Document jKd0Q1JY9EOy6qa2ax8Dknm5

BEFORE THE ENVIRONMENTAL APPEALS BOARD UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. In the Matter of: 3M Company ) ) ) ) St. Paul, MN ) ) Respondent ) ____________________________________) Docket Number TSCA-HQ-2006-5004 CONSENT AGREEMENT AND FINAL ORDER Com plainant U nited States Environm ental Protection Agency (EPA or Agency) and Respondent 3M Com pany (3M or Respondent), the parties herein, having consented to the entry of this Consent Agreem ent and Final O rder before the taking of any testim ony and without adjudication of any issues of law or fact herein, hereby consent to the term s of this Consent Agreem ent and attached Final Order. I. PRELIMINARY STATEMENT 1. T his civil adm inistrative proceeding fo r the assessm ent o f penalties p u rsuant to section 16(a) o f the T oxic Substances C ontrol A ct (T SC A ), 15 U .S .C . 2615(a) is being sim ultaneously com m enced and concluded pursuant to 40 C.F.R. 22.13(b), 22.18(b)(2) and (3). 2. Respondent, for purposes o f this proceeding, stipulates that EPA has jurisdiction over the subject m atter in this Consent Agreem ent and waives any defenses it m ight have as to jurisdiction and venue, and w ithout adm itting or denying that it has violated the law, consents to the terms of this Consent Agreement and Final Order (CAFO). 3. O n June 16, 1999, C om plainant and R espondent entered into an " A greem ent fo r T SC A Compliance Audit" (Audit Agreem ent) for Respondent to conduct an internal audit and to review and report on R espondent's com pliance w ith TSC A at R espondent's facilities located and identified in Appendix B of the Audit Agreement. (See Attachm ent A for the A udit Agreement). A new 3M subsidiary, D yneon L.L.C., was added to the list of sites to be audited on M ay 4, 2000. U nder the A udit A greem ent, 3M w ould self- disclose consistent w ith the A gency's revised Final Policy on Incentives for Self Policing: Discovery, Disclosure, Correction and Prevention o f Violations, 65 Fed. Reg. 19,618 (A pril 11, 2000) (com m only referred to as the "A udit P olicy" ). (A udit A greem ent ^ 1.a.).1 F or those self-disclosures that, in E P A 's view , do not m eet all applicable conditions of the A udit Policy, the A udit Agreem ent provides for 3M to pay pre-negotiated penalties. (Audit Agreem ent ^ 3.a.).2 As stated in the A udit Agreement, "3M neither admits nor denies that reporting and m itigation by 3M pursuant to . . . this 1The Audit Agreement was initiated under the original Audit Policy, 60 Fed. Reg. 66,706 (1995); the applicable factors are the same under the original and revised policies. 2 EPA issued and revised the Audit Policy to encourage regulated entities to conduct voluntary compliance evaluations and to disclose and promptly correct violations. As an incentive for companies to undertake self-policing, self-disclosure, and self-correction of violations, EPA may substantially reduce or eliminate gravity-based civil penalties. However, EPA retains its discretion to recover any economic benefit gained as a result o f noncompliance. Where the disclosing party establishes that it satisfies all the conditions listed below, EPA will not seek gravity-based penalties for violations o f the federal environmental requirements. The Respondent must demonstrate that it meets the following criteria: (1) discovery o f the violation(s) through an environmental audit or a compliance management system; (2) voluntary discovery; (3) prompt disclosure; (4) discovery and disclosure independent o f government or third-party plaintiff; (5) correction and remediation; (6) prevent recurrence; (7) no repeat violations; (8) other violations excluded; and (9) cooperation. 2 A greem ent constitute a violation o f TSCA, but nonetheless agrees to pay stipulated civil penalties" specified in the A greem ent. (A udit A greem ent, ^ 1.e.). 4. Pursuant to the A udit A greem ent, R espondent undertook the audit and subm itted a final report, dated September 20, 2000, that covered compliance systems and chemical nom enclature auditing. The final report identified disclosures m ade to EPA either during the course of the audit or previously as specified in Appendix C to the Audit Agreement, with the exclusion of certain TSCA 8(e) disclosures that were made to EPA on a separate basis under the A udit Agreem ent as described in paragraph 5 below. 