reg on Kate Brown, Governor

January 19,2018

Department of Environmental Quality Office of Compliance and Enforcement

700 NE Multnomah Street, Suite 600 Portland, OR 97232-4100

(503) 229-5696 FAX (503) 229-5100

ITY 711

CERTIFIED MAIL: 7016 2140 0000 2409 6264

The1mo Fluids, Inc. c/o C T Corporation System, Registered Agent 780 Commercial Street, SE, Suite 100 Salem, OR 97301

Re: Notice of Civil Penalty Assessment and Order Case No. WQ/SW-NWR-2017-201

This letter is to inform you that the Oregon Department of Environmental Quality (DEQ) has issued you a civil penalty of $6,994 for failing to comply with the monitoring requirements of your stormwater discharge permit for your used oil recycling facility at 12533 SE Carpenter Drive in Clackamas, Oregon. Specifically, you failed to comply with Schedule B of your stmmwater permit by failing to monitor your facility's storrnwater discharge for Total Copper, Total Lead, Total Zinc, pH, Total Suspended Solids (TSS), Total Oil & Grease, Chemical Oxygen Demand (COD), Total Aluminum and Total Iron the required four times during the 2016-2017 monitoring year.

DEQ issued Expedited Enforcement Offer No. 2017-EE0-2918 on September 19, 2017, offering to settle these violations for a civil penalty of $1 ,600 (EEO). Because you rejected that EEO, this case was referred to DEQ's Office of Compliance and Enforcement. DEQ has reviewed the information that you submitted with your correspondence dated September 25, 2017 and October 6, 2017, and has determined that the information that you have submitted does not meet the stmmwater permit's criteria for a monitoring variance. More specifically, you have not demonstrated- with data and analysis-that discharges did not occur from your Facility during the 2016-2017 monitoring year. Such data and analysis must be submitted to DEQ with your annual Discharge Monitoring Report in support of a "no discharge" claim for each missed sample. Your facility has the potential to discharge storm water to Carley Creek via the overflow vault located in the swale, yet you have not provided any analysis of the ~wale' s detention capacity as compared to the rainfall events during the 2016-2017 monitoring year. In addition, you have not provided documentation of regular inspections of the swale and the presence or absence of a discharge, which you committed to collecting in your November 11, 2015 letter to DEQ.

DEQ issued this penalty because the system that protects water quality in Oregon is highly dependent on permittees complying with the monitoring requirements of their permits. Without monitoring data, DEQ and the public cannot dete1mine whether permittees are complying with pollutant limits or the pollutant loadings to the state's waterways. Failing to comply with the monitoring requirements is therefore considered among the most serious of violations.

If you wish to appeal this matter, DEQ must receive a request for a hearing within 20 calendar days from your receipt of this letter. The hearing request must be in writing. Send your request to DEQ Office of Compliance and Enforcement:

Thetmo Fluids, Inc. Case No. WQ/SW-NWR-2017-201 Page2

Via mail - 700 NE Multnomah Street, Suite 600, Portland, Oregon 97232 Via email- DEQappeals@deq.state.or.us Via fax - 503-229-5100

Once DEQ receives your request, we will anange to meet with you to discuss this matter. If DEQ does not receive a timely written hearing request, the penalty will become due. Alternatively, you can pay the penalty by sending a check or money order to the above address.

The attached Notice further details DEQ's reasons for issuing the penalty and provides further instructions for appealing the penalty. Please review and refer to it when discussing this case with DEQ.

DEQ may allow you to resolve part of your penalty through the completion of a Supplemental Environmental Project (SEP). SEPs are environmental improvement projects that you sponsor instead of paying a penalty. Further information is available by calling the number below or at http://www.oregon.gov/deq/regulations/pages/sep.aspx

DEQ's rules are available at http://www.oregon.gov/deq/Regulations/Pages/administrative-rules.aspx or by calling the number below.

If you have any questions, please contact Becka Puskas at 503-229-5058 or toll free in Oregon at 800-452-4011 , extension 5058.

Sincerely,

Sarah G. Wheeler, Acting Manager Office of Compliance and Enforcement

Enclosures

cc: Michelle Lackman, Thermo Fluids, Inc., 12533 SE Carpenter Drive, Clackamas, OR 97015 Michael Kennedy, DEQ Christine Svetkovich, DEQ Shaumae Hall, Accounting, DEQ John Koestler, WQ, DEQ

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BEFORE THE ENVIRONMENTAL QUALITY COMMISSION

OF THE STATE OF OREGON

IN THE MATTER OF: THERMO FLUIDS, INC., a Delaware corporation,

) ) )

Respondent. )

NOTICE OF CIVIL PENALTY ASSESSMENT AND ORDER CASE NO. WQ/SW-NWR-2017-201

6 I. AUTHORITY

7 The Depmtment of Environmental Quality (DEQ) issues this Notice of Civil Penalty Assessment

8 and Order (Notice) pursuant to Oregon Revised Statutes (ORS) 468.100, ORS 468.126 through 468.140,

9 ORS Chapters 183 and 468B and Oregon Administrative Rules (OAR) Chapter 340, Divisions 011,012,

10 and 045.

