Swix Sport USA (Board decision, May 13, 2020)

Plain-English summary

Swix Sport USA admitted jurisdiction, neither admitted nor denied the specific factual allegations, and consented to the terms of a settlement involving six chemicals whose identities were treated as confidential business information. EPA alleged that Swix imported the chemicals without submitting required premanufacture notices and without proper TSCA import certifications. The settlement states that Swix had ceased importing the chemicals and required a Responsible Waxing Project to educate the ski racing community about PFAS in racing waxes, promote lower-impact alternatives, and train ski wax technicians in protective equipment and proper disposal. EPA assessed a $1,030,809 civil penalty, agreed to remit $655,184 if Swix complied with the settlement conditions, and required payment of $375,625 by January 29, 2021. The EAB ratified the Consent Agreement and ordered Swix to comply with it immediately.

Decision snapshot

• Cited authorities: TSCA §§ 3, 5, 13, 15, and 16; 15 U.S.C. §§ 2601-2615; 40 C.F.R. §§ 13.11, 22.13, 22.18, 22.31, 707.20, 710.3, 720.3, 720.22, and 720.40; 31 U.S.C. § 3717
• Outcome: The Consent Agreement was ratified, Swix was ordered to comply with it immediately, and Swix agreed to pay a $375,625 civil penalty with conditional remittance terms.
• Key point: The settlement paired a civil penalty with a multi-year education and training program addressing PFAS-containing ski waxes and safe waxing practices.

Full text (EPA EAB public release)

                                                                                F I L E D
                                                                                          May 13 2020
                                                                               Clerk, Environmental Appeals Board
                                                       INITIALS ________________________
                    ENVIRONMENTAL APPEALS BOARD
           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                           WASHINGTON, D.C.

In re: )
)
Swix Sport USA ) Docket No. TSCA-HQ-2020-5005
)
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: ____
May 13 2020 __________
Mary Kay Lynch
Environmental Appeals Judge

      1
    The three-member panel ratifying this matter is composed of Environmental Appeals

Judges Aaron P. Avila, Mary Kay Lynch, and Kathie A. Stein. BEFORE THE ENVIRONMENTAL APPEALS BOARD UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C.

                           )

IN THE MATTER OF )
)
Swix Sport USA )
60 Newark Street )
Haverhill, MA 01832 ) Docket No. TSCA-HQ-2020-5005
)
)
Respondent )
______)

                               CONSENT AGREEMENT

    Complainant, United States Environmental Protection Agency (hereinafter “EPA” or the

“Agency”), and Respondent, Swix Sport USA (hereinafter “Respondent”) (collectively, the “Parties”), hereby enter into this Consent Agreement (“Consent Agreement”), and the attached proposed Final Order (collectively, the “CAFO”) before the taking of any testimony and without adjudication of any issues of law or fact.

                          I.      PRELIMINARY STATEMENT

1. This civil administrative proceeding for the assessment of penalties pursuant to section 16(a)
   of Toxic Substances Control Act (“TSCA”), 15 U.S.C. § 2615(a), as amended by the Frank
   R. Lautenberg Chemical Safety for the 21st Century Act, Pub. L. No. 114-182, June 22, 2016,
   130 Stat 448 (2016 Act) is being simultaneously commenced and concluded pursuant to Rules
   22.13(b), 22.18(b)(2), and 22.18(b)(3) of the Consolidated Rules of Practice Governing the
   Administrative Assessment of Civil Penalties and the Revocation/Termination or Suspension
   of Permits (“Consolidated Rules”), 40 C.F.R. §§ 22.13(b), 22.18(b)(2), and 22.18(b)(3).

2. To avoid the disruption of orderly business activities and expense of litigation, for purposes
   of this proceeding and as required by 40 C.F.R. § 22.18(b)(2), Respondent:

   a. admits the jurisdictional allegations set forth herein and waives any defenses as to
   jurisdiction;
   b. neither admits nor denies the specific factual allegations contained herein;

   c. consents to the assessment of a civil penalty as stated below;

   d. consents to the issuance of any specified compliance or corrective action order;

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   e. consents to any conditions specified in this Consent Agreement;

   f. waives any right to contest the alleged violations of law set forth herein; and

   g. waives the rights to appeal the Final Order accompanying this Consent Agreement.

