Avantor Performance Materials, LLC (Board decision, December 15, 2021)

Plain-English summary

EPA alleged that Avantor Performance Materials, LLC violated EPCRA reporting requirements at its Phillipsburg, New Jersey facility and violated TSCA chemical data reporting and mercury export requirements at its Phillipsburg and Paris, Kentucky facilities. The Consent Agreement also states that Avantor did not timely report 17 toxic chemicals under EPCRA, omitted 13 Phillipsburg chemicals and 16 Paris chemicals from its chemical data reports, and exported elemental mercury without an EPA exemption on at least three occasions. Avantor neither admitted nor denied the factual allegations and legal conclusions except as expressly provided in the agreement, and agreed to pay a $600,000 civil penalty. The EAB ratified the agreement on December 15, 2021, ordered compliance effective immediately, and made the settlement effective upon filing with the Clerk.

Decision snapshot

• Cited authorities: TSCA, EPCRA, 40 C.F.R. parts 13, 22, 372, and 711
• Outcome: Consent Agreement ratified and $600,000 civil penalty approved.
• Key point: An EAB Final Order can ratify a consent settlement that resolves alleged TSCA and EPCRA violations without an adjudication of the alleged facts.

Full text (EPA EAB public release)

F I L E D
Dec 15, 2021
Clerk, Environmental Appeals Board

INITIALS ______

ENVIRONMENTAL APPEALS BOARD
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C.
In re:
Avantor Performance Materials, LLC

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Docket Nos. TSCA-02-2022-9142
…………… EPCRA-02-2022-9142

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: ________ Dec 15, 2021

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Mary Kay Lynch
Environmental Appeals Judge

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 OF THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, WASHINGTON, D.C.

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IN THE MATTER OF:
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Avantor Performance
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Docket Nos. TSCA-02-2022-9142
Materials, LLC,
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EPCRA-02-2022-9142
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Respondent
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CONSENT AGREEMENT
The United States Environmental Protection Agency (“EPA”), through the Director of the Waste and Chemical Enforcement Division of the Office of Civil Enforcement in the Office of Enforcement and Compliance Assurance in EPA (the “Complainant”), and Respondent, Avantor Performance Materials, LLC (hereinafter “Respondent”) (EPA and Avantor are collectively, the “Parties”), hereby enter into this Consent Agreement for subsequent ratification by the Environmental Appeals Board (“EAB”) through an executed Final Order (the Consent Agreement and Final Order are collectively referred to as the “CAFO”) to resolve alleged violations of the Toxic Substances Control Act (“TSCA”), 15 U.S.C. §§ 2601-2697, and the Emergency Planning and Community Right-to-Know Act (“EPCRA”), 42 U.S.C. §§ 11001 – 11050. Complainant has been delegated authority to execute this Consent Agreement on behalf of EPA. Pursuant to 40 C.F.R. § 22.13(b), before the filing of a complaint (and before the taking of any testimony and without an administrative or judicial adjudication of any law or fact), this administrative proceeding is being simultaneously commenced and concluded by the CAFO pursuant to 40 C.F.R. §§ 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” (the “Consolidated Rules”). EPA, through Complainant, hereby alleges the following factual recitations and conclusions of law, and Respondent neither admits nor denies such factual recitations and conclusions of law except to the extent otherwise expressly provided herein. I. 1.

PRELIMINARY STATEMENT

Based on the facts and circumstances alleged below, EPA has concluded that Respondent is liable for, and thus may be assessed, a civil penalty pursuant to Section 16(a) of TSCA, 15 U.S.C. § 2615(a), as amended, and pursuant to Section 325(c) of EPCRA, 42 U.S.C.
§ 11045(c).

2.

To avoid the disruption of orderly business activities and expense of litigation and to effect an expeditious settlement of this matter, Respondent, for purposes of this proceeding only and as provided by 40 C.F.R. § 22.18(b)(2), agrees as follows: a.

