TForce Freight, Inc. (Board decision, December 8, 2022)
In re TForce Freight, Inc. (EAB RCRA 3008 22-03C): hazardous-waste compliance settlement approved
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This is citable Board precedent from 2022, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.
Plain-English summary
TForce Freight, Inc. operated 174 freight distribution and transportation facilities that generated hazardous waste. EPA alleged that the company failed in some instances to file accurate hazardous-waste notifications, meet generator requirements, complete land-disposal determinations, submit required annual or biennial reports, and prepare compliant manifests. The parties settled without TForce admitting or denying the specific factual allegations or alleged violations. The EAB-approved settlement requires corrective work within 36 months, certification of correction within 24 months, and payment of an $860,400 civil penalty within 30 days of the effective date.
Decision snapshot
- Cited authorities: RCRA sections 3002, 3004, 3005, 3008, and 3010; 42 U.S.C. §§ 6922, 6924, 6925, 6928, and 6930; 40 C.F.R. parts 22, 260, 261, 262, and 268
- Outcome: The Consent Agreement and Final Order were approved, TForce was ordered to complete compliance work, and an $860,400 civil penalty was assessed.
- Key point: The settlement combines a substantial civil penalty with facility-wide corrective work for hazardous-waste generator, reporting, land-disposal, and manifesting requirements.
Full text (EPA EAB public release)
F I L E D
Dec 08, 2022
Clerk, Environmental Appeals Board
ENVIRONMENTAL APPEALS BOARD INITIALS ________________________
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C.
)
In re: )
)
TForce Freight, Inc. ) Docket No. RCRA-HQ-2022-0943
)
)
)
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: December 8, 2022 By: ________
Wendy L. Blake
Environmental Appeals Judge
1
The three-member panel ratifying this matter is composed of Environmental Appeals
Judges Aaron P. Avila, Wendy L. Blake, and Mary Kay Lynch.
CERTIFICATE OF SERVICE
I certify that copies of the foregoing “Consent Agreement” and “Final Order” in the
matter of TForce Freight, Inc., Docket No. RCRA-HQ-2022-0943, were sent to the following persons in the manner indicated:
By Email
Marcia E. Moncrieffe
Attorney-Advisor
Office of Regional Counsel
U.S. EPA, Region 6
1201 Elm Street, Suite 500
Dallas, TX 75270
[email protected]
Lauren Stroyeck
Attorney-Advisor
Waste and Chemical Enforcement Division
Office of Civil Enforcement
Office of Enforcement and Compliance Assurance
U.S. EPA
1200 Pennsylvania Ave. NW
MC-2249A
Washington DC 20460
[email protected]
Josiane Langlois
VP, Legal Affairs & Corporate Secretary
VP, affaires juridiques & secretaire corporative
TFI International Inc.
[email protected]
James O’Brien
Counsel for TForce Freight, Inc.
Dean & Fulkerson, P.C.
100 W. Big Beaver, Suite 650
Troy, MI 48084-5208
[email protected]
Dated: ____
Dec 08, 2022 ______
Emilio Cortes
Clerk of the Board
BEFORE THE ENVIRONMENTAL APPEALS BOARD
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C.
IN THE MATTER OF: § EPA Docket No.
§ RCRA-06-2022-0943
TFORCE FREIGHT, INC., §
§
§ Proceeding Under Section 3008(a) of the
RESPONDENT § Resource Conservation and Recovery Act
§ 42 U.S.C. § 6928(a)
§
§
________
CONSENT AGREEMENT AND FINAL ORDER
I. PRELIMINARY STATEMENT
1. This Consent Agreement and the attached proposed Final Order (collectively, the “CAFO”)
is entered into by the United States Environmental Protection Agency (“EPA” or “Complainant”),
and TForce Freight, Inc., a Virginia corporation (“TForce” or “Respondent”) and concerns
Respondent’s locations listed in Appendix I1 to this CAFO (the “Facilities”).
2. Pursuant to Section 3008(a)(2) of the Resource Conservation and Recovery Act (“RCRA”),
42 U.S.C. § 6928(a)(2), notice of the commencement of this action has been given to each state listed
in Appendix I with an authorized RCRA program (“Authorized States”).2 EPA also informed Iowa
and affected federally-recognized Indian tribes for which EPA generally administers the RCRA
program.
3. Each of the Authorized States listed in Appendix I administers the base RCRA hazardous
waste program requirements imposed by the Solid Waste Disposal Act (prior to the Hazardous and
1
Appendix I represents all TForce locations that currently exist in all of EPA’s regions, except locations in EPA, Region 6. 2 Each state listed in Appendix I to this CAFO has an authorized RCRA program, except Iowa. Docket No. RCRA-06-2022-0943
Solid Waste Amendments of 1984) in lieu of the federal government’s program. Thus, where
applicable, citations to the Code of Federal Regulations (“C.F.R”) is a citation to the corresponding
regulations contained within the Affected State’s or Territory’s authorized RCRA hazardous waste
program.
4. For this proceeding, Respondent admits the jurisdictional allegations herein; however,
Respondent neither admits nor denies the specific factual allegations and alleged violations of law
contained in this CAFO.
