Document omvzpnnx58Q7V0JjKOemx3VME

UNITED STATES 23 Jllr~ 14 PH I: 0I ENVIRONMENTAL PROTECTION A~<;Y,,ti L! pnl ~lG cLERK REGIO1N 6 S i ,c:,.;/ J l ' - , ,,m 1 ' EPA REGION VI DALLAS, TEXA : . IN THE MATIER OF: REFINERY SPECIALTIES HEMPSTEAD FACILITY HEMPSTEAD, TEXAS 77445 RESPONDENT EPA DOCKET NUMBER EPCRA-06-2023-0566 CONSENT AGREEMENT AND FINAL ORDER CONSENT AGREEMENT The Director ofthe Enforcement and Compliance Assurance Division ofthe United States Environmental Protection Agency (EPA), Region 6 (Complainant), and Refinery Specialties Hempstead Facility (hereinafter Refinery Spccialties)(Respondent) in the abovereferenced proceeding, hereby agree to resolve this matter through the issuance of this Consent Agreement and Final Order (CAFO). I. PRELIMINARY STATEMENT l. This proceeding for the assessment ofcivil penalties pursuant to Section 325(c) ofthe Emergency Planning and Community Right-to-Know Act (EPCRA), 42 U.S.C. l l045(c), is simultaneously commenced and concluded by the issuance of this CAFO against Respondent pursuant to 40 C.F.R. 22. l3(b), and 22. l8(b)(2) and (3). 2. For the purposes ofthis proceeding, Respondent adm its the jurisdictional allegations herein; however, Respondent neither admits nor denies the specific factual allegations contained in this CAFO. Respondent explicitly waives any right to contest the allegations Refinery Specialties Hempstead Facility Docket No. EPCRA 06-2023-0566 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 ofthis CAFO shall resolve federal civil liability for only those violations which are set forth herein. 4. Respondent consents to the issuance ofthis 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 signing this CAFO on behalfofRespondent is duly authorized to bind Respondent to the terms and conditions ofthis CAFO. 6. Respondent agrees the provisions ofthis 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 ofthis 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 REGULATORY BACKGROUND 8. Section 313 ofEPCRA, 42 U.S.C. 11023, 40 C.F.R. 372.22 and 372.30 require the owner or operator ofa 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(0), for which the corresponding North American Industry Classification 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 313(c) of EPCRA and 40 C.F.R. 372.65, that manufactured, processed, or otherwise used the chemical in Page 12 Refinery Specialties Hempstead Facility Docket No. EPCRA 06-2023-0566 excess of the threshold quantity established under Subsection 3 l 3(f) of EPCRA, 42 U.S.C. 11023(f), and 40 C.F.R. 372.25, 372.27, or 372.28, to complete and submit a toxic chemical release inventory Fonn 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 1, for the preceding calendar year. 9. Pursuant to Section 313(a) of EPCRA, 42 U.S.C. 11023(a), the owner or operator of a facility shall complete a toxic chemical release fonn for each toxic chemical listed under 313(c) of EPCRA, 42 U.S.C. L1023(c) that was manufactured, processed, or otherwise used in quantities exceeding the toxic chemical threshold quantity established by 313(t) ofEPCRA, 42 U.S.C. 11023(t) 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 l, 1988, and annually thereafter on July 1 and shall contain data reflecting releases during the preceding calendar year. I0. Pursuant to Section 3 l 3(t) of EPCRA, 42 U.S.C. I 1023(f), and 40 C.F.R. 372.25, the threshold amount for reporting under Section 3 J3(h) of EPCRA, 42 U.S.C. 11023(h), and 40 C.F.R. 372.30, is 25,000 pounds for any toxic chemical manufactured or processed, and l 0,000 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 ofan applicable threshold quantity in 40 C.F.R. 372.25, 372.27, or 372.28 at its Page I 3 Refinery Specialties Hempstead Facility Docket No. EPCRA 06-2023-0566 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 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 ofthis part. 12. Pursuant to Section 313(g)(I )(C)(iii) of EPCRA, 42 U.S.C. 11023(g)(l )(C)(iii), and 40 C.F.R. 372.85(b)(l6), 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 ofthe 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 ofTexas and authorized to do business in the State ofTexas. 14. Respondent is a "person" as defined by Section 329(7) of EPCRA, 42 U.S.C. 11049(7). Respondent owns and operates the facility at 38 106 FM 3346 Rd, Hempstead, TX 77445. 15. Respnncient's far.ility icicntiftcd 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 ofthe violation(s), Respondent's facility had ten (10) 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 325998 (All Other Miscellaneous Chemical Product and Preparation Manufacturing) and is within subsector code 325 (Chemical Manufacturing), which is listed in 40 C.F.R. 372.23(b). 