Respondent admits that EPA has jurisdiction over the subject matter of this Consent Agreement and over the Respondent and waives any defenses it might have as to jurisdiction. Respondent agrees not to contest EPA’s jurisdiction to enter into this Consent Agreement, Complainant’s delegated authority to execute this Consent Agreement, EPA’s authority to enforce the terms of this Consent Agreement through the executed Final Order, or the jurisdiction of the EAB to enter and ratify the Consent Agreement through the Final Order;

b.

Respondent consents to the assessment of the full amount of the civil penalty as provided for in Section VI, below, and agrees to make payment in accordance with the pertinent paragraphs in Section VI;

c.

Respondent consents to any and all conditions specified in this Consent Agreement;

d.

Respondent waives any right it might have to contest through a judicial or administrative hearing the factual allegations and violations of law as alleged below; and

e.

Respondent waives the rights it might have to obtain judicial or administrative review of the Final Order accompanying this Consent Agreement under any otherwise applicable law. II.

EPA’s BACKGROUND FINDINGS OF FACT AND LAW

3.

Respondent is a limited liability company with headquarters located at the Radnor Corporate Center, Building 1, Suite 200, 1000 Matsonford Road, in Radnor, Pennsylvania 19087.

4.

For all times set forth below (and at present) Respondent has been (and continues to be) a “person” as defined in 40 C.F.R. § 710.3 and in Section 329(7) of EPCRA, 42 U.S.C.
§ 11049(7). As such, Respondent is a “person” for purposes of TSCA and the regulations promulgated thereunder and is a “person” for purposes of EPCRA and the regulations promulgated thereunder.

5.

Respondent owns, controls and/or operates a facility in each of Phillipsburg, New Jersey, and Paris, Kentucky (and has done so for the periods set forth below). The address of the Phillipsburg facility is 600 North Broad Street, Phillipsburg, New Jersey 08865, and the address of the Paris facility is 7001 Martin Luther King Boulevard, Paris, Kentucky 40361.

6.

At each of the Phillipsburg and Paris facilities, and as more fully set forth below, Respondent manufactures, processes, and imports chemical substances that are subsequently distributed in commerce. 2

7.

On March 30, 2017, EPA representatives conducted an inspection of the Phillipsburg facility. On June 14, 2017, EPA representatives conducted another inspection of the Phillipsburg facility. EPA’s findings of fact set forth below are based in part upon the information EPA learned during those inspections (including through a review of documents) and through follow-up investigative efforts. III.

EPCRA SECTION 313 VIOLATIONS

8.

Pursuant to Section 313(a) of EPCRA, 42 U.S.C. § 11023(a), and 40 C.F.R. §§ 372.22 and 372.30, the owner or operator of a facility subject to the requirements of Section 313(b) of EPCRA, 42 U.S.C. § 11023(b), and 40 C.F.R. § 372.22 is required to submit annually, no later than July 1st of each year, reports for each “toxic chemical” (as defined under Sections 313(c) through (e) of EPCRA, 42 U.S.C. §§ 11023(c-e), and 40 C.F.R. § 372.3 to include a chemical listed in 40 C.F.R. § 372.65) that was “manufactured,” “processed” or “otherwise used” (as each such term is defined in Section 313(b)(1)(C) of EPCRA, 42 U.S.C.
§ 11023(b)(1)(C), and 40 C.F.R. § 372.3) during the preceding calendar year in quantities exceeding the established toxic chemical threshold levels as listed in Sections 313(f)(1)(A) and (B)(1)(iii) of EPCRA, 42 U.S.C. §§ 11023(f)(1)(A) and (B)(1)(iii), and 40 C.F.R.
§§ 372.25, 372.27 or 372.28. The information is to be reported on a prescribed EPA form pursuant to Sections 313(g) and (h) of EPCRA, 42 U.S.C. §§ 11023(g) and (h), and 40 C.F.R. § 372.30(a) (i.e., “Form R”) and must be submitted to the Administrator of EPA and the State in which the toxic chemicals were manufactured, processed, or otherwise used pursuant to Section 313(a) of EPCRA, 42 U.S.C. § 11023(a), and 40 C.F.R. § 372. The Form R must include data reflecting releases of such toxic chemicals during the preceding year pursuant to Section 313(a) of EPCRA, 42 U.S.C. § 11023(a), and 40 C.F.R. § 372.30.

