Document daGxxkGL9aK2zYVvZYDVG2nB5

'. I' ( ( UNITED STATE.S ENVIRONMENTAL ~ROT~~TION AGl1/NCY REGION 6 DALLAS, TEXAS FIL ED 2nIc, 0T'; , l:' - ' '- ' I I r. E, lo.l 1 '. l I ,! .~ 1 , f' A f. .... Ld lJ ,. 1, I ... ' " ~N TI-IE MATTER OF: l)AYLOR UNIVERSITY WA.CO, T~XAS, RES:PQND.ENT CONSENT AGREEMENT AND FINALORDKR DOCKET NO. E.CRA-09-~016-093(> I. PRELIMINARY STA'fEMENT 1. This Consent Agreement and Final Order (CAPO) is entered into by the United States Environmental Protection Agency, Region 6 and Baylor University ("Respondent" or "Baylor"), and concerns the.facility located at 101 Bagby Avenue, Waco, Texas 76706. 2. Notice of this action has been given to the State of Texas, tinder Resource Cqnservation and Recovery Act (RCR.A) 3008(a)(2), 42 U.S.C. 6928(a)(2). 3. For the purpose of these proceedings, Respondent admits the Ji1risdictional allegations herein; however, the Respondent does not admit the specific factual allegations and c:onclusions of law contained in this CAFO. This CAFO states a claim upon whic1nelief may be gnmted. :, : 4. Respondent explicitly waives any right to contest the allegations and its right to appeal the proposed final order contained in this CAFO, and waives t111 defenses that have been raisec\ or could have been raised to the claims set forth in the CAFO. 5. This CAFO resolves the violations alleged in this document for EPA ID: TXD982549180 and EPA JD: TXR000080212 from 2011 to the effectjve date of this CAFO. Baylor University RCRA-06-2016-0936 6. The Respondent consents to the issuance of the CAFO hereinafter recited, consents to the assessment and payment of the stated civil penalty in the amount and by the method set out in this CAFO, and consents to the specific stated compliance order. II. JURISDICTION 7. This CAFO is issued by EPA ptll'suant to RCRA 3008(a), 42 U.S.C. 6928(a), as amended by the Hazardous and Solid Waste Amendments of 1984 tind is simultaneously commenced and concluded through the issuance of this CAFO under 40 C.F.R. 22.13(b), 22.l 8(b)(2)-(3). 8. Respondent agrees to undertake and complete all actions required by the terms and conditions of this CAFO. In any action by the EPA or the United States to enforce the te1ms of this CAFO, Respondent agrees not to contest the authority or jurisdiction of the EPA to issue or enforce this CAFO, and agrees not to contest the validity of this CAFO or its terms or conditions. III. FINDINGS O:F FACT AND CONCLUSIONS OF LAW 9. Respondent is a university formed under the laws of the State of Texas and owns and operates the facility located at 101 Bagby Avenue, Waco, Texas 76706. JO. Respondent is a "person" within the meaning of RCRA 1004(15), 42 U.S.C. 6903(15); and 30 TEX. ADMIN. Com: 3.2(25) (40 C.F.R. 260.10). 11. The facility is a "facility" within the meaning of30 TEX. ADMIN. CODE 335.1(59) (40 C.F.R. 260.10). 12. The primary business at the facility is academic laboratory operations. 13. From December 2015 tlU'ough February 2016, EPA conducted an investigation and record review of Respondent's perfo1mance as a generator of hazardous waste for the years 2011 thJotJgh 2016. 2 Baylor University RCRA-06-2016-0936 14. EPA's investigation alleged that Respondent violated the requirements of RCRA and the regulations pr01:m1lgated at 40 C.F.R. 261, 262, and 270 by failing to comply with the RCRA notification requirements, failing to operate within its stated generator status, and failing to perform adequate hazardous waste dete1mination. 15. Respondent is a "generator" of"hazardous wastes" at the facility, as those terms are defined in RCRA 1004(5), (6), 42 U.S.C. 6903(5), (6), and 30 TEX. ADMIN. COPE 335.1(65), (69) (40 C.F.R. 260.10). 16. As a generator of hazardous waste, Respondent is subject to RCRA 3002 and 3010, 42 U.S.C. 6922 and 6930, and the regulations set forth at 30 TEX. ADMIN. CODE 335(C), (F) (40 C.F.R. 262 and/or 270). Claim I: Failure to file adequate or accurate initial or subsequent notifications Section 3010 (a) ofRCRA, 42 U.S.C. 6930(a). 17. The allegations in Paragraphs 1-16 are reallegecl and incoivorated herein by reference. 18. Pursuant to Section 3010(a) ofRCRA, 42 U.S.C. 6930(a), any person generating a characteristic or listed waste shall file with the Administrator or authorized state a notification stating the location and general description of such activity and the identified or listed hazardous wastes handled by such person. 