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HomeMy WebLinkAboutContract 19808 P CITY %A ENVIRONMENTAL PROTECTION AGENCY SE P REGION 6 DALLAS, TEXAS IN THE Mih k 'T 'fzG b1i TSCA Docket No. VI-4120 CITY OF FORT WORTH FORT WORTH, TEXAS CONSENT AGREEMENT AND CONSENT ORDER AUG RESPONDENT _A20 I. PRELIMINARY STATEMENT 1. This proceeding for the assessment of a civil penalty was instituted pursuant to Section 16 (a) of the Toxic Substances Control Act (TSCA) , 15 U.S.C. S 2615. This proceeding was instituted by the issuance of a Complaint and Notice of opportunity for Hearing ("Complaint") dated March 20, 1989 . The Complaint charged Respondent with violating TSCA and thf ,,r Ll 7� 11-14R L 4 promulgated pursuant to TSCA. CITY SECRETARY 2 . Respondent admits the jurisdictional alle e +tfownelp M. (Z- 1— - Complaint; however, Respondent neither admits nor denies the specific factual allegations contained in the Complaint or the Findings of Fact and Conclusions of Law contained in this Consent Agreement and Consent Order (CACO) . The Complaint states a claim upon which relief can be granted. 3 . Respondent expressly waives its right to request a hearing on any issue of law or fact set forth herein and waives all defenses which have been raised or could have been raised to the claims set out in the Complaint. 4. Respondent consents to the issuance of the CACO hereinafter recited and consents to the assessment and payment of the stated civil penalty in the amount and by the method set out in this CACO. Ii. FINDINGS OF FACT AND CONCLUSIONS OF LAW 5. Respondent is the City of Fort Worth, a municipality and a political subdivision of the State of Texas. 6. Respondent is a "person" as that term is defined in 40 C.F.R. S 761. 3 and as such is subject to Part 761 of the regulations, 40 C.F.R. S 761. 1(b) . 7. On or about September 27, 1988, Respondent was operating its Landscape and Forestry Department located in the Rolling Hills Building in Tarrant County at 2525 Tappan Blvd. , Fort Worth Texas. 8. On or about September 27, 1988, Respondent was inspected by a representative of EPA, Richard P. McLaughlin, pursuant to Section 11(a) of TSCA, 15 U.S.C. § 2610(a) . 9 . On or about September 27, 1988, a written notice of inspection was issued to a representative of the Respondent, James Nobles, as required by Section 11(a) of TSCA, 15 U.S.C. S 2610 (a) . 10. At the time of the inspection, the Respondent had three (3) PCB Transformers and one (1) PCB Contaminated Switch in storage for reuse. The PCB Transformers were identified by nameplate as Westinghouse, "Inerteen, " 23 gallons each, Serial Number 2389719, 2389720 and 2389721. The Switch had not been tested for PCB concentration. Two (2) of the PCB Transformers had leaked and cleanup of the released PCBs had not been accomplished. No PCBs or 2 PCB Items were in storage for disposal. There were no records of PCBs or PCB Items having been sent for disposal. All of the aforementioned PCBs and PCB Items were located on the premises of the Respondent and in its possession and control. 11. "Inerteen" is the trade name used by Westinghouse to denote dielectric fluid which contains polychlorinated biphenyls (PCBs) in concentrations of 500 parts per million (ppm) or greater. 12. 40 C.F.R. S 761. 3 defines "PCB Transformer" as any transformer that contains 500 ppm or greater. 13 . The three (3) transformers described in paragraph 10 are "PCB Transformers" as that term is defined in 40 C.F.R. S 761. 3 . 14. "PCB-Contaminated Electrical Equipment" is defined in 40 C.F.R. S 761. 3 as any electrical equipment, including but not limited to transformers, capacitors, circuit breakers, reclosers, voltage regulators, switches, electromagnets, and cable that contain 50 ppm or greater PCB, but less than 500 ppm PCB. oil- filled electrical equipment other than circuit breakers, reclosers, and cable whose PCB concentration is unknown must be assumed to be PCB-Contaminated Electrical Equipment. 15. The one (1) switch described in paragraph 10 is "PCB- Contaminated Electrical Equipment" as that term is defined in 40 C.F.R. S 761.3 . 16. "PCB Article" is defined in 40 C.F.R. S 761. 