9.

EPA conducted its March 30, 2017 inspection of the Phillipsburg facility, inter alia, to ascertain Respondent’s compliance with the requirements of Section 313 of EPCRA, 42 U.S.C. § 11023, and 40 C.F.R. Part 372, with regard to reporting releases of certain toxic chemicals.

10.

Section 313(b) of EPCRA, 42 U.S.C. § 11023(b), and 40 C.F.R § 372.22 apply to owners and operators of facilities that have 10 or more full-time employees and that are in Standard Industrial Classification (“SIC”) Codes 20 through 39 or in a North American Industry Classification System (“NAICS”) industry code listed in 40 C.F.R. § 372.23(b), and that manufactured, processed, or otherwise used a toxic chemical on the toxic inventory list in excess of the quantity established for the toxic chemical.

11.

For 2015, each of the following 17 toxic chemicals was listed in 40 C.F.R. § 372.65 (each with a 25,000 pound processing threshold amount for reporting pursuant to 40 C.F.R.
§ 372.25): (a) hydrogen fluoride; (b) acetonitrile; (c) toluene; (d) dichloromethane (also known as methylene chloride); (e) copper compounds; (f) certain glycol ethers; (g) catechol (1,2-di-hydroxy benzene); (h) ammonia; (i) sulfuric acid; (j) nitric acid; (k) nitrate compounds; (l) n-methyl-2-pyrrolidone; (m) n-hexane; (n) methanol (also known as methyl alcohol); (o) manganese compounds; (p) hydrochloric acid; and (q) zinc compounds. 3

12.

As a consequence of the March 30, 2017 inspection and documents obtained from Respondent as a follow-up to that inspection, EPA determined that the Phillipsburg facility was subject to Form R reporting requirements for calendar year 2015 under Section 313 of EPCRA, 42 U.S.C. § 11023, because Respondent had more than 50 full time employees at the Phillipsburg facility, the primary NAICS for the Phillipsburg facility was 325180 which is listed in 40 C.F.R. § 372.23(b), and Respondent processed the above referenced 17 toxic chemicals listed in 40 C.F.R. § 372.65 in amounts greater than 25,000 pounds. Respondent was required to submit to EPA and to the State of New Jersey a complete and correct Form R for each of the 17 listed chemicals in Paragraph 11 processed at the Phillipsburg facility in calendar year 2015 by July 1, 2016, and such Form Rs were not submitted until March 31, 2017.

13.

Respondent’s failure to timely report each of the 17 chemicals as set forth above subjects Respondent to liability to the United States for civil penalties pursuant to Sections 325(c)(1) and 325(c)(3) of EPCRA, 42 U.S.C. §§ 11045(c)(1) and 11045(c)(3), respectively. IV.

TSCA SECTION 8 CHEMICAL DATA REPORTING VIOLATIONS

14.

With regard to the aforementioned June 2017 EPA inspection of the Phillipsburg facility, the purpose of the inspection was, inter alia, to ascertain Respondent’s compliance with the requirements of Section 8 of TSCA, 15 U.S.C. § 2607, and 40 C.F.R. Part 711, with regard to reporting “chemical substances” (as defined in Section 3(2)(A) of TSCA, 15 U.S.C.
§ 2602(2)(A)) pursuant to 40 C.F.R. § 711.5.

15.