18. I 2 4-Trimethylbenzene, Certain glycol ethers, Cyclohexane, Ethylbenzene, Ethylene Page 14 Refinery Specialties Hempstead Facility Docket No. EPCRA 06-2023-0566 glycol, Fonnaldehyde, Fonnic acid, Methanol, Naphthalene, n-Butyl alcohol, n-Hexane, Nonylphenol, Toluene, and Xylene (mixed isomers) are "toxic chemicals" within the meaning of 40 C.F.R. 372.3 and 372.65. 19. During calendar years 2020 and 202 l the toxic chemicals in Paragraph 18 were "manufactured, processed, or otherwise used," as those tenns are defined by Section 3l3(b) ofEPCRA, 42 U.S.C. 11023(b), and 40 C.F.R. 372.3, at Respondent's facility. 20. On or about January 30, 2023, an off-site investigation was initiated to determine compliance of Respondent's Hempstead facility with Section 313 of EPCRA. During the off-site investigation, EPA alleged the facility had failed to timely report the TRI chemicals in Paragraph 18 for the 2020 and 2021 reporting years (RYs), on or before the applicable due dates ofJuly 1, 2021 and July I, 2022; respectively. 21. On or about April 17, 2023, the EPA sent Respondent a Proposed Settlement via email. On or about May 4, 2023, Respondent agreed to the proposed settlement for the alleged violation ofSection 313 of EPCRA. B. VIOLATIONS 22. Complainant herehy restates and incorporates hy reference Paragraphs 1 through 21. 23. During calendar years 2020 and 2021, Respondent manufactured, processed, or otherwise usedthe TRI chemicals 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)(ll), and 40 C.f.R. 372.85(b)(2) by failing to submit 2020 and 2021 TRI reporting forms for the aforementioned TRI chemicals in paragraph I8 on or before July I, 2021 and July I, 2022; respectively. Page 15 Refinery Specialties Hempstead Facility Docket No. J.:.PCRA 06-2023-0566 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 detennined in accordance with Section 325(c) ofEPCRA, 42 U.S.C. I 1045(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 ofLaw, which are hereby adopted and made a part hereof, and upon consideration of the nature, circumstances, extent and gravity ofthe alleged violations, and with respect to Respondent's ability to pay, history ofprior EPCRA Section 3 13 violations, the degree of culpability, 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 civil penalty of One hundred five thousand nine hundred twenty-eight dollars and no cents ($105,928.00). 26. Within thirty (10) cf11ys ofthe effective date ofthis 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), 1 The statutory maximum penalty level under Section 325(c) of EPCRA, 42 USC 1l045(c) ha.~ heen adjusted over time as required by the Federal Civil Penalties Inflation Adjustment Act of 1990 (28 U.S.C. 2461 note; Pub. L. IOl-4!0), as amended by the Debt Collection Improvement Act of 1996, and most recently, by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of20l5 (28 U.S.C. 2461 note; Pub. L.114-74, Section 701). EPA implements these adjustments through rulemaking which arc codified in 40 CFR Part 19. As adjusted by the Amendmenls to lhe EPA 's Civil Penalty Policies to Account for Inflation (effective January 15, 2018) and Transmittal ofthe 20/8 Civil Monetary Penalty Inflation Adjustment Rule (20 18 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 after January 15, 2018. Page I6 Refinery Specialties Hempstead Facility Docket No. EPCRA 06-2023-0566 overnight 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 l005 Convention Plaza SL-MO-C2-GL St. Louis, MO 63101 Phone No. (3 l4) 418-1028 For wire transfer, the payment should be remitted to: Federal Reserve Bank ofNew York ABA =021030004 Account =680 l 0727 SWIFT address = FRNYUS33 33 Liberty Street New York, NY 10045 Field Tag 4200 ofthe Fedwire message should read " D 68010727 Environmental Protection Agency" In addition to the above methods ofpayments: Payments may also be made electronically. For information on electronic payments, please visit h t t ps : l /www.e pa.gov /financiallmakepay,n en l 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 06-2023-0566 shall be clearly typed on the check, or other method of payment, to ensure proper credit. In addition, for further Page 17 Refinery Specialties Hempstead Facility Docket No. EPCRA 06-2023-0566 accounting clarification, please preface the above Docket number with the acronym: CAFO, e.g., CAFO EPCRA 06-2023-0566 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 of the 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 ofsuch payment, including a copy of the check and transmittal letter, or wire transfer instructions to the following: Morton E. Wakeland, Jr., Ph.D. EPCRA 313 Enforcement Coordinator U.S. EPA, Region 6 Toxics Enforcement Section (ECDST) 120I Elm Street, Suite 500 Dallas, TX 75270-2102 wakeland.morlon@epa.gov and Lorena Vaughn Regional Hearing Clerk U.S. EPA, Region 6 1201 F.lm Street, Suite ;oo Dallas, TX 75270-2t 02 vaughn. lorena@epa.gov 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 all or any part ofthe civil penalty paid to the United States Treasurer. 