3 as any 'manufactured article, other than a PCB Container, that contains PCBs and whose surface(s) has been in direct contact with PCBs. 3 17. "PCB Item" is defined in 40 C.F.R. S 761.3 as any PCB Article, PCB Article Container, PCB Container, or PCB Equipment that deliberately or unintentionally contains or has a part of it any PCB or PCBs. 18. The three (3) PCB Transformers and the one (1) PCB- Contaminated Switch described in Paragraph 10 are "PCB Articles" and "PCB Items" as those terms are defined in 40 C.F.R. S 761. 3 . 19. 40 C.F.R. S 761. 30 authorizes the use of PCBs in transformers subject to certain conditions. 20. 40 C.F.R. S 761.30 (a) (1) (vi) requires that as of December 1, 1985, all PCB Transformers must be registered with fire response personnel with primary jurisdiction over Respondent's premises. 21. At the time of the inspection, Respondent had failed to register by December 1, 1985, with the fire response personnel with primary jurisdiction over Respondent's premises its three (3) PCB Transformers. 22 . 40 C.F.R. 761. 30 (a) (1) (viii) requires that as of December 1, 1985, combustible materials, including, but not limited to paints, solvents, plastics, paper, and sawn wood must not be stored within a PCB Transformer enclosure (i.e. , in a transformer vault or in a partitioned area housing a transformer) : within five (5) meters of a transformer enclosure, or, if unenclosed (unpartitioned) , within five (5) meters of a PCB Transformer. 23 . At the time of the inspection, combustible materials (i.e. , plastics and paper boxes both empty and containing various 4 liquids) were being stored within five (5) meters of Respondent's three (3) PCB Transformers. 24. 40 C.F.R. $ 761. 30(a) (1) (x) requires that if a PCB Transformer is found to have a leak which results in any quantity of PCBs running off or about to run off the external surface of the transformer, then the transformer must be repaired or replaced to eliminate the source of the leak, and cleanup of the released PCBs must be initiated within 48 hours of discovery. 25. At the time of the inspection, Richard McLaughlin observed that two (2) of Respondent's PCB Transformers had leaked approximately three (3) quarts of oil. The appearance of the areas plus the previous report of leaking transformers in the building, indicates that cleanup of released PCBs was not initiated within 48 hours of discovery. 26. 40 C.F.R. § 761.30 (a(1) (ix) requires that a visual inspection of each PCB Transformer in use or stored for reuse shall be performed at least once every 3 months. 27. 40 C.F.R. S 761.30(a) (1) (xii) requires that records of inspection and maintenance history for PCB Transformers shall be prepared and maintained at least three (3) years after disposing of PCB Transformers and shall be made available for inspection upon request by EPA. 28. At the time of the inspection, Respondent had failed to prepare and maintain and make available during inspection the records of inspection and maintenance history for its three (3) PCB Transformers. 5 29. 40 C.F.R. S 761.40(c) (1) requires that PCB Transformers in use or stored for reuse shall be marked with the PCB ML label. 30. At the time of the inspection, Respondent had failed to mark its three (3) PCB Transformers with the PCB ML label. 31. 40 C.F.R. S 761.40(j) requires that as of December 1, 1985, the vault door, machinery room door, fence, hallway, or means of access to a PCB Transformer must be marked with the PCB ML label. 32. At the time of the inspection, Respondent had failed to mark the means of access to its three (3) PCB Transformers with the PCB ML label. 33 . 40 C.F.R. S 761.3 defines "Leak" or "Leaking" as an instance in which a PCB Article, PCB Container, or PCB Equipment has any PCBs on any portion of its external surface. 34. 40 C.F.R. S 761.3 defines "Disposal" as intentionally or accidentally discarding, throwing away, or otherwise completing or terminating the useful life of PCBs and PCB Items. Disposal includes spills, leaks, and other uncontrolled discharges of PCBs as well as actions related to containing, transporting, destroying, degrading, decontamination, or confining PCBs and PCB Items. 35. 40 C.F.R. S 761. 60 (d) (1) states that spills and other uncontrolled discharges of PCBs at concentrations of 50 ppm or greater constitute the disposal of PCBs. 36. During the inspection, Richard McLaughlin observed that two (2) of Respondent's PCB Transformers had leaked. The PCBs 6 leaked from these transformers constitute disposal as that term is defined in 40 C.F.R. S 761. 