Document v1yKqvxOZk3eBKqvpNDqBxoBm

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 6 DALLAS, TEXAS FILED 09 APR 24 PM 02:07 REGIONAL HEARING CLERK EPA REGION 6 IN THE MATTE:RROOF: LA CROIX PRECISION OPTICS BATESVAJILLLE, AR. 72501 RESPONDENT EPA DOCKET NUMBER EPCRA-06-2024-0502 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 La Croix Precision Optics (Respondent) (hereinafter La Croix) 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 1. This proceeding for the assessment of civil 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. 22.13(b), and 22.18(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 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 La Croix Precision Optics Docket No. EPCRA 06-2024-0502 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 signing 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 REGULATORY 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 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(a), 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 Page | 2 La Croix Precision Optics Docket No. EPCRA 06-2024-0502 manufactured, processed, or otherwise used the chemical in excess of the threshold quantity established under Subsection 313(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 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 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 form for each toxic chemical listed under Section 313(c) of EPCRA, 42 U.S.C. 11023(c) that was manufactured, processed, or otherwise used in quantities exceeding the toxic chemical threshold quantity established by Section 313(f) of EPCRA, 42 U.S.C. 11023(f) 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 1, 1988, and annually thereafter on July 1 and shall contain data reflecting releases during the preceding calendar year. 10. Pursuant to Section 313(f) of EPCRA, 42 U.S.C. 11023(f), and 40 C.F.R. 372.25, the threshold amount for reporting under Section 313(b) of EPCRA, 42 U.S.C. 11023(b), and 40 C.F.R. 372.30, is 25,000 pounds for any toxic chemical manufactured or processed, and 10,000 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 Page | 3 La Croix Precision Optics Docket No. EPCRA 06-2024-0502 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 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 dioxinlike compounds category, EPA Form R Schedule 1 (EPA Form 9350-3) in accordance with the instructions referred to in subpart E of this part. 12. Pursuant to Section 313(g)(1)(C)(iii) of EPCRA, 42 U.S.C. 11023(g)(1)(C)(iii), and 40 C.F.R. 372.85(b)(16), 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 Arkansas and authorized to do business in the State of Arkansas. 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 50 La Croix Dr. Batesville, AR 72501. 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 333314 (Optical Instruments & Lens Manufacturing) Page | 4 La Croix Precision Optics Docket No. EPCRA 06-2024-0502 and is within subsector code 333 (Machinery), which is listed in 40 C.F.R. 372.23(b). 18. Lead compounds are a "toxic chemical" within the meaning of 40 C.F.R. 372.3 and 372.65. 19. During calendar year 2021 the toxic chemical in Paragraph 18 was "manufactured, processed, or otherwise used," as those terms are defined by Section 313(b) of EPCRA, 42 U.S.C. 11023(b), and 40 C.F.R. 372.3, at Respondent's facility. 20. On or about February 8, 2024, an off-site investigation was initiated to determine compliance of Respondent's Batesville, AR facility with Section 313 of EPCRA. During the off-site investigation, EPA alleged the facility had failed to timely report the TRI chemical in Paragraph 18 for the 2021 reporting year, on or before the applicable due date of July 1, 2022. 21. On or about March 17, 2024, the EPA sent Respondent a Proposed Settlement via an email. On or about March 18, 2024, Respondent agreed to the proposed settlement for the alleged violations of Section 313 of EPCRA. B. VIOLATIONS 22. Complainant hereby restates and incorporates by reference Paragraphs 1 through 21. 23. During calendar year 2021 manufactured, processed, or otherwise 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. 11023(g)(1)(B), and 40 C.F.R. 372.85(b)(2) Page | 5 La Croix Precision Optics Docket No. EPCRA 06-2024-0502 by failing to certify reports for lead compounds on or before July 1, 2022. 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 thousand fifty-six dollars and no cents ($1,056.00). 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 1 The statutory maximum penalty level under Section 325(c) of EPCRA, 42 USC 11045(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. 101-410), as amended by the Debt Collection Improvement Act of 1996, and most recently, by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (28 U.S.C. 2461 note; Pub. L.114-74, Section 701). 