Document MMnXLybY722x4VjG6JzdKeGnM

UNITED STATES 0 1 ,:, ENVIRONMENTAL PROTECTION AGENCY 23 SE, 1 2 PH I: ..,7 REGION 6 DALLAS, TEXAS r.-:u iO. :\!. !-.'.:. r,n1 UG CLERK EPA Hl:.GION VI IN THE MATTER OF: PRYSMIAN CABLES & SYSTEMS SCOTTSVILLE, TX 75688 RESPONDENT EPA DOCKETNUMBER EPCRA-06-2023-0573 CONSENT AGREEMENT 's:l AND FrNAL ORDER CONSENT AGREEMENT The Director ofthe Enforcement and Compliance Assurance Division of the United States Environmental Protection Agency (EPA), Region 6 (Complainant), and Prysmian Cables & Systems (Respondent) (hereinafter Prysmian) 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 I045(c), is simultaneously commenced and concluded by the issuance ofthis CAFO against Respondent pursuant to 40 C.F.R. 22. I3(b), and 22.18(b)(2) and (3). 2. For the purposes of this proceeding, Respondent admits the jurisdictional allegations herein; however, Respondent neither admits nor denies the specific factual allegations 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 which have been Pyrsmian Cables & Systems Docket No. EPCRA 06-2023-0573 raised or could have been raised to the claims set forth in this CAFO. 3. Compliance with all the tenns and conditions of this CAFO shall resolve federal civil liability for only those violations which are set forth 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 signing this CAFO on behalf of Respondent is duly authorized to bind Respondent to the terms and conditions ofthis CAFO. 6. Respondent agrees the provisions of this 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 of Section 3 I3 of EPCRA, 42 U.S.C. 11023, and 40 C.F.R. Part 372. II. STATUTORY AND REGULATORY BACKGROUND 8. Section 313 of EPCRA, 42 U.S.C. 11023, 40 C.F.R. 372.22 and 372.30 require the owner or operator of a facility with: (a) ten or more ful l-ti me employees; (b) a Standard Industrial Classification (SIC) 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 313(c) of EPCRA and 40 C.F.R. 372.65, that Page 12 Pyrsmian Cables & Systems Docket No. EPCRA 06-2023-0573 manufactured, processed, or othenvise used the chemical in excess of the threshold quantity established under Subsection 3 I3(t) of EPCRA, 42 U.S.C. I l023(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 chemical listed under 3 I3(c) of EPCRA, 42 U.S.C. I 1023(c) that was manufactured, processed, or otherwise used in quantities exceeding the toxic chemical threshold quantity established by Section 313(t) 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 official or officials 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 l 3(t) of EPCRA, 42 U.S.C. 11023(1), 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 chemical manufactured or processed, and I0,000 pounds for any toxic chemical otherwise used for the applicable calendar year. Alternative 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 operator Page I 3 Pyrsmian Cables & Systems Docket No. EPCRA 06-2023-0573 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 facility 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 facility is located a completed EPA Form R (EPA Form 9350-1), or EPA Form A (EPA Form 9350-2), and, for the dioxin and dioxinlike compounds category, EPA Form R Schedule 1 (EPA Form 9350-3) in accordance with the instructions referred to in subpart E of this part. 12. Pursuant to Section 313(g)(l)(C)(iii) ofEPCRA, 42 U.S.C. l 1023(g)(l)(C)(iii), and 40 C.F.R. 372.85(6)(16), the Form R shall include information relative 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. I4. Respondent is a "person" as defined by Section 329(7) of EPCRA, 42 U.S.C. 11049(7). Respondent owns and operates the facility at 9975 U.S. HWY 80E, Scottsville, TX 75688. 15. Respondent's facility identified in Paragraph 13 is a " facility" as that term is defined by Section 329(4) of EPCRA, 42 U.S.C. 11049(4), and 40 C.F.R. 372.3. 16. At the time of the violation(s), Respondent' s facility had ten (10) or more " full-time employees" as that term is de fined by 40 C.F.R. 372.3. 17. Respondent's facility is in primary NAICS code 335929 (Other Communications and Page 14 Pyrsmian Cables & Systems Docket No. EPCRA 06-2023-0573 Energy Wire Manufacturing) and is within subsector code 335 (Electrical Equipment), which is listed in 40 C.F.R. 372.23(b). 18. Acetophenone, copper, lead, and methanol are "toxic chemicals" within the meaning of 40 C.F.R. 372.3 and 372.65. 19. During calendar year 2022 the toxic chemicals in Paragraph 18 were "manufactured, processed, or otherwise used," as those terms are defined by Section 313(b) of EPCRA, 42 U.S.C. l 1023(b), and 40 C.F.R. 372.3, at Respondent's facility. 20. On or about August 9, 2023, an off-site investigation was initiated to determine compliance of Respondent's Scottsville, TX facility with Section 313 of EPCRA. During the off-site investigation, EPA alleged the facility had failed to timely report the TRI chemicals in Paragraph 18 for the 2022 reporting year, on or before the applicable due date of July 3, 2023 (July Ist and July 2nd fell on Saturday and Sunday, respectively). 