19. Respondent operated as a small quantity generator (SQG) from 2011to2014, and operated as a large quantity generator in 2015. 20. At times from 2011 to 2014, Respondent generated hazardous waste in an amount exceeding SQG criteria. 3 )3aylor University RCRA-06-2016-0936 21. Respondent had not filed with the Administrator or with the authorized state an adeqtiate notification of hazardous waste activities in violation of Section 3010(a) of RCRA, 42 U.S.C. 6930(a). Clnim 2: Fail1Jre to meet the rcqllircments of a Large Quantity Generator (LQG). 22. The allegations in Paragraphs 1-16 are realleged and incorporated herein by reference. 23. A generator of hazardous waste is subject to the requirements of 30 TEX. ADMIN. CODE 335(C)-(H), (0) (40 C.F.R. 124, 262-68, 270). 24. From 2011 to 2014 Respondent declared its generator status as a SQG, and in 2015, Respondent declared its generator status as LQG. 25. At times from 2011 to 2014, Respondent generated hazardous wastes exceeding the SQG threshold established in 30 TEX. ADMIN. CODE 335.78 and therefore operated as a LQG. 26. While operating as a LQG in 2011and2015, Respondent failed to comply with one or more ofthe requirements for LQGs under 30 TEX. ADMIN. CODE 335(C) and/or (F) (40 C.F.R. 262 and/or 270). Claim 3: 27. Failure to Make Hazal'dous Waste Determinations (lucluding Failure to Make Accurate Hazardous Waste Determinations). The allegations in Paragraphs 1-16 are reallegecl and incorporated herein by reference. 28. Pursuant to 30 TEX. ADMIN. CODE 335.62 (40 C.F.R. 262.11), Respondent, as a generator of solid waste, must determine whether such waste is a hazardous waste either by applying the required test method or by applying its lmowledge of the hazardous characteristic of the solid waste in light of the materials or the process. 4 Baylor University RCRA-06-2016-0936 29. At times relevant to this CAFO, Respondent generated several hazardous wastes, for which there was no adequate and complete hazardous waste detenninatlon. 30. Based on the EPA's knowledge of Respondent's activities at the Facility and the waste profile of the waste streams, during the periods of2011 to 2015, Respondent failed to make adequate and complete hazardous waste determinations on all its solid waste streams in violation of30 TEX. ADMIN. CODE 335.62, (40 C.F.R. 262.11). IV. COMPLIANCE ORDER 31. Pursuant to RCRA 3008(a), 42 U.S.C. 6928(a), Respondent is here])y ordered to take the following actions, and within ninety (90) calendar days of the effective elate of this CAFO, Respondent shall provide in writing the following: ~ A. Respondent shall certify that it has assessed all its solid waste streams to determine the accurate waste codes and has modified its existing Standard Operating Procedures (SOP) to fmther ensure that Respondent is operating in compliance with RCRA and the regulations promulgated thereunder, including, but not limited to, procedures for: 1. making hazardous waste determinations; 2. managing hazardous wastes; and 3. reporiing, transporting, and disposing of hazardous waste. B. Respondent shall provide, with its certification, a copy of Respondent's SOPs as described in subparagraph A, above. 32. In all instances in which this CAPO requires written submission to EPA, the submittal made by Respondent shall be signed by an owner or officer of Respondent and shall include the following certification: "I certify under the penalty oflaw that this document and all its attaclunents were prepared by me or under my direct supervision in accordance with a system designed to assure that qualified personnel properly gathered and 5 Baylor University RCRA-06-2016-0936 evaluated the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information stibmitted is, to the best of my knowledge and belief, trne, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations." 33. Copies of all documents required by the CAFO shall be sent to the following: Fred Deppe Waste Compliance II Section (6EN-H2) U.S. Environmental Protection Agency Region 6 Compliance Assurance and Enforcement Division Waste Enforcement Branch 1445 Ross Avenue Dallas, Texas 75202-2733 V. TERMS OF SETTLEMENT A. Supplemental Environmental Project. 34. Respondent shall unde1iake the following Supplemental Environmental Project ("SEP"), which the parties agree is intended to secure significant environmental or public health protection and improvement. 