Document RjOygdJ1zKqwVmo48ZDQVbKL7

UNITED STATES 23 JUL 19 PM I: 20 ENVIRONMENTAL PROTECTION AGENCY REGION 6 :'!:::Glr)i .,,,. HE.f.\RlNG CLERK DALLAS, TEXAS EPA EEGlON VJ IN THE MATTER OF: ALLIANCE RUBBER COMPANY HOT SPRJNGS NATIONAL PARK, ARKANSAS 71901 RESPONDENT EPA DOCKET NUMBER EPCRA 06-2023-0570 CONSENT AGREEMENT AND FINAL ORDER CONSENT AGREEMENT The Director of the Enforcement and Compliance Assurance Division of the United States Environmental Protection Agency (EPA), Region 6 (Complainant), and Alliance Rubber Company (hereinafter Alliance Rubber)(Respondent) 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. l I045(c), is simultaneously commenced and concluded by the issuance of this CAFO against Respondent pursuant to 40 C.F.R. 22.1 3(6), and 22. I8(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 Alliance Rubber Company Docket No. EPCRA 06-2023-0570 contained in this CA FO. 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 raised or could have been raised to the claims set forth in this CAFO. 3. Compliance with all the terms and conditions of this CA FO 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 civi l 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 of this 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 o f Section 3 13 of EPCRA, 42 U.S.C. 11023, and 40 C.F.R. Part 372. II. STATUTORY AND REGULATORY BACKGROUND 8. Section 3 13 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 full-time 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 C lassificat ion System (NA ICS) 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 Page 12 Alliance Rubber Company Docket No. EPCRA 06-2023-0570 40 C.F.R. 372.65, that manufactured, processed, or otherwise used the chem ical in excess of the threshold quantity established under Subsection 313(t) of EPC RA, 42 U.S.C. I 1023(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 facil ity 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 fac ility shall complete a toxic chemical release form for each toxic chemical listed under 3 I3(c) of EPCRA, 42 U.S.C. 11023(c) that was manufactured, processed, or otherwise used in quantities exceeding the toxic chemical threshold quantity establ ished by 3 I 3(f) 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 I3(f) of EPCRA, 42 U.S.C. I I023(f), and 40 C.F.R. 372.25, the threshold amount for reporting under Section 3 I3(b) of EPCRA, 42 U.S.C. 1 I023(b), and 40 C.F.R. 372.30, is 25,000 pounds for any toxic chem ical manufactured or processed, and I0,000 pounds for any toxic chemical otherwise used for the applicable calendar year. A lternative reporting thresholds are set forth in 40 C.F.R. 372.27 and 372.28. I I. 40 C.F.R. 372.30(a) requires that for each toxic c hem ical known by the owner or operator to be manufactured (including imported), processed, or othe rw ise used in excess Page I 3 Alliance Rubber Company Docket No. EPCRA 06-2023-0570 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 Fonn 9350-1), or EPA Form A (EPA Form 9350-2), and, for the dioxin and dioxin-like compounds category, EPA Form R Schedule I (EPA Form 9350- 3) in accordance with the instructions referred to in subpart E of this part. 12. Pursuant to Section 3 I3(g)( I)(C)(iii) of EPCRA, 42 U.S.C. I I023(g)( I)(C)(i ii), and 40 C.F.R. 372.85(b)(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 Arkansas and authorized to do business in the State of Arkansas. 14. Respondent is a " person" as defined by Section 329(7) of EPCRA, 42 U.S.C. I I049(7). Respondent owns and operates the facility at 210 Carpenter Dam Road, Hot Springs National Park, AR 7190 I. 15. Respondent's facility identified in Paragraph 14 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 faci lity had ten (I 0) or more " full-time employees" as that term is defined by 40 C.F.R. 372.3. 17. Respondent' s facility is in primary NAICS code 326291 (Rubber Product Manufacturing for Mechanical Use) and is w ithin subsector code 326 (Plastics & Rubber), which is listed in 40 C.F.R. 372.23(b). Page 14 Alliance Rubber Company Docket No. EPCIU 06-2023-0570 18. Phthalic anhydride, sodium nitrite, and zinc compounds are "toxic chem icals" w ithin the meaning of 40 C.F.R. 372.3 and 372.65. 19. During calendar years 20 17, 2018, 2019, 2020, and 202 1 the toxic chem icals in Paragraph 18 were "manufactured, processed, or otherwise used," at various times as those terms are defined by Section 3 I3(b) of EPCRA, 42 U.S.C. I I023(b), and 40 C.F.R. 372.3, at Respondent' s facility. 