Jeffrey L. Nixon d/b/a EarthEcycle, EarthEcycle, LLC, EarthEcycle, LLP, AABC Computer and Electronics Recycling, AABC Computer Company, Earth Computer and Electronics Recycling, United Recyclers of America (Board decision, March 4, 2016)
In re Jeffrey L. Nixon d/b/a EarthEcycle and related entities (EAB RCRA Appeal No. 16-01C): effective date clarified and consent agreement ratified
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This is citable Board precedent from 2016, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.
Plain-English summary
EPA alleged that Jeffrey L. Nixon and related electronic recycling businesses failed to properly manage hazardous wastes under RCRA and authorized Pennsylvania requirements. The parties resolved the matter through a Consent Agreement. The Environmental Appeals Board clarified that the agreement's effective date was March 4, 2016, because the original service address was erroneous, and ratified the agreement. The respondent consented to a $5,000 civil penalty, with an installment option that could add $8.18 in interest, and agreed to restrictions on entering the used-electronics recycling business until in compliance with RCRA.
Decision snapshot
- Cited authorities: 40 C.F.R. § 22.18(b)-(c), 42 U.S.C. § 6928, 40 C.F.R. Parts 260-270, 273 and 279, 25 Pa. Code §§ 260a-266a, 266b and 268a-270a, 40 C.F.R. § 13.11, 31 U.S.C. § 3717, 28 U.S.C. § 1961
- Outcome: The Board clarified the effective date as March 4, 2016, ratified the Consent Agreement and Final Order, and required compliance with the agreement and a $5,000 civil penalty.
- Key point: A service problem changed the effective date of the Final Order, while leaving the settlement terms in place.
Full text (EPA EAB public release)
ENVIRONMENTAL APPEALS BOARD
F I L E D
MAR 4 2016
UNITED STATES ENVIRONMENTAL PROTECTION
WASHINGTON, D.C.
In re: )
)
Jeffrey L. Nixon d/b/a ) Docket No. RCRA-HQ-2009-0001
)
EarthEcycle® )
EarthEcycle®, LLC )
EarthEcycle®, LLP )
AABC Computer and Electronics Recycling )
AABC Computer Company )
Earth Computer and Electronics Recycling )
United Recyclers of America )
)
)
Respondent
)
ORDER CLARIFYING EFFECTIVE DATE
OF FINAL ORDER
On February 16, 2016, the Environmental Appeals Board issued a Final Order pursuant
to 40 C.F.R. § 22.18(b)-(c) ratifying the Consent Agreement reached between the parties in the
above-captioned case. The Board subsequently learned that the mailing address provided for
service of the Consent Agreement and Final Order on Respondent was erroneous and thus that
the U.S. Postal Service will likely return the service copy to the Board as "undeliverable."
The Consent Agreement specifies that Respondent's civil penalty becomes due and
payable beginning a certain number of days after the "Effective Date" of the Board's Final
Order. Consent Agreement ¶¶ 18, 21, 23, at 5-6. Under normal circumstances, that date would
have been February 16, 2016, which is the date the Board issued the Final Order ratifying the
Consent Agreement. In these circumstances, however, the Board clarifies that the "Effective
Date" of its Final Order ratifying the Consent Agreement is now altered to today's date, March 4,
- A copy of the Consent Agreement resolving this matter is attached to this Order, as is a
copy of the Final Order dated February 16, 2016.
The Respondent is ORDERED to comply with all terms of the Consent Agreement,
effective immediately (meaning that the "Effective Date" referenced in the Consent Agreement
is now March 4, 2016).
So ordered.
