Arkema Inc. (Board decision, August 16, 2007)

Plain-English summary

Arkema Inc. operated a facility in Houston, Texas and manufactured carbon disulfide in an amount that triggered reporting under EPA's Toxic Substances Control Act Inventory Update Rule. EPA alleged that Arkema failed to report the substance on its 2002 Form U by the December 23, 2002 deadline. Arkema later filed an amended Form U after EPA notified the company of an inspection. The parties resolved the matter through a Consent Agreement without adjudication of the alleged violation, and the Environmental Appeals Board incorporated that agreement into a Final Order requiring compliance and assessing a $15,895 civil penalty.

Decision snapshot

• Cited authorities: TSCA §§ 3, 8(a), 11, 15(3)(B), and 16(a); 40 C.F.R. §§ 22.13, 22.18, 710.3, 710.26, 710.28(b), and 710.33(b); 28 U.S.C. § 1961.
• Outcome: Settled. The Consent Agreement was incorporated into the Final Order, and Arkema was assessed a $15,895 civil penalty.
• Key point: The Final Order resolved EPA's allegation that Arkema failed to report carbon disulfide as required by the Inventory Update Rule.

Full text (EPA EAB public release)

             BEFORE THE ENVIRONMENTAL APPEALS BOARD
         UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, D.C.

In the Matter of:
)
Arkema Inc. ) Docket Number TSCA-HQ-2007-5003
)
Respondent. )

                                 FINAL ORDER

         The United States Environmental Protection Agency as Complainant, and Arkema

Inc. as Respondent, the Parties herein, having signed and consented to entry of the attached
Consent Agreement incorporated by reference into this Final Order,

  NOW, THEREFORE, IT IS ORDERED THAT:

          1.     Respondent, Arkema Inc., shall comply with all terms of the Consent

Agreement;

        2.     Respondent is assessed a civil penalty of Fifteen Thousand Eight

Hundred Ninety-Five Dollars ($15,895.00); and

          3.    Respondent shall, in accordance with the payment provisions set forth in the

Consent Agreement, make payment via a certified or cashier's check or through a wire transfer as
described in the Consent Agreement.

IT IS SO ORDERED.

                               By: [signature]
                                      Environmental Appeals Board

                               Dated: 8/16/07


                         CERTIFICATE OF SERVICE

   I certify that the foregoing "Consent Agreement and Final Order," Arkema Inc.,

Docket No. TSCA-HQ-2007-5003, was filed and copies of the same were mailed to the parties as

indicated below:

(Interoffice) James Vinch, Esq.
Waste and Chemical Enforcement Division
Office of Civil Enforcement
U.S. Environmental Protection Agency
1200 Pennsylvania Ave., N.W. (Mail Code 2245A)
Washington, D.C. 20460
(202) 564-4168
Fax: (202) 564-0035

(U.S. Mail) Rebecca Bernstein, Esq.
Arkema Inc.
Headquarters facility
2000 Market Street
Philadelphia, PA 19103-3222
(215) 491-5890

                       Annette Duncan
                       Secretary
                       U.S. Environmental Protection Agency
                       1200 Pennsylvania Avenue, N.W.
                       Washington, DC 20460-0001

Dated: 8/20/07

             BEFORE THE ENVIRONMENTAL APPEALS BOARD
         UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, D.C.

In the Matter of:

Arkema Inc. Docket Number TSCA-HQ-2007-5003
Houston, TX

   Respondent


                           CONSENT AGREEMENT

   Complainant, United States Environmental Protection Agency (EPA or Agency) and

Respondent, Arkema Inc. (Respondent or the Company) (collectively, the Parties), having

consented to the entry of this Consent Agreement before the taking of any testimony and without

adjudication of any issues of law or fact, consent to the terms of this Consent Agreement and

attached Final Order.

                        I. PRELIMINARY STATEMENT

1. This civil administrative proceeding for the assessment of penalties pursuant to section

16(a) of the Toxic Substances Control Act (TSCA), 15 U.S.C. § 2615(a), is being simultaneously

commenced and concluded pursuant to 40 C.F.R. §§ 22.13(b) and 22.18(b)(2)-(3).

2. To avoid the disruption of orderly business activities and expense of protracted and costly

litigation, Respondent, for purposes of this proceeding: (1) admits that EPA has jurisdiction over

the subject matter in this Consent Agreement, and (2) consents to the terms of this Consent

Agreement and Final Order.

                    II. EPA'S FINDINGS OF FACT AND LAW

                                       COUNT I

3. EPA promulgated the Inventory Update Reporting (IUR) regulations (IUR Rule), 40

C.F.R. Part 710, pursuant to section 8(a) of TSCA, 15 U.S.C. § 2607(a).

4. Respondent, a corporation, with an operating facility located at 2231 Haden Road,

Houston, Texas 77015, is a "person" as defined by the IUR Rule, 40 C.F.R. § 710.3.