5. O n A ugust 21, 2000, prior to the Septem ber 20, 2000 final audit report due date under the A udit Agreement, Respondent m ade TSCA 8(e) self-disclosures based on com pliance auditing. EPA agreed to allow 3M additional tim e to conduct further TSCA 8(e) auditing. The auditing w as categorized into different phases to organize 3M 's efforts and to facilitate E PA 's review. These TSCA 8(e) disclosures, as described in paragraphs 6 and 7 below, are included in this CAFO under the term s of the Audit Agreem ent and are subject to pre-negotiated penalties under the term s of the Audit A greem ent. 6. E P A has identified in sections II and III below the specific T SC A disclosures covered by this CA FO for w hich EPA is seeking econom ic benefit and pre-negotiated penalties under the term s o f the A udit Agreement. 7. W ith this C A FO , 3M agrees to pay the pre-negotiated penalties as specified in the A udit A greem ent for disclosures that, in E P A 's view , do not m eet all applicable provisions o f 3 the A udit Policy. These disclosures include, as described in section II below, Section 8(a) disclosures w ith pre-negotiated penalties o f $10,000 per disclosure and Section 8(e) disclosures with pre-negotiated penalties o f $15,000 per disclosure involving human data and $6000 per disclosure involving other data. In addition, 3M agrees to pay econom ic benefit for certain Section 5 disclosures described in Section II below. All other disclosures m ade by 3M pursuant to the A udit Agreem ent not described in sections II and III below constitute disclosures without economic benefit and without penalties. E PA has requested, and 3M has agreed, that all such other disclosures will be covered in a Notice of Determ ination to be issued by EPA to 3M. II. EPA'S ALLEGATIONS OF FACT AND LAW 8. In connection w ith certain disclosures m ade by 3M pursuant to the A udit A greem ent, E PA m akes allegations o f fact and law in section II. W ithout adm itting or denying that it has violated the law, 3M agrees to w aive its right to a judicial or administrative hearing or appeal in any proceeding w ith E P A as a party under TSC A , 15 U .S.C . 2601, et seq. and the Adm inistrative Procedures Act, 5 U.S.C. 702 as to any issue of fact or law raised by E P A 's allegations o f fact and law set forth below. Except as expressly stipulated, acknowledged and agreed herein, 3M neither m akes nor has made any admissions of fact or law, acknowledgm ents, or agreem ents in connection herewith. N either this CAFO, nor any discussions leading up to this CAFO, shall be adm issible in evidence against 3M or any person, except as and to the extent necessary either in a proceeding to which 3M and EPA are parties to enforce the provisions of the CAFO or as specified in Paragraph 90 of this CAFO. 4 COUNT 1 9. P aragraphs 1 th rough 8 are re-alleged and incorporated herein by reference. 10. R espondent is a corporation, w hich is a "person" as defined in 40 C.F.R. 720.3(x) and, as such, is subject to TSC A and regulations prom ulgated thereunder. 11. R espondent ow ns and operates m anufacturing facilities identified in A ppendix B o f the A udit Agreement. 12. R espondent "m anufactures," w hich m eans to im port into the custom s territory o f the U nited Stales, produce or m anufacture, as defined in T S C A 3(7), 15 U .S.C . 2602(7). 13. A ny chem ical substance w hich is not included in the chem ical substance list (T S C A Inventory) com piled and published u n d er T S C A 8(b), 15 U .S.C . 2607(b), is a " new chem ical substance" pursuant to T S C A 3(9), 15 U .S.C . 2602(9). 14. P u rsu an t to T SC A 5(a)(1), 15 U .S.C . 2604(a)(l), except as provided in T S C A 5(h), no person may m anufacture a new chemical substance unless such person submits a Premanufacture Notification (PM N) to EPA at least ninety (90) days before m anufacturing that substance. 15. T S C A 15 (1)(B ), 15 U .S.C . 2614(1)(B ), provides th at it is unlaw ful fo r any person to fail or refuse to com ply w ith any requirem ent prescribed by T S C A 5 or 6, 15 U .S.C . 2604 o 2605. 5 16. T S C A 15(3)(B), 15 U .S.C . 2614(3)(B ) provides th at it is unlaw ful fo r any person to fail or refuse to submit reports, notices, or other inform ation as required by TSCA, or a rule th ereu n d er for w h ich a penalty m aybe assessed pursuant to T S C A 16(a), 15 U.S.C. 2615(a). 17. O n February 20, 1998, R espondent disclosed to E P A in w riting pursuant to the A udit Agreem ent that it had not submitted a PM N for a chemical substance, identified by R espondent as TS-981903 (Chemical A). 18. O n February 20, 1998 and S eptem ber 20, 2000, R espondent inform ed E P A in w riting that 3M m anufactured Chem ical A from January 19, 1993 through Septem ber 6, 1997, prior to submitting a PM N for this chemical. 