                   II.     EPA’s FINDINGS OF FACT AND LAW
   

3. Respondent, a corporation with its U.S. headquarters located at 60 Newark Street, Haverhill,
   MA 01832, is a “person” as defined in 40 C.F.R. §§ 710.3 and 720.3(x) and, as such, is subject
   to TSCA, 15 U.S.C. § 2601 et seq., and the regulations promulgated thereunder.

4. A “chemical substance” as defined by section 3(2)(A) of TSCA, 15 U.S.C. § 2602(2)(A), is
   “any organic or inorganic substance of a particular molecular identity. . . .”

5. Per- and polyfluoroalkyl substances (PFAS) are a group of man-made chemicals that includes
   many chemicals. There is evidence that exposure to PFAS can lead to adverse human health
   effects. Some PFAS are very persistent in the environment and in the human body. PFAS
   may be released into the air, soil, and water, including sources of drinking water.

6. There are six chemical substances at issue in this matter. Respondent has claimed the identity
   of these chemicals as Confidential Business Information; they are thus referred to herein and
   throughout this Consent Agreement as “Chemical A”, “Chemical B”, “Chemical C”,
   Chemical D”, “Chemical E”, and “Chemical F,” respectively.

7. Respondent manufactures (imports), distributes in commerce, uses, or disposes of Chemicals
   A, B, C, D, E, and F, or mixtures containing these chemicals, or in the past has manufactured,
   imported, processed, distributed in commerce, used, or disposed of mixtures containing these
   chemicals as those terms are defined in sections 3(2), (9), and (10) of TSCA, 15 U.S.C. §
   2602(2), (9), and (10) respectively, and 40 C.F.R. § 720.3(e), (q), and (u). Respondent is
   subject to TSCA and the regulations promulgated thereunder.

8. The Parties agree to the conditions of settlement set forth in Section IV, which describe an
   education/outreach and training program called the “Responsible Waxing Project” (RWP).
   RWP is a project aimed at:

     a. educating the ski racing community about the existence of PFAS chemicals in racing
        waxes; the physical and chemical properties of PFAS substances; and how they
        impact the environment; and
     b. promoting the use of wax alternatives with lower environmental impact, including but
        not limited to waxes that are PFAS-free. The primary objective of RWP is to educate
        and motivate the ski racing community to phase out and ultimately eliminate the use
   
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   of PFAS-containing waxes in ski racing beginning with the 2020 ski season and
   concluding no later than September 1, 2022.

   The RWP will also include an education/training element for ski wax technicians to reinforce
   safe waxing practices including the use of appropriate personal protection equipment and
   steps to properly dispose of wax shavings during the waxing process. The RWP is described
   in more detail in Section IV of this CAFO.

9. Respondent voluntarily began implementing projects that are part of the RWP included in
   this CAFO.

                    COUNT I – TSCA § 5(a)(1) VIOLATIONS
   

10. Any chemical substance which is not included in the chemical substance list compiled and
    published under section 8(b) of TSCA, 15 U.S.C. § 2607(b) (“TSCA Inventory”), is a “new
    chemical substance” as defined under section 3(11) of TSCA, 15 U.S.C. § 2602 (11) and 40
    C.F.R. § 720.3(v).

11. Section 5(a)(l) of TSCA, 15 U.S.C. §2604(a)(1), and 40 C.F.R. §§ 720.22(a)(1) and
    720.40(b), provide that no person may manufacture (import) a new chemical substance unless
    such person submits a Premanufacture Notice (“PMN”) to EPA at least ninety (90) calendar
    days before manufacturing that substance.

12. On June 28, 2018, July 6, 2018, and July 9, 2018, Respondent informed EPA that it had
    manufactured (imported) products containing Chemicals A, B, C, D, E, and F as follows:
    Chemical A between August 19, 2013 and March 1, 2018 at least 12 times;
    Chemical B between February 4, 2015 and February 5, 2018 at least 14 times;
    Chemical C between August 19, 2013 and March 20, 2018 at least 12 times;
    Chemical D between August 19, 2013 and August 24, 2017 at least 15 times;
    Chemical E between August 19, 2013 and August 24, 2017 at least 15 times; and
    Chemical F between August 19, 2013 and August 24, 2017 at least 15 times.