II II. FINDINGS OF FACT

12 I. On September 18, 2012, DEQ assigned Respondent coverage under National Pollutant

13 Discharge Elimination System Industrial Stormwater Discharge General Permit No. 1200-Z (Permit)

14 for the facility located at 12533 SE Carpenter Drive in Clackamas, Oregon (the Facility). The Permit

15 was in effect at all material times. 1

16 2. The Permit authorizes Respondent to construct, install, modify or operate stmmwater

17 treatment or control facilities, and to discharge stmmwater and non-stmmwater discharges specifically

18 authorized by the Permit to public waters in conformance with all the requirements, limitations and

19 conditions set fmth in the Permit.

20 3. Stormwater runoff from Respondent's Facility collects in a vegetated swale-a pond-like

21 stormwater detention system located along the southern border of the Facility (the Swale).

22 4. Partway up the bank of the Swale is a "Discharge/Sampling Vault", a veitical48 inch

23 concrete pipe with an open grate on top.

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27 1 All of the references in this Notice are to the 1200-Z Permit effective through July 31,2017 because the violations pertain to the 2016-2017 monitoring year (July I, 2016 through June 30, 20 17). DEQ issued a new 1200-Z permit, effective August I, 2018 through July 31, 2022, which currently applies to Respondent's Facility.

NOTICE OF CIVIL PENALTY ASSESSMENT AND ORDER CASE NO. WQ/SW-NWR-2017-20I Page I of6

1 5. On October 5, 2015, Respondent plugged one inlet to the Discharge/Sampling Vault by

2 inserting a 12 inch plug into a 12 inch pipe that is located near the base of the Discharge/Sampling

3 Vault.

4 6. After October 5, 2015, the Facility has had the potential to discharge storm water that

5 collects in the Swale through the open grate at the top of the Discharge Sampling Vault.

6 7. Stormwater exits the Discharge/Sampling Vault through another 12 inch pipe, which serves

7 as the Facility's outfall, or discharge point (Outfall). Stormwater discharges from the Outfall to Carley

8 Creek and eventually to the Clackamas River.

9 8. Schedule B.l.a of the Permit requires Respondent to monitor for the "statewide benchmark"

10 pollutants identified in Schedule A.9 of the Permit and applicable "sector-specific" benchmarks

11 identified in Schedule E of the Pennit. According to Schedule A.9, Table 3, the "statewide

12 benchmarks" include Total Copper, Total Lead, Total Zinc, pH, Total Suspended Solids (TSS), and

13 Total Oil & Grease.

14 9. Schedule E, Table E.N-1 of the Permit establishes Chemical Oxygen Demand (COD), Total

15 Aluminum and Total Iron as the sector-specific benchmark pollutants for Waste Recycling Facilities

16 (SIC Code 5093) subject to the Permit.

17 10. Respondent's Facility is a Waste Recycling Facility with a primary SIC Code 5093.

18 11. Schedule B.2.e.i of the Permit establishes a stmmwater monitoring year of July 1 to June 30.

19 12. Schedule B.2.e of the Permit requires Respondent to monitor its stormwater discharge for

20 statewide benchmarks and any applicable sector-specific benchmark pollutants four times per

21 monitoring year in accordance with Schedule B, Table 4, with two samples on or before December 31

22 and two samples on or after January I.

23 13. Respondent is required to monitor the Facility's storm water discharge for Total Copper,

24 Total Lead, Total Zinc, pH, Total Suspended Solids (TSS), Total Oil & Grease, Chemical Oxygen

25 Demand (COD), Total Aluminum and Total Iron at the Facility's Outfall, four times a year, with two

26 samples taken on or before December 31 and two samples on or after January 1.

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NOTICE OF CIVIL PENALTY ASSESSMENT AND ORDER CASE NO. WQ/SW-NWR-2017-201 Page 2 of6

1 14. Schedule B.3.b of the Permit provides that Respondent "may request a monitoring variance

2 for missed samples due to no discharge from the site if one of the following criteria is met:

3 a. State or federal authorities declared the year a drought year.

