reg on Kate Brown, Governor

February 1, 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

TIY711

CERTIFIED MAIL: 7016 2140 0000 2409 6295

Ultimate RB, Inc., d/b/a RB Recycling, 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-2017-220

This letter is to inform you that the Oregon Department of Environmental Quality (DEQ) has issued you a civil penalty of $10,800 for failing to comply with the monitoring requirements of the sto1mwater discharge permit for your waste tire processing facility at 9945 N. Burgard Way in Portland. Specifically, you failed to comply with Schedule B of the stormwater pe1mit by failing to monitor your facility's stmmwater 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 one ofthe required two times during the first half of the 2016-17 monitoring year (July 1-December 31, 20 16). In addition, you failed to monitor for pH during the 2016-17 monitoring year because you did not comply with the requirement to monitor within 15 minutes of collecting the samples, thus rendering them invalid.

DEQ issued this penalty because the system that protects water quality in Oregon is highly dependent on pe1mittees complying with the monitoring requirements of their permits. Without monitoring data, DEQ and the public cannot determine 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.

DEQ appreciates your effotis to minimize the effects ofthe violations by taking an extra stormwater sample between January 1 and June 30, 2017. In addition, you took steps to ensure that the violations would not be repeated by conducting a "Problem Solving Investigation for a Missed Sample Day in October 2016" and by developing a "Stormwater pH Sampling Form" to record pH sampling information, including the time the sample is taken and the time of the pH reading. DEQ considered these efforts when determining the amount of civil penalty.

In addition to the monitoring violations, the Notice cites you, without penalty, for failing to submit the required name change or transfer application and fees to DEQ within 30 days of the merger between RB Recycling, Inc. and Ultimate RB, Inc. Included in Section IV is an order requiring you to submit the Name Change I Transfer form and applicable fees to DEQ within 15 days after the order becomes final by operation of law or on appeal. For your convenience, a copy of the Name Change I Transfer form is included with this conespondence.

Ultimate RB, Inc., d/b/a RB Recycling, Inc. Case No. WQ/SW-NWR-2017-220 Page 2

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:

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 arrange 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 I 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: Aubree Minten, Ultimate RB, Inc. , 904 NE 10111 Ave., McMinville, OR 97128 Laura Johnson, City of Portland Christine Svetkovich, DEQ Shaumae Hall, Accounting, DEQ John Koestler, WQ, DEQ

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BEFORE THE ENVIRONMENTAL QUALITY COMMISSION

OFTHESTATEOFOREGON

IN THE MA TIER OF: ) ) ) ) )

NOTICE OF CIVIL PENALTY ASSESSMENT AND ORDER CASE NO. WQ/SW-NWR-2017-220

ULTIMATE RB, INC., a Delaware corporation, d/b/a RB Recycling, Inc.,

Respondent.

I. AUTHORITY

The Department ofEnviromnental Quality (DEQ) issues this Notice of Civil Penalty Assessment

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

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

and 045.

II. FINDINGS OF FACT

1. On August 29, 2012, DEQ assigned RB Recycling, Inc. coverage under National Pollutant

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

for the tire processing facility located at 9945 N. Burgard Way in Portland, Oregon (the Facility). The

Permit was in effect at all material times. 1

2. Effective January 1, 2016, RB Recycling, Inc. merged with Ultimate RB, Inc. and R-B

Rubber Products, Inc. Ultimate RB, Inc. (hereinafter "Respondent"), was the survivor; RB Recycling,

Inc. and R-B Rubber Products, Inc. were the non-survivors. After the merger, the Facility continued to

operate under the assumed business name "RB Recycling, Inc."

3. The Facility's stormwater collects in a vegetated infiltration pond that overflows into a

private storm water conveyance system and discharges through the Facility's outfall to the Willamette

River.