Section 8(a) of TSCA, 15 U.S.C. § 2607(a), and 40 C.F.R. § 711.8(a)(2) requires, among other things, that any person who manufactured (including imported) for commercial purposes 25,000 pounds or more of a chemical listed on EPA’s Master Inventory File described in 40 C.F.R. § 711.5 as of June 1, 2016 (except as excluded under 40 C.F.R.
§ 711.6) at a single site owned or controlled by that person during 2012, 2013, 2014 or 2015 had to report to EPA the information described in 40 C.F.R. § 711.15 between June 1, 2016 and October 31, 2016.

16.

Respondent was subject to the chemical data reporting requirements described in Paragraph 15, above, with respect to its operations at the Phillipsburg and Paris facilities.

17.

Respondent manufactured (including imported) for commercial purposes through its Phillipsburg facility each of the following 13 chemical substances in quantities exceeding 25,000 pounds in one or more of calendar years 2012, 2013, 2014 and 2015 (each such chemical substance identified by name and Chemical Abstract Services Registry Number
[CAS No.]): (a) Benzenemethanol [100-51-6]; (b) Hexane [100-54-3]; (c) 2,2’-oxybis Ethanol [111-46-6] (d) 1-2-Benzenediol [120-80-9]; (e) Tetrahydro Thiophene, 1,1-dioxide
[126-33-0]; (f) Potassium hydroxide [1310-58-3]; (g) Sodium hydroxide [1310-73-2]; (h) 2amino Ethanol [141-43-5]; (i) Heptane [142-82-5]; (j) Guanidine hydrochloride (1:1) [5001-1]; (k) Thiocyanic acid, sodium salt (1:1) [540-72-7]; (l) Sulfuric acid [7664-93-9]; and (m) Magnesium chloride [7786-30-3] (hereinafter the “13 Phillipsburg chemicals”). 4

18.

Each of the 13 Phillipsburg chemicals was listed on the Master Inventory File (as defined in 40 C.F.R. § 711.3) as of June 1, 2016, and none was excluded from the chemical data reporting requirements of 40 C.F.R. Part 711 by 40 C.F.R. § 711.6.

19.

The chemical data report (“CDR”) for the Phillipsburg facility that Respondent submitted to EPA on September 21, 2016, included multiple chemicals but failed to include any of the 13 Phillipsburg chemicals as required by 40 C.F.R. §§ 711.8(a)(2) and 711.20.

20.

Respondent manufactured (including imported) for commercial purposes through its Paris facility each of the following 16 chemical substances in quantities exceeding 25,000 pounds in one or more of calendar years 2012, 2013, 2014 and 2015 (each such chemical substance identified by name and Chemical Abstract Services Registry Number [CAS No.]: (a) Methylbenzene [108-88-3]; (b) Cyclohexane [110-82-7]; (c) 2-Butoxy ethanol [111-76-2]; (d) Potassium hydroxide [1310-58-3]; (e) Sodium hydroxide [1310-73-2]; (f) Glycine, N,N'-1,2-ethanediylbis [N-( carboxymethyl)]-, sodium salt (1:2) [139-33-3]; (g) 2,2,4Trimethyl pentane [540-84-1]; (h) 1,1’-Oxybis ethane [60-29-7]; (i) Acetic acid [64-19-7]; (j) Methanol (also known as methyl alcohol) [67-56-1]; (k) 2-Propanol (also known as isopropyl alcohol) [67-63-0]; (l) N, N-Dimethyl formamide [68-12-2]; (m) Potassium chloride [7447-40-7]; (n) Dichloromethane [75-09-2]; (o) Sodium chloride [7647-14-5]; and (p) Disulfurous acid, sodium salt (1:2) [681-57-4] (hereinafter the “16 Paris chemicals”).

21.

Each of the 16 Paris chemicals was listed on the Master Inventory File (as defined in 40 C.F.R. § 711.3) as of June 1, 2016, and none was excluded from the chemical data reporting requirements of 40 C.F.R. Part 711 by 40 C.F.R. § 711.6.

22.

The CDR for the Paris facility that Respondent submitted to EPA on September 21, 2016, included multiple chemicals but failed to include any of the 16 Paris chemicals as required by 40 C.F.R. §§ 711.8(a)(2) and 711.20.

