Document LyGdM72mrmVeEbvegL2kVGBg
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460
OFFICE OF ENFORCEMENT AND COMPLIANCE ASSURANCE
TRANSMITTED VIA EMAIL RETURN RECEIPT REQUESTED
Oldach Associates, LLC Carr. 869, Esq. Calle D, Bo. Palmas Catano, Puerto Rico 00962 e.carro@oldachpr.com
RE: Oldach Associates, LLC - Notice of Violation
Dear Giancarlo Brito:
The U.S. Environmental Protection Agency (EPA) is issuing the enclosed Notice of Violation (NOV) to Oldach Associates, LLC (you). The EPA alleges that you have violated Section 114 of the Clean Air Act (the Act or CAA), 42 U.S.C. 7414, and the regulations promulgated thereunder DW&)53DUW 98, Subparts A and OO.
The EPA is issuing the enclosed NOV under Section 113(a) of the Act, 42 U.S.C. 7413(a), for violations of &)53DUW (Subparts A and OO). The regulations require suppliers of industrial greenhouse gases (which include importers and exporters) to submit an annual report if their import quantity of industrial greenhouse gases is equivalent to 25,000 metric tons of carbon dioxide equivalent or more. See &)5 98.2(a)(4) and &)5 98.411.
Without making a determination that your business or organization is a small business, the EPA is providing you with this Small Business Resources Information Sheet which provides important information that may assist small businesses in identifying and complying with environmental requirements: https://www.epa.gov/compliance/small-business-resourcesinformation-sheet.
Please note the opportunity for you to request a conference with the EPA to present information on the violations identified in the NOV, efforts you have taken to comply, and the steps you will take to prevent future violations. A conference should be requested within ten calendar days of the date of this letter. You may have counsel represent you at this conference. Please direct any request to confer to Josh Zaharoff, Attorney Advisor, at Zaharoff.Josh@epa.gov or (312) 886-4460, and Amelie Isin, Environmental Engineer, at Isin.Amelie@epa.gov or (202) 564-0365.
Sincerely,
Greene, Mary E
Digitally signed by Greene, Mary E Date: 2023.01.26 17:41:46 -05'00'
Mary E. Greene, Director Air Enforcement Division United States Environmental Protection Agency
cc (by email): .HOOLH2UWHJD+)&3Uactice Lead (Acting), EPA Amelie Isin, EPA Josh Zaharoff, EPA
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, DC
IN THE MATTER OF:
Oldach Associates, LLC Catano, Puerto Rico
Proceedings Pursuant to Section 113(a)(3) of the Clean Air Act, 42 U.S.C. 7413(a)(3)
) ) ) ) ) NOTICE 2)9,2/$7,21 ) ) )
NOTICE OF VIOLATION
Statutory and Regulatory Authority
1. Under Section 114(a)(1) of the CAA, the EPA may require emission sources, persons subject to the CAA, manufacturers of emission control or process equipment, or persons whom the EPA believes may have necessary information, to monitor and report emissions and to provide such other information as the EPA requests for the purposes of carrying out any provision of the CAA (except for a provision of Title II with respect to motor vehicles).
2. Pursuant to this legal authority, the EPA established the mandatory greenhouse gas reporting requirements in 2010. &)53DUW
3. &)5 98.1(a) establishes greenhouse gas reporting requirements for owners and operators of certain facilities that directly emit greenhouse gases as well as for certain suppliers of greenhouse gases. )RUVXSSOLHUVWKHgreenhouse gases that must be reported are the amount in terms of tons of carbon dioxide equivalent that would be emitted from combustion or use of the greenhouse gases supplied.
4. &)5 98.1(b) provides that owners, operators and suppliers subject to &)5 Part 98 must follow the requirements of Subpart A and all applicable Subparts, and if a conflict exists between a provision in Subpart A and any other applicable Subpart, the requirements of the applicable Subpart shall take precedence.
5. &)5D provides that the greenhouse gas reporting requirements and related monitoring, recordkeeping, and reporting requirements of Subpart A apply to the owners and operators of any supplier that meets the requirements of paragraph (a)(4) of this section.