19. C hem ical A w as not on the T SC A Inventory from January 19, 1993 th rough S eptem ber 6, 1997.201 20. EPA alleges that R espondent's failure to submit a PM N at least ninety (90) days before m anufacturing C hem ical A is a failure to com ply w ith T S C A 5(a)(1), 15 U .S .C . 2604(a)(1), w hich is a v iolation o f T S C A 15(1)(B ) and (3)(B ), 15 U .S.C . 2614(1)(B) and (3)(B). COUNT 2 21. Paragraphs 1 through 16 are re-alleged and incorporated herein by reference. 6 22. On June 28, 1999, Respondent disclosed to EPA in writing pursuant to the Audit Agreem ent that it had not submitted a PM N for a chemical substance. 3M subsequently submitted a PM N to the Agency for this chemical substance, which w as identified by the Agency as P-99-1002 (Chemical B). 23. On June 28, 1999 and September 20, 2000, Respondent informed EPA in writing that 3M m anufactured Chem ical B from January 10, 1996 through D ecem ber 22, 1999, prior to submitting a PM N for this chemical. 24. Chem ical B w as not on the TSC A Inventory from January 10, 1996 through D ecem ber 22, 1999. 25. EPA alleges that R espondent's failure to submit a PM N at least ninety (90) days before m anufacturing C hem ical B is a failure to com ply w ith T SC A 5(a)(1), 15 U .S.C . 2604(a)(1), w hich is a v iolation o f T S C A 15(1)(B ) and (3)(B ), 15 U .S.C . 2614(1)(B) and (3)(B). COUNT 3 26. Paragraphs 1 through 16 are re-alleged and incorporated herein by reference. 27. On July 22, 1999, Respondent disclosed to EPA in w riting that it had not submitted a PM N for a chem ical substance, identified by R espondent as TS-832552 (Chem ical C). 7 28. On July 22, 1999 and Septem ber 20, 2000, Respondent inform ed EPA in w riting that 3M m anufactured Chem ical C from June 18, 1997 through June 21, 1999, prior to submitting a PM N for this chemical. 29. Chem ical C w as not on the TSC A Inventory from June 18, 1997 to June 21, 1999. 30. EPA alleges that R espondent's failure to submit a PM N at least ninety (90) days before m anufacturing C hem ical C is a failure to com ply w ith T SC A 5(a)(1), 15 U .S.C . 2604(a)(1), w hich is a v iolation o f T S C A 15(1)(B ) and (3)(B ), 15 U .S.C . 2614(1)(B) and (3)(B). COUNT 4 31. Paragraphs 1 through 16 are re-alleged and incorporated herein by reference. 32. On Septem ber 29, 1999, Respondent disclosed to EPA in writing pursuant to the Audit Agreem ent that it had not submitted a PM N for a chemical substance, identified by Respondent w ith a Chemical Abstract Registry (CAS) Num ber. Respondent has claimed the chemical CAS num ber as TSCA Confidential Business Inform ation under T S C A 14 (C hem ical D).3* 33. On Septem ber 29, 1999 and Septem ber 20, 2000, Respondent inform ed EPA in writing th at 3M m anufactured C hem ical D during the tim e period o f January 1, 1995 through June 17, 1999, prior to subm itting a PM N for this chem ical. 8 34. C hem ical D w as not on the T SC A Inventory from January 1, 1995 th rough June 17, 1999. 35. EPA alleges that R espondent's failure to submit a PM N at least ninety (90) days before m anufacturing C hem ical D is a failure to com ply w ith T S C A 5(a)(1), 15 U .S .C . 2604(a)(1), w hich is a v iolation o f T S C A 15(1)(B ) and (3)(B ), 15 U .S.C . 2614(1)(B) and (3)(B). COUNT 5 36. Paragraphs 1 through 16 are re-alleged and incorporated herein by reference. 37. On April 8, 1999, R espondent disclosed to E P A in w riting pursuant to the A udit Agreem ent that it had not submitted a PM N for a chemical substance, identified by R espondent as T S -204926 (C hem ical E).38940* 38. On April 8, 1999 and Septem ber 20, 2000, R espondent inform ed E P A in w riting that 3M m anufactured C hem ical E from June 1, 1996 through N o v em b er 23, 1999, p rio r to submitting a PM N for this chemical. 39. C hem ical E w as n ot on the T S C A Inventory from June 1, 1996 to N o v em b er 23, 1999. 40. EPA alleges that R espondent's failure to submit a PM N at least ninety (90) days before m anufacturing C hem ical E is a failure to com ply w ith T SC A 5(a)(1), 15 U .S.C . 2604(a)(1), w hich is a v iolation o f T S C A 15(1)(B ) and (3)(B ), 15 U .S.C . 2614(1)(B) and (3)(B). 9 COUNT 6 41. Paragraph 1 through 16 are re-alleged and incorporated herein by reference. 42. On September 21, 1999, Respondent disclosed to EPA in writing pursuant to the Audit Agreem ent that it had not submitted a PM N for a chemical substance, identified by R espondent as TS-439521 (Chemical F). 43. On September 21, 1999 and September 20, 2000, Respondent informed EPA in writing th at 3M m anufactured C hem ical F from M arch 1, 1996 th rough A u gust 1, 1999, p rio r to submitting a PM N for this chemical. 