5. The Respondent explicitly waives any right to contest the allegations set forth in this CAFO
and any right to appeal the proposed Final Order set forth herein. 40 C.F.R. § 22.18(b)(2). Further,
for purposes of this proceeding, Respondent waives all defenses which have been raised or could
have been raised to the claims set forth in this CAFO.
- Respondent consents to the issuance of this CAFO hereinafter recited, consents to the
assessment and payment of the stated civil penalty in the amount and by the method set out in this
CAFO, and consents to the specific time period and requirements stated in Section IV (Compliance
Order).
- Respondent and Complainant (the “Parties”), by the execution and filing of this
CAFO, have agreed to resolve the potential violations and claims alleged in this CAFO for the
Facilities.
- By their signatures to this CAFO, the Parties agree to the use of electronic signatures for this
matter. The Parties further agree to electronic service of this CAFO, pursuant to 40 C.F.R. § 22.6,
by email to the following addresses: EPA, [email protected] and for Respondent,
[email protected] and [email protected].
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Docket No. RCRA-06-2022-0943
II. JURISDICTION
9. This CAFO is issued by EPA, pursuant to Section 3008(a) of RCRA, 42 U.S.C. §
6928(a), as amended by the Hazardous and Solid Waste Amendments of 1984 (“HSWA”) and is
simultaneously commenced and concluded through the issuance of this CAFO under 40 C.F.R. §§
22.13(b) and 22.18(b)(2) and (3). The Director of the Waste and Chemical Enforcement Division,
Office of Enforcement and Compliance Assurance, Gregory Sullivan, is authorized by lawful
delegation, to initiate and settle civil administrative actions brought pursuant to Section 3008(a) of
RCRA, 42 U.S.C. § 6928(a).
10. Respondent agrees to undertake and complete all actions required by the terms and
conditions of this CAFO. In any action by EPA or the United States to enforce the terms of this
CAFO, Respondent agrees not to contest the authority or jurisdiction of the Administrator of EPA to
issue or enforce this CAFO, and agrees not to contest the validity of this CAFO or its terms and
conditions.
III. FACTUAL ALLEGATIONS AND ALLEGED VIOLATIONS
11. TForce Freight, Inc., is a corporation authorized to do business in all the states in which
Appendix I Facilities are located that are subject to this CAFO.
12. From April 30, 20213 and continuing through the date of the filing of this CAFO, Respondent
owned and/or operated each of the Facilities at the corresponding and respective addresses listed in
Appendix I, which are the subject of this CAFO.
13. TForce operates a freight distribution and transportation operation at 174 Facilities listed in
Appendix I of this CAFO. The volume of small packages and freight that pass through the Facilities
3
The 174 facilities that are the subject of this CAFO were owned by UPS Ground Freight, Inc., which was a subsidiary of United Parcel Services, Inc., (“UPS”) until April 30, 2021. On April 30, 2021, TForce acquired UPS Ground Freight, Inc., and on May 6, 2021, the merger of UPS Ground Freight, Inc., and TForce became effective in the Commonwealth of Virginia, effectively changing the name of the business to TForce, pursuant to the certificate of merger.
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Docket No. RCRA-06-2022-0943
on a daily basis varies and depends on many factors, including time of year, weather, and location of
each Facility.
14. Some Facilities are large hubs that accommodate over the road semi-trucks and trailers
and/or air freight, which are then sorted and redistributed categorically to smaller hubs for packages
to make their way to designated destinations.
15. Some Facilities have loading docks for receipt and redistribution of packages, including
spaces for fleet maintenance and various storage structures.
16. Many of these Facilities operate 24 hours a day, seven days a week.
17. Respondent’s business is primarily shipping and receiving freight, with the NAICS
codes 484122, 484121, 492210, and 49211, respectively General Freight, Trucking, Long-distance,
Less than Truck Load, General Freight, Trucking, and Long-distance Truck Load. The Facilities
may generate hazardous waste when a package is damaged.
18. From 2018 and continuing through the date of the filing of this CAFO, Respondent and/or
United Parcel Service, Inc. (“UPS”), who also owned UPS Ground Freight, Inc., submitted various
Section 3010(a) of RCRA, 42 U.S.C. § 6930(a), notifications for the Facilities listed in Appendix I
to this CAFO, which identified the Facilities as conditionally exempt small quantity generator or
very small quantity generator (“CESQG” or VSQG”),4 a small quantity generator (“SQG”), or as a
large quantity generator (“LQG”).
4
On November 28, 2016, EPA published in the Federal Register (“Fed. Reg”) the Hazardous Waste Generator Improvements Rule (the “New Rule”), which became effective on May 30, 2017. 81 Fed. Reg. 85732 (November 28, 2016). However, it should be noted that provisions of the New Rule that are more stringent than current rules in the Authorized States will become effective in each state when each state has adopted the New Rule. Further, since the New Rule was issued under Non-HSWA authority, EPA will enforce the New Rule when it is authorized in states that have authorization for the Base RCRA Programs. EPA will also enforce the New Rule in Indian country, as appropriate. Further, the New Rule no longer uses the term CESQG but instead uses Very Small Quantity Generator (“VSQG”). As the timeframe for some of the allegations in this CAFO applies across the New Rule and the previous Rule, this CAFO, where applicable to the issue of CESQG or VSQG, cites both rules.