23.

Respondent retained a third-party consultant to prepare the CDRs for the Phillipsburg and Paris facilities on its behalf. The CDRs that Respondent submitted for the Phillipsburg and Paris facilities as described in Paragraphs 19 and 22, above, were prepared by the thirdparty consultant and failed to include the 13 Phillipsburg chemicals and the 16 Paris chemicals. Once it became aware of the situation, Respondent promptly submitted an amended CDR for the Phillipsburg facility that included the 13 Phillipsburg chemicals on or about September 11, 2017, and an amended CDR for the Paris facility that included the 16 Paris chemicals on or about September 25, 2017.

24.

The failure to report each of the 13 Phillipsburg chemicals and each of the 16 Paris chemicals to EPA during the time period between June 1, 2016 and October 31, 2016 in a timely manner pursuant to 40 C.F.R. Part 711 constitutes a failure to comply with 40 C.F.R.
§ 711.20, which constitutes a violation of Section 15(3)(B) of TSCA, 15 U.S.C.
§ 2614(3)(B), and subjects Respondent to civil penalties pursuant Section 16(a)(1) of TSCA, 15 U.S.C. § 2615(a)(1).

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25.

On September 25, 2017, Respondent submitted a voluntary disclosure to EPA notifying EPA of potential noncompliance with regulatory requirements under Section 8 of TSCA at the Paris facility. Respondent self-disclosed these alleged violations pursuant to EPA’s policy entitled Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations (the “Audit Policy”), 65 Fed. Reg. 19,618 (Apr. 11, 2000).

26.

Regarding the disclosures referenced in Paragraph 25, above, the Parties disagree as to the applicability of the Audit Policy. While EPA determined that the chemical data reporting violations alleged herein do not qualify for a penalty reduction pursuant to the Audit Policy, the voluntary nature of the disclosure was considered in accordance with applicable penalty policies in determining the amount of the civil penalties for such alleged violations. V.

MERCURY EXPORT VIOLATIONS

27.

Section 12(c)(1) of TSCA, 15 U.S.C. § 2611(c)(1), prohibits the export of elemental mercury from the United States effective January 1, 2013, unless permitted under an exemption granted by EPA pursuant to Section 12(c)(4)(A) of TSCA, 15 U.S.C.
§ 2611(c)(4)(A).

28.

Respondent exported elemental mercury from the United States, through its Paris facility, in quantities between one and two pounds on at least three occasions between October 1, 2014 and May 29, 2018. These exports were sent to Canada, Taiwan, and India without Respondent having obtained an exemption from EPA pursuant to Section 12(c)(4) of TSCA, 15 U.S.C. § 2611(c)(4), for such exports.

29.

After discussions with EPA about mercury exports, Respondent, on its own initiative, promptly conducted an investigation of its elemental mercury export activity. The investigation revealed that Respondent had exported elemental mercury from its Paris facility. Two weeks after its findings, Respondent voluntarily disclosed this information to EPA. Respondent also had submitted to EPA Notices of Intent to Export for elemental mercury pursuant to Section 12(b) of TSCA, 15 U.S.C. § 2611(b), on other occasions. This information was weighed as an equitable consideration determining an appropriate civil penalty for the alleged mercury export violations.

30.

Export of elemental mercury from the United States without an appropriate exemption granted by EPA is a prohibited act, for purposes, and thus a violation, of Section 15 of TSCA, 15 U.S.C. § 2614, and subjects Respondent to civil penalties pursuant to Section 16(a)(1) of TSCA, 15 U.S.C. § 2615(a)(1).

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VI.

CIVIL PENALTY

31.