44. C hem ical F w as not on the T S C A Inventory from M arch 1, 1996 through A ugust 1, 1999.4567 45. EPA alleges that R espondent's failure to submit a PM N at least ninety (90) days before m anufacturing C hem ical F is a failure to com ply w ith T S C A 5(a)(1), 15 U .S.C . 2604(a)(l ), w hich is a v iolation o f T SC A 15(1)(B ) and (3)(B ), 15 U .S .C . 2614(1)(B) and (3)(B). COUNT 7 46. Paragraphs 1 through 16 are re-alleged and incorporated herein by reference. 47. On N ovem ber 4, 1999, Respondent disclosed to EPA in w riting that it had not submitted a PM N for a chemical substance, identified by Respondent with a CAS Num ber. 10 Respondent has claimed the chemical CAS num ber as TSCA Confidential Business Inform ation under TSC A 14 (C hem ical G). 48. On N ovem ber 4, 1999 and Septem ber 20, 2000, Respondent inform ed EPA in writing that 3M m anufactured Chemical G during the tim e period o f July 20, 1997 through April 30, 1999, prior to submitting a PM N for this chemical. 49. Chemical G w as not on the TSCA Inventory from July 20, 1997 through April 30, 1999. 50. EPA alleges that R espondent's failure to subm it a PM N at least ninety (90) days before m anufacturing C hem ical G is a failure to com ply w ith T S C A 5(a)(1), 15 U .S .C . 2604(a)(1), w hich is a v iolation o f T S C A 15(1)(B ) and (3)(B ), 15 U .S.C . 2614(1)(B) and (3)(B). COUNT 8 51. Paragraphs 1 through 16 are re-alleged and incorporated herein by reference. 52. On M ay 12, 2000, R espondent disclosed to E P A in w riting pursuant to the A udit Agreem ent that it had not submitted a PM N for a chemical substance, identified by Respondent as TS-926435 (Chemical H). 53. On M ay 12, 2000 and Septem ber 20, 2000, R espondent inform ed E P A in w riting that 3M m anufactured Chem ical H during the tim e period o f M ay 6, 1996 through September 21, 2000, prior to submitting a PM N for this chemical. 11 54. Chem ical H w as not on the TSCA Inventory from M ay 6, 1996 through Septem ber 21, 2000. 55. EPA alleges that R espondent's failure to subm it a PM N at least ninety (90) days before m anufacturing C hem ical H is a failure to com ply w ith T S C A 5(a)(1), 15 U .S .C . 2604(a)(1), w hich is a v iolation o f T S C A 15(1)(B ) and (3)(B ), 15 U .S.C . 2614(1)(B) and (3)(B). COUNTS 9-10 56. Paragraphs 1 through 16 are re-alleged and incorporated herein by reference. 57. 40 C.F.R. 720.102 w as prom ulgated under authority o f TSC A 8(a). 58. 40 C.F.R. 720.102 requires any person w ho m anufactures or im ports a new chemical substance to report to EPA inform ation on such m anufacture or im port no later than 30 calendar days after the date o f first m anufacture or import. 59. On or about July 22, 1999 and Septem ber 20, 2000, Respondent disclosed to EPA in w riting pursuant to the A udit Agreem ent it had not submitted two Notices of Com m encem ent of M anufacture or Im port (NOC) for chemical substances no later than 30 calendar days after the date that it first m anufactured or im ported the chemicals for non-exem pt commercial purposes. 60. R espondent's correspondence w ith EPA details the following: On or about July 22, 1999, Respondent submitted to the Agency a NOC for a chemical substance identified 12 generically as Caprolactone dipentaerythritolpolyurethane, hereinafter known as Chem ical I. The N O C indicated th at C hem ical I had first been m anufactured for non exempt commercial purposes on August 25, 1995. 61. Additionally, on or about July 22, 1999, Respondent also submitted a NO C for a chemical substance subsequently identified by EPA as P-92-1246, hereinafter known as C hem ical J. This N O C dictated th at C hem ical J had first been m anufactured fo r n o n exem pt com m ercial purposes on February 5, 1993. 62. EPA alleges that Respondent failed to submit N O Cs for Chem icals I and J no later than 30 calendar days after the date o f first m anufacture or im port as required by 40 C.F.R. 720.102. 63. E PA alleges that R espondent's failure to tim ely subm it N O C s for Chem ical I and J is a failure to com ply w ith 40 C.F.R. 720.102, a rule prom ulgated u n d e r T S C A 8(a), 15 U .S.C . 2607(a), w hich constitutes tw o violations o f T SC A 15(3)(B), 15 U .S.C . 2615(a). C O U N T S 11 - 41 64. Paragraphs 1 through 12, and 16, are re-alleged and incorporated herein by reference. 65. The Respondent m anufactures, processes, or distributes in comm erce chemical substances or m ixtures, as those term s are defined in T SC A 3, 15 U .S.C . 2602 and T S C A 8(f), 15 U .S.C . 2607(f). 13 66. T S C A 8(e), 15 U .S .C . 