4
Docket No. RCRA-06-2022-0943
- On or about February 7, 2019, and November 15, 2019, the Arkansas Department of
Environmental Quality (“AR DEQ”) conducted RCRA inspections at the Fort Smith facility, which
is located at 6715 S. 28th Street, Fort Smith, Arkansas and concluded that certain waste streams
generated during the facility’s operations are subject to Arkansas Pollution Control and Ecology
Commission’s promulgated Rule 23, Part 262 and 40 C.F.R. Part 262.
- Subsequent to the inspections, AR DEQ referred the case to EPA, Region 6 for further
investigation.
- Subsequent to the review of AR DEQ’s inspections, EPA, Region 6 also reviewed several
state inspections for various facilities in the region. EPA, Region 6 reviewed the Respondent’s
records in the EPA RCRAInfo database, Texas STEERS data/Central Registry, EPA’s Biennial
Reports, and E-Manifests, for certain Region 6 facilities, as well as additional information
voluntarily provided to EPA by Respondent (“Investigation”).
- As a result of the Investigation, EPA, Region 6 contacted United Parcel, Services, Inc,
(“UPS”) in May 2020 and communicated EPA, Region 6’s findings. At the initial stages of the
EPA, Region 6 negotiations, the Facilities listed here in Appendix I to this CAFO were all owned by
UPS.
- Between May of 2020 and June 2021, EPA, Region 6, UPS, and TForce participated in
settlement discussions and arrived at a settlement for all of TForce’s active facilities in EPA, Region
6 by the filing of an EPA, Region 6 CAFO on June 8, 2021.
- Following the EPA, Region 6 settlement, EPA expanded the Investigation beyond the
facilities located in EPA, Region 6. From its further investigation, EPA identified similar claims to
those alleged in EPA, Region 6’s settlement (“Investigation-2”). With this additional information,
EPA contacted TForce and the Parties engaged in further discussions that led to them agreeing to
5
Docket No. RCRA-06-2022-0943
enter into a similar settlement for the Facilities listed in Appendix I of this CAFO.
25. Respondent is a “person” within the meaning of Section 1004(15) of RCRA, 42
U.S.C. § 6903(15) and 40 C.F.R. § 260.10.
26. From April 30, 2021, and continuing through the date of the filing of this CAFO, each of
Respondent’s Facilities listed in Appendix I to this CAFO was and continues to be a “Facility”5 as
defined under 40 C.F.R. § 260.10.
27. From April 30, 2021, and continuing through the date of the filing of this CAFO, Respondent
was and continues to be an “owner” and/or “operator” of the Facilities as defined under 40 C.F.R. §
260.10.
28. Based on the information EPA gathered during its Investigation-2, and without a nationwide
investigation, EPA has determined that Respondent generates several “solid waste” streams from
certain of its Facilities within the meaning of Section 1004(28) of RCRA, 42 U.S.C. § 6903(28) and
40 C.F.R. § 260.10.
29. Based on the information EPA gathered during its Investigation-2, and without a nationwide
investigation, EPA has determined that from April 30, 2021, and continuing through the date of the
filing of this CAFO, Respondent generated, accumulated, and offered for transport and treatment
and/or disposal, at a minimum, the following hazardous waste streams, generated from certain of its
Facilities:
i. Ignitable, corrosive, and reactive characteristic wastes with the hazardous
waste codes, respectively, D001, D002, and D003;
ii. Toxicity characteristic wastes with the hazardous waste codes D004, D005,
D006, D007, D008, D009, D010, D016, D018, D019, D021, D026, D027,
D028, D029, D035, D039, D040, which correspond respectively to arsenic,
barium, cadmium, chromium, lead, mercury, selenium, 2,4-D, benzene,
carbon tetrachloride, chlorobenzene, cresol, 1,4-dichlorobenzene, 1,2-
5
For purposes of this CAFO, the term “Facility” means one of the Facilities listed in Appendix I of this CAFO.
6
Docket No. RCRA-06-2022-0943
dichloroethane, 1,1-dichloroethylene, methyl ethyl ketone,
tetrachloroethylene, and trichloroethylene;
iii. Listed hazardous wastes, with the hazardous waste codes F002, F003, F005,
U002, U003, U044, U056, U080, U111, U112, U117, U118, U122, U125,
U154, U159, U161, U165, U210, U220, U228, U238, U239; and
iv Acute hazardous waste, with the hazardous waste codes P075 and P105.
- The hazardous wastes identified in Paragraph 29 are “hazardous waste” as defined in 40
C.F.R. §§ 261.21, 261.22, 261.23, 261.24, 261.31, and 261.33.
- Based on the information EPA gathered during its Investigation-2, and without a nationwide
investigation, EPA has determined that Respondent is a “generator” of “hazardous waste” at each of
its Facilities, as those terms are defined in 40 C.F.R. § 260.10.
- Based on the information EPA gathered during its Investigation-2, and without a nationwide
investigation, EPA has determined that from April 30, 2021, and continuing through the date of the
filing of this CAFO, Respondent generated the hazardous wastes identified in Paragraph 29 in
quantities that exceeded in some instances the threshold amount of 100 kg of hazardous waste per
month and in other instances the threshold amount of 1000 kg of hazardous waste per month or 1 kg
of acute hazardous waste per month at certain of its Facilities in one or more calendar months, and
that waste generation would have triggered SQG status or LQG status, respectively, pursuant to 40
C.F.R. Part 262, for the period that such wastes remained onsite.