ENVIRONMENTAL APPEALS BOARD
Dated: ~/ 4 I 2-o J (,,
athie A. Stein
ental Appeals J~
-2-
CERTIFICATE OF SERVICE
I certify that copies of the foregoing Order Clarifying Effective Date of Final Order in
the matter of Jeffrey L. Nixon d/b/a EarthEcycle®, EarthEcycle®, LLC, EarthEcycle®, LLP, AABC Computer and Electronics Recycling, AABC Computer Company, Earth Computer and Electronics Recycling, United Recyclers of America, Docket No. RCRA-HQ-2009-0001, were filed and copies of the same were sent to the following persons in the manner indicated:
By First Class Certified Mail/
Return Receipt Requested:
Mr. Jeffrey L. Nixon
222 South 184th East Avenue
Tulsa, OK 74108
By Interoffice Mail:
Waste and Chemical Enforcement Division
Attn: James Miles, Attorney
Office of Civil Enforcement
Office of Enforcement and Compliance Assurance
U.S. Environmental Protection Agency
1200 Pennsylvania Ave., NW
Mail Code 2249A
Washington, DC 20460
Secretary
ENVIRONMENTAL APPEALS BOARD
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C.
In re: )
)
Jeffrey L. Nixon d/b/a ) Docket No. RCRA-HQ-2009-0001
EarthEcycle®
EarthEcycle®, LLC
)
)
)
F I L E D
FEB 16 2016
EarthEcycle®, LLP
AABC Computer and Electronics Recycling
)
)
LI 1 6 l iJFEB 2016
AABC Computer Company ) Clerk, Envira Earth Computer and Electronics Recycling ) INITIALS United Recyclers of America )
)
)
Respondent
)
FINAL ORDER
Pursuant to 40 C.F.R. § 22.18(b)-(c) of EPA’s Consolidated Rules of Practice, the
attached Consent Agreement resolving this matter is incorporated by reference into this Final Order and is hereby ratified.
The Respondent is ORDERED to comply with all terms of the Consent Agreement,
effective immediately.
So ordered. 1
ENVIRONMENTAL APPEALS BOARD
Dated: 2 / I ~ / .J--o I {p
Kathie A. Stein
ronmental Appeals Judge
1
The three-member panel ratifying this matter is composed of Environmental Appeals
Judges Mary Kay Lynch, Kathie A. Stein, and Mary Beth Ward.
CERTIFICATE OF SERVICE
I certify that copies of the foregoing "Consent Agreement" and "Final Order" in the
matter of Jeffrey L. Nixon d/b/a EarthEcycle®, EarthEcycle®, LLC, EarthEcycle®, LLP, AABC Computer and Electronics Recycling, AABC Computer Company, Earth Computer and Electronics Recycling, United Recyclers of America, Docket No. RCRA-HQ-2009-0001, were filed and copies of the same were sent to the following persons in the manner indicated:
By First Class Certified Mail/
Return Receipt Requested:
Mr. Jeffrey L. Nixon
1524 Harvard Ave.
Tulsa, OK 74112
By Interoffice Mail:
Waste and Chemical Enforcement Division
Attn: James Miles, Attorney
Office of Civil Enforcement
Office of Enforcement and Compliance Assurance
U.S. Environmental Protection Agency
1200 Pennsylvania Ave., NW
Mail Code 2249A
Washington, DC 20460
Annette Duncan
Secretary
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C.
BEFORE THE ADMINISTRATOR
In the Matter of: )
)
Jeffrey L. Nixon d/b/a )
) CONSENT AGREEMENT
EarthEcycle® )
EarthEcycle®, LLC ) AND FINAL ORDER EarthEcycle, LLP ) AABC Computer and Electronics Recycling ) AABC Computer Company ) Earth Computer and Electronics Recycling ) EPA Docket No. RCRA-HQ-2009-0001 United Recyclers of America )
)
222 S. 184th East Avenue )
Tulsa, OK 74108 )
)
Respondent )
CONSENT AGREEMENT
To avoid the disruption of orderly business activities and the expense of litigation, Complainant and Respondent hereby consent to the terms of this Consent Agreement and attached Final Order.
I. PRELIMINARY STATEMENT
In accordance with the Consolidated Rules of Practice Governing the Administrative Assessment of Civil Penalties, Issuance of Compliance or Corrective Action Orders, and the Revocation, Termination or Suspension of Permits, 40 C.F.R. Part 22 (2012), the parties to this proceeding enter into this Consent Agreement and Final Order ("CAFO") pursuant to 40 C.F.R. § 22.18(b)(2) and (3) to resolve, without further proceedings, the claims asserted by Complainant in the Third Amended Administrative Complaint, Compliance Order and Notice of Opportunity for Hearing filed in this matter on July 1, 2015. Upon execution by the U.S. EPA Environmental Appeals Board, this CAFO concludes the above-captioned matter pursuant to 40 C.F.R. §§ 22.18 and 22.31.