5. Respondent "manufactures" a "chemical substance," as defined by sections 3(2)(A) and

3(7) of TSCA, 15 U.S.C. §§ 2602(2)(A) and (7), and the IUR Rule, 40 C.F.R. § 710.3.

6. Respondent is subject to TSCA and regulations promulgated thereunder.

7. Pursuant to the IUR Rule, 40 C.F.R. § 710.28(b), unless an exclusion applies, "[a]ny

person who manufactured for commercial purposes 10,000 pounds (4,540 kilograms) or more of a

chemical substance [which is in the TSCA Master Inventory File] . . . at any single site owned or

controlled by that person at any time during the person's latest complete corporate fiscal year

before August 25, 1990, or before August 25 at four-year intervals thereafter" is subject to

recurring IUR reporting during the applicable reporting period.

8. A person subject to IUR reporting is required to file a Partial Updating of TSCA Inventory

Database Production and Site Report (Form U) with EPA.

9. The deadline for Form U submissions for the 2002 IUR period was December 23, 2002, 40

C.F.R. § 710.33(b).

10. During Respondent's latest complete corporate fiscal year prior to August 25, 2002,

Respondent manufactured for commercial purposes 10,000 pounds (4,540 kilograms) or more of

the chemical substance, carbon disulfide (Chemical Abstracts Service Registration Number

(CASRN) 75-15-0).

11. Carbon disulfide is included in the TSCA Master Inventory File, and is not excluded from

reporting under the IUR Rule, 40 C.F.R. § 710.26.

12. Pursuant to 40 C.F.R. § 710.33(b), a rule promulgated under TSCA section 8(a),

Respondent was required to file a Form U by December 23, 2002.

13. Respondent filed a Form U by December 23, 2002.

14. On April 18, 2006 by telephone, and on April 19, 2006 by an inspection letter of

notification, EPA notified Respondent that the Agency would conduct an inspection to determine

compliance with TSCA.

15. On or about April 20, 2006, Respondent filed an amended 2002 Form U to include

CASRN # 75-15-0.

16. On April 25, 2006, an authorized representative of EPA conducted an inspection of

Respondent's place of business at 2231 Haden Road, Houston, Texas 77015, pursuant to section

11 of TSCA, 15 U.S.C. § 2610.

17. In a letter to EPA dated May 9, 2006, Respondent stated that "in preparation for

the April 25, 2006 inspection at this site, we became aware that one additional substance, carbon

disulfide (CASRN 75-15-0) should have been included on Arkema's 2002 Inventory Update

Report for the site."

18. EPA alleges that Respondent's failure to submit a Form U for CASRN # 75-15-0 by

December 23, 2002 constitutes a failure to submit a report, notice or other information as required

by 40 C.F.R. § 710.33(b), for a chemical subject to a rule promulgated under TSCA section 8(a).

19. Pursuant to section 15(3)(B) of TSCA, 15 U.S.C. § 2614(3)(B), it is unlawful for any

person to fail or refuse to submit reports, notices, or other information as required by TSCA or a

rule thereunder.

20. A violation of section 15(3)(B) of TSCA subjects an entity to civil penalties pursuant to

section 16(a) of TSCA, 15 U.S.C. § 2615(a).

                              III. CIVIL PENALTY

21. The proposed penalty in this matter is consistent with the Enforcement Response Policy

for Reporting and Recordkeeping Rules and Requirements for TSCA Sections 8, 12 and 13

(revised March 31, 1999; effective June 1, 1999) (TSCA ERP). The TSCA ERP was developed in

accordance with the Guidelines for Assessment of Civil Penalties Under Section 16 of the Toxic

Substances Control Act PCB Penalty Policy, which sets forth a general penalty assessment policy

for TSCA violations. 45 Fed. Reg. 59770 (Sept. 10, 1980). The TSCA ERP, though not a

regulation, establishes a framework for applying the statutory factors to be considered in assessing

a civil penalty, i.e.: "the nature, circumstances, extent and gravity of the violation or violations and,

with respect to the violator, ability to pay, effect on ability to continue to do business, any history

of prior such violations, the degree of culpability, and such other matters as justice may require."

Section 16(a)(2)(B) of TSCA, 15 U.S.C. § 2615(a)(2)(B).

22. The proposed civil penalty in this case reflects: (1) a determination of the Gravity-Based

Penalty (GBP), in accordance with the statutory factors nature, circumstances, extent and gravity;

and (2) adjustments to the GBP, taking into account the statutory factors ability to pay, effect on

ability to continue business, prior violations, culpability, and such other matters as justice may

require.

                               IV. TERMS OF SETTLEMENT

23. This settlement resolves only the civil administrative claims alleged in this Consent

Agreement for Respondent's facility located at 2231 Haden Road, Houston, Texas 77015.

24. Respondent waives its right to request an administrative hearing pursuant to section

16(a)(2)(A) of TSCA, 15 U.S.C. § 2615(a)(2)(A) and waives its right to file a petition for judicial

review of the Final Order assessing the civil penalty pursuant to section 16(a)(3) of TSCA, 15

U.S.C. § 2615(a)(3).