Pursuant to Section 325(c)(1) of EPCRA, 42 U.S.C. § 11045(c)(1), and consistent with Section 325(b)(1) of EPCRA, 42 U.S.C. § 11045(b)(1), and pursuant to Section 16 of TSCA, 15 U.S.C. § 2615, Respondent agrees to pay a civil penalty in the amount of SIX HUNDRED THOUSAND DOLLARS ($600,000) for the alleged violations identified herein. The civil penalty is allocated as follows: $279,000 for alleged violations of Form R reporting requirements under EPCRA in connection with the Phillipsburg facility, $273,000 for alleged violations of chemical data reporting requirements under 40 C.F.R. Part 711 in connection with the Phillipsburg and Paris facilities, and $48,000 for alleged violations of the mercury export ban.

32.

Respondent shall pay the civil penalty set forth in Paragraph 31, above, within thirty (30) calendar days after the effective date of the Final Order accompanying this Consent Agreement. The civil penalty shall be made using one of the three methods set forth below. a.

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 Nos. TSCA-022022-9142 and EPCRA-02-2022-9142 shall be sent to the following address: U.S. Environmental Protection Agency Fines and Penalties Docket Nos. TSCA-02-2022-9142 and EPCRA-02-2022-9142 Cincinnati Finance Center P.O. Box 979077 St. Louis, MO 63197-9000 OR

b.

An electronic payment shall be made via Fedwire with a notation of “Avantor Performance Materials, LLC, Civil Penalty Docket Nos. TSCA-02-2022-9142 and EPCRA-02-2022-9142” by using the following instructions: 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” OR

c.

If Respondent chooses to make on-line payments, Respondent shall go to www.pay.gov and enter SFO 1.1 in the search field on the tool bar on the Home 7

Page; select Continue under “EPA Miscellaneous Payments – Cincinnati Finance Center;” open the form and complete the required fields. 33.

Concurrently with the making of the aforesaid payment, Respondent shall forward a copy of the check or documentation of a wire transfer or suitable proof of an on-line payment to Philip Milton at [email protected] or to the following address: U.S. Environmental Protection Agency Office of Civil Enforcement Waste and Chemical Enforcement Division (2249A) Attn: Philip Milton (Case Development Officer) 1200 Pennsylvania Ave., N.W. Washington, DC 20460 By written notice to Respondent, EPA may change the address and/or person listed in this paragraph above.

34.

The civil penalty paid pursuant to the requirements of this Consent Agreement (and any late fees or interest paid) shall not be claimed by Respondent as a deduction for federal, state, or local income tax purposes.

35.

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 any delinquent claim(s). In accordance with 31 U.S.C. § 3717 and 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 any portion of the civil penalty not paid by the relevant Due Date specified above. 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 any 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 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), above.

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VII. GENERAL MATTERS
36.

By executing this Consent Agreement, Respondent certifies that, to the best of the knowledge and belief of the person executing same on its behalf, Respondent is presently in compliance with all applicable provisions relating to chemical data reporting of Section 8 of TSCA, 15 U.S.C. § 2607 and its implementing regulations; Section 12(c) of TSCA, 15 U.S.C. § 2611(c); and Section 313 of EPCRA, 42 U.S.C. § 11023 and its implementing regulations.

37.

EPA and Respondent, by entering into this Consent Agreement, each give their respective consent to accept digital signatures hereupon in lieu of conventional (“wet”) signatures. Respondent further consents to accept electronic service of the fully executed and ratified CAFO, by e-mail, at: [email protected].

38.

Unless EPA is later advised otherwise by email and in hardcopy, EPA shall address any written future correspondence (including any correspondence related to payment of the civil penalty) to the Respondent at the following address: Michael M. Meloy, Esq. Counsel for Respondent Avantor Performance Materials, LLC MANKO GOLD KATCHER FOX LLP 401 City Avenue, Suite 901 Bala Cynwyd, Pennsylvania 19004 [email protected]

39.

Respondent’s full payment of the civil penalty as set forth above, together with its full compliance with any operative terms set forth herein, shall only resolve Respondent’s liability for federal civil penalties for the violations expressly alleged in this Consent Agreement and the facts upon which such violations are predicated.

40.