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

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

identified in Schedule E of the Permit. According to Schedule A.9, Table 3, the statewide benchmarks

1 All ofthe 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, 2017). 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-2017-220 Page I of5

I include Total Copper, Total Lead, Total Zinc, pH, Total Suspended Solids (TSS), and Total Oil &

2 Grease.

3 5. Schedule E, Table E.N-1 of the Petmit establishes Chemical Oxygen Demand (COD), Total

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

5 (SIC Code 5093) subject to the Permit.

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

7 7. Schedule B.2.e.i of the Permit establishes a stormwater monitoring year of July I to June 30.

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

9 statewide benchmarks and any applicable sector-specific benchmark pollutartts four times per

I 0 monitoring year in accordartce with Schedule B, Table 4, with two samples on or before December 31

11 and two samples on or after January I.

12 9. During the July 1, 2016- June 30,2017 monitoring year (the "2016-17 monitoring year"),

13 Respondent was required to monitor the Facility's stormwater discharge for Total Copper, Total Lead,

14 Total Zinc, pH, Total Suspended Solids (TSS), Total Oil & Grease, Chemical Oxygen Demand (COD),

15 Total Aluminum and Total Iron at the Facility's outfall, four times a year, with two samples taken on or

16 before December 31 artd two samples on or after January 1.

17 10. Respondent collected only one of the required two samples for Total Copper, Total Lead,

18 Total Zinc, pH, Total Suspended Solids (TSS), Total Oil & Grease, Chemical Oxygen Demartd (COD),

19 Total Aluminum and Total Iron during the first half of the 2016-17 monitoring year. Specifically,

20 Respondent collected a sample on November 28,2016 but failed to collect a second sample between

21 July 1, 2016 artd December 31,2016.

22 II. Schedule F.C.3 of the Permit requires Respondent to conduct monitoring according to test

23 procedures approved under 40 Code of Federal Regulations (CFR) § 136, unless other test procedures

24 have been specified in the Permit. The Permit does not specify alternative test procedures.

25 12. Table II in 40 CFR §136.3(e) states that samples collected for pH (hydrogen ions) analysis

26 must be analyzed within 15 minutes of collection.

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NOTICE OF CIVIL PENALTY ASSESSMENT AND ORDER CASE NO. WQ/SW-NWR-2017-220 Page 2 of5

1 13. Schedule B.8.a of the Permit requires Respondent to identify sampling results in a

2 Discharge Monitoring Report (DMR) submitted to DEQ by July 31st of each year.

3 14. The sample results for pH reported by Respondent in its 2016-17 DMR for sample dates

4 November 28, 2016, January 19, 2017, February 9, 2017 and March 15, 2017 were not analyzed within

5 15 minutes of collection, thereby rendering those samples invalid.

6 15. Condition 5.a, page 7 of the Pe1mit requires Respondent to submit the following to DEQ or

7 the City of Portland within 30 calendar days of a name change or transfer of permit coverage between

8 legal entities:

9 a. DEQ-approved Name Change or Permit Transfer application fmm;

10 b. An updated copy of the Stmmwater Pollution Control Plan (SWPCP), if revisions are

11 necessary to address changed conditions; and

12 c. Applicable permit fees.

13 16. As of the date of this Notice, Respondent has not submitted the name change or transfer

14 information described in Paragraphs 15.a-c, above to DEQ or the City of Portland to reflect the merger

15 effective January 1, 2016, described in Paragraph 2, above.

16 III. CONCLUSIONS

17 1. Respondent has violated ORS 468B.025(2) by violating a condition of a stormwater permit.

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

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

20 Demand (COD), Total Aluminum and Total Iron on one of the required two occasions during the first

21 half of the 2016-17 monitoring year (July 1 -December 31, 2016), as described in Section II,

22 Paragraphs 3-10, above. Respondent also failed to monitor for pH on three additional occasions dming

23 the 2016-17 monitoring year, because all of the pH samples reported by Respondent were invalid, as

24 described above in Section II, Paragraphs 11-14. These are Class I violations, according to OAR 340-

25 0 12-0055(1 )( o ). DEQ hereby assesses a $10,800 civil penalty for these violations.