- Based on the information EPA gathered during its Investigation-2, and without a nationwide
investigation, EPA has determined that solid waste generated from Respondent’s Facilities are
determined to be hazardous waste, are the subject of this CAFO, and must be managed pursuant to
the applicable regulations at 40 C.F.R. Parts 261 and 262, and all the applicable regulations
referenced therein.
7
Docket No. RCRA-06-2022-0943
- Based on the information EPA gathered during its Investigation-2, and without a nationwide
investigation, EPA has determined that Respondent did not fully comply with several of the
applicable generator standards in violation of the laws and regulations of RCRA promulgated at
Sections 3002, 3004, and 3005 of RCRA, 42 U.S.C. §§ 6922, 6924, and 6925.
RCRA ALLEGATIONS
Claim i. Failure to File an Adequate, Accurate Initial or Subsequent Notification
- The relevant allegations in Paragraphs 1-34 are realleged and incorporated herein by
reference.
- Pursuant to 40 C.F.R. §§ 261.5(a) and (b), a generator is a CESQG in a calendar month if it
generates no more than 100 kilograms of hazardous waste and complies with 40 C.F.R. §§ 261.5(f),
(g), and (j).
- Pursuant to 40 C.F.R. § 262.34(d), a generator is a SQG if it generates greater than 100
kilograms but less than 1000 kilograms of hazardous waste in a calendar month and complies with
40 C.F.R. §§ 262.34(d)(1) through (5).
- Based on the information EPA gathered during its Investigation-2, and without a nationwide
investigation, EPA has determined that some of the Facilities in Appendix I should have been
operating as a LQG and other Facilities should have been operating as a SQG at certain times from
2021 and continuing through the date of the filing of this CAFO.
- Pursuant to Section 3010(a) of RCRA, 42 U.S.C. § 6930(a), any person generating a
characteristic or listed hazardous waste shall file with the Administrator or with states having
authorized hazardous waste permit programs a notification stating the location and general
description of such activity and the identified characteristic or listed hazardous wastes handled by
such person.
8
Docket No. RCRA-06-2022-0943
- In some instances, from April 30, 2021, and continuing through the date of the filing of this
CAFO, Respondent did not file with the Administrator or the authorized state an initial or
subsequent notification of its hazardous waste activities for certain of its Facilities in Appendix I.
- In other instances, from April 30, 2021, and continuing through the date of the filing of this
CAFO Respondent did not file with the Administrator or the authorized state subsequent
notifications of its hazardous waste activities for certain of its Facilities, including:
a) Identifying itself as a LQG or SQG;
b) Identifying the contact person; and
c) Indicating its generation of all hazardous waste streams at its LQG and SQG
Facilities, including its P and U listed Hazardous wastes at certain LQG Facilities.
- Based on the information EPA gathered during its Investigation-2, and without a nationwide
investigation, EPA has determined that from April 30, 2021, and continuing through the date of the
filing of this CAFO, Respondent failed to comply fully with Section 3010(a) of RCRA, 42 U.S.C. §
6930(a), and is therefore subject to civil penalties pursuant to Section 3008(a) of RCRA, 42 U.S.C. §
6928(a).
Claim ii. Failure to Meet the Requirements for Large, Small, and Conditionally Exempt Small
Quantity Generators or Very Small Quantity Generators
43. The relevant allegations in Paragraphs 1-42 are realleged and incorporated herein by
reference.
44. Based on the information EPA gathered during its Investigation-2, and without a nationwide
investigation, EPA has determined that some of the Facilities should have been operating as LQGs
and some of the Facilities should have been operated as SQGs.
45. Pursuant to 40 C.F.R. §§ 262.34(a) and (b), a generator of 1000 kilograms or greater of
hazardous waste in a calendar month or greater than one (1) kilogram of acute hazardous waste in a
9
Docket No. RCRA-06-2022-0943
calendar month, may accumulate hazardous waste or acute hazardous waste on-site for 90 days or
less without a permit or without having interim status, provided that certain conditions are met.
- Based on the information EPA gathered during its Investigation-2, and without a nationwide
investigation, EPA has determined that from April 30, 2021, and continuing through the date of the
filing of this CAFO: (1) Respondent did not fully comply with the required LQG conditions at some
Facilities as set forth at 40 C.F.R. § 262.34(a); (2) Respondent did not fully comply with the required
SQG conditions at some Facilities as set forth at 40 C.F.R. § 262.34(d); and (3) Respondent did not
fully comply with the required CESQG or VSQG conditions at some Facilities as set forth at 40
C.F.R. §§ 261.5(a) and (b) or 40 C.F.R. § 262.14. .
- Based on the information EPA gathered during its Investigation-2, and without a nationwide
investigation, EPA has determined that from April 30, 2021, and continuing through the date of the
filing of this CAFO, Respondent did not fully comply with 40 C.F.R. §§ 261.5, 262.14, 262.34(a),
(b), and (d), and is therefore subject to civil penalties pursuant to Section 3008(a) of RCRA, 42
U.S.C. § 6928(a).
