Document Ozm9onGmMX1p9ML6vpMvoO6mX

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 6 fiLED In the Matter of C & B Recycling, a New Mexico Company Respondent Facility No. NMUOO 170 I Docket No. CWA-06-20 11-1765 CONSENT AGREEMENT AND FINAL ORDER I. PRELIMINARY STATEMENT I. This Consent Agreement and Final Order {"CAFO") is issued under the authority vested in the United States Environmental Protection Agency ("EPA") pursuant to Section 309(g) of the Clean Water Act ("the Act"), 33 U.S.C. I 319(g). This CAFO is issued in accordance with 40 C.F.R. 22.1 8, as described in the "Consolidated Rules of Practice Governing the Administrative Assessment of Civil Penalties and the Revocation/Termination or Suspension of Permits." 2. On May I 0, 2011, EPA Region 6 issued to the Respondent an Administrative Complaint ("Complaint") under Section 309(g) of the Act, 33 U.S.C. l319(g), which proposed foassessaeivilpenaltyagainstRespondent,andgavenoticeoftheRespondent'sopportunity ... to request a hearing on the proposed administrative penalty assessment. 3. The Respondent and EPA ("Parties") agree that settlement of the relevant matters without litigation will save time and resources, that it is in the public's interest, !rnd that the entry of this CAFO is the most appropriate means of resolving such matters. Compliance with all the terms and conditions of this CAFO resolves only those violations alleged by EPA in the Administrative Complaint. Docket No. CWA-06-20 11-1765 Page2 4. The Respondent admits the jurisdictional allegations of the Complaint; however, the Respondent neither admits nor denies the specific factual allegations and conclusions of law contained in the Complaint or this CAFO. This CAFO states a claim upon which relief may be granted. 5. The Respondent expressly waives any right to contest the factual allegations or Conclusions of Law contained in the Complaint and this CAFO and waives its right to appeal the Final Order set forth herein. 6. Before the taking of any testimony, and without adjudication of any issue of law or fact, the Parties agree to the terms of this CAFO and to its issuance. The Respondent consents to the assessment and payment of a civil penalty in the amount and by the method stated below. II. FINDINGS OF FACT AND CONCLUSIONS OF LAW 7. C & B Recycling ("Respondent") is a company, which was incorporated under the laws of the State ofNew Mexico, and as such, Respondent is a "person," as that term is defined at Section 502(5) of the Clean Water Act, 33 U.S.C. 1362(5), and 40 C.F.R. 122.2. 8. The Respondent owned or operated a scrap metal and recycling facility known as C & B Recycling, located at I702 E. Green, in Carlsbad, Eddy County, New Mexico ("facility") and the operation which was the subject of this Complaint. 9. The Complaint specified Findings of Fact and Conclusions of Law that are hereby incorporated by reference and alleged, among other things, that at the relevant times: the Respondent was a "person" that "owned or operated" a facility that acted as a "point source" Docket No. CWA-06-2011-1765 Page 3 subject to a "discharge" of"pollutants" to identified "waters of the United States" within the meaning of Section 502 of the Act, 33 U.S.C. 1362, and 40 C.F.R. 122.2; Respondent and the facility were subject to the provisions of the Act, 33 U.S.C. 1251 !j seq., and the National Pollutant Discharge Elimination System ("NPDES") program; and the Respondent violated Section 301 of the Act, 33 U.S.C. 1311, by discharging pollutants to the Pecos River Basin in Segment 20.6.4.203 (NMAC) without NPDES permit coverage under the Multi-Sector General Permit for Storm Water Discharges Associated with Industrial Activity ("MSGP") also called the Storm Water General Permit for Industrial Activities, as specified in the Complaint. 10. With the issuance of the Complaint, the State of New Mexico was notified and given an opportunity to consult with EPA regarding the proposed assessment of an administrative penalty against the Respondent. EPA notified the public of the Complaint and afforded the public thirty (30) days to comment on the Complaint and proposed penalty. At the expiration of the notice period, EPA received no comments from the public. III. TERMS OF SETfLEMENT A. PENALTY PROVISIONS II. Based on the foregoing Findings of Fact and Conclusions of Law, EPA Region 6, considering the relevant criteria pursuant to Section 309(g)(3) of the Act, 33 U.S.C. 1319(g)(3), and acting pursuant to the authority of Section 309(g) of the Act, 33 U.S.C. 13!9(g), hereby orders that the Respondent shall pay to the United States a civil penalty in the amount of one thousand one hundred and seventy dollars ($1,170.00) to settle the violations as alleged in the Complaint, in accordance with 40 C.F.R. 22.18(c). Docket No. CWA-06-20 11-1765 Page 4 12. Payment shall be made within thirty (30) days of the effective date ofthis CAFO, by one of the following methods: a. By mailing a bank check, a cashier's check or certified check, payable to "Treasurer of the United States," to the following address: U.S. Environmental Protection Agency Fines and Penalties Cincinnati Finance Center P.O. Box 979077 St. Louis, MO 63197-9000 b. By wire transfer to: Federal Reserve Bank ofNew York ABA: 021030004 Account Number: 68010727 SWIFT address: FRNYUS33 33 Liberty Street New York, NY 10045 Field Tag 4200 of the Fedwire message should read: "D 680 I0727 Environmental Protection Agency" c. By overnight mail (Express, FedEx, DHL, etc.) to: U.S. Bank Government Lockbox 979077 U.S. EPA Fines & Penalties I 005 Convention Plaza St. Louis, MO 63 I0 I Phone: 314-418-1028 d. By credit card payments to: https://www.pay.gov/paygov (enter sfo 1.1 in tl1e search field) "In the Matter of C & B Recycling, Docket No. CWA-06-2011-1765" should be clearly marked on the check or other payment method to ensure credit for payment. Docket No. CWA-06-20 11-1765 Page 5 13. The Respondent shall send simultaneous notice of payment, including a copy of the check, to each of the following: (a) Regional Hearing Clerk (6RC-D) U.S. EPA, Region 6 1445 Ross Avenue, Suite 1200 Dallas, TX 75202-2733 (b) Chief, NPDES Compliance Section (6EN-WC) U.S. EPA, Region 6 1445 Ross Avenue, Suite 1200 Dallas, TX 75202-2733 (c) Chief, Water Legal Branch (6RC-EW) U.S. EPA, Region 6 1445 Ross Avenue, Suite 1200 Dallas, TX 75202-2733 The Respondent's adherence to these procedures will ensure proper credit when payment is received by EPA. 14. The 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 Treasurer. 