Document ga99JrR2Kr897N0rkaMMJDZ3J

' ...,- UNITED STATES 23 JUN2I AK 8: 38 ENVIRONMENTAL PROTECTION AGENCY REGION 6 f,;f:1:1:JI, ~ _ l-,L<\R:,' /G CU.:RX: DALLAS, TEXAS EPA " [GfON VI IN THE MATTER OF: MULLER SUPPLY COMPANY INC. BALLINGER, TEXAS 76821 RESPONDENT EPA DOCKET NUMBER EPCRA-06-2023-0569 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 Mueller Supply Company Inc. (hereinafter Ballinger)(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 c ivi l penalties pursuant to Section 325(c) of the Emergency Planning and Community Right-to-Know Act (EPCRA), 42 U.S.C. I 1045(c), is s imultaneously commenced and concluded by the issuance of this CAFO against Respondent pursuant to 40 C.F.R. 22. 13(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 a llegations contained in this CAFO. Respondent explicitly waives any right to contest the a llegations Mueller Supply Company. Ballinger Facility. Docket No. El'CRA 06-2023-0569 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 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 s igning 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 of Section 313 of EPCRA, 42 U.S.C. 11023, and 40 C.F.R. Part 372. II. STATUTORY AND REG ULATORY 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 fac ility with : (a) ten or more full-time employees; (b) a Standard Industrial Classification (S IC) major group or industry code listed in 40 C.F.R. 372.23(a), for which the corresponding North American Industry C lassification 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 3 I3(c) of EPCRA and 40 C.F.R. 372.65, that manufactured, processed, or othenvise used the chem ical in Page 12 Muef/er Supply Company. /Jaf/inger Facility. Docket No. EPCRA 06-2023-0569 excess ofthe threshold quantity established under Subsection 3 I3(f) of EPCRA, 42 U.S.C. 11023(t), and 40 C.F.R. 372.25, 372.27, or 372.28, to complete and submit a toxic chemica l 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 faci lity 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 exceed ing the toxic chemical threshold quantity established by 3 l 3(t) of EPCRA, 42 U.S.C. 11023(f) during the preceding calendar year at such fac ility. Such form shall be submitted to the Administrator and to an official or o fficials 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(f) 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(6), 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 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 Page I 3 Mueller Supply Company, Ballinger Facility. Docket No. El'CRA 06-2023-0569 covered facil ity 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 faci lity is located a completed EPA Form R (EPA Form 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 93503) in accordance with the instructions referred to in subpart E of this part. 12. Pursuant to Section 3 I3(g)(l)(C)(iii) of EPCRA, 42 U.S .C. 11023(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 chem ical, 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 organ ized under the laws of the State of Texas and authorized to do bus iness in the State of Texas. 14. Respondent is a " person" as defined by Section 329(7) ofEPCRA, 42 U.S .C. 11049(7). Respondent owns and operates the facility at 191 5 Hutchins Avenue, Ballinger, TX 76821. 15. Respondent' s facil ity identified in Paragraph 14 is a " fac ility" 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 facil ity had ten ( I0) or more " fu ll-time employees" as that term is defined by 40 C.F.R. 372.3. 17. Respondent' s facility is in primary NA ICS code 332311 (Prefabricated Metal Buildings and Component Manufacturing) and is within subsector code 332 (Prefabricated Metal Buildings and Component Manufacturing), which is listed in 40 C.F.R. 372.23(6). Page 14 lv/ueller Supply Company, Ballinger Facility. Docket No. EPCRA 06-2023-0569 18. I 2 4-Trimethylbenzene, antimony, copper, lead, manganese, nicke l, selenium, and xylene (mixed isomers) are " toxic chemicals" within 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 chemicals in Paragraph 18 were " manufaclured, processed, or olherwise used," as those terms are defined by Section 3 I3(b) of EPCRA, 42 U.S.C. 11023(b), and 40 C.F.R. 372.3, at Respondent's facility. 