Claim iii. Failure to Perform Land Disposal Determination
-
The relevant allegations in Paragraphs 1-47 are realleged and incorporated herein by reference.
-
Pursuant to 40 C.F.R. §§ 268.7(a)(2) or 268.7(a)(3)(i), and in accordance with all applicable
requirements of the Land Disposal Restrictions (“LDR”) found at 40 C.F.R. Part 268, at a minimum,
a generator must send a one-time written notice and place a copy in its file documenting either that
the waste does not meet treatment standards, or that the generator chooses not to make the
determination as to whether the waste must be treated, with its initial shipment of waste sent to each
treatment, storage, or disposal facility.
- Based on the information EPA gathered during its Investigation-2, and without a nationwide
10Docket No. RCRA-06-2022-0943
investigation, EPA has determined that from April 30, 2021, and continuing through the date of the
filing of this CAFO, in some instances, Respondent did not send the one-time written notice to each
treatment, storage, and/or disposal facility and, in other instances, the written notice that was sent did
not include all waste codes for the associated waste streams generated by Respondent at some of its
Facilities.
51. Based on the information EPA gathered during its Investigation-2, and without a nationwide
investigation, EPA has determined that from April 30, 2021, and continuing through the date of the
filing of this CAFO, Respondent has violated 40 C.F.R. § 268.7 of the LDR regulations and is
therefore subject to civil penalties pursuant to Section 3008(a) of RCRA, 42 U.S.C. § 6928(a).
Claim iv. Failure to Submit Annual/Biennial Report
52. The relevant allegations in Paragraphs 1-51 are realleged and incorporated herein by
reference.
53. Pursuant to 40 C.F.R § 262.41, a large quantity generator who ships any hazardous waste
off-site for treatment, storage and/or disposal, must prepare and submit a Biennial Report to EPA’s
Regional Administrator by March 1 of each even-numbered year, in addition to any reporting
required by the states.6
54. Based on the information EPA gathered during its Investigation-2, and without a nationwide
investigation, EPA has determined that from April 30, 2021, and continuing through the date of the
filing of this CAFO, the EPA and/or the respective states did not receive Annual/Biennial Reports
that Respondent was required to file for some of its Facilities.
55. Based on information EPA gathered during its Investigation-2, EPA determined that from
April 30, 2021, and continuing through the date of the filing of this CAFO, Respondent failed to
6
In some states, SQGs are required to submit annual reports.
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Docket No. RCRA-06-2022-0943
comply with 40 C.F.R. § 262.41 and is therefore subject to civil penalties pursuant to Section
3008(a) of RCRA, 42 U.S.C. § 6928(a).
Claim v. Failure to Comply with the Manifest Requirements
- The relevant allegations in Paragraphs 1-55 are realleged and incorporated herein by
reference.
- Pursuant to 40 C.F.R. § 262.20(a), a generator shall not offer its hazardous waste for
shipment unless it prepares a standard manifest form (EPA Form 8700-22) and includes the
respective state’s waste code for each hazardous waste itemized on the manifest.
- Based on the information EPA gathered during its Investigation-2, and without a nationwide
investigation, EPA has determined that in some instances, Respondent did not prepare all the
manifests for some of its Facilities as required by the regulations. For instance, EPA identified
Respondent’s manifests with the following errors, irregularities, and/or inconsistencies:
a. Incorrect generator identification number for specific Facilities;
b. Manifests without signatures;
c. No EPA identification number;
d. Missing state’s waste codes; and/or
e. Incorrect addresses.
- Based on the information EPA gathered during its Investigation-2, and without a nationwide
investigation, EPA has determined that from April 30, 2021, and continuing through the date of the
filing of this CAFO, Respondent failed to comply with 40 C.F.R. § 262.20(a) and is therefore subject
to civil penalties pursuant to Section 3008(a) of RCRA, 42 U.S.C. § 6928(a).
IV. COMPLIANCE ORDER
- Pursuant to Section 3008(a) of RCRA, 42 U.S.C. § 6928(a) and within thirty-six (36)
12Docket No. RCRA-06-2022-0943
months of the Effective Date of this CAFO, Respondent is hereby ordered to take the actions
necessary to correct the violations alleged in Section III of this CAFO. To correct the alleged
violations, Respondent has agreed to undertake the Work7 set forth in Appendix II (The RCRA
Narrative and Compliance Schedule)8 of this CAFO pursuant to the description and schedules set
forth therein. Such Work under Appendix II (The RCRA Narrative and Compliance Schedule) will
include the implementation of mechanisms and procedures for accurate and complete performance
for: (1) hazardous waste determinations; (2) Section 3010 RCRA Notification submissions; (3)
Employee training; (4) Annual and biennial hazardous waste reporting; (5) Land Disposal
Restrictions; (6) management of hazardous waste while on site, to include contingency plans and
emergency procedures; and (7) manifesting requirements. Further, Respondent shall certify in
writing:
a) Within twenty-four (24) months of the Effective Date of this CAFO that it has corrected the
violations at its Facilities as alleged in this CAFO;
b) If Respondent cannot meet the timeline listed above and will need to delay compliance for
less than ninety (90) calendar days, Respondent shall notify EPA and request an extension of
time, including a timetable for compliance. EPA will grant an extension of up to ninety (90)
calendar days. If Respondent determines that it needs longer than the additional ninety (90)
calendar days to come into compliance, then Respondent will need to initiate a conference
call with EPA to discuss the rationale for the delay, before the extension will be granted;
c) If Respondent remains noncompliant with the terms of this CAFO including Appendix II
(RCRA Compliance Narrative and Schedule) after a ninety (90) day extension period, then
for as long as Respondent remains noncompliant with the terms of this CAFO and is unable
to certify its full compliance with all applicable RCRA laws and regulations, state and/or
federal, and pursuant to Subparagraph d) of this Section, Section V.ii (Stipulated Penalties)
of this CAFO will be applicable; and
7
For purposes of this CAFO, “Work” shall mean all activities, including those delineated in the Appendix II (The RCRA Narrative and Compliance Schedule) to be implemented by Respondent to demonstrate and achieve compliance with all applicable RCRA laws and regulations, state and/or federal. 8 If for any reason, there is a conflict with Appendix II (The RCRA Narrative and Compliance Schedule) and/or its Attachment A, and this CAFO or any applicable Federal and/or state laws or regulations, the CAFO and the Federal and/or state law shall control.