3 and 40 C.F.R. S 761. 60 (d) (1) . 37 . 40 C.F.R. S 761. 180(a) requires that each owner or operator of a facility using or storing at one time at least 45 kilograms of PCBs contained in PCB Container(s) or one or more PCB Transformers! or 50 or more PCB Large High and Low Voltage Capacitors shall develop and maintain records on the disposition of PCBs and PCB Items. These records shall form the basis of an Annual Document prepared by each facility by July 1, covering the previous calendar year. The records and documents shall be maintained for at least five (5) years after the facility ceases using or storing PCBs or PCB Items in the prescribed quantities. The information required to be included in the Annual Documents includes, inter alia: (1) the total number of PCB Transformers and total weight in kilograms of any PCBs contained in the PCB Transformers which remain in service at the end of the calendar year (40 C.F.R. S 761. 180(a) (3) (ii) ] . 38. At the time of the inspection, Respondent had failed to prepare an Annual Document for the latter half of 1978 and calendar years 1979 through 1987. 39. At the time of the inspection, the Respondent had failed to record in Annual Documents the total number of PCB Transformers and total weight in kilograms of any PCBs contained it its three (3) PCB Transformers. 40. Failure or refusal to comply with any rule promulgated, or order issued, under Section 6 of TSCA, 15 U.S.C. 2605, 7 constitutes an unlawful act under Section 15 (1) (C) of TSCA, 15 U. S. C. S 2614 (1) (C) . 41. Therefore, Respondent has violated Section 15 (1) (C) of TSCA, 15 U.S.C. S 2614 (1) (C) , by [1] failing to register by December 1, 1985 its three (3) PCB Transformers with fire response personnel with primary jurisdiction over Respondent's premises, as required by 40 C.F.R. S 761. 30(a) (1) (vi) ; [2] storing combustible material within five (5) meters of its three (3) PCB Transformers, as prohibited by 40 C.F.R. S 761. 30(a) (1) (viii) ; [3] failing to initiate cleanup of released PCBs within 48 hours of discovery, as required by 40 C.F.R. S 761. 30 (a) (1) (x) ; [4] failing to prepare and maintain and make available during inspection, the records of inspection and maintenance history for its three (3) PCB Transformers, as required by 40 C.F.R. S 761. 30(a) (1) (xii) ; [5] failing to mark its three (3) PCB Transformers with the PCB ML label, as required by 40 C.F.R. S 761.40(c) (1) ; [6] failing to mark the means of access to its three (3) PCB Transformers with the PCB ML label, as required by 40 C.F.R. S 761.40(j) ; [7] failing to properly dispose of PCBs, as required by 40 C.F.R. S 761. 60; [8] failing to prepare and maintain Annual Documents, as required by 40 C.F.R. S 761. 180 (a) ; and [9] failing to record in Annual Documents the total number of PCB Transformers and the total weight in kilograms of any PCBs contained in its three (3) PCB Transformers, as required by 40 C.F.R. S 761.180(a) (3) (ii) , rules promulgated pursuant to Section 6 of TSCA, 15 U.S.C. S 2605. 8 COSTS Each party shall bear its own costs and attorney fees. IV. TERMINATION OF CACO All obligations under this CACO shall terminate upon payment of the penalty by the Respondent. V. CIVIL PENALTY Pursuant to TSCA S 15 (a) (1) (B) , and the PCB Civil Penalty Policy, EPA proposed a civil penalty of $9, 500.00 in this matter. The City of Fort Worth, Fort Worth, Texas, undertook the following environmentally beneficial project: 1. Removal, disposal and replacement of one (1) PCB Transformer and two (2) PCB-Contaminated Transformers from the Will Rogers Memorial Coliseum, at an approximate cost of $61, 379. 00 In addition, the City of Fort Worth has reconstructed Annual Documents for all of the City's facilities. The City has agreed to maintain the Annual Documents and Annual Document Logs at each facility location for three years after disposal of their PCB Equipment. COSEZT ORDER. Pursuant to the authority granted in Section 16 of TSCA, 15 U.S.C. S 2615, and upon consideration of the entire record herein, including the above Findings of Fact and Conclusions of 9 Law, which are hereby adopted and made a part hereof, and upon consideration of the nature, circumstances, extent and gravity of the alleged violations, and with respect to the Respondent, its ability to pay, effect on its ability to continue to do business, any history of prior PCB violations, the degree of culpability, and other factors as justice may require, it is ORDERED that Respondent be assessed a civil penalty of NINE THOUSAND, AND FIVE HUNDRED DOLLARS ($9, 500. 