13. Chemicals A, B, C, D, E, and F were not included on the TSCA Inventory at the time of
    import and therefore are “new chemical substances” as defined under section 3(11) of TSCA,
    15 U.S.C. § 2602(11) and 40 C.F.R. § 720.3(v).

14. Respondent’s failure to submit PMNs at least ninety (90) days before manufacturing
    (importing) Chemicals A, B, C, D, E, and F constitute a failure to comply with section 5 of
    TSCA, 15 U.S.C. § 2604, which is a prohibited act under section 15(1) of TSCA, 15 U.S.C.
    § 2614(1).

15. A violation of section 15 of TSCA, 15 U.S.C. § 2614 subjects an entity to civil penalties
    pursuant section 16(a) of TSCA, 15 U.S.C. § 2615(a).

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    COUNT II – TSCA § 13(a)(1)(B) VIOLATIONS

16. Section 13(a)(1)(B) of TSCA, 15 U.S.C. § 2612(a)(1)(B), provides that the Treasury shall
    refuse entry of “any chemical substance or mixture offered for such entry if” it is offered for
    entry in violation of a rule or order under section 5, 15 U.S.C. § 2604. Pursuant to 40 C.F.R.
    § 707.20(b)(2)(i), importers must sign the following statement for each import of a chemical
    substance subject to TSCA: “I certify that all chemical substances in this shipment comply
    with all applicable rules or orders under TSCA and that I am not offering a chemical substance
    for entry in violation of TSCA or any applicable rule or order under TSCA.”

17. On June 28, 2018, July 6, 2018, and July 9, 2018, Respondent informed EPA that it had
    manufactured (imported) products containing Chemicals A, B, C, D, E and F as follows:
    Chemical A between August 19, 2013 and March 1, 2018 at least 12 times;
    Chemical B between February 4, 2015 and February 5, 2018 at least 14 times;
    Chemical C between August 19, 2013 and March 20, 2018 at least 12 times;
    Chemical D between August 19, 2013 and August 24, 2017 at least 15 times;
    Chemical E between August 19, 2013 and August 24, 2017 at least 15 times; and
    Chemical F between August 19, 2013 and August 24, 2017 at least 15 times.

18. Respondent’s failure to submit proper certifications under section 13 of TSCA prior to
    importing Chemicals A, B, C, D, E, and F constitute a failure to comply with section 13 of
    TSCA, which is a prohibited act under section 15(3)(B) of TSCA, 15 U.S.C. § 2614(3)(B).

19. A violation of section 15 of TSCA, 15 U.S.C. § 2614, subjects an entity to civil penalties
    pursuant to section 16(a) of TSCA, 15 U.S.C. § 2615(a).

                           III.    TERMS OF SETTLEMENT
    

20. Swix has ceased the manufacture (import) of the chemicals in Counts I and II above.

21. As described in Section IV, Conditions below, as a condition of settlement, Respondent will
    develop and implement an outreach and training program (referred to herein as the “RWP”)
    aimed at (1) educating the ski racing community about PFAS chemicals in racing waxes and
    their impact on the environment; and (2) promoting the use of wax alternatives with lower
    environmental impact, including but not limited to racing waxes that are PFAS-free (the
    “Program Content”). The primary objective of the program will be to educate and motivate
    the ski racing community to phase out (and ultimately eliminate) the use of PFAS-containing
    waxes in ski racing beginning with the 2020 ski season and concluding no later than
    September 1, 2022. The RWP will also include an education/training component for ski wax
    technicians on the proper disposal of racing wax shavings and the use of appropriate PPE
    during the waxing process.

22. The RWP will be conducted starting with the 2020 ski season and ending no later than
    September 1, 2022 (the “Program Period) and will focus on all three segments of the racing
    community – 1) Nordic/Cross Country; 2) Nordic/Racing and 3) Alpine and Snowboard. The

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    RWP will be completed and the Final Report submitted to EPA on or before September 1,
    2022.