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Docket No. RCRA-06-2022-0943
d) In all instances in which this CAFO requires written submission to EPA, the submittal made
by Respondent shall be signed by an owner or officer or officer’s designee of the Respondent
and shall include the following certification:
I certify under the penalty of law that this document and all its attachments
were prepared by me or under my direct supervision in accordance with a
system designed to assure that qualified personnel properly gathered and
evaluated the information submitted. Based on my inquiry of the person or
persons who manage the system, or those persons directly responsible for
gathering the information, the information submitted is, to the best of my
knowledge and belief, true, accurate, and complete. I am aware that
there are significant penalties for submitting false information, including
the possibility of fine and imprisonment for knowing violations.
e) Copies of all documents required by this CAFO shall be sent to the following:
U.S. EPA, Region 6
Fred Deppe via email at [email protected].
V. TERMS OF SETTLEMENT
i. Penalty Provisions
- Pursuant to the authority granted in Section 3008(g) of RCRA, 42 U.S.C. § 6928(g)
and upon consideration of the entire record herein, including the above referenced Factual
Allegations and Alleged Violations, which are hereby adopted and made a part hereof, upon the
seriousness of the alleged violations, and Respondent’s good faith efforts to comply with the
applicable regulations, which includes Respondent’s cooperation throughout the negotiation, it is
ordered that Respondent be assessed a civil penalty of Eight Hundred and Sixty Thousand Four
Hundred Dollars ($860,400.00) that shall be paid by Respondent within thirty (30) days of the
Effective Date of this CAFO.
- If Respondent should decide to sell or in any way relinquish ownership of any of the
Facilities before this CAFO is terminated, Respondent remains responsible for full payment of the
Eight Hundred and Sixty Thousand Four Hundred Dollars ($860,400.00) made payable to the
Treasurer of the United States. The payments shall be made by Respondent by one of the
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Docket No. RCRA-06-2022-0943
following four (4) methods:
a) By standard mail: a bank check, cashier’s check, or certified check payable to
“Treasurer, 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
Or:
For signed receipt confirmation (Fedex, DHL, UPS, USPS certified, registered, etc.)
a bank check, cashier’s check, or certified check payable to “Treasurer, United
States,” to the following address:
U.S. Environmental Protection Agency
Government Lockbox 979077
1005 Convention Plaza
SL-MO-C2-GL
St. Louis, MO 63101
b) By wire transfer to:
Federal Reserve Bank of New York
ABA: 021030004
Account No. 68010727
SWIFT address: FRNYUS33
33 Liberty Street
New York, NY 10045
Beneficiary: US Environmental Protection Agency
*Note: Foreign banks must use a United States Bank to send a wire
transfer to the US EPA.
c) By automatic clearing house (ACH) payment through Vendor Express using:
US Treasury REX/Cashlink ACH Receiver
ABA: 051036706
Account Number: 310006, Environmental Protection Agency
CTX Format Transaction Code 22 - checking
Physical Location of US Treasury Facility:
5700 Rivertech Court
Riverdale, MD 20737
Remittance Express (REX): 1-866-234-5681
15
Docket No. RCRA-06-2022-0943
d) Through www.pay.gov using a credit or debit card (Visa, MasterCard, American
Express, and Discover) or checking account information.
“In the matter of TForce Freight, Inc., Docket No. RCRA-HQ-2022-0943” shall be clearly marked on
the check or other remittance, to ensure proper credit.
- The Respondent shall send a simultaneous notice of such payment to the following:
U.S. Environmental Protection Agency Clerk of the Board Environmental Appeals Board 1200 Pennsylvania Avenue, N.W. (MC 1103M) Washington, D.C. 20460-0001 Marcia E. Moncrieffe, Attorney-Advisor Office of Regional Counsel U.S. EPA, Region 6 1201 Elm St., Suite 500 Dallas, TX 75270 [email protected]
Your adherence to this request will ensure proper credit is given when penalties are received by EPA.