1
II. STATUTORY AND REGULATORY AUTHORITY
This administrative proceeding was instituted pursuant to Section 3008(a) of the Solid Waste Disposal Act, as amended by various statutes including the Resource Conservation and Recovery Act and the Hazardous and Solid Waste Amendments of 1984 ("HSWA"), 42 U.S.C. § 6928 (such statutes hereinafter referred to collectively as the "Act" or "RCRA"). The EPA has promulgated regulations to implement Subtitle C of RCRA, Sections 3001-3023e, 42 U.S.C.
§§ 6921-6939e, set forth at Title 40 of the Code of Federal Regulations ("C.F.R.") Parts 260-270, 273 and 279.
Pursuant to Section 3006 of RCRA, 42 U.S.C. § 6926, EPA may authorize a state to administer its hazardous waste program in lieu of the federal program when the Administrator deems the state program to be equivalent to the federal program. On January 30, 1986, EPA granted final authorization to the Commonwealth of Pennsylvania to administer its hazardous waste program in lieu of the federal program. 51 Fed. Reg. 1791 (Jan. 15, 1986). EPA granted authorization for revisions to the Commonwealth of Pennsylvania's regulatory program on September 26, 2000, effective November 27, 2000 (65 Fed. Reg. 57,734); on January 20, 2004, effective March 22, 2004 (69 Fed. Reg. 2674); and on April 29, 2009, to be effective June 29, 2009 (74 Fed. Reg. 19,453).
Pursuant to Sections 3006 and 3008(a) of RCRA, 42 U.S.C. §§ 6926, 6928(a), a violation of any requirement of law under an authorized state hazardous waste program is a violation of a requirement of Subtitle C, and EPA may enforce federally-authorized hazardous waste programs by issuing orders requiring compliance immediately or within a specified time for such violations. Therefore, the Commonwealth's authorized hazardous waste provisions set forth at 25 Pa. Code Sections 260a-266a, 266b and 268a-270a, are requirements of RCRA and are enforceable by EPA.
Notice of commencement of this action was given to the Commonwealth of Pennsylvania pursuant to Section 3008(a)(2) of RCRA, 42 U.S.C. § 6928(a)(2).
III. FINDINGS OF FACT AND JURISDICTIONAL ALLEGATIONS
-
Complainant is the Acting Director of the Waste and Chemical Enforcement Division,
Office of Civil Enforcement, Office of Enforcement and Compliance Assurance, U.S.
EPA. Complainant has been duly delegated with the authority to commence this
proceeding. -
Respondent, Jeffrey L. Nixon d/b/a EarthEcycle®; EarthEcycle®, LLC; EarthEcycle,
LLP; AABC Computer and Electronics Recycling; AABC Computer Company; Earth
Computer and Electronics Recycling; and United Recyclers of America, is a sole
proprietorship in the State of Oklahoma, located at 222 184th East Avenue, Tulsa, OK
74108.2 -
Complainant filed a Third Amended Administrative Complaint, Compliance Order and
Notice of Opportunity for Hearing on July 1, 2015 ("Complaint"), which asserted that
Respondent violated Sections 3002 and 3017 of RCRA, 42 U.S.C. §§ 6922 and 6938, the
hazardous waste regulations at 40 C.F.R. Parts 261 and 262, and certain EPA authorized
Pennsylvania hazardous waste management regulations set forth at 25 Pa. Code § 260a et
seq. by failing to properly manage hazardous wastes. -
This CAFO incorporates by reference the findings of fact and jurisdictional allegations
contained in paragraphs 1 through 79 of the Complaint, and adopts them as
Complainant's findings of fact and jurisdictional allegations herein.IV. CONCLUSIONS OF LAW -
This CAFO incorporates by reference the conclusions of law contained in paragraphs 1
through 79 of the Complaint, and adopts them as Complainant's conclusions oflaw
herein. -
Complainant concludes that Respondent violated Sections 3002 and 3017 of RCRA, 42
U.S.C. §§ 6922 and 6938, and is liable to the United States for a civil penalty in
accordance with Section 3008 of RCRA, 42 U.S.C. § 6928.V. GENERAL PROVISIONS -
For the purposes of this proceeding and in accordance with the specific requirements for
settlement set forth in 40 C.F.R. § 22.18(b)(2):a. Respondent admits the jurisdictional allegations of the Complaint and this CAFO; b. Respondent neither admits nor denies the specific factual allegations and conclusions of law set forth in the Complaint and this CAFO; c. Respondent consents to the assessment of the civil penalty set forth in this CAFO; d. Respondent waives its right to a hearing on any issue of law or fact alleged in this matter and consents to issuance of this CAFO without adjudication; and e. Respondent waives its right to appeal this CAFO. -
Respondent agrees not to contest Complainant's jurisdiction to issue this CAFO to
Respondent and to enforce the terms of this CAFO. -
Each party to this agreement shall pay its own costs and attorney's fees.
