Document qaYZ2R0eKJ01vOyOKXM9N3Zwn

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 6 DALLAS, TEXAS 23 Jlll 5 - PM 12: 50 IN THE MATTER OF: TULSA WINCH INC. JENKS, OKLAHOMA 74037 RESPONDENT EPA DOCKET NUMBER EPCRA 06-2023-0567 CONSENT AGREEMENT AND FINAL ORDER CONSENT AGREEMENT The Director ofthe Enforcement and Compliance Assurance Division of the United States Environmental Protection Agency (EPA), Region 6 (Complainant), and Tulsa Winch, Inc. (hereinafter Tulsa Winch)(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 t. This proceeding for the assessment ofcivil penalties pursuant to Section 325(c) of the Emergency Planning and Community Right-to-Know Act (EPCRA), 42 U.S.C. 11045(c), is simultaneously commenced and concluded by the issuance of this CAFO against Respondent pursuant to 40 C.F.R. 22. I3(b), and 22. I 8(b)(2) and (3). 2. For the purposes of this proceeding, Respondent admits the jurisdictional allegations herein; however, Respondent neither admits nor denies the specific factual allegations Tulsa ll'inch Inc. Docket No. EPCR/1 06-2023-0567 contained in this CAFO. Respondent explicitly waives any right to contest the allegations and its right to appeal the proposed Final Order set forth herein and waives all defenses which have been raised or could have been raised to the claims set forth in this CAFO. 3. Compliance with all the terms and conditions of this CAFO shall resolve federal civi l liability for on ly 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 signing this CAFO on behalfof Respondent is duly authorized to bind Respondent to the tenns 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. II. STATUTORY AND REGULATORY BACKGROUND 8. Section 3 13 of EPCRA, 42 U.S.C. I I023, 40 C.F.R. 372.22 and 372.30 require the owner or operator of a facil ity with: (a) ten or more full-time employees; (b) a Standard Industrial C lassification (SIC) major group or industry code listed in 40 C.F.R. 372.23(a), for which the corresponding North American Industry Classification System (NA ICS) subsector or industry codes are listed in 40 C.F.R. 372.23(b) or (c); and (c) a toxic chemical listed under Subsection 3 I3(c) of EPCRA and 40 C.F.R. 372.65, that manufactured, processed, or otherwise used the chemical in Page 12 Tulsa Winch Inc. Docket No. EPCRA 06-2023-0567 excess of the threshold quantity established under Subsection 3 13(f) of EPCRA, 42 U.S.C. 11 023(f), and 40 C.F.R. 372.25, 372.27, or 372.28, to complete and submit a toxic chemical release inventory Form R, for each toxic chemical known by the owner or operator to be " manufactured, processed, or otherwise used" in quantities exceeding the established threshold quantity, to the Administrator of EPA and to the State in which the facility is located by July I, for the preceding calendar year. 9. Pursuant to Section 3 13(a) of EPCRA, 42 U.S.C. 11 023(a), the owner or operator of a facility sha ll complete a toxic chemical release form for each toxic chemical listed under 3 13(c) of EPCRA, 42 U.S.C. 11023(c) that was manufactured, processed, or otherwise used in quantities exceed ing the toxic chemical thresho ld quantity established by 3 13(f) of EPCRA, 42 U.S.C. 11023(t) during the preceding calendar year at such facility. Such form shal l be submitted to the Administrator and to an official or officials of the State designated by the Governor on or before July I, I988, and annually thereafter on July I and shall contain data reflecting releases during the preceding calendar year. I 0. Pursuant to Section 3 I3(t) of EPCRA, 42 U.S.C. 11023(f), and 40 C.F.R. 372.25, the threshold amount for reporting under Section 3 13(6) of EPCRA, 42 U.S.C. 11 023(6), and 40 C.F.R. 372.30, is 25,000 pounds for any toxic chemical manufactured or processed, and I 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 of an applicable threshold quantity in 40 C.F.R. 372.25, 372.27, or 372.28 at its Page I3 Tulsa Winch Inc. Docke1No. EPCRA 06-2023-0567 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 9350- 3) in accordance with the instructions referred to in subpart E of this part. 12. Pursuant to Section 313(g)(l)(C)(iii) of EPCRA, 42 U.S.C. I 1023(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 of the efficiency of the treatment. III. FINDINGS OF FACT AND CONCLUSIONS OF LAW A. PRELIMINARY ALLEGATIONS 13. Respondent is a corporation organized under the laws of the State of Delaware and authorized to do business in the State of Oklahoma. 14. Respondent is a " person" as defined by Section 329(7) of EPCRA, 42 U.S.C. I I049(7). Respondent owns and operates the facility at 11135 S. James Avenue, Jenks, OK 74037. 15. Respondent's facility identified in Paragraph 14 is a "facility" as that term is defined by Section 329(4) of EPCRA, 42 U.S.C. 11049(4), and 40 C.F.R. 372.3. 16. At the time of the violation(s), Respondent's 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 333923 (Overhead Traveling Crane, Ho ist, and Monorail System Manufacturing) and is within subsector code 333 (Manufacturing), which is listed in 40 C.F.R. 372.23(b). 