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6. &)5D 4) provides that a supplier listed in Table A-5 of &)5Part 98, Subpart A, must submit an annual report that covers all applicable products for which calculation methodologies are provided in the applicable Subpart and Subpart A.
7. &)53DUWSubpart OO, applies to suppliers of industrial greenhouse gases. Table A-5 of &)5Part 98, Subpart A, lists supplier categories for industrial greenhouse gas suppliers subject to &)5Part 98, Subpart OO, including producers of industrial greenhouse gases, and importers of industrial greenhouse gases with annual bulk imports of nitrous oxide (N2O), fluorinated greenhouse gas, and carbon dioxide (CO2) that in combination have greenhouse gas quantities equivalent to 25,000 metric tons of carbon dioxide equivalent (CO2e) or more. Table A-5 of &)5Part 98, Subpart A, also states that suppliers are defined in each applicable Subpart.
8. &)518 provides that all of the terms used in &)5Part 98, Subpart OO, have the same meaning given in the Clean Air Act and &)5Part 98, Subpart A, except the terms "isolated intermediate" and "low-concentration constituent," which are defined in 4&)5 98.418. &)5IXUWKHUSURYLGHVWKDWLf a conflict exists between a definition provided in Subpart OO and a definition provided in Subpart A, the definition in Subpart OO shall take precedence for the reporting requirements in Subpart OO.
9. &)5 98.6 defines "exporter" as any person, company or organization of record that transfers for sale or for other benefit, domestic products from the United States to another country or to an affiliate in another country, excluding any such transfers on behalf of the United States military or military purposes including foreign military sales under the Arms Export Control Act. An exporter is not the entity merely transporting the domestic products, rather an exporter is the entity deriving the principal benefit from the transaction.
10. &)5 98.6 defines "industrial greenhouse gases" as nitrous oxide or any fluorinated greenhouse gas.
11. &)5 98.6 defines "importer" as any person, company, or organization of record that for any reason brings a product into the United States from a foreign country, excluding introduction into United States jurisdiction exclusively for United States military purposes. An importer is the person, company, or organization primarily liable for the payment of any duties on the merchandise or an authorized agent acting on their behalf. The term includes, as appropriate: (1) the consignee, (2) the importer of record, (3) the actual owner, and (4) the transferee, if the right to draw merchandise in a bonded warehouse has been transferred.
12. &)5 98.6 defines "operator" as any person who operates or supervises a facility or supplier.
13. &)5 98.6 defines "owner" as any person who has legal or equitable title to, has a leasehold interest in, or control of a facility or supplier, except a person whose legal or
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equitable title to or leasehold interest in the facility or supplier arises solely because the person is a limited partner in a partnership that has legal or equitable title to, has a leasehold interest in, or control of the facility or supplier shall not be considered an "owner" of the facility or supplier.
14. &)5 98.6 defines "supplier" as a producer, importer, or exporter in any supply category included in Table A-5 to &)53DUW6XESDUW$, as defined by the corresponding Subpart of &)53DUW.
15. &)5GHILQHVsource categories for suppliers of industrial greenhouse gases.
16. 40 &)5(a) provides that "the industrial gas supplier source category consists of any facility that produces fluorinated greenhouse gases or nitrous oxide; any bulk importer of fluorinated greenhouse gases or nitrous oxide; and any bulk exporter of fluorinated greenhouse gases or nitrous oxide. Starting with reporting year 2018, this source category also consists of any facility that produces fluorinated heat transfer fluids (+7)V)DQ\EXONLPSRUWHURIIOXRULQDWHG+7)VDQ\EXONH[SRUWHURIIOXRULQDWHG+7)V and any facility that destroys fluorinated greenhouse gases RUIOXRULQDWHG+7)V"
17. &)5specifies the applicable reporting threshold for &)5Part 98, Subpart OO, and requires any supplier of industrial greenhouse gases who meets the requirements of &)5and &)5D WRUHSRUWgreenhouse gas emissions pursuant to &)5Part 98, Subpart OO (40 &)5 98.410 - 98.418).