20. On or about January 24, 2023 , an off-site investigation was initiated to determine compliance of Respondent' s Bal linger, Texas facility with Section 3 13 of EPCRA. During the off-site invest igation, EPA alleged the facility had fa iled to timely report the aforementioned TRI chemicals in paragraph 18 for the 2017, 20 18, 20 19, 2020, and 2021 reporting years, on or before the applicable due dates of July 2, 2018; July I, 2019, July I , 2020; July I , 2021 ; and July I, 2022; respectively. 2 1. On or about May 18, 2023, the EPA sent Respondent a Proposed Settlement v ia email. On or about May 19, 2023, Respondent agreed to the proposed settlement for the a lleged violation of Section 3 13 of EPCRA. B. VIOLATIONS 22. Complainant hereby restates and incorporates by reference Paragraphs I through 21. 23. During calendar years 2017, 20 18, 20 19, 2020, and 2021 , Respondent manufactured, processed, or olherwise used the TRI chemical 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. I 1023(g)(l)(B), and 40 C.F.R. 372.85(6)(2) by failing to submit 2017, 20 18, and 20 19 TRI reporting forms for the Page 15 Alueller Supply Company, Ballinger Facility. Docket No. EPCRA 06-2023-0569 aforementioned TRI chemicals in paragraph 18 on or before July 2, 2018; July I, 20 19, July I , 2020; July I , 202 1; and July I, 2022; respectively. JV. 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 3 13 violations, the degree of c ulpability, 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 civi l penalty of one hundred thirteen thousand eight-hundred twenty dollars and no cents ($113,820.00). 26. Within thirty (30) days of the effective date of this CAFO, Respondent shall pay the assessed c ivil penalty by certified check, cashier's check, or wire transfer, made payable to "Treasurer, United States of America, EPA - Region 6". Payment shall be rem itted in 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 Adjustment Act of 1990 (28 U.S.C. 2461 note; Pub. L. IO 1-410), as amended by the Debt Collection Improvement Act of 1996, and most recently, by the Federal Civil Penalties Inflation Adj ustment Act Improvements Act of 2015 (28 U.S.C. 2461 note; Pub. L.114-74, 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 to Account for Inflation (effective Janumy 15, 20/8) and Transmittal of the 2018 Civil Moneta,y Penalty Inflation Adjustment Rule (2018 Rule) (83 Fed. Reg. 1194), 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 and where penalties are assessed on or afler January 15, 2018. Page j 6 Mueller Supply Company, Ballinger Facility. Docket No. EPCRA 06-2023-0569 one of three (3) ways: regular U.S. Postal Service mail (including certified mail), overn ight 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.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 1005 Convention Plaza SL-MO-C2-GL St. Louis, MO 6310 I Phone No. (314) 4 18- 1028 For wire transfer, the payment should be remitted to: Federal Reserve Bank of New York ABA = 021030004 Account = 680 I0727 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 a lso be made e lectronically. For inforn1ation on e lectronic payments, please visit https://www.epa.gov/ financia/lmakepavment The above web s ite 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 06-2023-0569 shall be clearly typed on the Page 17 Mueller Supply Company, Ballinger Facility. Docket No. EPCRA 06-2023-0569 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 06-2023-0569 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 ofthe 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 follow ing: Morton E. Wakeland, Jr., Ph.D. EPCRA 313 Enforcement Coordinator U.S. EPA, Region 6 Toxics Enforcement Section (ECDST) 120 I Elm Street, Suite 500 Dallas, TX 75270-2102 wake/and. morton@epa.gov and Lorena Vaughn Regional Hearing Clerk U.S. EPA, Region 6 120I Elm Street, Suite 500 Dallas, TX 75270-2102 vaughn. lorena@epa.gov Respondent' s adherence to this request will ensure proper credit is given whe n penalties are rece ived by EPA and acknowledged in the Region. Respondent agrees not to c laim or attempt to claim a federal income tax deduction or c redit covering al l or any part of the civil penalty paid to the United States Treasurer. Page I 8 !vlueller Supply Company, Ballinger Facility. Docket No. EPCRA 06-2023-0569 27. If Respondent fai ls to submit the first payment within thirty (30) days of the effective date of this Order, Respondent may be subject to a civi l action to collect the penalty in fu ll, in an appropriate district court of the United Stated pursuant to Section 325(f) of EPCRA, 42 U.S.C. I I045(t). 