18. Chromium, copper, nickel, and manganese are "toxic chemicals" within the meaning of40 C.F.R. 372.3 and 372.65. Page J 4 Tulsa Winch Inc. Docket No. EPCRA 06-2023-0567 19. During calendar years 20 17, 20 18, 20 19, 2020, and 2021 the toxic chemicals in Paragraph 19 were "mam(factured, processed, or otherwise used," at various times as those terms are defined by Section 313(b) of EPCRA, 42 U.S.C. I 1023(b), and 40 C.F.R. 372.3, at Respondent's facility. 20. On or about January 25 , 2023, an off-site investigation was initiated to determine compliance of Respondent's Jenks, OK facility with Section 3 13 of EPCRA. During the off-site investigation, EPA a lleged the facility had fai led to time ly report the aforementioned TRI chemicals in paragraph 18 at various times for the 2017, 20 18, 2019, 2020, and 2021 reporting years, on or before the applicable due dates of July 2, 2018; July 1, 2019; July I, 2020; July I, 2021 ; and July I, 2022; respectively. 2 1. On or about May 8, 2023 , the EPA sent Respondent a Proposed Settlement via email. On or about May I0, 2023, Respondent agreed to the proposed settlement for the alleged violation of Section 313 of EPCRA. B. VIOLATIONS 22. Complainant hereby restates and incorporates by reference Paragraphs I through 2 1. 23 . During calendar years 20 17, 2018, 2019, 2020, and 202 1 Respondent manufactured, processed, or otherwise used the TRI chemicals identified in Paragraph 18, at the Respondent' s faci lity, 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(b)(2) by fai ling to submit 20 17, 20 18, 20 19, 2020, and 2021 TRI reporting forms for the aforementioned TRI chemicals in paragraph 18 on or before July 2, 2018; July I, 2019; July I, 2020; July 1, 2021 ; and July I, 2022; respective ly. Page [ 5 Tulsa Winch Inc. Docket No. EPCRA 06-2023-0567 IV. TERMS OF SETTLEMENT A. CIVIL PENALTY 25. For the reasons set forth above, Respondent has agreed to pay a civil penalty which has been determined in accordance with Section 325(c) of EPCRA, 42 U.S.C. 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 313 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 forty-three thousand dollars and no cents ($143,000.00). 26. Within thirty (30) days of the effective date of this CAFO, Respondent shall pay the assessed civil penalty by certified check, cashier's check, or wire transfer, made payable to "Treasurer, United States of America, EPA - Region 6" . Payment shall be remitted in one of three (3) ways: regular U.S. Postal Service mail (including certified mail), overnight mail, or wire transfer. For U.S. Postal Service mail, the check(s) should be remitted to: 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 I990 (28 U.S.C. 246I note; Pub. L. IO 1-410), as amended by the Debt Collection Improvement Act of I996, and most recently, by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of2015 (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 Janua,y 15, 2018) and 7i-ansmittal ofthe 2018 Civil Moneta,y Penalty Inflation Adjustment Rule (2018 Rule) (83 Fed. Reg. I I94), 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 16 Tulsa Winch Inc. Docket No. EPCRA 06-2023-0567 U.S. Environmental Protection Agency Fines and Penalties Cincinnati Finance Center P.O. Box 979078 St. Louis, MO 63 197-9000 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 S L-M O -C 2-G L St. Louis, MO 6310 I Phone No. (3 14) 4 18- 1028 For wire transfer, the payment should be remitted to: Federal Reserve Bank of New York ABA = 02 1030004 Account = 680I0727 SWIFT address = FRNYUS33 33 Liberty Street New York, NY I0045 Field Tag 4200 of the Fedwire message should read " D 680 10727 Environmental Protection Agency" In addition to the above methods of payments: Payments may also be made e lectronically. For info rmation on electronic payments, please visit https://1111,,w.epa.govl financial/makepav,nent The above web site may also be referenced for making payments via cred it 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 06-2023-0567 shall be clearly typed on the check, or other method of payment, to ensure proper credit. [n addition, for furthe r accounting clarification, please preface the above Docket num ber with the acronym: CAFO, e.g., CAFO EPCRA 06-2023-0567 on the method of payment. I f payment is Page 17 Tulsa Winch Inc. Docket No. EPCRA 06-2023-0567 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 ofthe CAFO. Respondent shall also send a s imultaneous notice of such payment, including a copy of the check and transmittal letter, or wire transfer instructions to the fol lowing: Morton E. Wakeland, Jr., Ph.D. EPCRA 3 13 Enforcement Coordinator U.S. EPA, Region 6 Toxic Enforcement Section (ECDST) 120 I Elm Street, Suite 500 Dallas, TX 75270-2102 ll'Clkela11d.111orton(w,epa. gov and Lorena Vaughn Regional Hearing Clerk U.S. EPA, Region 6 120I Elm Street, Suite 500 Dallas, TX 75270-2 I02 vaughn. lorena(@epa.gov Respondent's adherence to this request wi ll 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 of the civil penalty paid to the United States Treasurer. 