23. The RWP is estimated to cost approximately $1 million dollars ($1,000,000). SWIX shall be
    responsible for all aspects of RWP development and implementation, including the
    development of all education and training materials across a wide variety of communication
    platforms (including on-line communication modules, videos, visual presentations,
    brochures, posters, and other materials). The Program Content will be presented on-site at
    key events (as described in Section IV) and through other venues that reach coaches, parents,
    athletes, volunteers, and supporters in the ski racing community. In total, the scope of the
    RWP is designed to reach 90-95% of the targeted ski racing audience within the three
    segments of the racing community noted above.

                                  IV.     CONDITIONS
    

24. Respondent and EPA have agreed, in compromise of the civil penalty that otherwise may be
    imposed herein to the following conditions of settlement:

    a. PFAS Ski Wax Education Program: Within 60 days from the Respondent’s date of
    signature on this CAFO, Respondent must present materials containing the Program
    Content as defined in paragraph 21 at one (1) major ski event. Respondent will present
    the Program Content through a minimum of two (2) on-site, live presentations at the
    event. The presentations must be open to coaches, waxing technicians and skiers
    competing in the event. EPA is aware that Respondent may begin its outreach
    program immediately upon signature of the Consent Agreement in order to reach the
    current ski season.

    b. Training for Wax Technicians: Within 60 days from the Respondent’s date of
    signature on this Consent Agreement, Respondent must initiate the development of a
    program designed to train ski wax technicians on the proper use of appropriate PPE,
    proper ventilation, and the proper disposal of racing wax shavings during the waxing
    process to help minimize the amount of wax shavings from PFAS-containing ski
    waxes being left on the ground where they could enter the environment. Respondent
    must produce a video to implement this program. The duration of the video must be
    no less than 10 minutes in duration and must include, at a minimum the following
    criteria:

                    •   The recommendation to use eco-friendly and biodegradable waxes
                        and cleaning products.
    
                    •   A discussion of the proper disposal of wax shavings and of the
                        appropriate personal protective equipment (PPE) to be worn and used
                        when waxing skis, including a description of (1) the PPE (including
                        gloves and masks with the recommended filters); (2) the proper use
                        and maintenance of the PPE; and the (3) proper use of waxing tools.
    
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    • A discussion of the importance of (1) following techniques and
    procedures to collect wax shavings; and (2) engaging in proper
    disposal of wax shavings so they are not left on the ground.

c. Program for Ski Racing Coaches: Respondent must develop and implement an
education program targeted at ski racing coaches. At a minimum, the targeted
education program must cover the Program Content. Respondent must produce a
professionally produced video to implement this program. The duration of the video
must be no less than 15 minutes in duration and must include the Program Content.
Respondent must deliver the targeted education program through at least one of the
following mechanisms: on-line certification module; an on-site visual and oral
presentation to coaches, or a professionally produced video. During the Program
Period, Respondent must present the education program described in this Section
24(c) on-site at a minimum of ten (10) training events/certification camps for ski
racing coaches. The presentations must be made by the Program Manager or an
individual from senior-level management within Respondent with requisite
experience and expertise.

d. Additional Outreach to College Racing Teams and Clubs: Respondent must
develop and present an education program targeted at coaches and racing
participants at the collegiate level. At a minimum, the targeted education program
must cover the Program Content. Respondent must deliver the targeted education
program for collegiate level racing through at least one of the following
communication mechanisms: an on-site visual and oral presentation, or a
professionally produced video. During the Program Period, Respondent must
present the education program described in this Section 24(d) on-site at a minimum
of fifteen (15) collegiate level racing events. The presentations must be made by the
Program Manager or an individual from senior-level management within
Respondent with requisite experience and expertise.

e. Initiative to Promote New Policies for Racing at the Junior Level: Respondent must
develop a program targeted at ski racing at the high school level. At a minimum, the
program to fulfill the condition set forth in this Section 24(e) must (1) cover the
Program Content and (2) advocate the implementation of policies to ban the use the
PFAS-containing waxes at high school level racing events. Respondent must utilize
at least one of the following communication mechanisms to deliver the program:
visual and oral presentations or a professionally produced video. Respondent must
present the program described in this Section 24(e) on-site at a minimum of fifteen
(15) state-level organizational/planning meetings for high school racing teams/clubs.

f. Dedicated Project Manager: Respondent must appoint a manager to oversee the
RWP during the Program Period.