28. Pursuant to 31 U.S.C. 37 17 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 wi ll 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 adm inistrative 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). 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 of the debt which remains delinquent more than ninety (90) days. See 40 C.F.R. 13. 11 (c). Shou ld a penalty charge on the debt be required, it shall accrue from the first day payment is delinquent. See 31 C.F.R. 90 I.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 Page 19 Muelfer Supply Company , Ballinger Facility. Docket No. EPCRA 06-2023-0569 comply with a ll applicable provisions offederal, state or local law, nor shall it be construed to be a ruling on, or determination of, any issue related to any federa l, state or local pem1 it. 3 1. Th is document is a " Final Order" as that term is defined in the " Enforcement Response Policy fo r 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 200 I; and updated in accordance w ith the 2016 Civi l Monetary Penalty Infla tion Adjustment Rule on February 24, 20 17) for the purpose of demonstrating a hi story of " prior such vio lations." B. RETENTION OF ENFORCEMENT RIGHTS 32. EPA does not waive any rights or remedies avai lable to EPA for any violations by Respondent of Federal or State laws, regulations, or perm itting conditions. 33. Nothing in this CAFO shall relieve Respondent of the duty to comply w ith a ll appl icable prov is ions of Section 3 13 of EPCRA, 42 U.S.C. 11 023, 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 a ll 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 faci lity. Furthermore, nothing in th is CAFO shall be construed to prevent or limit EPA's c ivil and crim inal authorities, or that of Federal, State, or local agenc ies or departments to obtain penalties or injunctive relief under Federal, State, or local laws or regu lations. C. COSTS 35. Each party shall bear its own costs and attorney's fees. Furthermore, Respondent Page I 10 Mueller Supply Company, Ballinger Facility. Docket No. EPCRA 06-2023-0569 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 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 fo llowing addresses: To EPA: To Respondent: wakeland.morton@epa.gov biII. hunter(@.muellerinc. com Page I 11 Mueller Supply Company, Ballinger Facilily. Docket No. EPCRA 06-2023-0569 THE UNDERSIGNED PARTIES CONSENT TO THE ENTRY OF THIS CONSENT AGREEMENT AND FINAL ORDER: FOR THE RESPONDENT: Date: - - - -- - - - Bill Digitally signc<i by Bill H u n t e r ~ ~: ~;023.06.14 12:s 2:s4 -0soo Bill Hunter Risk Manager Mueller Supply Company 19 15 Hutch ins Avenue Ballinger, TX 76821 Ballinger Facility FOR THE COMPLAINANT: Date: _ _ _ __ _ __ Digitally signed by CHERYL SEAGER Date: 2023.06.20 11:49:46 -05'00' Cheryl T. Seager Director Enforcement and Compliance Assurance Division U.S. EPA Region 6 Dallas, Texas 75270-2 102 Page I 12 Mueller Supply Company, Ballinger Facility. Docket No. EPCRA 06-2023-0569 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 vio lations 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 federa l, 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 Regional Judicial Officer U.S. EPA Region 6 Dallas, Texas 75270-2102 Page I 13 ,\/ueller .":iuppfy Company. /1affi11ger Facifily. D ockel No. Ef'Cl?A 06-1023-0569 CERTIFICATE OF SERVICE I certify that that a true and correct copy of the foregoing Consent Agreement and Final Order was delivered electronically to the Regional 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 June '.! l , '.!0'.!3 _ _ _ __ _ __ _ _ _ in the following manner to the addressees: Copy via Email to Complainant: 1mkelc111d. morton(@.epa.gov. and vaug/111./orena(@epa.gov Copy via Email to Respondent: bill.hu111err@11111elleri11c. co111 Morton E. Digitally signed by Morton E. Wakeland, Jr. WakelandI Jr 11 :11 :03 05'00' Date:2023.06.21 Morton E. Wakeland, Jr. ("Mort''), Ph.D. EPCRA Section 313 Enforcement and TRI Program Coordinator U.S. EPA Region 6 Compliance Assurance and Enforcement Division (ECO) Toxics Enforcement Section (ECDST) Dallas, Texas 75270 (214) 665-8116 Page I 1-t