2607(e), provides th at " A ny person w ho m anufactures, processes, or distributes in comm erce a chemical substance or m ixture and who obtains information which reasonably supports the conclusion that such substance or mixture presents a substantial risk o f injury to health or the environm ent shall im m ediately inform the A dm inistrator o f such inform ation unless such person has actual knowledge that the A dm inistrator has been adequately inform ed of such inform ation." EPA has published guidance interpreting this statutory provision, including Statement of Interpretation and Policy, 43 Fed. Reg. 11,110 (M ar. 16, 1978); TSC A Section 8(e); Notification of Substantial Risk; Policy Clarification and Reporting Guidance, 68 Fed. Reg. 33129 (June 3, 2003); and C om m ent and R esponse D ocum ent for R evised Policy Statement of Section 8(e) of TSCA, OPPT-2002-0067-0002 (Feb. 20, 2003). 67. T he R esp o n d en t is subject to the requirem ents o f T SC A 8(e), 15 U .S.C . 2607(e). 68. In late M arch and early April 2000, EPA requested that 3M voluntarily submit copies o f studies and other information relating to fluorochem icals (FCs) not previously submitted to EPA and not otherwise available through publications. This request stemmed from an earlier dialogue betw een OPPT and 3M regarding FCs and a series of TSCA 8(e) submissions by 3M beginning in M ay of 1998, which reported the m easurem ent of several FCs in general population serum and in wildlife at low parts per billion (ppb) levels. 3M had previously reported to the TSCA 8(e) docket the detection o f FCs in the serum o f its production w orkers at low parts p er m illion (ppm ) levels.69 69. On or about April 21, 2000 and subsequently in M ay of 2000, 3M responded to E PA 's inform ation request by providing over 600 studies to E PA 's "For Y our Inform ation" 14 (FYI) docket num ber 1378. 3M then audited these studies to determine TSCA 8(e) relevancy based on E PA 's guidance described in Paragraph 66 above and currently available information. This auditing constituted 3M 's Phase I TSCA 8(e) auditing, see Paragraph 5 above. 70. In a letter to E PA 's Office of Pollution Prevention and Toxics (OPPT) dated August 21, 2000, R espondent requested th at E P A redesignate, to the T S C A 8(e) docket, 31 studies and information which 3M previously had submitted to EPA and were contained in "For Your Inform ation" (FYI) docket num ber 1378. These studies and information supplem ent 3M 's previous 8(e) submissions in D ocket N um bers 8EHQ-1180-373 and 8E H Q -1180-374. 71. A s described in P aragraphs 2, 8, 66 and 68 o f this C onsent A greem ent, by placing the 31 studies and inform ation in the 8(e) docket as a result o f its Phase I 8(e) auditing, 3M does not admit, acknow ledge or agree that these items require reporting under TSCA 8(e) or constitute violations o f T S C A 15(3)(B), 15 U .S.C . 2614(3)(B ). E P A has not conducted its ow n independent com pliance review o f the 31 studies and inform ation, and hence, EPA has m ade no substantive determ ination regarding these items. For the purpose o f assessing pre-negotiated penalties under this Consent Agreem ent in accordance w ith both the A udit A greem ent and the A gency's A udit Policy described in Paragraph 3 o f this C onsent A greem ent, E P A treats the 31 studies and inform ation placed by 3M in the 8(e) docket as a result o f its Phase I 8(e) auditing as 31 violations o f T S C A 15(3)(B), 15 U .S .C . 2614(3)(B ). 15 COUNTS 42-44 72. Paragraphs 1 through 12, 16, and 65 through 68, are re-alleged and incorporated herein by reference. 73. From M ay 2000 through D ecem ber 2000, 3M continued to respond to E PA 's request for inform ation in Paragraph 68, by providing an additional 700 studies to E P A 's FY I D ocket N um ber 1378. 3M then audited these studies to determine TSCA 8(e) relevancy based on E PA 's guidance described in Paragraph 66 above and currently available inform ation. This auditing constituted 3M 's Phase II TSC A 8(e) auditing, see Paragraph 5 above. 74. In a letter to O PPT dated June 13, 2001, R espondent requested that E P A redesignate, to the TSCA 8(e) docket, three studies which 3M previously had submitted to EPA and were contained in "For Y our Inform ation" (FYI) D ocket N um ber 1378 (also known as AR-226). These studies and inform ation supplem ent 3M 's previous 8(e) submissions in D o ck et N um bers 8E H Q -118C -373 and 8E H Q -1180-374.75 75. A s described in P aragraphs 2, 8, 66 and 68 o f this C onsent A greem ent, by placing the three studies and inform ation in the 8(e) docket as a result o f its Phase II 8(e) auditing, 3M does not admit, acknow ledge or agree that these item s require reporting under T S C A 8(e) or constitute violations o f T S C A 15(3)(B), 15 U .S .C . 