3 -
This CAFO does not relieve Respondent of its obligations to comply with all applicable
provisions of federal, state, and local law. -
Respondent shall not enter into any contracts, arrangements, collections or accept any
used electronic equipment (including parts, equipment with cathode ray tubes and other
used electronics or electronic waste) that would require Respondent to engage in
electronic recycling of any kind until Respondent is in full compliance with all applicable
RCRA requirements. -
Respondent shall not transport any used electronic equipment, or export any used
electronic equipment of any kind, until Respondent is in full compliance with all
applicable RCRA requirements. -
If Respondent engages in any used electronics recycling business for export, Respondent
shall comply with all RCRA requirements. In addition to complying with RCRA
requirements for cathode ray tubes recycling and export, Respondent shall provide a
Notification of Export to EPA for each shipment of used electronic equipment. As
provided in the RCRA regulations (40 CFR 261.39 or 40 CFR 261.41), notifications
should be submitted to:By mail: Office of Enforcement and Compliance Assurance, Office of Federal Activities International Compliance Assurance Division (Mail Code 2254A) Environmental Protection Agency 1200 Pennsylvania Ave., NW Washington DC 20460 By hand delivery: Office of Enforcement and Compliance Assurance, Office of Federal Activities International Compliance Assurance Division (Mail Code 2254A) Environmental Protection Agency William Jefferson Clinton Building Room 6144 1200 Pennsylvania Ave., NW Washington DC 20460All submissions must prominently display on the front of the envelope: "Attention:
Notification of Intent to Export CRTs."4
.
14. All of the terms and conditions of this CAFO together comprise one agreement, and each
of the terms and conditions is in consideration of all of the other terms and conditions. In
the event that this CAFO or one or more of its terms and conditions is held invalid, is not
executed by all of the signatories in identical form, or is not approved in such identical
form by the Environmental Appeals Board, then the entire CAFO shall be null and void.
15. The provisions of this CAFO shall be binding upon Respondent, its officers, principals,
directors, employees, successors, and assigns.
16. The undersigned representative of Respondent certifies that he is fully authorized by the
party represented to enter into the terms and conditions of this CAFO and to execute and
legally bind that party to it.
17. The parties agree that settlement of this matter is in the public interest and that entry of
this CAFO is the most appropriate means of resolving this matter.
18. Pursuant to 40 C.F.R. §§ 22.18(b)(2) and 22.31(b), the executed Consent Agreement shall
become effective and binding when the Final Order is issued by the Environmental
Appeals Board (such date henceforth referred to as the "Effective Date").
VI. PENALTY
19. Respondent consents to the assessment of a civil penalty in the amount of five thousand
dollars ($5,000) in full and complete settlement of the claims set forth in the Complaint.
20. The civil penalty specified herein shall represent civil penalties assessed by Complainant
and shall not be deductible' for Federal tax purposes.