This settlement is conditioned upon the thoroughness and material accuracy of Respondent’s representations to EPA that EPA relied on to resolve this matter.

41.

Pursuant to 40 C.F.R. §§ 22.5(a)(1) and 22.31(b), the Final Order accompanying this Consent Agreement shall become effective upon filing with the Clerk of the EAB.

42.

Compliance with the terms of this Consent Agreement shall not be a defense to any subsequent enforcement action that EPA may commence for any violations of TSCA and/or EPCRA (including their implementing regulations) occurring after the date of the filing of the Final Order nor for any violations of TSCA and/or EPCRA and their implementing regulations that may have occurred prior to the date that this Consent Agreement is executed by the Parties (except for the violations expressly referenced in Paragraph 39, above). To the extent not inconsistent with any of the provisions set forth above, Respondent fully reserves its rights to contest, challenge and/or defend against any subsequent action(s) taken by EPA against or involving Respondent.

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43.

Nothing herein is intended to, nor shall be, construed to operate in any way to resolve any criminal liability of Respondent or to shield Respondent from criminal prosecution therefor.

44.

EPA and Respondent agree that Respondent has no obligations under this Consent Agreement should it be rejected by the 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 rescind their acceptance of this Consent Agreement in the event they are unable to reach agreement on the EAB’s proposed changes or objections.

45.

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

46.

This Consent Agreement, once ratified by the Final Order, shall be binding upon the Parties, and their respective officers, directors, employees, successors, and assigns.

47.

The undersigned representative of each Party certifies that he or she is duly authorized by his or her respective Party to enter into this Consent Agreement and bind the party on whose behalf each such representative executes the Consent Agreement.

48.

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

49.

Failure of Respondent to remit the civil penalty provided herein in accordance with the provisions set forth will result in this matter being forwarded to the United States Department of Justice for collection of the amount due, plus interest at the statutory judgment rate provided in 28 U.S.C. § 1961.

50.

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

51.

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.

52.

The Parties agree that settlement of this matter is in the public interest and this Consent Agreement is the most appropriate means of resolving this matter.

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Avantor Performance Materials, LLC
Docket No. TSCA-02-2022-9142
Docket No. EPCRA-02-2022-9142

WE HEREBY AGREE TO THIS:
For the United States Environmental Protection Agency:

signed by GREGORY SULLIVAN
GREGORY SULLIVAN Digitally
Date: 2021.11.22 17:11:57 -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
DATE: ______

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Avantor Performance Materials, LLC
Docket No. TSCA-02-2022-9142
Docket No. EPCRA-02-2022-9142

WE HEREBY AGREE TO THIS:
For Respondent Avantor Performance Materials, LLC:

BY: ____
Carrie Watt
NAME: ____
(PLEASE PRINT)
Vice President, Assistant General Counsel
TITLE:____

DATE:______

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CERTIFICATE OF SERVICE
I certify that copies of the foregoing “Consent Agreement” and “Final Order,” in the matter of Avantor Performance Materials, LLC, Docket Nos. EPCRA-02-2022-9142, TSCA-02-20229142, were sent to the following persons in the manner indicated: By Electronic Mail: Michael M. Meloy, Esq. Counsel for Respondent Avantor Performance Materials, LLC MANKO GOLD KATCHER FOX LLP 401 City Avenue, Suite 901 Bala Cynwyd, Pennsylvania 19004 e-mail: [email protected] Lee Spielmann, Assistant Regional Counsel Office of Regional Counsel, WTS Branch U.S. EPA Region 2 290 Broadway, 16th floor New York, NY 10007-1866 e-mail: [email protected] Gregory Sullivan, Director Waste and Chemical Enforcement Division Office of Civil Enforcement Office of Enforcement and Compliance Assurance U.S. Environmental Protection Agency 1200 Pennsylvania Ave., NW Mail Code: 2249A Washington, DC 20460 e-mail: [email protected]

Dated: ________
Dec 15, 2021

Annette Duncan
Administrative Specialist