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g. Website: Respondent must utilize a dedicated website for accessing the videos and
other visual communication materials developed under the conditions set forth in
this Section IV as part of the RWP.

h. Video Productions: All videos produced and utilized by Respondent to fulfill the
conditions set forth in Section IV must be included on the dedicated website
required under Section 24(f).

i. PFAS Alternative Ski Wax Information Distribution: During the Program Period,
Respondent must present materials covering the Program Content on-site at a
minimum of fifty (50) ski events identified in the list of events contained in
Confidential Attachment A containing Confidential Business Information (CBI). The
Respondent agrees to present materials covering the Program Content on-site at
fifteen (15) of those ski events within 18 months from the Respondent’s date of
signature on this Consent Agreement. Respondent must produce a professionally
produced video to implement this program. The duration of the video must be no less
than 3 minutes in duration and must include the Program Content. Respondent must
utilize at least one of the following communication mechanisms to deliver the
program at the events: (1) visual and oral presentations; or (2) a professionally
produced video of no less than three (3) minutes in duration. The on-site presentations
must be open to coaches, waxing technicians and skiers competing in the event.

j. Respondent agrees that: (1) none of the videos, visual presentations, brochures,
posters and other materials containing the Program Content that are (i) developed by
Respondent to satisfy any conditions in Section IV of this CAFO; and (ii)
disseminated to the public as part of the implementation of the RWP shall be
considered confidential business information; and (2) EPA has the right to refer to
such materials provided that EPA’s use of the materials is compliant with the fair use
doctrine for copyrighted materials (e.g., for educational purposes).

k. If Respondent does not present the Program Content at a minimum of fifty (50) ski
events as described above in Section 24(i), then Respondent shall create website
content targeted at the same audience that would have been targeted at the number of
events that fall short of the minimum such that Respondent expends on alternative
website content the same total amount of expenditures it would have expended to
present the Program Content on-site at the ski events that comprise the short fall. The
website content must consist of at least one (1) of the following communication
vehicles: a web page with information covering the Program Content, a video, or a
visual presentation (such as a presentation in Microsoft Power Point format). The
alternative website content described in this Section 24(k) must be developed and
implemented within the Program Period.

l. Respondent must submit compliance reports describing how Respondents have
complied with the conditions contained in paragraphs a through k, above, including
the dates of events referenced in paragraphs a through k, and documentation of the
educational materials (oral and visual presentations, videos, website content, posters,

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brochures and other materials) through which the Program Content was disseminated.
The first compliance report must be submitted within (3) months from the effective
date of this CAFO. The subsequent compliance reports must be submitted within 6-
month intervals from the effective date of this CAFO. The report must include a
discussion of any substantive changes to the implementation of the RWP, including
but not limited to its implementation progress, staffing, staff training, and any
enhancements or amendments to the RWP, including any changes resulting from any
relevant regulatory/legislative enactment or other circumstances beyond
Respondent’s control that impact the primary objectives of RWP.

 The compliance reports, including the Final Report, must be submitted to:

                        Tony R. Ellis
                        U.S. EPA Headquarters
                        Office of Civil Enforcement
                        Waste and Chemical Enforcement Division (2249A)
                        1200 Pennsylvania Ave., NW
                        Washington, DC 20460

                        Or via email to:

                        [email protected]

 Each report submitted by Respondent must be signed by an official of Respondent
 and include the following certification: “I certify under penalty of law that based on
 my personal knowledge or on my inquiry of those individuals immediately
 responsible for obtaining the information, that the information is true, accurate and
 complete.”

m. All Reports must be provided to EPA in a version that is immediately available for
public review. Confidential Business Information (CBI), if any, shall be redacted by
Respondent and a statement inserted for each redacted item in the public version that
Respondent declares that information CBI. A CBI version of the report will be sent
simultaneously with the public version.