4 b. Demonstrate that rainfall in the area where the permit registrant's facility is located was

5 20% or more below the three-year average rainfall for that area.

6 c. Demonstrate to DEQ or Agent's satisfaction that discharge did not occur due to the use

7 of on-site retention system or other stormwater treatment system, or infrequent storm events

8 of sufficient magnitude to produce run-off during normal business hours and safe

9 conditions."

10 15. In order to obtain a monitoring variance pursuant to Schedule BJ.b of the Permit based on

11 one of the criteria described in Paragraphs 14.a through 14.c above, Respondent must "for each missed

12 sample, report in the Discharge Monitoring Report form that no discharge occurred and include

13 supporting data and analysis demonstrating why the monitoring did not occur."

14 16. Schedule B.8.a requires Respondent to submit a "DEQ-approved Discharge Monitoring

15 Report (DMR) form to DEQ or Agent by July 31st of each year" which includes sampling results from

16 the previous monitoring year (July 1 through June 30).

17 17. On August 21, 2017, Respondent submitted the Facility's DMR to DEQ for the reporting

18 period July 1, 2016 through June 30, 2017 (the "2016-2017 monitoring year"). The DMR states that

19 there was "No Discharge" at the Outfall and no sampling results are included on the DMR. The DMR

20 submission did not include any supporting data and analysis demonstrating why monitoring did not

21 occur at the Outfall for the four missed samples.

22 18. As of the date of this Notice, Respondent has not submitted supporting data and analysis to

23 DEQ demonstrating why monitoring did not occur at the Outfall during the 2016-2017 monitoring year.

24 More specifically:

25 a. Respondent has not demonstrated that state or federal authorities declared the year a

26 drought year;

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NOTICE OF CIVIL PENALTY ASSESSMENT AND ORDER CASE NO. WQ/SW-NWR-2017-201 Page 3 of6

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b. Respondent has not demonstrated that rainfall in the area where the Facility is located

was 20% or more below the tln·ee-year average rainfall for that area; and

c. Respondent has not demonstrated to DEQ's satisfaction that a discharge did not occur

due to the use of an on-site retention system or other stmmwater treatment system, or

infrequent stmm events of sufficient magnitude to produce run-off during normal business

hours and safe conditions.

8 III. CONCLUSIONS

9 I. Respondent has violated ORS 468B.025(2) by violating a condition of a stormwater pe1mit.

I 0 Specifically, Respondent violated Schedule B of the Permit by failing to monitor for Total Copper,

11 Total Lead, Total Zinc, pH, Total Suspended Solids (TSS), Total Oil & Grease, Chemical Oxygen

12 Demand (COD), Total Aluminum and Total Iron at the Facility's Outfall on four occasions during the

13 2016-2017 monitoring year, as described in Section II, Paragraphs 1-18, above. Respondent is not

14 exempt from the Permit's monitoring requirements because Respondent has not met the criteria for a

15 monitoring variance, pursuant to Schedule 3. b of the Pe1mit, by establishing that there was no discharge

16 from the Facility during the 2016-2017 monitoring year. More specifically, Respondent has not

17 "demonstrated to DEQ's satisfaction that a discharge did not occur due to the use of an on-site retention

18 system or other storm water treatment system, or infrequent storm events of sufficient magnitude to

19 produce run-off during normal business hours and safe conditions," as required by Schedule 3.b.iii of

20 the Permit. As of the date of this Notice, Respondent has not submitted supporting data and analysis to

21 DEQ to support its claim of"No Discharge" during the 2016-2017 monitoring year. Respondent has

22 not demonstrated, with data and analysis, that there was no discharge from the Facility despite the

23 Swale's design, which allows for a discharge under conditions where the water level in the Swale

24 reaches the open grate at the top of the Discharge/Monitoring Vault. These are Class I violations,

25 according to OAR 340-0 12-0055(1 )( o ). DEQ hereby assesses a $6,994 civil penalty for these

26 violations.

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NOTICE OF CIVIL PENALTY ASSESSMENT AND ORDER CASE NO. WQ/SW-NWR-20I7-20I Page 4 of6

I 2. Respondent has violated 468B.025(2) and Schedule B.8.a of the Permit by failing to timely

2 submit the Facility's DMR for the 2016-2017 monitoring year, as described in Section II, Paragraphs

3 16-17, above. The DMR was due on July 31,2017. Respondent submitted the DMR on August 21,

4 2017. This Class II violation, according to OAR 340-012-0055(2)(b). DEQ has not assessed a civil

5 penalty for this violation.