- 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 cost of process and handling a delinquent claim. Interest on the civil
penalty assessed in this CAFO will begin to accrue on the Effective Date of the CAFO and will be
recovered by EPA on any amount of the civil penalty that is not paid within thirty (30) calendar days
of the civil penalty’s due date and 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 overdue debts will be charged and assessed monthly throughout the period
the debt is overdue. 40 C.F.R. § 13.11(b). EPA will also assess a fifteen dollar ($15.00)
administrative handling charge for administrative costs on unpaid penalties for the thirty (30)-day
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Docket No. RCRA-06-2022-0943
period after the payment is due and an additional fifteen dollars ($15.00) for each subsequent thirty
(30)-day period 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. 40 C.F.R. § 13.11(b).
- Should a penalty charge on the debt be required, it shall accrue from the first day
payment is delinquent. 31 C.F.R. § 901.9(d). Other penalties for failure to make a payment may
also apply. Further, penalties paid pursuant to this CAFO are not deductible for federal purposes
under 26 U.S.C. § 162(f).
ii. Stipulated Penalties
- In addition to any other remedies or sanctions available to EPA, if the Respondent fails or
refuses to comply with any provision of this CAFO and within the agreed upon time period, then the
Respondent shall pay stipulated penalties in the following amounts for each day during which each
failure or refusal to comply continues:
Period of Penalty Per
Failure to Comply Violation Per Day
1st through 15th day $1,500.00
16th through 30th day $2,000.00
31st day and beyond $10,000.00
- Penalties shall accrue from the date of the noncompliance until the date the violation
is corrected and/or compliance is achieved, as determined by EPA. The payment of stipulated
penalties shall be made in accordance with the options set forth in Subsection Vi. (Penalty
Provisions) of this CAFO.
-
The Respondent shall send simultaneous notices of such payments to the following:
U.S. Environmental Protection Agency Clerk of the Board Environmental Appeals Board 17Docket No. RCRA-06-2022-0943
1200 Pennsylvania Avenue, N.W. (MC 1103M) Washington, D.C. 20460-0001 Marcia E. Moncrieffe. Attorney-Advisor Office of Regional Counsel U.S. EPA, Region 6 1201 Elm St., Suite 500 Dallas, TX 75270 [email protected] -
Adherence to these procedures in addition to Respondent’s compliance with the
provisions of Section V, concerning interest, penalties, and administrative costs, will ensure proper
credit when payments are received.
- If Respondent disputes the basis for imposition of stipulated penalties, then the issue shall
be resolved under the Dispute Resolution procedures of this CAFO. All stipulated penalties shall
continue to accrue through the period that the dispute resolution is ongoing. Invoking dispute
resolution shall not stay the accrual of stipulated penalties; however, the obligation to pay shall be
stayed pending resolution of the dispute.
iii. Dispute Resolution
- The dispute resolution procedures set forth in this Section shall be the exclusive mechanism
to resolve any disputes arising under or with respect to this CAFO.
- The Parties agree to meet and confer informally and in good faith to resolve all disputes
arising from this CAFO. If Respondent disagrees, in whole or in part, with any decision by EPA
regarding this CAFO, Respondent agrees to notify EPA, through the Chief of the Waste
Enforcement Branch, and the Parties agree to use best efforts to informally and in good faith resolve
their dispute. If EPA disagrees, in whole or in part, with any action or inaction taken by Respondent
under this CAFO, EPA agrees to notify Respondent, and the Parties agree to use their best efforts to
informally and in good faith resolve their dispute within thirty (30) days. If the Parties are unable to
18
Docket No. RCRA-06-2022-0943
resolve their dispute informally, and the Parties agree they have reached an impasse, they shall
submit the dispute to a neutral third-party mediator selected and agreed upon by the Parties and the
Parties shall participate in non-binding mediation consistent with 40 C.F.R. § 22.18(d).
iv. Notification
- Unless otherwise specified elsewhere in this CAFO, whenever written notice is required to
be given, whenever a report or other document is required to be forwarded by one party to another,
or whenever a submission or demonstration is required to be made, it shall be directed to the
individuals specified below at the email addresses given (in addition to any action specified by law
or regulation), unless these individuals or their successors give notice in writing to the other party
that another individual has been designated to receive the communication:
EPA: Mr. Fred Deppe
[email protected]
Respondent: Brendan Monaghan
Vice President, Engineering & Fleet
TForce Freight
856-298-3279
[email protected].
Norman Brazeau
Vice President, Real Estate
Vice President, Immobilier
TFI International Inc.
514-331-4383
[email protected].
Bill Preece
Vice President, Environment
TFI International Inc.
519-421-3300 Ext. 2244
[email protected].
With Copy to: Josiane Langlois
VP, Legal Affairs & Corporate Secretary
VP, affaires juridiques & secretaire corporative
TFI International Inc.
19
Docket No. RCRA-06-2022-0943
514-331-4113
[email protected]
James O’Brien
Counsel for TForce Freight, Inc.
Dean & Fulkerson, P.C.
100 W. Big Beaver, Suite 650
Troy, MI 48084-5208
[email protected]
v. Modification
- The terms, conditions, and compliance requirements of this CAFO may not be modified or
amended except upon the written agreement of the Parties and approved by the Environmental
Appeals Board (the “EAB”), and such modification or amendment being filed with the Clerk of the
EAB.
vi. Retention of Enforcement Rights
- EPA does not waive any rights or remedies available to EPA for any other violations by the
Respondent of federal or state laws, regulations, or permitting conditions.