n. FINAL REPORT: No later than September 1, 2022, Respondent must provide EPA
with a Final Report on the RWP. The Final Report shall include a description of the
actions Respondent has taken to meet the conditions set forth in Section IV and the
expenditures made to meet them. The description of the expenditures may include,
but is not limited to information on the total costs expended for: (1) the education
activities for the ski racing community; education and training programs for waxing
technicians; education and training for ski racing coaches; and the materials used
for the junior racing initiative; (2) the videos, websites, brochures, visual
presentations, posters and other materials used to implement the RWP; (3) the
advocacy activities for the junior ski racing initiative; (4) the hiring and use of

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personnel and third party contractors/consultants to perform the RWP such as
salary, travel expenses and related fees and costs; and (5) all other costs expended
by Respondent to implement the conditions in Section IV not otherwise covered by
the foregoing. The Final Report must include the names and dates of the events
where the Program Content was presented to meet the conditions of Section 24(a),
24(b), 24(c), 24(d) ,24(e) and 24(i). The aggregate total of all expenditures incurred
for the development and implementation of all educational activities and websites,
videos and other visual and written materials used to complete the RWP will be
provided in the Final Report. The list of events and the aggregate total of all
expenditures for education activities described immediately above must be provided
in the public version of the Final Report

o. In the event that a legislative and/or regulatory enactment, or other circumstances
beyond the Respondent’s control have an impact on the RWP such that the primary
objectives of the RWP (as described in paragraph 21) become moot or unnecessary,
the parties shall meet to discuss modifications to the RWP in light of the new
circumstances. If Respondent demonstrates that a substantial portion of the RWP has
been completed EPA may, in its discretion, determine that no further modifications
are necessary, and that Respondent has successfully completed the RWP.
Respondent would not be required to implement modifications to the RWP that
would result in a total cost for the RWP that exceeds $1 million dollars minus the
total cost Respondent has already incurred to implement the RWP.

p. Prior to determining that Respondent has failed to comply with any term or condition
set forth in Section IV, EPA will give Respondent written notice or notices of
deficiencies. The written notice or notices of deficiency(ies) shall specify the specific
condition(s) set forth in Section IV that are deficient and include a written explanation
of how Respondent has failed to comply with the identified condition(s). Respondent
shall be provided at least ninety (90) days to respond to each notice of deficiency.

q. If, after reviewing Respondent’s response to the notice of deficiencies, EPA
determines that Respondent has failed to comply with the conditions set forth in
Section IV, EPA may issue a non-remittance Order requiring Respondents to pay the
remaining Six Hundred Fifty-Five Thousand One Hundred Eighty-four Dollars
($655,184) referenced in paragraph 28, or a lesser amount, plus interest accrued
from the effective date of this CAFO as described in paragraph 33. Such Order to
pay all or part of the Remittance shall include a written explanation of the
deficiencies identifying how Respondent has failed to comply with the conditions
set forth in Section IV and provide Respondent with at least 30 days after
Respondent’s receipt of the that Order to make payment. The EPA will take into
consideration all actions set forth in Section IV successfully performed by
Respondent and deduct the costs incurred by Respondent (as documented in the
Final Report submitted by Respondent) in calculating the amount of remittance.
Respondent waives its right to a hearing under 16(a)(2) of TSCA.

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V. CIVIL PENALTY

25. Pursuant to section 16 of TSCA, 15 U.S.C. § 2615, and in light of the nature, circumstances,
    and extent of the alleged violations, EPA determined that a Gravity Based Penalty of One
    Million Two Hundred Twelve Thousand Seven Hundred and Sixteen Dollars ($1,212,716) is
    appropriate.

26. EPA used the “TSCA Section 5 Enforcement Response Policy” (issued August 5, 1988, as
    amended June 8, 1989 and July 1, 1993), and the Reporting and Recordkeeping Rules and
    Requirements for TSCA Sections 8, 12, and 13 Response Policy (Effective June 1, 1999) in
    order to be consistent with the statutory factors.

27. EPA reduced the Gravity Based Penalty by 15% ($ 181,907) to reflect the cooperation of
    Swix. Thus, a civil penalty in the amount of One Million, Thirty Thousand Eight Hundred
    and-Nine Dollars ($1,030,809) is assessed against Respondents for the violations of TSCA
    alleged herein.

