Document zdooZM20k1Z56JRv64xNQmGy3

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 6 In the Matter of AzTex Dairy, Inc., a Texas Corporation, Respondent TPDES Pennit Number: WQ0004844000 DOCKET NO. CWA-06-2013-1755 CONSENT AGREEMENT AND FINAL ORDER Pursuant to 40 C.F.R. 22.13(b) I. P.RELlMLl'lARY. STATEMENT I. This Consent Agreement and Final Order ("CAfO") is issued under the authority vested in the United States Environmental Protection Agency ("EPA") pursuant to Section 309(g) of the Clean Water Act ("the Act"), 33 U.S.C. 1319(g). This CAFO is issued in accordance with 40 C.F.R. 22.18, as described in the "Consolidated Rules of Practice Governing the Administrative Assessment of Civil Penalties and the Revocation/Termination or Suspension of Pennits." 2. On February 25, 2013, EPA Region 6 issued to the Respondent an Administrative Complaint ("Complaint") under Section 309(g) of the Act, 33 U.S.C. !319(g), which proposed to assess a civil penalty against the Respondent, and gave notice of the Respondent's opportunity to request a hearing on the proposed administrative penalty assessment. 3. EPA and Respondent ("Parties") agree that settlement of the relevant matters without litigation will save time and resources, that it is in the public's interest, and that the entry of this CAFO is the most appropriate means of resolving such matters. Compliance with all the terms and conditions of this CAFO resolves only those violations alleged by EPA in the administrative complaint. Docket No. CWA-06~20 13-1755 Page 2 4. Respondent admits the jurisdictional allegations of the complaint; however, Respondent neither admits nor denies the specific factual allegations and conclusions of law contained in the Complaint or this CAFO. This CAFO states a claim upon which relief may be granted. 5. Respondent expressly waives any right to contest the factual allegations or conclusions of law contained in the Complaint and this CAFO and waives its right to appeal the Final Order set fotih herein. 6. Before the taking of any testimony, and without adjudication of any issue of law or fact, the Parties agree to the terms of this CAFO and to its issuance. Respondent consents to the assessment and payment of a civil penalty in the amount and by the method stated below. II. FINDINGS OJ'.F!Ic<.:I.AND CONCLUSION_S QLI,cAW 7. Respondent is a "person," as defined by Section 502(5) ofthe Act, 33 U.S.C. 1362(5) and 40 C.F.R. 122.2. 8. At all times relevant to the violations alleged herein ("relevant time period"), Respondent owned or operated AzTcx Dairy, Inc., a dairy operation located at 1133 County Road 347, south of the intersection of F:\1 2156 and County Road 347, in Dublin, Erath County, Texas ("facility"), and was therefore an "owner or operator" within the meaning of40 C.F.R. 122.2. 9. The Complaint spcci:ticd findings of fact and conclusions oflaw that are hereby incorporated by reference and alleged, among other things, that at the relevant times: Respondent and the facility were subject to the provisions of the Act, 33 U.S.C. 1251 et seq., and the National Pollutant Discharge Elimination System (''NPDES") program; and Respondent Docket No. CWA-06-2013-1755 Page 3 violated Section 301 of the Act, 33 U.S.C. 1311, by violating conditions and requirements of its TCEQ-issued CAFO permit, as specified in the Complaint. 10. With the issuance of the Complaint, the State of Texas was notified and given an opportunity to consult with EPA regarding the proposed assessment of an administrative penalty against Respondent. 11. EPA notified the public of the complaint via the internet at ~rv..rw.epa.gov/region6/publicnotice, and afforded the public thi1ty (30) days to comment on the Complaint and proposed penalty. At the expiration of the notice period, EPA received no comments from the public. Ill. TERMS OF SETTLEMENT A. PENALTY PROSJSIQNS. 12. Based on the foregoing Findings of fact and Conclusions of Law, EPA Region 6, considering the relevant criteria pursuant to Section 309(g)(3) of the Act, 33 U.S.C. J319(g)(3 ), and acting pursuant to the authority of Section 309(g) of the Act, 33 U.S.C. 1319(g), hereby orders that the Respondent shall pay to the United States a civil penalty in the amount of five thousand six hundred dollars ($5,600.00) to settle the violations as alleged in the Complaint, in accordance with 40 C.F.R. 22.18(c). 13. Payment shaU be made by one of the following methods within thirty (30) days of the effective date of this CAFO: Docket No. CWA-06-2013-1755 Page 4 a. By mailing a bank check, a cashier's check or cer1ified check, payable to "Treasurer of the United States," to the following address: U.S. Environmental Protection Agency Fines and Penalties Cincinnati Finance Center P.O. Box 979077 St. Louis, MO 63197-9000 b. By wire transfer to: Fedewl Reserve Bank of New York ABA: 02I030004 Account Number: 680 I0727 SWIFT address: FRNYUS33 33 Liberty Street New York, NY I 0045 Field Tag 4200 of the Fedwire message should read: "D 680 I0727 Envirorunental Protection Agency" c. By overnight mail (Express, FcdEx, DI-lL, etc.) to: U.S. Bank Government Lockbox 979077 U.S. EPA Fines & Penalties I005 Convention Plaza SL-MO-C2-GL St. Louis, MO 63I 0 I Phone: 3I4-4I8-I028 d. By credit card payments to: https://www.pay.gov/paygov (enter sfo 1.1 in the search field) ("In the Matter of AzTex Dairy, Inc., Docket No. CWA-06-2013-I755" ~houid be clearly marked on the check to ensure credit for payment. 