15. 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 UnitedStatesandachargetocoverthecostsofproeessingandhandlingadelinquentclaim. 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 of the 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. 13.1 1(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, ll(b). Docket No. CWA-06-2011-1765 Page 6 16. EPA will also assess a fifteen dollar ($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 fifteen dollars ($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 monthly 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 first day payment is delinquent. See 31 C.F.R. 901.9(d). Other penalties for failure to make a payment may also apply. 17. Pursuant to Section 309(g)(9) of the Act, 33 U.S.C. 1319(g)(9), any person who fails to pay on a timely basis a civil penalty ordered or assessed under this section shall be required to pay, in addition to such penalty and interest, the United States' enforcement expenses including, but not limited to, attorneys' fees and costs incurred by the United States for collection proceedings, and a quarterly non-payment penalty for each quarter during which such failure to pay persists. Such non-payment penalty shall be twenty percent (20%) of the aggregate amount of such person's outstanding penalties and non-payment penalties accrued as of the beginniQg of 18. Failure by the Respondent to pay the penalty assessed according to the terms of this CAFO, in full, by its due date, may subject the Respondent to a civil action to collect the assessed penalty and any accrued interest and penalties. 19. In the event a collection action is necessary, the Respondent shall pay-in addition to any applicable penalty, fees, and interest described herein-all reasonable costs and expenses, Docket No. CWA-06-2011-1765 Page 7 including legal expenses and court costs, incurred by the United States for enforcement and collection proceedings tor non-payment of the amounts agreed hereunder, pursuant to Section 309(g)(9) of the Act, 33 U.S.C. 1319(g)(9). In any such collection action, the validity, amount, and appropriateness of the penalty, and the terms of this CAFO shall not be subject to review. IV. GENERAL PROVISIONS 20. To execute this Agreement, the Respondent shall forward this copy of the CAFO, with original signature, to: Mr. Earle A. "Rusty" Herbert (6RC-EW) EPA Houston Lab I 0625 Fallstone Road Houston, TX 77099 21. Issuance of this CAFO does not relieve the Respondent from responsibility to comply with all requirements of the Act and the requirements of any permits issued thereunder, as described in Section 309(g)(7) of the Act, 33 U.S.C. 1319(g)(7), nor does it constitute a waiver - nyEl'AofitsrighttoenforcecompliancewiththerequirementsoftheRespondent'spennitsor other requirements of the Act by actions pursuant to Section 309 of the Act, 33 U.S.C. 1319. 22. The provisions of this CAFO shall be binding upon the Respondent, its officers or officials, managers, employees, and their successors or assigns, in their capacity on behalf of the Respondent. 23. Each party agrees to bear its own costs and attorneys' fees in this matter, except to the extent that the Respondent may be responsible for reasonable costs and expenses of enforcement and collection proceedings for failure to comply with the terms of this CAFO. Docket No. CWA-06-20 I I- I765 Page 8 24. Each undersigned representative of the parties to this agreement certifies that he or she is fully authorized by the party represented to enter into the terms and conditions of this agreement and to execute and legally bind that party to it. 25. In recognition and acceptance of the foregoing: -- /;jc_ {z Dat~T.U. Compliance Assurance and Enforcement Division CJ /1-ffrz.. Date Docket No. CWA-06-20 11-1765 Page 9 Pursuant to 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 afn:ct the right of EPA or the United States to pursue appropriate injunctive or other equitable relief or criminal sanctions for any violations oflaw. This Final Order shall resolve only those causes of action alleged in the Complaint. Nothing in this Final Order shall be construed to waive, extinguish, or otherwise affect the 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 and the civil penalty payment instructions as set forth in the Consent Agreement. Pursuant to 40 C.F.R. 22.3l(b), this Final Order shall become effective upon filing with the Regional Hearing Clerk. Issuance Date: -~--- Docket No. CWA-06-20 11-1765 Page 10 CERTIFICATE OF SERVICE I hereby certify that on the 5 the foregoing Consent Agreement and Final Order was hand-delivered to the Regional Hearing Clerk, U.S. EPA, Region 6 (6RC-D), 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733, and that a true and correct copy was placed in the United States mail, by certified mail, return receipt requested, addressed to the following: Mr. Charles Soules, Owner C & B Recycling 1702 E. Green Street Carlsbad, NM 88220 with a copy, first class postage prepaid, to: Mr. James Bearzi Bill'eau Chief Surface Water Quality Bureau New Mexico Environment Department P. 0. Box 5469 Santa Fe, NM 87502-5469 Copy hand-delivered: Mr:ScottMcDonald(6RCoEW) (for Ru ty Herbert) . Dated: ( . _)~Jj;_R_~/