21. On or about September I, 2023, the EPA sent Respondent a Proposed Settlement via an email. On or about September 5, 2023, Respondent agreed to the proposed settlement for the alleged violations of Section 3 13 of EPCRA. B. VIOLATIONS 22. Complainant hereby restates and incorporates by reference Paragraphs I through 21. 23. During calendar year 2022 manufactured, processed, or otherwise used the TRI chemicals identified in Paragraph 18, at the Respondent' s facility, in excess of the applicable threshold quantities for reporting. 24. EPA finds Respondent violated 42 U.S.C. 11023(g)(l)(B), and 40 C.F.R. 372.85(b)(2) Page J 5 Pyrsmian Cables & Systems Docket No. EPCRA 06-2023-0573 by failing to certify reports for acetophenone, copper, lead, and methanol on or before July 3, 2023. IV. TERMS OF SETTLEMENT A. CIVIL PENALTY 25. For the reasons set forth above, Respondent has agreed to pay a civil penalty which has been determined in accordance with Section 325(c) of EPCRA, 42 U.S.C. 11045(c), which authorizes EPA to assess a civil 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 313 violations, the degree of culpability, economic benefit or savings (if any) resulting from the violations, and other factors as justice may require, it is ORDERED that Respondent be assessed a civil penalty ofthirty-two thousand six-hundred forty-nine dollars($32,649.00 ) . 26. 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 1 The statutory maximum penalty level under Section 325(c) of EPCRA, 42 USC 11045(c) has been adjusted over time as required by the Federal Civil Penalties Inflation Adjustment Act of 1990 (28 U.S.C. 2461 note; Pub. L. 101-410), as amended by the Debt Collection Improvement Act of 1996, and most recently, by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of2015 (28 U.S.C. 2461 note; Pub. L. l 14-74, Section 701). EPA implements these adjustments through rulemaking which are codified in 40 CFR Part 19. As adjusted by the Amendmenls to the EPA 's Civil Penalty Policies to Account for Inflation (effective Janua,y 15, 2018) and Transmittal ofthe 2018 Civil Monetary Penalty Inflation Adjustment Rule (2018 Rule) (83 Fed. Reg. I 194), 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, 2015 a nd where penalties are assessed on or after January 15, 2018. Page 16 Pyrsmian Cables & Systems Docket No. EPCRA 06-2023-0573 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: U.S. Environmental Protection Agency Fines and Penalties Cincinnati Finance Center P.0. Box 979078 St. Louis, MO 63 I97-9000 For overnight mail (non-U.S. Postal Service, e.g., Fed Ex), the check(s) should be remitted to: U.S. Bank Government Lockbox 979078 US EPA Fines & Penalties 1005 Convention Plaza SL-MO-C2-GL St. Louis, MO 63101 Phone No. (314) 418-1 028 For wire transfer, the payment should be remitted to: Federal Reserve Bank ofNew York ABA = 021030004 Account = 68010727 SWIFT address = FRNYUS33 33 Liberty Street New York, NY 10045 Field Tag 4200 ofthe Fedwire message should read " D 680I0727 Environmental Protection Agency" In addition to the above methods of payments: Payments may also be made electronically. For information on electronic payments, please vi s it Page 17 Pyrsmian Cables & Systems Docket No. EPCRA 06-2023-0573 hllps://www.epa.govl financiaflmakepavment The above web site may also be referenced for making payments via cred it 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 06-2023-0573 shall be clearly typed Oil 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: CAFO, e.g., CAFO EPCRA 06-2023-0573 oil the method of payment. rf payment is made by check, the check shall also be accompanied by a transmittal letter and shall reference Respondent' s name and address, the case name, and docket number of the CAFO. If payment is made by wire transfer, the wire transfer instructions shall 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 following: Morton E. Wakeland, Jr., Ph.D. EPCRA 3l 3 Enforcement Coordinator U.S. EPA, Region 6 Toxic Enforcement Section (ECDST) 120 I Elm Street, Suite 500 Dallas, TX 75270-2 I02 wake/and. morton(w,epa.gov and Lorena Vaughn Regional Hearing Clerk U.S. EPA, Region 6 120 I Elm Street, Suite 500 Dallas, TX 75270-2102 vaughn. lorena@epa.gov Page 18 Pyrsmian Cables & Systems Docket No. EPCRA 06-2023-0573 Respondent's adherence to this request will ensure proper credit is given 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 all or any part ofthe civil penalty paid to the United States Treasurer. 27. If Respondent fails to submit the first payment within thirty (30) days of the effective date of this Order, Respondent may be subject to a civil 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. l I 045(f). 