6 IV. ORDER TOPAYCIVILPENALTY

7 Based upon the foregoing FINDINGS OF FACTS AND CONCLUSIONS, Respondent is

8 hereby ORDERED TO:

9 Pay a total civil penalty of $6,994. The determination of the civil penalty is attached as Exhibit

10 I and is incorporated as part of this Notice.

11 If you do not file a request for hearing as set forth in Section V below, your check or money

12 order must be made payable to "State Treasurer, State of Oregon" and sent to the DEQ, Business

13 Office, 700 NE Multnomah Street, Suite 600, Portland, Oregon 97232. Once you pay the penalty,

14 the Findings of Fact, Conclusions and Order become final.

15 V. NOTICE OF RIGHT TO REQUEST A CONTESTED CASE HEARING

16 You have a right to a contested case hearing on this Notice, if you request one in writing. DEQ

17 must receive your request for hearing within 20 calendar days from the date you receive this Notice. If

18 you have any affirmative defenses or wish to dispute any allegations of fact in this Notice or attached

19 exhibit(s), you must do so in your request for hearing, as factual matters not denied will be considered

20 admitted, and failure to raise a defense will be a waiver of the defense. (See OAR 340-011-0530 for

21 further information about requests for hearing.) You must send your request to: DEQ, Office of

22 Compliance and Enforcement, 700 NE Multnomah Street, Suite 600, Portland, Oregon 97232, fax

23 it to 503-229-5100, or email it to DEQappeals@deq.state.or.us. An administrative law judge

24 employed by the Office of Administrative Hearings will conduct the hearing, according to ORS

25 Chapter 183, OAR Chapter 340, Division 011 and OAR 137-003-0501 to 0700. You have a right to be

26 represented by an attorney at the hearing, however you are not required to be. If you are an individual,

27 you may represent yourself. If you are a corporation, partnership, limited liability company,

NOTICE OF CIVIL PENALTY ASSESSMENT AND ORDER CASE NO. WQ/SW-NWR-2017-201 Page 5 of6

1 unincorporated association, trust or government body, you must be represented by an attorney or a duly

2 authorized representative, as set forth in OAR 137-003-0555.

3 Active duty service-members have a right to stay proceedings under the federal Service

4 Members Civil Relief Act. For more infmmation, please call the Oregon State Bar at 1-800-

5 452-8260 or the Oregon Military Depatiment at 1-800-452-7500. Additional information can be found

6 online at the United States Aimed Forces Legal Assistance (AFLA) Legal Services Locator website

7 http:/ /legalassistance.law. af.mil/ content/locator. php.

8 If you fail to file a timely request for hearing, the Notice will become a final order by default

9 without further action by DEQ, as per OAR 340-011-0535(1). If you do request a hearing but later

10 withdraw your request, fail to attend the hearing or notifY DEQ that you will not be attending the

11 hearing, DEQ will issue a final order by default pursuant to OAR 340-011-0535(3). DEQ designates

12 the relevant portions of its files, including information submitted by you, as the record for purposes of

13 proving a prima facie case.

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Sarah G. Wheeler, Acting Manager Office of Compliance and Enforcement

NOTICE OF CIVIL PENALTY ASSESSMENT AND ORDER CASE NO. WQ/SW-NWR-2017-201 Page 6 of6

EXHIBIT I

FINDINGS AND DETERMINATION OF RESPONDENT'S CIVIL PENALTY PURSUANT TO OREGON ADMINISTRATIVE RULE (OAR) 340-012-0045

VIOLATION No.1:

CLASSIFICATION:

MAGNITUDE:

Violating a condition of a storm water discharge permit by failing to conduct Schedule B monitoring, in violation of ORS 468B.025(2).

This is a Class I violation pursuant to OAR 340-012-0055(1)(o).

The magnitude of the violation is moderate pursuant to OAR 340-012-0130(1), as there is no selected magnitude specified in OAR 340-012-0135 applicable to this violation, and the information reasonably available to DEQ does not indicate a minor or major magnitude.

CIVIL PENALTY FORMULA: The formula for determining the amount of penalty of each violation is: BP + [(0.1 x BP) x (P + H + 0 + M +C)]+ EB

"BP" is the base penalty, which is $4,000 for a Class I, moderate magnitude violation in the matrix listed in OAR 340-012-0140(3)(b)(A)(ii) and applicable pursuant to OAR 340-012-0140(3)(a)(E)(iii) because Respondent has coverage under NPDES Stormwater Discharge General Permit No. 1200-Z.