25. For the sole purpose of establishing Respondent's compliance history in any future

enforcement proceeding that EPA may bring against Respondent within five (5) years of the date

of the execution of the Final Order, this Consent Agreement and Final Order shall be considered by

EPA to be a "prior violation" under the ERP or any of EPA's other TSCA Enforcement Response

Policies, and shall also be considered to be a prior violation under the "Incentives for Self Policing:

Discovery, Disclosure, Correction and Prevention of violations," 65 Fed. Reg. 19,618 (April 11,

2000).

26. The occurrence of any violation is in dispute and the entry of the Consent Agreement and

Final Order shall not constitute an admission by Respondent of any violation alleged in this

Consent Agreement; however, Respondent consents to the terms and conditions of this Consent

Agreement and Final Order.

27. By executing this Consent Agreement, Respondent certifies that solely regarding

the violations set forth and alleged herein, Respondent is in compliance with section 8 and 15 of

TSCA; 15 U.S.C. §§ 2601 and 2614.

28. Respondent represents and warrants that the facts it has certified and referenced in this

Consent Agreement are true.

29. The effect of this settlement (provided in paragraph 23) is conditioned upon the

thoroughness and accuracy of the representations in Respondent's Form U submission and the

certification referenced in paragraph 27.

30. Respondent agrees to pay a civil penalty in the sum of Fifteen Thousand Eight Hundred

Ninety-Five Dollars ($15,895.00) in accordance with the following terms:

   A.     Not more than thirty (30) calendar days after the effective date of the Final Order,

          Respondent shall either submit a cashier's or certified check with a notation of

          "Arkema Inc., Civil Penalty Docket No. TSCA-HQ-2007-5003," payable to the

          order of the "Treasurer, United States of America," to:

                                EPA-Washington
                                (Hearing Clerk)
                                Docket No. TSCA-HQ-2007-5003
                                P.O. Box 360277
                                Pittsburgh, PA 15251-6277


          or pay by wire transfer with a notation of "Arkema Inc., Civil Penalty Docket No.

          TSCA-HQ-2007-5003" by using the following instructions:

                 Name of Beneficiary:                 EPA
                 Number of Account for deposit:       68010099
                 The Bank Holding Acct:               Treas_NYC
                 The ABA routing Number:               021030004

   B.     Respondent shall forward a copy of the check or documentation of a wire transfer

          to:      Tony R. Ellis, Case Development Officer
                   Waste and Chemical Enforcement Division (2245A)
                   U.S. Environmental Protection Agency
                   1200 Pennsylvania Ave., N.W. (Room No. 5041-A)
                   Washington, D.C. 20460
                   (202) 564-4167
                   Fax (202) 564-0035

   C.     If Respondent fails to make the payment in a timely manner as required by

          paragraph 30.A., then Respondent shall pay a stipulated penalty of One Thousand

          Dollars ($1,000.00) per calendar day for every day the penalty payment is late,

          unless EPA in writing excuses or mitigates the stipulated penalty. EPA may excuse

          or mitigate the stipulated penalty if EPA determines that the failure to comply

          occurred despite Respondent's exercise of good faith and due diligence.

                               V. OTHER MATTERS

31. This Consent Agreement shall be binding upon the Parties and their successors and assigns.

The undersigned representative of each Party certifies that he or she is duly authorized by his or

her respective Party to enter into this binding Consent Agreement.

32. This Consent Agreement shall take full effect upon the signing and filing of the Final Order

by EPA's Environmental Appeals Board.

33. Respondent's obligations under this Consent Agreement shall end, and the Consent

Agreement and Final Order shall automatically terminate, when it has paid in full the scheduled

civil penalty, paid any stipulated penalties set forth herein, and submitted the documentation

required by the Consent Agreement and Final Order.

34. All of the terms and conditions of this Consent Agreement together comprise one

settlement agreement, and each of the terms and conditions is in consideration for all of the other

terms and conditions. This Consent Agreement shall be null and void if any term or condition of

this Consent Agreement is held invalid or is not executed by all of the signatory parties in identical

form, or is not approved in such identical form by EPA's Environmental Appeals Board.

35. The penalty, including any stipulated penalties, specified above represents civil penalties

assessed by EPA, and shall not be deductible for purposes of federal taxes.

36. Failure of Respondent to remit the civil penalties provided herein within ten (10) days of

the date specified in paragraph 30.A. will result in this matter being forwarded to the United States

Department of Justice for collection of the amount due, plus stipulated penalties and interest at the

statutory judgment rate provided in 28 U.S.C. § 1961.

37. The Parties agree to bear their own costs.

WE HEREBY AGREE TO THIS:

                                                For Respondent:

For Complainant:

[signature]
Rosemarie A. Kelley, Director
Waste and Chemical Enforcement Division
Office of Civil Enforcement
Office of Enforcement and Compliance Assurance
United States Environmental Protection Agency

Date: 6/18/07

                                                [signature]
                                                (Representative of Arkema Inc.)

                                                Date: 06/08/2007