2614(3)(B ). E P A has not conducted its own independent com pliance review o f the three studies and information, and hence, EPA has m ade no substantive determination regarding these items. For the purpose o f assessing pre-negotiated penalties under this Consent 16 Agreem ent in accordance w ith both the Audit Agreem ent and the A gency's Audit Policy described in Paragraph 3 of this Consent Agreement, EPA treats the three studies and inform ation placed by 3M in the 8(e) docket as a result o f its Phase II 8(e) auditing as three violations o f T SC A 15(3)(B), 15 U .S .C . 2614(3)(B ). COUNTS 45 - 70 76. Paragraphs l through 12, 16, and 65 through 68, are re-alleged and incorporated herein by reference. 77. In a letter to OPPT dated M ay 23, 2003, 3M disclosed to the Agency, and submitted to the TSCA 8(e) docket, 26 studies as a result o f auditing to determ ine TSCA 8(e) relevancy based on E PA 's guidance described in Paragraph 66 above and currently available inform ation. This auditing constituted 3M 's Phase III TSC A 8(e) auditing, see P aragraph 5 above, w h ich focused on studies perform ed after the January 1, 1992 cut-off date for 3M 's voluntary participation in the A gency's TSCA 8(e) Compliance Audit program (CAP).3 78. A s described in P aragraphs 2, 8, 66 and 68 o f this C onsent A greem ent, by placing the 26 studies and inform ation in the 8(e) docket as a result o f its Phase III 8(e) auditing, 3M does not admit, acknow ledge or agree that these items require reporting under TSCA 8(e) or constitute violations o f T S C A 15(3)(B), 15 U .S.C . 2614(3)(B ). E P A has not 3 In 1991, the Agency announced a one-time voluntary TSCA 8(e) CAP. The CAP was designed to primarily to obtain information that was required to be submitted to EPA before the CAP, and encourage companies to voluntarily search their files for data reportable under 8(e). The CAP established stipulated penalties and a ceiling on penalties that would be collected from any single company. EPA announced final settlements with CAP participants in 1996 and collected stipulated penalties. 17 conducted its own independent com pliance review o f the 26 studies and information, and hence, EPA has m ade no substantive determ ination regarding these items. For the purpose o f assessing pre-negotiated penalties under this Consent Agreem ent in accordance w ith both the A udit A greem ent and the A gency's A udit Policy described in Paragraph 3 o f this Consent Agreement, EPA treats the 26 studies and information placed by 3M in the 8(e) docket as a result o f its Phase III 8(e) auditing as 26 violations o f T SC A 15(3)(B), 15 U .S.C . 2614(3)(B ). CO U N TS 71 - 244 79. Paragraphs 1 through 12, 16, and 65 through 68, are re-alleged and incorporated herein by reference. 80. In letters to O PPT dated Septem ber 24, 2003 ("2004"), O ctober 26, 2004 and N ovem ber 16, 2005, 3M disclosed to the A gency, and subm itted to the TSC A 8(e) docket, 174 studies as a result o f auditing to determ ine TSC A 8(e) relevancy based on E P A 's guidance described in Paragraph 66 above and currently available information. This auditing constituted 3M 's Phase IV TSCA 8(e) auditing, see Paragraph 5 above, which focused on tw o additional categories o f studies not encom passed by Phases I, II, and III: (1) the rem aining post-January 1, 1992 studies for significant endpoints th at had not been covered by the Phase III subchronic and chronic study categories; and (2) studies on m ixture form ulations that reached pilot or full scale production or that otherwise were comm ercialized by 3M. 18 81. A s described in Paragraphs 2, 8, 66 and 68 o f this C onsent A greem ent, by placing the 174 studies and inform ation in the 8(e) docket as a result o f its Phase IV 8(e) auditing, 3M does not admit, acknow ledge or agree that these item s require reporting under T S C A 8(e) or constitute violations o f T S C A 15(3)(B), 15 U .S .C . 2614(3)(B ). E P A has not conducted its own independent com pliance review o f the 174 studies and information, and hence, EPA has made no substantive determination regarding these items. For the purpose o f assessing pre-negotiated penalties under this Consent Agreem ent in accordance w ith both the Audit Agreem ent and the A gency's Audit Policy described in Paragraph 3 of this Consent Agreement, EPA treats the 174 studies and inform ation placed by 3M in the 8(e) docket as a result o f its Phase IV 8(e) auditing as 174 violations o f T SC A 15(3)(B), 15 U .S.C . 2614(3)(B ). III. CIVIL PENALTY/ECONOMIC BENEFIT 82. Respondent subm itted its self-disclosures pursuant to the A udit A greem ent and the applicable provisions o f the A udit Policy. 