18. &)5I SURYLGHVthe methodology to calculate industrial greenhouse gas quantities for comparison to the 25,000 metric ton CO2e per year threshold under 40 &)5D for importers and exporters of industrial greenhouse gases, and states that the imported quantities and the exported quantities must be compared separately to the 25,000 metric ton CO2e per year threshold.
19. &)5L provides that once a supplier is subject to the requirements of 40 &)5Part 98, the supplier must for each year thereafter comply with all requirements of &)5Part 98, including the requirement to submit annual greenhouse gas reports, even if the supplier does not meet the applicability requirements in &)5D in a future year.
20. &)5L - SURYLGHOLPLWHGH[FHSWLRQVWR&)5L
a. An owner or operator that is otherwise required to report as a supplier of industrial greenhouse gases may discontinue reporting if each of the following conditions are met: 1) the reported quantity of greenhouse gases supplied are less than 25,000 metric tons CO2e per year for five consecutive years, 2) the owner or operator submits notification no later than March 31 of the year immediately following the fifth consecutive year of reporting less than the 25,000 metric CO2e threshold, and 3) the owner or operator maintains the records required under 98.3(g) for each of the five consecutive years prior to such notification and for three years following the year that reporting was discontinued. &)5
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98.2(i)(1). Such notification must also explain the reasons for the reduction in the quantity of greenhouse gases supplied. Id. The owner or operator must resume reporting if the annual quantity of greenhouse gases supplied in any future calendar year increases to 25,000 metric tons CO2e per year or more. Id.
b. An owner or operator that is otherwise required to report as a supplier of industrial greenhouse gases may discontinue reporting if each of the following conditions are met: 1) the reported quantity of greenhouse gases supplied are less than 15,000 metric tons CO2e per year for three consecutive years, 2) the owner or operator submits notification no later than March 31 of the year immediately following the third consecutive year of reporting less than the 15,000 metric CO2e threshold, and 3) the owner or operator must maintain the corresponding records required under 98.3(g) for each of the three consecutive years prior to such notification and for three years following the year that reporting was discontinued. See &)5L 6XFKQRWLILFDWLRQPXVWH[SODLQWKHUHDVRQVIRr the reduction in the quantity of greenhouse gases supplied. Id. The owner or operator must resume reporting if the annual quantity of greenhouse gases supplied in any future calendar year increases to 25,000 metric tons CO2e per year or more. Id.
c. If the operations of a supplier are changed such that all applicable processes and operations cease to operate, then the owner or operator may discontinue complying with this part for the reporting years following the year in which cessation of such operations occurs, provided that the owner or operator submits a notification to the Administrator that announces the cessation of reporting and certifies to the closure of all applicable processes and operations no later than March 31 of the year following such changes. &)5L Additional requirements apply in the event of a partial cessation of operation. Id.
21. &)5E UHTXLUHVthe owner or operator of suppliers subject to &)53art 98 to submit annual reports to the EPA no later than March 31 of each calendar year for greenhouse gas emissions in the previous calendar year, with the exception of the report for calendar year 2010, which was due no later than September 30, 2011.
22. &)5 98.3(c) specifies the content of each annual report, other than as provided in &)5 98.3(d) for reporting year 2010, and includes any other data specified in the "Data reporting requirements" section of each applicable Subpart of &)R. Part 98.
23. &)5 98.416 provides a list of information, in addition to the information required by &)5 98.3(c)(1) - (3) and (5) - (13), that must be included in each annual report.
24. &)R. 98.412 requires reporting of greenhouse gas emissions that would result from the release of the nitrous oxide and each fluorinated greenhouse gas that is produced, imported, exported, transformed, or destroyed during the calendar year. Starting with reporting year 2018, this section of the regulations also requires reporting of the HPLVVLRQVWKDWZRXOGUHVXOWIURPWKHUHOHDVHRIHDFKIOXRULQDWHG+7)WKDWLVQRWDOVRD
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fluorinated greenhouse gas and produced, imported, exported, transformed, or destroyed during the calendar year.