VII. PAYMENT TERMS
21. Pursuant to this Consent Agreement, the Respondent's five thousand dollars ($5,000)
civil penalty shall become due and payable within 30 calendar days after the Effective
Date; however, Respondent may pay such civil penalty amount in five (5) installment
payments, in the following amounts and according to the following schedule:
5
| Payment | Payment Amount Due | Principal | Interest | Total Amount |
|---|---|---|---|---|
| 1 | Within 30 calendar days after the Effective Date | $1,000.00 | $0.00 | $1,000.00 2 |
-
If Respondent chooses to pay in installments, interest of one percent (1%) per annum on
the outstanding principal will also be assessed. -
If Respondent chooses to pay the civil penalty in accordance with the installment
payment provisions of paragraph 21, Respondent may pay the entire five thousand dollars
($5,000) civil penalty within 30 calendar days after the Effective Date and, thereby, avoid
the incurrence and payment of interest pursuant to 40 C.F.R. § 13.11(a)(l), as described
in paragraph 27, below. -
Each payment made by Respondent shall reference "Jeffrey L. Nixon, Civil Penalty
Docket No. RCRA-HQ-2009-0001." Payments shall be made by one of the following
methods:a. Payment by check made payable to "United States Treasury"; 1. If sent via first-class mail, to: U.S. Environmental Protection Agency Cincinnati Finance Center P.O. Box 979077 St. Louis, MO 63197-9000 ii. If sent via UPS, Federal Express, or Overnight Delivery, to: U.S. Environmental Protection Agency Government Lockbox 979077 1005 Convention Plaza SL-MO-C2-GL St. Louis, MO 63101 (314) 418-1028 6 b. Via wire transfer, sent to: Federal Reserve Bank of New York ABA= 021030004 Account No= 68010727 SWIFT address= FRNYUS33 33 Liberty Street New York, NY 10045 Attn: "D 68010727 Environmental Protection Agency" c. Via Automated Clearinghouse (ACH), a/k/a Remittance Express (REX), to: US Treasury REX I Cashlink ACH Receiver ABA= 051036706 Account No.: 310006, Environmental Protection Agency CTX Format Transaction Code 22 Checking Contact Remittance Express (REX): 866-234-5681 Finance Center Contacts: Craig Steffen: 513-487-2091; [email protected] Molly Williams: 513-487 -2076; [email protected] d. Via on-line payment: WWW.PAY.GOV/PAYGOV Enter sfo 1.1 in the search field. Open and complete the form. e. Additional payment guidance is available at: http://www.epa.gov/ocfo/finservices/make_a_payment.htm -
Concurrent with each payment, Respondent shall forward a copy of the check or
documentation of a wire transfer or other receipt of payment to the following address:U.S. Environmental Protection Agency Office of Civil Enforcement Waste and Chemical Enforcement Division (2249A) Attn: James Miles 1200 Pennsylvania Ave., NW Washington, DC 20460 Phone: (202) 564-5161 E-mail: [email protected] 7 -
If Respondent elects to pay the civil penalty in accordance with the installment payment
procedure described in paragraph 21, above, but fails to make any installment payment in
accordance with the requirements and schedule set forth in paragraph 21, the entire
unpaid balance of the penalty and all accrued interest shall become due immediately upon
such failure, and Respondent immediately shall pay the entire remaining principal
balance of the civil penalty along with any interest that has accrued up to the time of such
payment. In addition, Respondent shall be liable for and shall pay administrative handling
charges and late payment penalty charges as described in paragraph 27 below, in the
event of any such failure or default. -
In the event that Respondent fails to pay any portion of the civil penalty as directed, the
following interest and late charges will accrue:a. Pursuant to 31 U.S.C. § 3717 and 40 C.F.R. § 13.11, EPA is entitled to 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, as more fully described below. Accordingly, Respondent's failure to make timely payment as required herein or to comply with the conditions in this CAFO shall result in the assessment of late payment charges including interest, penalties, and/or administrative costs of handling delinquent debts. b. Interest on the civil penalty assessed in this CAFO will begin to accrue on the date that a copy of this CAFO is mailed or hand-delivered to Respondent. However, Complainant will not seek to recover interest on any amount of the civil penalty that is paid within thirty (30) calendar days after the date on which it is due.· c. The costs of the Agency's administrative handling of overdue debts will be charged and assessed monthly throughout the period the debt is overdue. 40 C.F.R. § 13.11(b). Pursuant to Appendix 2 of EPA’s Resources Management Directives- Cash Management, Chapter 9, EPA will 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 such subsequent thirty (30) calendar days the penalty remains unpaid. d. A penalty charge, not to exceed six percent per year, will be assessed monthly on any portion of the civil penalty that remains delinquent more than ninety (90) calendar days. 40 C.F.R. § 13.11 (c). Should assessment of the penalty charge on the debt be required, it shall accrue from the first day payment is delinquent. 31 C.F.R. § 901.9(d). -