28. Pursuant to Section 16(a)(2)(C) of TSCA, 15 U.S.C. § 2615(a)(2)(C), and 40 C.F.R. § 22.31,
    EPA agrees to remit Six Hundred Fifty-Five Thousand One Hundred Eighty-four Dollars
    ($655,184) of the civil penalty, for the TSCA violations alleged herein through the effective
    date of this CAFO, conditioned upon Respondents’ compliance with all the terms and
    Conditions set forth in Section IV, of this CAFO, to EPA’s satisfaction.

29. Respondent agrees to pay a civil penalty of THREE HUNDRED AND SEVENTY-FIVE
    THOUSAND, SIX HUNDRED AND TWENTY-FIVE U.S. DOLLARS ($375,625).

30. Not more than thirty (30) calendar days after The “Effective Date” of this CAFO is the effective date of the
    Final Order. (“Effective Date”), In light of the significant financial impact caused by the COVID-19
    MJG
    public health emergency, payment of the penalty in this matter is delayed until January 29, TAH
    2021. By January 29, 2021, Respondent shall either:

    A. Dispatch a cashier’s or certified check made payable to the order of the “Treasurer of the
    United States of America,” and bearing the Civil Penalty Docket No. “TSCA-HQ-2020-
    5005” to the following address:

                       U.S. Environmental Protection Agency
                       Fines and Penalties
                       Docket No. TSCA-HQ-2020-5005
                       Cincinnati Finance Center
                       P.O. Box 979077
                       St. Louis, MO 63197-9000
    

    OR
    B. Pay by wire transfer with a notation of “Swix Sport USA, Civil Penalty Docket No. TSCA-
    HQ-2020-5005” by using the following instructions:

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    Federal Reserve Bank of New York
    ABA = 021030004
    Account = 68010727
    SWIFT address = FRNYUS33
    33 Liberty Street
    New York, NY 10045
    Field Tag 4200 of the Fedwire message should read:
    “D 68010727 Environmental Protection Agency”

31. Concurrently with Paragraph 30A or 30B, Respondent must forward a copy of the Check or
    documentation of a wire transfer to Tony Ellis at [email protected] or to the following
    address:
    U.S. Environmental Protection Agency
    Office of Civil Enforcement
    Waste and Chemical Enforcement Division (2249A)
    Attn: Tony R. Ellis (Case Development Officer)
    1200 Pennsylvania Ave., NW
    Washington, DC 20460
    E-mail: [email protected]

    By written notice to Respondent, EPA may change the address and/or person listed above.

32. No portion of the civil penalty or interest paid by Respondent pursuant to the requirements
    of this Consent Agreement shall be claimed by Respondent as a deduction for federal, state,
    or local income tax purposes.

33. 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 debts owed to the United States and a
    charge to cover the costs of processing and handling the delinquent claim. Interest on the
    civil penalty assessed in this CAFO will begin to accrue thirty (30) days after the Effective MJG
    Date on January 29, 2021, and will be recovered by EPA on any amount of the civil
    penalty that is not paid by the respective due date. In accordance with 31 U.S.C. § 3717 and TAH
    40 C.F.R. § 13.11, Respondent must pay the following amounts on any amount overdue:
    a. Interest. Any unpaid portion of a civil penalty must bear interest at the rate
    established by the Secretary of the Treasury pursuant to 31 U.S.C. § 3717(a)(1).
    Interest will therefore begin to accrue on a civil penalty or stipulated penalty if it is
    not paid by the last date required. 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).
    b. Monthly Handling Charge. Respondent must pay a late payment handling charge of
    FIFTEEN dollars ($15.00) on any late payment, with an additional charge of FIFTEEN
    dollars ($15.00) for each subsequent thirty (30) day period over which an unpaid
    balance remains.
    c. Non-payment Penalty. On any portion of a civil penalty more than ninety (90) days
    past due, Respondent must pay a non-payment penalty charge of six percent (6%)
    per annum, which will accrue from the date the penalty payment became due and is

                                             11
    

    not paid. 40 C.F.R. § 13.11(c). This non-payment penalty charge is in addition to
    charges which accrue or may accrue under subparagraphs (a) and (b).