20. On or about January 26, 2023, an off-site investigation was initiated to determine compliance of Respondent's Hot Springs National Park, AR fac ility with Section 3 13 of EPCRA. During the off-site investigation, EPA alleged the faci lity had fai led to timely report the aforementioned TRI chemicals in paragraph 18 at various times for the 20 17, 20 I 8, 2019, 2020, and 2021 reporting years, on or before the applicable due dates of July 2, 20 I8; July I, 2019; July 1, 2020; July 1, 2021 ; and July I, 2022; respectively . Once E PA brought the initial identified issues to the Respondent's attention, an environmental consulting firm was hired to provide technical reporting assistance on May 8, 2023. T hreshold determinations for reporting years 2017 through 2021 were performed in mid-May 2023. Respondent subsequently self-disclosed some of the violations on May 3 I, 2023. 2 1. On or about June 20, 2023, the EPA sent Respondent a Proposed Settlement via e mail. On or about June 23, 2023, Respondent agreed to the proposed settlement for the alleged violation of Section 313 of EPCRA. B. VIOLATIONS 22. Complainant hereby restates and incorporates by reforence Paragraphs I through 2 1. 23. During calendar years 2017, 20 18, 20 19, 2020, and 2021 Respondent manufactured, Page 15 Alliance Rubber Company Docket No. EPCRA 06-2023-0570 processed, or otherwise used the TRI chemicals identified in Paragraph 18, at the Respondent's faci lity, in excess o f the applicable threshold quantities for reporting. 24. EPA finds Respondent violated 42 U.S.C. I 1023(g)( l)(B), and 40 C.F.R. 372.85(b)(2) by failing to submit 20 17, 20 18, 20 19, 2020, and 202 1 TRI reporting forms for the aforementioned TRI chemicals in paragraph 18 on or before July 2, 20 18; July I, 2019; July I, 2020; July I , 2021; and July I, 2022; respectively. 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. 11 045(c), which authorizes EPA to assess a civil penalty of up to Fifty-Five Thousand Nine Hundred and Seven Do llars ($55,907) per day per violation of EPCRA.1 Upon consideration of the entire record herein, includ ing 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 al leged violations, and with respect to Respondent' s abi lity to pay, history of prior EPCRA Section 3 I3 violations, the degree of culpability, economic benefit or savings (if any) resulting from the violations, and othe r factors as justice may require, it is ORDERED that Respondent be assessed a c ivil penalty of one hundred thirty-two thousand one hundred six dollars and no cents ($132,106.00). 1 The statutory maximum penalty level under Section 325(c) of EPCRA, 42 USC I 1045(c) has been adjusted over time as required by the Federal Civil Penalties Inflation Adj ustment Act of 1990 (28 U.S.C. 246 1 note; Pub. L. I0L-4 10), 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.1 14-74, Section 70 I). EPA implements these adjustments through rulemaking which are codified in 40 CFR Part 19. As adjusted by the Amendments to the EPA 's Civil Penalty Policies 10 Accounl for Inflation (effective Janua,y 15. 20/8) and Transmillal of the 20/8 Civil Moneta,y Penalty Inflation Adjustment Rufe (20 18 Rule) (83 Fed. Reg. 1194), 40 Page 16 Alliance Rubber Company Docket No. EPCRA 06-2023-05 70 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 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) shou ld be remitted to: U.S. Environmental Protection Agency Fines and Penalties Cincinnati Finance Center P.O. Box 979078 St. Louis, MO 63197-9000 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 I005 Convention Plaza SL-MO-C2-GL St. Louis, MO 6310 I Phone No. (3 14) 4 18-1028 For wire transfer, the payment should be remitted to: Federal Reserve Bank of New York ABA = 021030004 Account = 680I0727 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" In addition to the above methods of payments: Payments may also be made electronically. For information on electronic payments, please visit C.F.R. I9.4, the Administrator may assess a civil penalty of up to $55,907 per violation per day of violation occurring after November 2, 201 S and where penalties are assessed on or after January 15, 2018. Page 17 Alliance Rubber Company Docket No. EPCRA 06-2023-0570 hltps:llivww.epa.govl financial/makepaymenl The above web site may also be referenced for making payments via credit 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 06-2023-0570 shall be clearly typed on 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 06-2023-0570 on the method of payment. If 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 ofthe 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 3 I3 Enforcement Coordinator U.S. EPA, Region 6 Toxics Enforcement Section (ECDST) 1201 Elm Street, Suite 500 Dallas, TX 75270-2102 wakeland.morton@eva.gov and Lorena Vaughn Regional Hearing Clerk U.S. EPA, Region 6 120I Elm Street, Suite 500 Dallas, TX 75270-2102 va11gh11. lorena@epa.gov Page 18 Alliance Rubber Company Docket No. EPCRA 06-2023-0570 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 a ll or any part of the civil penalty paid to the United States Treasurer. 