35. Respondent will purchase emergency response equipment, as set forth below. The emergency response equipment will include an ACE-ID handheld explosive, narcotic, and toxic chemical identifier and a RAE Systems MultiRAE ProGas Monitor ("Emergency Response Equipment"). 36. Respondent will purchase the Emergency Response Equipment and donate it to the Waco Fire Department. 37. Respondent shall complete its purchase and donation of emergency response equipment within 90 days from the effective date of this CAFO. 38. Respondent is responsible for the satisfactory completion of the SEP. The total expenditure for the SEP shall be no less than $33,990.00. Eligible SEP costs do not include 6 Baylor University RCRA-06-2016-0936 inventory on hand, overhead, additional employee time and salary, administrative expenses, legal fees, and oversight of a contractor. The Respondent shall include documentation of the expenditt\res made in connection with the SEP as part of the SEP Completion Report. 39. The Respondent hereby ce1tifies that, as the date of this CAFO, the Respondent is not required to perform or develop the SEP by any federal, state or local law or regulation; nor is the Respondent required to perform or develop the SEP by any other agreement, grant, or as ii~junctive relief in this or any other case. The Respondent forther certifies that the SEP was not a project that the Respondent was planning or intending to construct, perform, or implement other than in settlement of this action. Finally, the Respondent certifies that it has not received, and is not presently negotiating to receive credit in any other enforcement action for this SEP. 40. The Respondent's signatory to this CAFO, by signing the CAFO, makes the following additional certification: The Respondent, to the best of my knowledge and belief after reasonable inquiry, is not a party to any open federal financial assistance transaction that is funding or could be used to fund the same activity as the SEP. I further certify that, to the best of my knowledge and belief after reasonable inquiry, there is no such open federal financial transaction that is funding or could be used to fund the same activity as the SEP, nor has the same activity been described in an unsuccessful federal financial assistance transaction proposal submitted to EPA within two years of the date of this settlement (unless the project was barred from itmding as statutorily ineligible). For the purpose of this certification, the term "open federal financial assistance transaction" refers to a grant, cooperative agreement, loan, federallyguaranteed loan guarantee or other mechanism for providing federal financial assistance whose performance period has not yet expired. 41. For federal income tax purposes, the Respondent agrees that it will neither capitalize into inventory or basis nor deduct any costs or expenditures incurred in performing the SEP. 7 SEP Completion Report Baylor Uruversity RCRA-06-2016-0936 42. Respondent shall submit a SEP Completion Report to EPA within thirty (30) days after completion ofthe SEP. The SEP Completion Report shall contain the following info1111ation: A. A detailed description of the SEP as implemented; B. A description of any operating or logistical problems encountered and the solutions thereto; C. Itemized final costs with copies of receipts for all expenditures; D. Certification that the SEP has been fully implemented pursuant to the provisions of this CAFO; and E. A description of the enviromnental, emergency preparedness, and/or public health benefits resulting from implementation of this SEP. 43. Respondent agrees that failure to timely submit the final SEP Completion Report shall be deemed a violation of this CAFO and Respondent shall become liable for stipulated penalties pursuant to Paragraph 49. 