27. If Respondent fails to submit the first payment within thirty (30) days ofthe effective Page l 8 lkfittery Specialties Hempstead Facility Dock11t No. EPCRA 06-2023-0566 date ofthis Order, Respondent may be subject to a civil action to collect the penalty in full, in an appropriate district court of the United Stated pursuant to Section 325(f) of EPCRA, 42 U.S.C. 11045(f). 28. Pursuant to 31 U.S.C. 3717 and 40 C.F.R. 13.11, unless otheiwise 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 ofthe 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 ofthe United States Treasury tax and loan rate in accordance with 40 C.F.R. 13. 1l(a). Moreover, the costs ofthe Agency's administrative handling ofoverdue debts will be charged and assessed monthly throughout the period the debt is overdue. Sec 40 C.F.R. 13.l l(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. See 40 C.F.R. 13. l l(c). Should a penalty charge on the debt be required, it shall accrue from the first dny payment is delinquent. Sec 31 C.f.R. 901.9(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 Page 19 Refinery Specialties 1/empslead Facility Dcx:lcet No. EPCRA 06-2023-0566 construed to be a ruling on, or detennination of, any issue related to any federal, state or local pennit. 31. This document is a "Final Order" as that term is defined in the "Enforcement Response Policy for Section 313 ofthe Emergency Planning and Community RighMo-Know Act (1986) and Section 6607 ofthe 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 docs 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 ofthe duty to comply with all applicable provisions of Section 313 of EPCRA, 42 U.S.C. I 1023, and 40 C.F.R. Part 372. 34. Nothing in th is 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, ahr1tr. 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 criminal authorities, or that of Federal, State, or local agencies or departments to obtain penalties or injunctive relief 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 Page 110 Refinery Specialties Hempstead Facility Docket No. EPCRA 06-2023-0566 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 ofthis Consent Agreement and Final Order, pursuant to 40 C.F.R. 22.6, by email to the following addresses: To EPA: To Respondent: wakeland.morton@epa.gov gtucker@rsichem.com Page I 11 Refinery Specialties Hemp stead Facility Docket No. EPCRA 06-2023-0566 THE UNDERSIGNED PARTIES CONSENT TO THE ENTRY OF THIS CONSENT AGREEMENT AND FINAL ORDER: FOR THE RESPONDENT: _z=<c ::i Garrett Tucker, CEO Refinery Specialties Hempstead Facility 38106 FM 3346 Pine Island, TX 77445 FOR THE COMPLAINANT: June 14, 2023 Date: - - - - - -- C1 e_ c1 <, "'(1 ~,.---'.(,.,,.- Digitally signed by CHERYL SEAGER Date: 2023.06.14 07:21:06 -05'00' Cheryl T. Seager Director Enforcement and Compliance Assurance Division U.S. EPA Region 6 Page l 12 Refinery Specialties Hempstead Facility Docket No. EPCRA 06-2023-0566 FINAL ORDER Pursuant to Section 325(c) of EPCRA, 42 U.S.C. I I045(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 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 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 tenns 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 O;git.altysigned by THOMAS RUc.KJ DN: c.-US, o.U.S.Gov~nment. ou..f.nvironn'll'ntal Prott'ction Agency, cnniOMAS RUCKl 0.9.2342.19200300.100. 1.1 68001003655804 0.ltt":2'0 23.06.14 11:09. 12 -0400' Thomas Rucki Regional Judicial Officer U.S. EPA Region 6 Dallas, Texas 75270-2102 Page I 13 Refinery Specialties Hempstead Facility Docket No. EPCRA 06-2023-0566 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, 1201 Elm Street, Dallas, Texas 75270-2102, and that a true and correct copy was sent this day of ____J_un_e_1s__,2_0_2_3_ _ _ in the following manner to the addressees: Copy via Email to Complainant: wakeland.morton@epa.gov, and vaughn. lorena@epa.gov Copy via Email to Respondent: glucker@,rsichem.com Morton E. Wakeland, Jr. Digitally signed by Morton E. Wakeland, Jr. Date: 2023.06.15 10:02:02 -05'00' 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 14