28. 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 will begin to accrue thirty (30) days after the effective date of the CAFO and will be recovered by EPA on any amount ofthe 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. I3 .1 I(a). Moreover, the costs of the Agency's administrative handling of overdue de bts will be charged and assessed monthly throughout the period the debt is overdue. See 40 C.F.R. 13.ll(b). 29. 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 year will be assessed Page I 9 Pyrsmian Cables & Systems Docket No. EPC/U 06-2023-0573 monthly on any portion ofthe debt which remains delinquent more than ninety (90) days. See 40 C.F.R. 13.l l(c). Should a penalty charge on the debt be required, it shall accrue from the first day payment is delinquent. See 31 C.F.R. 90l .9(d). Other penalties for failure to make a payment may also apply. 30. This Consent Agreement and Final Order shall not relieve Respondent of its obligation to comply with all applicable provisions of federal, 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. 31. This document is a "Final Order" as that term is defined in the "Enforcement Response Policy for Section 313 of the Emergency Planning and Community Right-to-Know Act ( 1986) and Section 6607 of the Pollution Prevention Act ( 1990)," dated August I0, 1992 (Amended: 1996, 1997, and 2001 ; and updated in accordance with the 2016 Civil Monetary Penalty Inflation Adjustment Rule on February 24, 2017) for the purpose of demonstrating a history of "prior such violations." B. RETENTION OF ENFORCEMENT RIGHTS 32. 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. 33. Nothing in this CAFO shall relieve Respondent of the duty to comply with all applicable provisions of Section 313 of EPCRA, 42 U.S.C. 11023, and 40 C.F.R. Part 372. 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, Page 110 Pyrsmian Cables & Systems Docket No. EPCRA 06-2023-0573 pollutants, contaminants, hazardous substances on, at, or from Respondent's facility. Furthermore, nothing in this CAFO shall be construed to prevent or limit EPA's civil and criminal 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. D. COSTS 35. 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 36. This CAFO becomes effective upon filing with the Regional Hearing Clerk. 37. 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 email to the following addresses: To EPA: wakeland.morton@epa.gov To Respondent: iuan.vargas@prysmiangroup.com Page I 11 Pyrsmian Cables & Systems Docket No. EPCRA 06-2023-0573 THE UNDERSIGNED PARTIES CONSENT TO THE ENTRY OF THIS CONSENT AGREEMENT AND FINAL ORDER: FOR THE RESPONDENT: Date: - - - -- - - - Juan Vargas Interim Plant Manager Prysmian Cables & Systems 9975 U.S. HWY 80E Scottsville, TX 75688 FOR THE COMPLAINANT: Date: - - - - - - - - Digitally signed by Cheryl T. Seager Dale: 2023.09.12 11:09:14 -05'00' Cheryl T. Seager Director Enforcement and Compliance Assurance Division U.S. EPA Region 6 Dallas, Texas 75270-2102 Page I 12 Pyrsmian Cables & Systems Docket No. EPCRA 06-2023-0573 FINAL ORDER Pursuant to Section 325(c) of EPCRA, 42 U.S.C. 11045(c), 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 injunctive or other equitable relief or criminal sanctions for any violations of law. This Final Order shall resolve only those causes of action alleged in the Consent Agreement. 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. Respondent is ordered to comply with the terms of settlement and the civil penalty payment instructions as set forth in the Consent Agreement. In accordance with 40 C.F.R. 22.31(b), this Final Order shall become effective upon filing with the Regional Hearing Clerk. Date: - - -- -- - - - THOMAS RUCKI ....~Q"Wt'l'l'l<)AMS"\)Ql,I (>!,t~-S,...-tJ.S~ ~ . . . _ _ ~. :"'u~~~0!>:,.1iof.1()(11ooS68().I o..:leltct. uu:11.n.o,,.u, Thomas Rucki Regional Judicial Officer U.S. EPA Region 6 Dallas, Texas 75270-2102 Page I 13 Pyrsmian Cables & Syslems Dockel No. EPCRA 06-2023-0573 CERTIFICATE OF SERVICE I certify that that a true and correct copy of the foregoing Consent Agreement and Fina l Order was de) ivered electronically to the Regional Hearing C lerk U.S . EPA, Region 6 120 I Elm Street, Dallas, Texas 75270-2102, and that a true and correct copy was sent this day of ___s_e_p_t_em_ b_e_r_1_2,_2_0_2_3__ in the following manner to the addressees: Copy via Emai l to Complainant: wake/and. morton@epa.gov. and vaughn. lorena@epa.gov Copy via Emai l to Respondent: iuan.vargas@prvsmiangroup.com MORTON WAKELAND Digitally signed by MORTON WAKELAND Date: 2023.09.12 13:49:32 -05'00' Morton E. Wakeland, Jr. ("Mort"), Ph.D. EPCRA Section 313 Enforcement and TRl Program Coordinator U.S . EPA Region 6 Compliance Assurance and Enforcement Division (ECO) Toxics Section (ECDSn Dallas, Texas 75270 (214) 665-8116 Page I 14