44. In itemizing its costs in the SEP Completion Report, Respondent shall clearly identify and provide acceptable documentation for all eligible SEP costs. Where the SEP Completion Report includes costs not eligible for SEP credit, those costs must be clearly identified as such. For purposes of this Paragraph, "acceptable documentation" includes invoices, purchase orders, or other documentation that specifically identifies and itemizes the individual costs of the goods and/or services for which payment is being made. Cru1celed drafts do not constitute. acceptable documentation unless such drafts specifically identify and itemize the individual costs of the goods and/or services for which payment is being made. 8 Baylor University RCRA-06-2016-0936 45. Respondent shall submit the following ce1tification in the SEP Completion Report, signed by a responsible corporate official: l certify under penalty of law that I have examined and am familiar with the information submitted in this document and all attachments and that, based on my inquiry of those individuals immediately responsible for obtaining the information, I believe that the information is true, accurate, and complete. I am aware that there are significant penalties for submitting false info1111ation, including the possibility of fines and imprisonment. 46. After receipt of the SEP Completion Report described in Paragraph 42 above, EPA will notify the Respondent, in writing, regarding: (a) any deficiencies in the SEP Report itself along with a grant of an additional thirty (30) days for Respondent to conect any deficiencies; or (b) indicate that EPA concludes that the project has been completed satisfactorily; or (c) determine that the project has not been completed satisfactorily and seek stipulated penalties in accordance with Paragraph 49 below. 47. IfEPA elects to exercise option (a) in Paragraph 46 above, i.e., if the SEP Repmt is determined to be deficient but EPA has not yet made a final determination about the adequacy of SEP completion itself, EPA shall permit the Respondent the opportunity to object in writing to the notification .of deficiency given pursuant to Paragraph 46 within ten (I 0) days of receipt of such notification. EPA and the Respondent shall have an additional thirty (30) days from the receipt by EPA of the notification of objection to reach agreement on changes necessary to the SEP Report. If agreement cannot be reached on any such issue within this thirty (30) day period, EPA shall provide a written statement of its decision on adequacy of the completion of the SEP to Respondent, which decision shall be final and binding upon the Respondent. The Respondent agrees to comply with any requirements imposed by EPA as a result of any failure to comply with the tenns ofthis CAFO. In the event the SEP is not completed as reasonably contemplated herein, 9 Baylor University RCRA06-2016-0936 as determined by EPA, a stipulated penalty shall be. due and payable by Respondent to EPA in accordance with Paragraph 48 herein. B. Penalty Provisions. 48. Pursuant to the authority granted in Section 3008 ofRCHA, 42 U.S.C. 6928, and upon consideration of the entire record herein, including the above referenced Findings of Fact mid Conclusions of Law, which are hereby adopted and made a part hereof, upon the seriousness of the alleged violations, and Respondent's good faith effo1ts to comply with the applicable regulations, it is ordered that Respondent be assessed a stipulated civil penalty of$11,330.00. 49. If Respondent fails to adequately perform the SEP as described above, Respondent agrees to pay a stipulated penalty of $40,000. 50. The EPA may, in the unreviewable exercise of its discretion, reduce or waive stipulated penalties otherwise due under this CAFO. 51. The penalty shall be paid within thirty (30) calendar days of the effective date of this CAPO and made payable to Treasurer, United States of America. 52. The following are Respondent's options for transmitting the penalties: Checks sent via U.S. Postal Mail (including certified mail) or U.S. Postal Service Express Mail should be remitted to: U.S. Enviro1111lental Protection Agency Fines and Penalties Cincilmati Finance Center P.O. Box 979077 St. Louis, Missouri 63197-9000 10 Baylor University RCRA-06-2016-0936 Checks sent via Overnight Mail (non-U.S. Postal Service) should be remitted to: U.S. Bank Government Lockbox 979077 U.S. EPA Fines and Penalties 1005 Convention Plaza SL-MO-C2-GL St. Louis, Missouri 63101 314-418-1028 Wire Transfers should be remitted to: Federal Reserve Bank of New York ABA: 021030004 Account No. 68010727 SWIFT address~ FRNYUS33 33 Liberty Street New York, NY 10045 The case name and docket number (In the Matter of Baylor University, Docket No. RCRA- 06-2016-0936) shall be documented on or within your chosen method of payment to ensure proper credit. 