83. E P A 's review o f R espondent's correspondence as identified in Counts 1 through 8 above indicates that Respondent has m et the term s of the Audit Agreem ent and the applicable provisions o f the A udit Policy as stated in Paragraph 4. 84. EPA uses the "B EN " m odel4 to determ ine the econom ic benefit gained by an entity's noncom pliance. E PA applied the B E N model to R espondent's violations and determined that R espondent's economic benefit from the delayed and avoided 4 The BEN model is a computer program used to calculate the economic benefit of noncompliance. BEN is located on the internet at http://es.epa.gov/oeca/models/ben.html. 19 expenditures of filing PM Ns for Chem icals A through H was Fifty-Two Thousand Nine H undred and Eighty-Three dollars ($52,983) and divided by count as follows: Count 1 (Chem ical A) - $ 4,645 Count 2 (Chem ical B) - $ 5,781 Count 3 (Chemical c ) - $ 4,788 Count 4 (Chemical D) - $15,850 Count 5 (Chemical E) - $ 3,353 Count 6 (Chem ical F) - $ 1,167 Count 7 (Chemical G) - $13,430 Count 8 (Chemical H) - $ 3,969 85. Pursuant to the term s o f the A udit A greem ent entered into betw een EPA and R espondent, R espondent has agreed to pay the follow ing pre-negotiated penalties for all of the other disclosures set forth in Counts 9-244 above that in E PA 's view failed to m eet the applicable conditions o f the A udit Policy. Pre-negotiated penalties for these disclosures are calculated as follows: TSC A 8(a) reports, N otices o f Com m encem ent (2 x $10,000) - $ 20,000 TSC A 8(e) studies/reports involving hum an data (5 x $15,000) - $ 75,000 TSCA 8(e) studies/reports involving other data (229 x $6,000) - $1,374,000 86. The total sum o f penalties to be paid (Paragraphs 84 and 85) by R espondent is $1,521,983. IV. TERMS OF SETTLEMENT 87. These term s o f settlem ent resolve only the civil and adm inistrative claims alleged in this CA FO .8* 88. The effect o f settlem ent described in Paragraph 87 above is conditional upon the accuracy o f the R espondent's representations to E PA in the A udit A greem ent and R espondent's letters and reports submitted to EPA pursuant to that Agreem ent dated 20 February 20, 1998; June 28, 1999; July 22, 1999; A pril 8, 1999; Septem ber 21, 1999; S eptem ber 29, 1999; N o v em b er 4, 1999; M ay 12, 2000; A u gust 21, 2000; June 13, 2001; September 20, 2000; M ay 23, 2003, September 24, 2004; October 26, 2004; and N ovem ber 16, 2005. 89. R espondent w aives its rig h t pursuant to T S C A 16(a)(2)(A ), 15 U .S.C . 2615(a)(2)(A), and 40 C.F.R. 22.18(b)(2) to request an adm inistrative hearing or seek judicial review of the proposed final order accom panying this Consent Agreement. 90. For the sole purpose o f establishing R espondent's com pliance history in any future enforcement proceeding that EPA may bring against Respondent within five years of the date o f the execution o f the Final Order, Respondent accepts the violations alleged in Counts 1-10 o f this C onsent Agreem ent. For all other purposes, R espondent neither admits nor denies the allegations, but consents to the term s and conditions of this Consent Agreem ent and Final Order. 91. Through the execution of this Consent Agreement, Respondent certifies that with respect to the violations alleged herein, R espondent is in full com pliance w ith TSC A 5, 8(a), 8(e) and 15.92 92. (R espondent agrees to pay a civil penalty in the sum o f $1,521,983. 21 a. N o t m ore th an sixty (60) calendar days after the effective date o f the Final O rder, R espondent shall either subm it a cashier's or certified check w ith a notation of "3M Company, Civil Penalty D ocket No. TSCA-HQ-2006-5004," payable to the order o f the " T reasurer, U n ited States o f A m erica," in the am ount o f $1,521,983 to: EPA -W ashington (Hearing Clerk) Docket No. TSCA-HQ-2006-5004 P.O. B ox 360277 Pittsburgh, PA 15251-6277 or pay $1,521,983 by w ire tran sfer w ith a notation o f " 3M C om pany, Civil Penalty D ocket No. TSCA-HQ -2006-5004" by using the following instructions: N am e of Beneficiary: N um ber o f A ccount for deposit: The B ank H olding Acct: The ABA routing Number: EPA 68010099 T reas_N Y C 021030004 b. R espondent shall forw ard a copy o f the check or docum entation o f a w ire transfer to: Tony R. Ellis, Case D evelopm ent Officer U.S. Environm ental Protection Agency (2245A) Toxics and Pesticides Enforcem ent Division 1200 Pennsylvania Ave., NW W ashington, D.C. 20460 (202) 564-4167 Fax (202) 564-0035 22 c. I f R espondent fails to m ake the paym ent in a tim ely m anner, as described in Paragraph 92, R espondent shall pay a stipulated penalty o f One Thousand Dollars ($1,000) p er calendar day for every day the penalty paym ent is late, unless EPA in writing excuses or m itigates the stipulated penalty. EPA may excuse or mitigate the stipulated penalty if EPA determines that the failure to comply occurred despite the exercise of good faith and due diligence by the Respondent. V. OTHER MATTERS 93. This Consent A greem ent shall be binding upon the parties, and their respective officers, directors, employees, successors and assigns. The undersigned representative o f each party certifies that he or she is duly authorized by his or her party to enter into this binding Consent Agreement. 