25. ExcepWIRUFHUWDLQVSHFLDOH[FHSWLRQVIRUUHSRUWLQJ\HDU&)5 98.3(e) requires use of the calculation methodologies specified in the relevant Subparts, in preparing the annual report. ")RUHDFKVRXUFHFDWHJRU\\RXPXVWXVHWKHVDPHcalculation methodology throughout a reporting period unless you provide a written explanation of why a change in methodology was required." &)5 98.3(e).
26. &)5SUHVFULEHV the methodology to calculate the industrial greenhouse gas emissions set forth in &)5.
27. &)598.6 defines global warming potential (GWP) and specifies that the GWP of each greenhouse gas are provided in Table A-1 of &)53DUW.
28. Table A-1 of &)53DUW lists a GWP (based on a 100-year time horizon) of 675 for +)&-DQGIRU+)&-125.
29. &)5UHTXLUHs each annual report to be submitted electronically through the "Electronic Greenhouse Gas Reporting Tool" ("e-GGRT"). Each report must be submitted by a designated representative. See &)5.
30. $Q\YLRODWLRQRI&)53DUWLVDYLRODWLRQRIWKH&$$LQFOXGLQJSection 114, 42 U.S.C. 7414. A violation includes but is not limited to failure to report greenhouse gas emissions, failure to collect data needed to calculate greenhouse gas emissions, failure to continuously monitor and test, failure to retain records needed to verify the amount of greenhouse gas emissions, and failure to calculate greenhouse gas emissions following the methodologies specified in this part. Each day of violation constitutes a separate violation. &)5 See also )ed. Reg. 56395 (Oct. 30, 2009).
Facts
31. Oldach Associates, LLC is an air conditioning and refrigeration supplier located at Carr. 869, Esq. Calle D, Bo. Palmas, Catano, Puerto Rico 00962.
32. R-$LVDUHIULJHUDQWEOHQGWKDWFRQWDLQV+)&-DQG+)&-32.
33. On or about December 1 and December 17, 2021, Oldach Associates, LLC imported approximately 19,323 kg of R-410A from China.
34. +)&-DQG+)&-DUHLQGXVWULDOJUHHQKRXVHJDVHVXQGHU&)5
35. The EPA calculates metric tons of CO2e by multiplying the mass of the industrial greenhouse gas in kg by the GWP (based on a 100-year time horizon) of the industrial greenhouse gas and dividing the product by 1,000, according to the methodology in 40 &)5I .
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36. By importing approximately 19,323 kg of R-410A, Oldach imported 40,336.8 metric tons of CO2e in 2021.
37. Oldach Associates, LLC did not submit an annual report of its greenhouse gas import quantities to the EPA by March 31, 2022 for greenhouse gas emissions in calendar year 2021.
Alleged Violation
38. Oldach Associates, LLC is a supplier of industrial greenhouse gases subject to the mandatory greenhouse gas reporting requirements.
39. Oldach Associates, LLC's industrial greenhouse gas import quantities exceeded the mandatory greenhouse gas reporting threshold of 25,000 metric tons CO2e per year or more in one or more calendar years from 2010 to 2021.
40. Oldach Associates, LLC did not timely report to the EPA its greenhouse gas import quantities for at least calendar year 2021, in violation of &)53DUW6XESDUWV$ and OO.
Enforcement
The EPA's investigation into this matter is continuing. The violations alleged in this NOV are sufficiently supported by the evidence described above to warrant the issuance of this NOV. The EPA may find additional violations as the investigation continues.
Section 113(a)(3) of the Act, 42 U.S.C 7413(a)(3), provides the Administrator with several enforcement options to resolve these violations, including issuing an administrative compliance order, issuing an administrative penalty order, bringing a judicial civil action, and bringing a judicial criminal action.
Greene, Mary E
Digitally signed by Greene, Mary E Date: 2023.01.26 17:42:01 -05'00'
Mary E. Greene, Director Air Enforcement Division United States Environmental Protection Agency
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