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 January 15, 2018) and Transmittal of the 2018 Civil Monetary 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 after January 15, 2018. Page | 6 La Croix Precision Optics Docket No. EPCRA 06-2024-0502 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: 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. Environmental Protection Agency Government Lockbox 979078 3180 Rider Trail S. Earth City, MO 63045 For wire transfer, the payment should be remitted to: Federal Reserve Bank of New York ABA = 021030004 Account = 68010727 SWIFT address = FRNYUS33 33 Liberty Street New York, NY 10045 Field Tag 4200 of the Fedwire message should read "D 68010727 Environmental Protection Agency" In addition to the above methods of payments: Payments may also be made electronically. For information on electronic payments, please visit; https://www.epa.gov/financial/makepayment Page | 7 La Croix Precision Optics Docket No. EPCRA 06-2024-0502 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 06-2024-0502 shall be clearly typed on the 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 06-2024-0502 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 of such 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 Toxic Enforcement Section (ECDST) 1201 Elm Street, Suite 500 Dallas, TX 75270-2102 wakeland.morton@epa.gov and Lorena Vaughn Regional Hearing Clerk U.S. EPA, Region 6 1201 Elm Street, Suite 500 Dallas, TX 75270-2102 vaughn.lorena@epa.gov Page | 8 La Croix Precision Optics Docket No. EPCRA 06-2024-0502 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 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). 28. Pursuant to 31 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 will be charged and assessed monthly throughout the period the debt is overdue. See 40 C.F.R. 13.11(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 (6%) per year will be assessed Page | 9 La Croix Precision Optics Docket No. EPCRA 06-2024-0502 monthly on any portion of the debt which remains delinquent more than ninety (90) days. See 40 C.F.R. 13.11(c). Should a penalty charge on the debt be required, it shall accrue from the first day payment is delinquent. See 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 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 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 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 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 EPA 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, Page | 10 La Croix Precision Optics Docket No. EPCRA 06-2024-0502 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 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 following addresses: To EPA: wakeland.morton@epa.gov To Respondent: kirk@lacroixoptics.com and jimmy.crafton@lacroixoptics.com Page | 11 La Croix Precision Optics Docket No. EPCRA 06-2024-0502 THE UNDERSIGNED PARTIES CONSENT TO THE ENTRY OF THIS CONSENT AGREEMENT AND FINAL ORDER: Date: K Digitally signed by Kirk ffk W ard en Date: 2024.04.01 Warden 16:47:52 -05'00' Kirk Warden President La Croix Precision Optics 950 Eagle Ridge Road, Batesville, AR 72501 FOR THE COMPLAINANT: Date: ____________ Digitally signed by Cheryl T. Seager Date: 2024.04.03 _____________1_1 :_29_:0_2 _-05_'0_0'__ Cheryl T. Seager Director Enforcement and Compliance Assurance Division U.S. EPA, Region 6 Page | 12 La Croix Precision Optics Docket No. EPCRA 06-2024-0502 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 U.S. EPA Region 6 Regional Hearing Clerk. Date: THOMAS RUCKI Digitally signed by THOMAS RUCKI Date: 2024.04.09 12:21 :28 -04'00' Thomas Rucki Regional Judicial Officer U.S. EPA Region 6 Dallas, Texas 75270-2102 Page | 13 La Croix Precision Optics Docket No. EPCRA 06-2024-0502 CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing Consent Agreement and Final Order was filed with me, the Regional Hearing Clerk, U.S. EPA - Region 6, 1201 Elm Street, Suite 500, Dallas, Texas 75270-2102, and that I sent a true and correct copy on this day in the following manner to the below email addresses: Copy via Email to U.S. EPA Region 6 and Complainant: wakeland.morton@epa.gov 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 (ECD) Waste Enforcement Branch (ECDS) Toxics Section (ECDST) Dallas, Texas 75270 (214) 665-8116 Copy via Email to Respondent: kirk@lacroixoptics.com La Croix Precision Optics 950 Eagle Ridge Road Batesville, AR 72501 and jimmy.crafton@lacroixoptics.com La Croix Precision Optics 50 LA CROIX DRIVE Batesville, AR 72501 Dated this day of _______________ , _______________ LORENA Digitally signed by LORENA VAUGHN _V_A__U_G__H__N______14_:1_1 :_02_-_05_'0_0'________ Date: 2024.04.09 Lorena Vaughn Regional Hearing Clerk U.S. EPA Region 6 Dallas, TX Page | 14