"P" is whether Respondent has any prior significant actions, as defmed in OAR 340-012-0030(19), in the same media as the violation at issue that occurred at a facility owned or operated by the same Respondent, and receives a value of 0 according to OAR 340-012-0145(2)(a)(A) because there are no prior significant actions.

"H" is Respondent's history of con·ecting prior significant actions, and receives a value ofO according to OAR 340-012-0145(3)(c) because there is no prior history.

"0" is whether the violation was repeated or ongoing, and receives a value of2 according to OAR 340-012-0145( 4)(b) because there was more than one but less than seven occurrences of the violation. Respondent failed to monitor on four occasions during the 2016-17 monitoring year.

"M" is the mental state of the Respondent, and receives a value of 4 according to OAR 340-012-0145(5)(c) because Respondent's conduct was negligent. Negligent means the Respondent failed to take reasonable care to avoid a foreseeable risk of conduct constituting or resulting in a violation. The requirement to monitor the Facility's stormwater discharge--or to provide data and analysis in support of a variance in the case of no discharge-is an express condition of the Petmit. In addition, Respondent has been notified on several occasions by DEQ about the need to evaluate the Facility's potential for a discharge. On January 6, 2010, DEQ staff inspected the Facility. The comments and recommendations in the inspection report include: "Determine rainfall conditions which result in a discharge and provide in the

Case No. WQ/SW-NWR-2017-201 Exhibit I Page 1

SWPCP [Storm water Pollution Control Plan]" and "ClarifY in the SWPCP what is meant by the I 00-yr storm." Despite these comments and recommendations, Respondent has not included any calculations regarding the Swale's detention capacity or conditions that would likely generate a discharge from the Facility in its SWPCP nor did Respondent submit any such information in support of the "No Discharge" claim in its 2016-2017 DMR. In 2015, discussions between DEQ and Respondent, including a DEQ inspection of the Facility on June 22, 2015, included a review of the requirements for a monitoring variance and the type of data and analysis needed to demonstrate "no discharge". DEQ's June 22,2015 inspection report, p. 2, "encourages Thermo Fluids to document the No Discharge of stormwater condition at the site." In response to this request, Thermo Fluids submitted a letter to DEQ, dated November 11,2015, which states on p. 2: "The recommendation on the stmmwater inspection worksheet was to document 'No Discharge' of stormwater at the site. A spreadsheet has been created to monitor for discharge at the site. The spreadsheet contains the date, amount of rainfall event furnished by local weather services, reference to a file where pictures of the discharge vault are kept and if the discharge occurred. The spreadsheet will be used to record data for a minimum of one year to track rainfall events during normal business hours and con·elate to potential discharges." Despite Respondent's awareness of the need to analyze the Facility's potential to discharge and its stated intention to document rainfall and the occurrence, or not, of a discharge-even after installing a plug at the Vault Inlet on October 5, 2015-Respondent failed to submit any data and analysis in support of its claim of"No Discharge" for four missed samples in its 2016-2017 DMR. By failing to either monitor its storm water discharge or establish a basis for a monitoring variance for each missed stormwater sample due to no discharge from the site, Respondent failed to talce reasonable care to avoid a foreseeable risk of conduct constituting or resulting in a violation.

"C" is Respondent's efforts to con·ect or mitigate the violation, and receives a value of 0 according to OAR 340-012-0145(6)(£) because the violation could not be corrected. Respondent cannot correct missed monitoring that should have taken place during the 2016-2017 monitoring year.

"EB" is the approximate dollar value of the benefit gained and the costs avoided or delayed as a result of the Respondent's noncompliance. It is designed to "level the playing field" by taking away any economic advantage the entity gained and to deter potential violators from deciding it is cheaper to violate and pay the penalty than to pay the costs of compliance. In this case, "EB" receives a value of $594. This is the amount Respondent gained by avoiding spending $964 to collect four stormwater samples during the 2016-2017 monitoring year and analyze those samples for Total Copper, Total Lead, Total Zinc, pH, Total Suspended Solids (TSS), Total Oil & Grease, Chemical Oxygen Demand (COD), Total Aluminum and Total Iron. This "EB" was calculated pursuant to OAR 340-012-0150(1) using the U.S. Environmental Protection Agency's BEN computer model.

PENALTY CALCULATION: Penalty= BP + [(0.1 x BP) x (P + H + 0 + M +C)]+ EB = $4,000 +[(OJ X $4,000) X (0 + 0 + 2 + 4 + 0)] + $594 = $4,000 + ($400 X 6) + $594 = $4,000 + $2,400 + $594 = $6,994

Case No. WQ/SW-NWR-2017-201 Exhibit 1 Page2