14. The Respondent shall send simultaneous notice of payment, including a copy of the check, to each of the following: Docket No. CWA-06-20 13-175 5 Page 5 (a) Regional Hearing Clerk (6RC-D) U.S. EPA, Region 6 1445 Ross Avenue, Suite 1200 Dallas, TX 75202-2733 (b) Chief, NPDES Compliance Section (6EN-WC) U.S. EPA, Region 6 1445 Ross Avenue, Suite 1200 Dallas, TX 75202-2733 (c) Chief, Water Enforcement Legal Branch (6RC-EW) C.S. EPA, Region 6 1445 Ross Avenue, Suite 1200 Dallas, TX 75202-2733 Respondent's adherence to these procedures will ensure proper credit when payment is received by EPA. 15. 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. 16. 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. J3.1l(b). Docket J\io. CWA-06-2013-1755 Page 6 17. EPA will also assess a iifleen dollar ($1 5.00) administrative handling charge for administrative costs on unpaid penalties 10r the first thirty (30)-day period after the payment is due and an additional fifteen dollars ($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 monthly on any portion of the debt which remains delinquent more than ninety (90) days. See 40 C.P.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. 90 1.9(d). Other penalties for failure to make a payment may also apply. 18. Pursuant to Section 309(g)(9) of the Act, 33 U.S.C. 1319(g)(9), any person who fails to pay on a timely basis a civil penalty ordered or assessed under this section shall be required to pay, in addition to such penalty and interest, the United States' enforcement expenses including, but not limited to, attorneys' fees and costs incurred by the United States for collection proceedings, and a quarterly nonpayment penalty for each quatter during which such failure to pay persists. Such nonpayment penalty shall be twenty percent (20%) of the aggregate amount of such person's outstanding penalties and nonpayment penalties accrued as of the beginning of each quarter. 19. Failure by the Respondent to pay the penalty assessed according to the terms of this CAFO, in full, by its due date, may subject the Respondent to a civil action to collect the assessed penalty and any accrued interest and penalties. 20. In the event a collection action is necessary, the Respondent shall pay, in addition to any applicable penalty, fees, and interest described herein, all reasonable costs and expenses, including legal expenses and court costs, incurred by the United States fOr enfOrcement and collection proceedings for nonpayment of the amounts agreed hereunder, pursuant to Docket No. CWA-06-20 13-1755 Page 7 Section 309(g)(9) ofthe Act, 33 U.S.C. !3!9(g)(9). In any such collection action, the validity, amount, and appropriateness of the penalty, and the terms of this CAFO shall not be su~ject to rev1ew. IV. GENERAL PROVISIONS 21. To execute this Agreement, the Respondent shall sign and forward this copy of the CAFO, with original signature, to: Ms. Ellen Chang-Vaughan (6RC-EW) Water Enforcement Legal Branch U.S. EPA, Region 6 1445 Ross Avenue, Suite 1200 Dallas, TX 75202-2733 22. Issuance of this CAFO does not relieve the Respondent from responsibility to comply with all requirements of the Act and the requirements of any permits issued thereunder, as described in Section 309(g)(7) of the Act, 33 U.S.C. !3!9(g)(7), nor does it constitute a waiver by EPA of its right to enforce compliance with the requirements of the Respondent's permits or other requirements of the Act by actions pursuant to Section 309 of the Act, 33 U.S.C. 13!9. 23. The provisions of this CAFO shall be binding upon the Respondent, its officers or officials, managers, employees, and their successors or assigns, in their capacity on behalf of the Respondent. 24. Each party agrees to bear its own costs and attorneys' fees in this matter, except to the extent that the Respondent may be responsible for reasonable costs and expenses of enforcement and collection proceedings for failure to comply with the terms of this CAFO. Docket No. CWA-06-2013-1755 Page 8 25. Each undersigned representative of the pmties to this agreement certifies that he or she is fully authorized by the party represented to enter into the terms and conditions of this agreement and to execute and legally bind that party to it. In recognition and acceptance of the foregoing: ~Fred#Luck-u AzTex Dairy, Inc. d-;?.5~13 -- ----f-----.------------------- Date Compliance Assurance and Enforcement Division 5. 1. 13 Date Docket No. CWA-06-2013-1755 Page 9 Pursuant to 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 Complaint. Nothing in this Final Order shall be construed to waive, extinguish, or otherwise affect the 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. The Respondent is ordered to comply with the terms of settlement and the civil penalty payment instructions as set forth in the Consent Agreement. Pursuant to 40 C.F.R. 22.31 (b), this Final Order shall become effective upon filing with the Regional Hearing Clerk. Issuance Date: 0 \; "\?:> Regional Judicial Officer U.S. EPA, Region 6 Docket \'o_ CWA-06-20 13-1755 Page 10 CERTIFICATE OF SERVICE I hereby certify that on the ___ll_J1...... day of __l_i~-}t- ______________, 2013, the original of the foregoing Consent Agreement and Final Order was hand ia'elivcrcd to the Regional I-Icaring Clerk, U.S. EPA, Region 6 (6RC-D), 1445 Ross Avenue, Suite 1200, Dallas. Texas 75202w2733, and that a true and correct copy was placed in the United States maiL by certified mail, return receipt requested, addressed to the following: Mr. Fred Lueck AzTcx Dairy, lnc. P.O. Box 159 Dublin, TX 76446 with a copy, first class postage prepaid, to: Ms. Susan Johnson, Manager Enforcement Section J, MC169 Texas Commission on Environmental Quality P.O. Box 13087 Austin, TX 78711-3087 Copy hand-delivered: Ms. Ellen Chang- Vaughan (6RC-EW)