Failure of Respondent to remit the civil penalties provided herein will result in this matter
being forwarded to the United States Department of Justice for collection of the amount8due plus interest at the statutory judgment rate provided in 28 U.S.C. § 1961. This
Settlement shall constitute an enforceable judgment for purposes of post-judgment
collection in accordance with Rule 69 of the Federal Rules of Civil Procedure, the
Federal Debt Collection Procedure Act, 28 U.S.C. 3001 - 3308, and other applicable
authority. The United States shall be deemed a judgment creditor for purposes of
collection of unpaid amounts of the civil penalties and interest. Respondent shall be liable
for attorney's fees and costs incurred by the United States to collect any amounts due
under, or enforce any provision(s) of this Settlement.VIII. RESERVATION OF RIGHTS AND COVENANT NOT TO SUE
-
Entry of this CAFO is a final settlement of all violations alleged in the Complaint.
Complainant reserves the right to commence an action against any person, including
Respondent, in response to any condition that Complainant determines may present an
imminent and substantial endangerment to the public health, public welfare, or the
environment. In addition, this settlement is subject to all limitations on the scope of
resolution and to the reservation of rights set forth in Section 22.18(c) of the
Consolidated Rules of Practice, 40 C.F.R. § 22.18(c). -
Complainant reserves the right to institute a new and/or separate action should
Respondent fail to comply with the terms of this CAFO. That right shall be in addition to
all other rights and causes of action, civil or criminal, Complainant may have under law
or equity in such event. -
By his signature below, Respondent certifies that the information submitted to EPA
regarding Respondent's ability to pay civil penalties and regarding any other matter at
issue in this proceeding is accurate. Respondent is aware that the submission of false or
misleading information to the United States government may subject a person to separate
civil and/or criminal liability. Complainant reserves the right to seek and obtain
appropriate relief, including but not limited to the right to institute a new and separate
action to recover additional civil penalties for the claims made in the Complaint, if
Complainant obtains evidence that the information provided and/or representations made
by Respondent to Complainant regarding Respondent's claim of inability to pay, or
regarding any other matter herein at issue, are false or, in any material respect, inaccurate.
This right shall be in addition to all other rights and causes of action, civil or criminal,
that Complainant may have under law or equity in such event. -
Respondent releases, forever discharges, and holds harmless (i) the United States of
America, (ii) its agencies and departments, and (iii) its current and former
representatives, officers, agents, attorneys, contractors, and employees, from any and all
actions, causes of action, suits, proceedings, debts, judgments, damages, claims or
demands whatsoever in law or equity which Respondent, its heirs, successors or9
.
assignees ever had, now have or may have, whether known or unknown, relating to or
arising from all violations alleged in the Complaint.
33. Nothing in this CAFO is intended to, nor shall be construed to operate in any way to
resolve any criminal liability of Respondent.
10
WE HEREBY AGREE TO THIS:
For Complainant: For Respondent:
ego
Acting Director
Waste and Chemical Enforcement Division
Office of Civil Enforcement
Office of Enforcement and Compliance Assurance
United States Environmental Protection Agency
Date: 2/8/16
~
Attorney
Waste and Chemical Enforcement Division
Office of Civil Enforcement
Office of Enforcement and Compliance Assurance
United States Environmental Protection Agency
Date: 2/8/16
~~1+-~,~-=-~~-
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