53. The Respondent shall send a simultaneous notice of such payment to the following: Lorena S. Vauglm Regional Hearing Clerk (6RC-D) U.S. EPA, Region 6 1445 Ross Avenue Dallas, Texas 75202-2733 Mark Potts, Chief Waste Enforcement Branch (6EN-H) Compliance Assurance and Enforcement Division U.S. EPA, Region 6 1445 Ross Avenue Dallas, TX 75202-2733 Attn: Fred Deppe Your adherence to this request will ensure proper credit is given when penalties are received by EPA. 11 Baylor University RCRA-06-2016-0936 54. Pursuant to 3 I U.S.C. 3717 and 40 C.F.R. 13 II, unless otherwise prohibited by Jaw, EPA will assess interest and late payment penalties on outstanding debts owed to the United States and a charge to cover the cost of processing and handling a delinquent claim. Interest on t]le civil penalty assessed in this CAFO will begin to accrue on the effective date of the CAFO and will be recovered by EPA on any amount of the civil penalty that is not paid within thirty (30) calendar days of the civil penalty's due date and will be assessed at the rate of the United States Treasury tax and loan rate in accordance with 40 C.F.R. 13.1 l(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. 40 C.F.R. 13.1 l(b). EPA will also assess a $15.00 administrative handling charge for administrative costs on tmpaid penalties for the thirty (30) day period after the payment is due and an additional $15.00 for each subsequent thirty (30) day period the penalty remains unpaid. In addition, a penalty charge of up to six percent per year will be assessed monthly on any po11ion of the debt that remains delinquent more than ninety (90) days. 40 C.F.R. 13.ll(b). Should a penalty charge on the debt be required, it shall accrne from the first day payment is delinquent. 40 C.F.R. 901.9(cl). Other penalties for failme to make a payment may also apply. C. Costs. 55. Each party shall bear its own costs and attorney's fees. Fmthennore, Respondent specifically waives its right to seek reimbursement of its costs and attorney's fees under the Equal Access to Justice Act (5 U.S.C. 504), as amended by the Small Business Regulatory Enforcement Fairness Act (P.L. 04-121), and any regulations promulgated pursuant to those Acts. D. Termination and Satisfaction. 56. When Respondent believes that it has complied with all the requirements of this CAFO, including compliance with the Compliance Order, completion of the SEP and payment of 12 Baylor University RCRA-06-2016-0936 the civil penalty, Respondent shall certify this in writing and in accordance with the certification language set forth in Section IV (Compliance Order) and this Section V (Settlement Terms). Unless the EPA, Region 6 objects in writing within sixty (60) days of EPA's receipt of Respondent's ce1tification, then this CAFO is terminated on the basis of Respondent's certification. E. Effective Date of Settlement. 57. This CAFO shall become effective upon filing with the Regional Hearing Clerk. 13 ( ( Baylor University RCRA-06-2016-0936 THE UNDERSIGNED PARTIES CONSENT TO THE ENTRY OF THIS CONSENT AGREEMENT AND FINAL ORDER: FOR TH:r-; RESPONDENT: an Ramsower Senior Vice President and Chief Operating Officer Baylor University FOR THE COMPLAINANT: o~~v~;,~ u' Director Compliance Assurance and Enforcement Division 14 Baylor University RCRA-06-2016-0936 FINAL ORDER Pursuant to the Consolidated Rules of Practice Governing the Administrative Assessment of Civil Penalties, 40 C.F.R. Part 22, the foregoing CAFO is hereby ratified. This Final Order shalr 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 herein. 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 CAFO. Pursuant to 40 C.F.R. 22.3 l(b), this Final Order shall become effective upon filing with the Regional Hearing Clerk. Dated /D /2lf / / {e ----'---,.k ~-,,,--'--'--~~ Renea Ryland Regional Judi 15 CERTIFICATE OF SERVICE Baylor University RCRA-06-2016-0936 I hereby celtify that on theag_day of OcloJ)t.V , 2016, the original of the foregoing Consent Agreement and Final Order was hand delivered to the Regional Hearing clerk, U.S. EPA, Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, and that a trne and correct copy of the CAFO was sent to the following by the method below: CERTIFIED MAIL- RETURN RECEIPT REQUESTED1Dl5 l5::>otm3, 3 9fl 5o1 Dr. Reagan Ramsower Senior Vice President and Chief Operating Officer Baylor University 1 Bear Place Waco, Texas 76798 Paralegal 16