27. If Respondent fails to submit the full payment within thirty (30) days of the effective date of this Order, Respondent may be subject to a c iviI action to collect the penalty in full , in an appropriate district court of the United Stated pursuant to Section 325(t) of EPCRA, 42 U.S.C. 11045(f). 28. Pursuant to 31 U.S.C. 37 17 and 40 C.F.R. 13.11 , unless otherwise prohibited by law, EPA wi ll 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 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. 13.11 (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. 13.1 1(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 per year will be assessed monthly on any portion ofthe debt which remains delinquent more than ninety (90) days. Page 19 Alliance Rubber Company Docket No. EPCRA 06-2023-0570 See 40 C.F.R. 13.1 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. 90 l.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 10, 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, 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 Page I 10 Alliance Rubber Company Docket No. EPCRA 06-2023-0570 criminal authorities, or that of Federal, State, or local agencies or departments to obtain penalties or injunctiverelief under Federal, State, or local laws or regulations. C. 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. D. EFFECTIVE DATE 36. This CAFO becomes effective upon filing with the Regional Hearing Clerk. 37. The EPA and Respondent agree to the use ofelectronic 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 addressees: To EPA: wake/and. morlon(@epa.gov To Respondent: bhughes(@,al/iance-rubber.com, THamilton@alliance-rubber.com, bswayze(@.al1iance-rubber.com, and dcars te n s @ h a r b ore n v. co m Page I 11 Alliance Rubber Company Docket No. EPCRA 06-2023-0570 THE UNDERSIGNED PARTIES CONSENT TO THE ENTRY OF THIS CONSENT AGREEMENT AND FINAL ORDER: FOR THE RESPONDENT: Brandon Date: _______ Hughes Digitally signed by Brandon Hughes Date: 2023.07.17 12:38:34 -05'00' Brandon Hughes, Operations President V.P. Manufacturing Alliance Rubber Company 210 Carpenter Dam Road Hot Springs National Park, AR 71903 FOR THE COMPLAINANT: Digitally signed by CHERYL SEAGER Date: 2023.07.18 Date: _ _ _ _ _ __ 15:44:42 -05'00' Cheryl T. Seager Director Enforcement and Compliance Assurance Division U.S. EPA Region 6 Dallas, Texas 75270-2102 Page I 12 Alliance Rubber Company Docket No. EPCRA 06-2023-0570 FINAL ORDER Pursuant to Section 325(c) of EPC RA, 42 U.S.C. I 1045(c), and the Consolidated Rules of Practice Governing the Administrative Assessment of Civil Penalties, 40 C.F.R. Part 22, the foregoi ng 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 fo r 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 o fficers, 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 settle ment and the civil penalty payment instructions as set forth in the Consent Agreement. In accordance with 40 C.F.R. 22.3 l (b), this Final Order shall become effective upon filing w ith the Regional Hearing Clerk. Date: - - - - - -- - - - THOMAS RUCKI Digitally signed by THOMAS RUCKI ON: c=US, o=U.S. Government. ou=Environmental Protection Agency, cn=THOMAS RUCKI, 0 .9.2342. 19200300.100.1.1=6800 10 03655804 Date: 2023.07.19 11:58:36 -04'00' Thomas Rucki Regional Judicial Officer U.S . EPA Region 6 Dallas, Texas 75270-2102 Page I 13 AIlianee Rubber Company Dockel No. EPCRA 06-2023-05 70 CERTIFICATE OF SERVICE I certify that that a true and correct copy of the foregoing Consent Agreement and Final Order was de] ivered electronically to the Regiona l Hearing Clerk, 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 7/19/23 _ _ _ _ _ _ _ _ _ _ _ in the following manner to the addressees: Copy via Emai l to Complainant: wake land.morlon@epa.gov and vaughn. lorena@epa.gov Copy via Emai l to Respondent: bhughes{a),a/liance-rubber.com . THamilton@alliance-rubber.com bswavze@a!!iance-rubber.com. and dearstens(cv,harborenv.com Morton E. Wakeland, Jr. Digitally signed by Morton E. Wakeland, Jr. Date: 2023.07.19 18:40:46 -05'00' Morton E. Wakeland , Jr. (" Mort"), Ph.D . EPCRA Section 313 Enforcement and TRJ Program Coordinator U.S. EPA Region 6 Compliance Assurance and Enforcement Division (ECO) Toxics Section (ECDST) Dallas, Texas 75270 (214)665-8116 Page I 14