94. This Consent A greem ent shall take full effect upon the signing o f the Final O rder by E P A 's Environm ental A ppeals B oard or its designated representative. 95. R espondent's obligations under this Consent A greem ent shall end w hen it has made the scheduled payment, paid any pre-negotiated penalties and submitted the copy of the check as required in P aragraph 92 o f this C onsent A greem ent.96 96. All o f the term s and conditions o f this Consent Agreem ent together com prise one settlem ent agreem ent, and each o f the term s and conditions is in consideration for all o f the other term s and conditions. In the event that this Consent Agreem ent (or one or m ore o f its term s and conditions) is held invalid, or is not executed by all o f the 23 signatory parties in identical form, or is not approved in such identical form by E P A 's Environm ental Appeals Board or its designated representative, then the entire Consent A greem ent shall he null and void. 97. The penalty specified above represents civil penalties assessed by EPA and shall not be deductible for purposes o f federal taxes. 98. Failure o f Respondent to rem it the civil penalties provided herein will result in this m atter being forw arded to the U nited States D epartm ent o f Justice for collection o f the amount due, plus pre-negotiated penalties and interest at the statutory judgm ent rate provided in 28 U.S.C. 1961. 99. The parties agree to bear their own costs. 100. N othing in this Consent A greem ent and Final O rder is intended to, nor shall be construed to operate in any way, to resolve any criminal liability o f the Respondent. 24 WE AGREE TO HIS: For Complainant Stephanie P. Brown, Acting Director Toxics and Pesticides Enforcement Division Office of Civil Enforcement United States Environmental Protection Agency c2 iT D (g & Dean B. Ziegel, Attorney for BPA Toxics and Pesticides Enforcement Division Office o f Civil Enforcement United States Environmental Protection Agency 5? K Q > T h 2 Q O (p Date For Respondent: Dr. Katherine E. Reed, Phi Staff Vice President, Environmental Technology and Safety Services 3M Company Latham & Watkins Counsel for 3M Company Date ; 0C(c 25 BEFORE THE ENVIRONMENTAL APPEALS BOARD UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. In the Matter of: 3MCompany Respondent. ) ) ) ) ) ) ______________________________) ) Docket NumberTSCA-HQ-2006-5004 FINAL ORDER The U nited States Environm ental Protection Agency as Com plainant, and 3M Company as Respondent, the parties herein, having signed and consented to entry o f the attached Consent Agreem ent incorporated by reference into this Final Order, NOW , TH EREFORE, IT IS ORDERED THAT: 1. R espondent 3M C om pany (3M ) shall com ply w ith all term s o f the Consent Agreement; 2. R espondent is assessed a civil penalty o f $1,521,983; and 3. R espondent shall, in accordance w ith the paym ent provisions set forth in the Consent Agreement, forward a certified or cashier's check, payable to the order of the "Treasurer o f the U nited States o f A m erica," to: EPA -W ashington (Hearing Clerk) Docket No. TSCA-HQ-2006-5004 P.O. B ox 360277 Pittsburgh, PA 15251-6277 or m ake paym ent through a wire transfer as described in the Consent Agreement. IT IS SO ORDERED. B y : ____________________________ Environmental Appeals Board D ated: CERTIFICATE OF SERVICE I certify that the foregoing "Consent Agreem ent and Final Order," 3M Company, D ocket No. TSCA-HQ-2006-5004, was filed and copies o f the same were mailed to the parties as indicated below: (Interoffice) (U.S. M ail) Mr. Dean B. Ziegel, Esquire Toxics and Pesticides Enforcem ent Division Office o f Civil Enforcem ent U.S. Environm ental Protection Agency 1200 Pennsylvania Ave., N W (Mail Code 2245A) W ashington, DC 20460 202-564-4038 Fax-202-564-0020 Mr. Thom as DiPasquale, Esquire Counsel for 3M Company 3M Center St. Paul, M N 55144-1000 Ms. Julia Hatcher, Esquire Latham & W atkins, Suite 1000 555 E leventh St., N W W ashington, DC 20004-1304 D ated: Annette Duncan Secretary