00) . EIGHT THOUSAND FIVE HUNDRED AND FIFTY DOLLARS ($8,550. 00) ARE HEREBY REMITTED, as Respondent has expended in excess of $28, 500.00 to complete the environmentally beneficial project discussed in "Civil Penalty" above. The payment shall be made by mailing a money order, cashier's check, or certified check payable to Treasurer of the United States, within thirty (30) days of the effective date of this Agreement to the following address: Regional Hearing Clerk (6C) U.S. EPA, Region 6 P. 0. Box 360582M Pittsburgh, Pennsylvania 15251 TSCA Docket No. VI-412C shall be clearly typed on the check to ensure proper credit. Respondent shall send simultaneous notice of such payments, including copies of the money order, cashier's check, or certified check to the following: 10 (1) Ms. Donna Mullins (6T-PT) Environmental Scientist Toxics Section Air, Pesticides and Toxics Division U.S. EPA, Region 6 1445 Ross Avenue Dallas, Texas 75202-2733 Adherence to this request will ensure proper credit is given when penalties are received. If EPA does not receive payment within thirty (30) days of the due date, interest will accrue on the amount due from the due date at the current annual rate prescribed and published by the Secretary of the Treasury in the Federal Register and the Treasury Fiscal Requirements Manual Bulletin per annum through the date of payment. If the payment is overdue, EPA will also impose a late payment handling charge of $15, with an additional delinquent notice charge of $15 for each subsequent thirty (30) day period. Finally, EPA will apply a six (6) percent per annum penalty on any principal amount not paid within ninety (90) days of the due date. Other penalties for failure to make a timely payment may also apply. Payment of NINE HUNDRED FIFTY DOLLARS ($950.00) shall be made within thirty (30) days of the effective date of this Consent Agreement and Consent Order. Date: Bob Terrell, ity Manager City of Fort Worth 1000 Throckmorton Street Fort Worth, Texas 76102 Date: c� - .. C��= .-� .�4 ..r Alice Church, City Secretary City of Fort Worth 1000 Throckmorton Street Fort Worth, Texas 76102 Approved as to form and legality Date: Marcia Wise, Assistant City Attorney City of Fort Worth 1000 Throckmorton Street Fort Worth, Texas 76102 Date A. tan ey eiburg Director Air, Pesticides and Toxics Division Region 6 Coctract kathorization Date 12 This Consent Agreement and Consent Order is hereby adopted and issued pursuant to Section 16 of TSCA, 15 U.S.C. § 2615, and the Consolidated Rules of Practice Governing the administrative Assessment of Civil Penalties, 40 C. F. R. Part 22 . It is so ORDERED. This Order shall become effective immediately. Date: q'5 4Joe D. Winkle Acting Regional Administrator ,,,,i EPA Region 6 13 CERTIFICATE OF SERVICE I hereby certify that on the 1_4_;7 (lay of Z&V1993 , the original of the foregoing consent Agreement and Consent Order was hand delivered to the Regional Hearing Clerk, U. S. EPA, Region 6, 1445 Ross Avenue, First Interstate Bank Tower, Dallas, Texas 75202-2733, and a true and correct copy was placed in the United States Mail, certified mail, return receipt requested, addressed to the following: Kay Granger Mayor City of Fort Worth 1000 Throckmorton Street Fort Worth, Texas 76102 Certified No. P 923 Carolyn ,yi'lliams' on (6T-PT) Paraleg<11 14 CERTIFICATE OF SERVICE I hereby certify that on the day 1993, the original of the foregoing Consent Agreement and Consent Order was hand delivered to the Regional Hearing Clerk, U. S. EPA, Region 6, 1445 Ross Avenue, First Interstate Bank Tower, Dallas, Texas 75202-2733 , and that on the day of 1993 LLI a true and correct copy of the original was placed in the United States Mail, certified mail, return receipt requested, addressed to the following: Ms. Catherine Musser City of Fort Worth 1000 Throckmorton Street Fort Worth, Texas 76102-6311 Certified No. 3 7, Caroly"illiamson (6T-PT) Paralegal