- Except as specifically provided in this CAFO, nothing herein shall limit the power and
authority of EPA 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 each of Respondent’s Facilities.
Furthermore, nothing in this CAFO or the Region 6 CAFO issued previously to Respondent shall be
construed to prevent or limit EPA’s civil and criminal authorities, or that of other federal, state,
tribal, or local agencies or departments to obtain penalties or injunctive relief under other federal,
state, tribal, or local laws or regulations.
vii. Indemnification
- Neither EPA nor the United States Government shall be liable for any injuries or damages
to person or property resulting from the acts or omissions of the Respondent, its officers, directors,
20
Docket No. RCRA-06-2022-0943
employees, agents, receivers, trustees, successors, assigns, or contractors in carrying out the
activities required by this CAFO, nor shall EPA or the United States Government be held out as a
party to any contract entered into by a Respondent in carrying out the activities required by this
CAFO.
viii. Record Preservation
- Respondent shall preserve, during the pendency of this CAFO, all records in its possession
or in the possession of its employees, agents, contractors, or successors, which relates to
Respondent’s completion of the projects described in Appendix II (The RCRA Narrative and
Compliance Schedule) of this CAFO regardless of any document retention policy to the contrary.
ix. Cost
- 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 the Equal
Access to Justice Act (5 U.S.C. § 504), as amended by the Small Business Regulatory Enforcement
Fairness Act (P.L. 04-121), and any regulations promulgated pursuant to those Acts.
x. Termination and Satisfaction
- When Respondent believes that it has complied with all the requirements of this CAFO,
including compliance with Section IV (Compliance Order) and payment of the Subsection Vi. (Civil
Penalty), Respondent shall certify in writing and in accordance with the certification language set
forth in Section IV (Compliance Order), Paragraph 60 of this CAFO. Unless the EPA objects in
writing within sixty (60) days of EPA’s receipt of Respondent’s certification, this CAFO will be
terminated based on EPA’s receipt of Respondent’s certification.
- Respondent’s liability for federal civil penalties only is resolved for all claims and violations
alleged in Section III, Factual Allegations and Alleged Violations of this CAFO, as those claims and
21
Docket No. RCRA-06-2022-0943
violations relate to the Facilities listed in Appendix I. This CAFO does not affect the right of EPA or
the United States from taking action as provided by 40 C.F.R. § 22.18(c).
xi. Other Matters
- Notwithstanding any other provision of this CAFO, nothing in this CAFO shall be construed
to limit the authority of EPA to take any action against Respondent to address conditions that may
present an imminent and substantial endangerment to human health or the environment.
- EPA and Respondent agrees that Respondent has no obligations under this Consent
Agreement should it be rejected by the EAB; provided, however, in the event that the EAB expresses
any objections to, or its intent to reject this Consent Agreement, the Parties agree that they shall
exercise their mutual best efforts to address and resolve the EAB’s objections. The Parties shall
have the right to withdraw from this CAFO in the event they are unable to reach agreement on the
EAB’s proposed changes or objections.
-
The terms of this CAFO bind the Parties and their successors and assigns.
-
The undersigned representative of each party to this CAFO certifies that each is duly
authorized by the party whom he or she represents to enter into these terms and conditions and to
legally bind that party to this CAFO.
- The headings in this CAFO are for convenience of reference only and shall not affect the
interpretation of this CAFO.
- Appendix II and its Attachment A are marked as and considered Confidential Business
Information pursuant to 40 C.F.R. Part 2.
- This CAFO and the attached proposed Final Order shall become effective upon execution of
the Final Order by the EAB and filing with the Clerk of the EAB (“Effective Date”). 40 C.F.R. §§
22.18(b)(2) and 22.31(b).
22
Docket No. RCRA-06-2022-0943
THE UNDERSIGNED PARTIES AGREED AND CONSENTED TO:
FOR THE RESPONDENT: TForce Freight, Inc., a Virginia corporation:
Date: October 28th, 2022
_ ________
Norman Brazeau
Vice President, Real Estate
Vice President, Immobilier
TFI International Inc.
514-331-4383
[email protected].
[SIGNATURES CONTINUE ON NEXT PAGE]
23
Docket No. RCRA-06-2022-0943
FOR THE COMPLAINANT:
GREGORY Digitally signed by
GREGORY SULLIVAN
Date: __
SULLIVAN Date: 2022.11.08
09:13:48 -05'00'
________
Gregory Sullivan, Director
Waste and Chemical Enforcement Division
Office of Civil Enforcement
Office of Enforcement and Compliance
Assurance United States Environmental
Protection Agency
Digitally signed by MARCIA MONCRIEFFE
MARCIA DN: c=US, o=U.S. Government,
ou=Environmental Protection Agency,
cn=MARCIA MONCRIEFFE,
MONCRIEFFE 0.9.2342.19200300.100.1.1=68001003655
540
Date: __ ________
Date: 2022.10.31 10:45:45 -05'00'
Marcia E. Moncrieffe
Attorney-Advisor
Office of Regional Counsel
U.S. EPA, Region 6
1201 Elm St., Suite 500
Dallas, TX 75270
24
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