27. If Respondent fails to submit the first payment within thirty (30) days of the effective date of this 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). Page I 8 Tulsa Winch Inc. Docket No. EPCRA 06-2023-056 7 28. Pursuant to 3 1 U.S.C. 3717 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 will be recovered by EPA on any amount of the civil penalty that is not paid by the respective due date. Interest will be assessed at the rate of the United States Treasury tax and loan rate in accordance with 40 C.F.R. 13. 11 (a). Moreover, the costs of the Agency' s administrative handling of overdue debts wi ll be charged and assessed monthly throughout the period the debt is overdue. See 40C.F.R. 13.1 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 wi ll be assessed monthly on any portion ofthe debt which remains delinquent more than ninety (90) days. See 40 C.F.R. 13.1 l(c). Should a penalty charge on the debt be required, it shall accrue from the first day payment is delinquent. See 3 1 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 construed to be a ruling on, or determination of, any issue related to any federal , state or local permit. 31. This document is a "Final Order" as that term is defined in the "Enforcement Response Page 19 7it!sa Winch Inc. Docket No. EPCRA 06-2023-0567 Policy for Section 313 of the Emergency Planning and Community Right-to-Know Act (1986) and Section 6607 of the Pollution Prevention Act ( 1990)," dated August 10, 1992 (Amended: 1996, 1997, and 2001 ; and updated in accordance with the 2016 Civi l Monetary Penalty Inflation Adjustment Rule on February 24, 2017) for the purpose of demonstrating a history of " prior such violations." B. RETENTION OF ENFORCEMENT RIGHTS 32. EPA does not waive any rights or remedies available to EPA for any violations by Respondent of Federal or State laws, regulations, or permitting conditions. 33. Nothing in this CAFO shall relieve Respondent of the duty to comply with all applicable provisions of Section 313 of EPCRA, 42 U.S.C. 11023, and 40 C.F.R. Part 372. 34. Nothing in this CAFO shall limit the power and authority of E PA or the United States to take, direct, or order all actions to protect public health, welfare, or the environment, or prevent, abate or minimize an actual or threatened release of hazardous substances, pollutants, contaminants, hazardous substances on, at, or from Respondent' s facility. Furthermore, nothing in this CAFO shall be construed to prevent or limit EPA' s civil and 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. D. COSTS 35. Each party shall bear its own costs and attorney's fees. Furthermore, Respondent specifically waives its right to seek reimbursement of its costs and attorney' s fees under 5 U.S.C. 504 and 40 C.F.R. Part 17. E. EFFECTIVE DATE 36. This CAFO becomes effective upon filing with the Regional Hearing Clerk. Page I 10 Tulsa Winch Inc. Docket No. EPCRA 06-2023-0567 37. The EPA and Respondent agree to the use ofelectronic signatures for this matter. The EPA and Respondent further agree to electronic service of this Consent Agreement and Final Order, pursuant to 40 C.F.R. 22.6, by email to the following addressees: To EPA: wake/and. morton(@epa.gov To Respondent: dcrisp(ii),dovertwg.com and Lvnn Gravson < lg@.niimanf;-anzefli.com> Page I 11 7iilsa Winch Inc. Docket No. EPCRA 06-2023-0567 THE UNDERSIGNED PARTIES CONSENT TO THE ENTRY OF THIS CONSENT AGREEMENT AND FINAL ORDER: FOR THE RESPONDENT: Date: _ _ _ _ _ __ David Crisp Digitally signed by David Crisp Date: 2023.06.28 12:44:47 -05'00' David Crisp Chief Financial Officer Tulsa Winch Inc. I 1135 S. James Avenue Jenks, OK 74037 FOR THE COMPLAINANT: Date: _ _ _ __ __ CHERYL SEAGER Digitally signed by CHERYL SEAGER Date: 2023.07.03 13:00:36 -05'00' Cheryl T. Seager Director Enforcement and Compliance Assurance Division U.S. EPA Region 6 Dallas, Texas 75270-2102 Page I 12 Tulsa Winch Inc. Docket No EPCRA 06-2023-0567 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 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 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. e.1eo-.. Regional Ju 1al Officer U.S. EPA Region 6 Dallas, Texas 75270-2102 Page I 13 Tulsa Winch Inc. Docket J\o. EPCRA 06-2023-0567 CERTIFICATE OF SERVICE I certify that that a true and correct copy of the foregoing Consent Agreement and Final Order was delivered electronical ly to the Regional Hearing C lerk, U.S. EPA, Region 6, 1201 Elm Street, Dallas Texas 75270-2102, and that a true and correct copy was sent this day of 7/5/23 - - - - - -- - - - - in the fo llowing manner to the addressees: Copy via Email to Complainant: wakefand.morton@epa . gov and vaughn.forena ,epa.gov Copy via Emai l to Respondent: dcrisp@dovertwg.com and Lvnn Crowson < {g(a),niiman[ranzetl i.com> Morton E. Digitally signed by Morton E. Wakeland , Jr. W k I d Jr Date: 2023.07.05 a e an , 13:32:20 -osoo 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 Section (ECDST) Dallas, Texas 75270 (214) 665-8116 Page I 14