                                VI. GENERAL MATTERS
    

34. By executing this Consent Agreement, Respondent certifies that, to the best of its
    knowledge and belief, it is presently in compliance with sections 5 and 13 of TSCA, 15
    U.S.C. §§ 2604 and 2612.

35. Full payment of the agreed upon penalty proposed in Respondent’s full compliance with this
    Consent Agreement shall only resolve Respondent’s liability for federal civil penalties alleged in
    MJG
    this CAFO. TAH

36. Respondent is authorized to return to its parent company in Norway the existing stocks of
    products containing Chemicals A, B, C. D, E and F in its control on the date of
    Respondent’s signature on this CAFO, provided such return conforms with all applicable
    laws. Any existing stocks must be exported within ninety (90) days from the Effective Date
    the date that payment of the penalty is due under paragraph 30 and Respondent shall M
    JG
    notify EPA by sending documentation of the export, such as a shipping document (bill of TAH
    lading), with the following certification to Tony Ellis at [email protected]:

        I certify that, based on my inquiry of those individuals responsible for obtaining the
        information, that the existing stocks of products containing Chemicals A, B, C, D, E
        and F subject to the Consent Agreement and Final Order pursuant to Docket No.
        TSCA-HQ-2020-5003 have been exported.
    

37. Pursuant to 40 C.F.R. § 22.18(b)(2), Respondent waives its right to contest the allegations
    herein, its right to appeal the Final Order, and its right to request a judicial or administrative
    hearing on any issue of law or fact set forth in, and resolved by, this Consent Agreement.

38. Compliance with this CAFO shall not be a defense to any subsequent action EPA may
    commence pursuant to federal law or regulation for violations occurring after the date of
    this Consent Agreement, nor any violations of TSCA not alleged in this Consent Agreement
    that may have occurred prior to the date that this Consent Agreement is fully executed by
    both Parties.

39. Nothing in this Consent Agreement is intended to, nor shall be, construed to operate in any
    way to resolve any criminal liability of Respondent.

40. EPA and Respondent agree that Respondent has no obligations under this Consent
    Agreement should it be rejected by the EPA’s Environmental Appeals Board (“EAB”);
    provided, however, that 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 objections. The Parties shall have the right to
    withdraw from this Consent Agreement in the event they are unable to reach agreement on
    the EAB’s proposed changes or objections.

                                               12
    

    41. This Consent Agreement may be amended or modified only by written agreement executed
    by both the EPA and Respondent.

41. This Consent Agreement shall be binding upon the Parties, and their respective officers,
    directors, employees, 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.

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

43. Respondent’s obligations under this Consent Agreement shall end when it has paid in full
    the scheduled civil penalty, paid any stipulated penalties, and completed and notified the
    EPA of the completion of the conditions set forth in Section IV of this CAFO.

44. 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 amount
    due, plus stipulated penalties and interest at the statutory judgment rate provided in 28
    U.S.C. § 1961.

45. The Parties agree to bear their own costs and attorney’s fees.

46. 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 the EAB.

47. Respondent consents to the conditions specified in this Consent Agreement.

                                            13
    

    MJG TAH
    14
     CERTIFICATE OF SERVICE

    I certify that copies of the foregoing “Consent Agreement” and “Final Order” in the
    matter of Swix Sport USA, Docket No. TSCA-HQ-2020-5005, were filed and copies of the same were sent to the following persons in the manner indicated:

By Electronic Mail:

Tracy Heinzman, Esq.
Wiley Rein LLP
1776 K Street, N.W.
Washington, D.C. 20006
telephone: (202) 719-7106
e-mail: [email protected]

Mark Garvey, Esq.
Waste and Chemical Enforcement Division
Office of Civil Enforcement
Office of Enforcement and Compliance Assurance
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, N.W.
Mail Code 2249A
Washington, D.C. 20460-0001
telephone: (202) 564-4168
e-mail: [email protected]

Diana Saenz, Acting Director
Waste and Chemical Enforcement Division
Office of Civil Enforcement
Office of Enforcement and Compliance Assurance
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, N.W.
Mail Code 2249A
Washington, D.C. 20460-0001
telephone: (202) 564-4209
e-mail: [email protected]

Dated: ____
May 13 2020 ______
Eurika Durr
Clerk of the Board