30. In any subsequent ad ministrati ve or judicial proceeding initiated by the Complainant o r the United States for injunctive re lief, civil penalti es, o r o ther appropriate re lief re lating to the Faci lity, Respondent s hall not assert, and may not mainta in, any defense o r c laim based upon the principles of waiver, res judicata, collatera l estoppel, issue preclus ion, claim-splitting, or other defenses based upon any contentio n that the c laims raised by the Compla inant or the Un ited States in the s ubsequent proceeding were or shou ld have been brought in the instant case, except w ith respect to the c la ims that have been specifi ca lly resolved pursuant to thi s CAFO. D. COSTS 3 1. Each party shal l bear its own costs and attorney's fees. Furthermore, Respondent specifically wa ives its rig ht to seek reimbursement of its costs and atto rney's fees under 5 U.S.C. 504 and 40 C.F.R. Part 17. E. EFFECTIVE DATE 32. This CAFO becomes effective upo n fi ling w ith the Regio na l Hearing C lerk. Page 8 of 11 Docket No. C A/\-06-20 13-3325 THE UNDERSIGNED PARTIES CONSENT TO THE ENTRY OF THIS CONSENT AGREEMENT AND FINAL ORDER: FOR THE RESPONDENT: Date FOR THE COMPLAINANT: Date Michae!B:Fat;ell , Jr. \ Executive Vice President and Chief Legal Officer irector Compliance Assurance and Enforcement Division Docket No. CA/\-06-20 13-3325 FINAL ORDER Purs uant to section 11 3(d) of the CAA, 42 U.S.C. 74 13(d), and the Conso lidated Rul es of Practice Governing the Administrative Assessme nt ofCiv il Pena lties, 40 C. F.R. Part 22, the foregoing Consent Agreement is here by rati fied. T his Fina l Order s ha ll not in any case affect the right of E PA or the Un ited States to pursue appro priate injunctive or other equitable relief or crimina l sa nctions fo r any vio lations of law. T his Fina l O rder shall resolve only those causes of action a lleged in th is CAFO. Nothing in thi s Final Order s ha ll be construed to waive, ex tinguish, or otherwise affect Responde nt's (or its officers, agents, servants, employees, successors, or assigns) o bligatio n to compl y w ith a ll a pplicable federal state, and local statutes and regulatio ns, inc lud ing the regulations that we re the s ubj ect of this action . T he Respondent is ordered to compl y w ith the te rms of settlement as set forth in the Consent Agreement. Purs ua nt to 40 C.F.R. 22.3 1(b), this Fina l Order s ha ll become effecti ve upon filin g w ith the Regiona l Hearing C le rk. ~~-- ~~ , ---- Date: S - Lo -- 13 Patrick Rank in Regiona l Judic ia l Officer Page 10 o fll Docket No. CAA-06-2013-3325 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. EPARegion 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 following by the method indicated: Jennifer F. Gallagher Nexeo Solutions, LLC 2201 Lake Woodlands Drive The Woodlands, Texas 77380 CERTIFIED MAIL- RETURN RECEIPT REQUESTED: # Jol/35~t}OtJOotJ35'J033t Date: S- 3 -c2tJ/3 U.S. EPA, Region 6 Dallas, Texas Page 11 ofll