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NOTICE OF CIVIL PENALTY ASSESSMENT AND ORDER CASE NO. WQ/SW-NWR-2017-220 Page 3 of5

1 2. Respondent has violated 468B.025(2) and Condition 5.a of the Permit by failing to submit a

2 Name Change or Transfer Application and applicable permit fees to DEQ or the City of Pmiland within

3 30 days of a name change or transfer of permit coverage between legal entities, as described in Section

4 II, Paragraphs 2 and 15-16, above. This Class II violation, according to OAR 340-012-0055(2)(b). DEQ

5 has not assessed a civil penalty for this violation.

6 IV. ORDER TO PAY CIVIL PENALTY AND TO COMPLY

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

8 hereby ORDERED TO:

9 1. Pay a total civil penalty of$10,800. The detem1ination of the civil penalty is attached as

10 Exhibit 1 and is incorporated as part of this Notice.

11 If you do not file a request for hearing as set fmih 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 2. Within 15 days after the order becomes final by operation oflaw or on appeal, submit a

16 Name Change or Permit Transfer application form and applicable fees to DEQ, Attn: Ian Gamer, 700

17 NE Multnomah St., Suite #600, Pmiland, OR 97232 or Garner.Ian@deq.state.or.us.

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

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

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

21 you have any affhmative defenses or wish to dispute any allegations of fact in this Notice or attached

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

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

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

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

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

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

NOTICE OF CIVIL PENALTY ASSESSMENT AND ORDER CASE NO. WQ/SW-NWR-20I7-220 Page 4 of 5

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

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

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

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

5 authorized representative, as set fmih in OAR 137-003-0555.

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

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

8 452-8260 or the Oregon Military Depruiment at 1-800-452-7500. Additional information can be found

9 online at the United States Atmed Forces Legal Assistance (AFLA) Legal Services Locator website

1 0 http:/ /legalassistance.law .af.mil/ content/locator .php.

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

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

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

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

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

16 proving a prima facie case.

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Sru·ah G. Wheeler, Acting Manager Office of Compliance and Enforcement

NOTICE OF CIVIL PENALTY ASSESSMENT AND ORDER CASE NO. WQ/SW-N WR-20 17-220 Page 5 of5

EXHIBIT 1

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

VIOLATIONNo. 1:

CLASSIFICATION:

MAGNITUDE:

Violating a condition of a storm water discharge pe1mit 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 matiix 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 defined in OAR 340-012-003 0(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 10 according to OAR 340-012-0145(2)(a)(C) and (D) and OAR 340-012-0145(b) because Respondent has six Class I violations and twelve Class II violations in Case No. WQ/SW-NWR-2013-149, issued on February 13, 2014; thi!ieen Class I and two Class II violations in Case No. WQ/SW-NWR-2012-116, issued on November 1, 2012; and two Class II violations in Case No. WQ/SW-NWR-2009-063, issued on April29, 2009.

"H" is Respondent's history of correcting prior significant actions, and receives a value of 0 according to OAR 340-012-0145(3)(c) because there is insufficient infmmation on which to base a finding under paragraphs (3)(a) or (b).

"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 occunences of the violation. Respondent failed to monitor on four occasions during the 2016-17 monitoring year. Specifically, Respondent failed to monitor for Total Copper, Total Lead, Total Zinc, pH, Total Suspended Solids (TSS), Total Oil & Grease, Chemical Oxygen Demand (COD), Total Aluminum and Total Iron on one of the required two occasions during the first half of the 2016-17 monitoring year (July 1 -December 31, 20 16). Respondent also failed to monitor for pH on three additional occasions during the 2016-17 monitoring year.

Case No. WQ/SW-NWR-2017-220 Exhibit 1 Page I

"M" is the mental state of the Respondent, and receives a value of 8 according to OAR 340-012-0145(5)(d) because Respondent failed to conduct all of the required Schedule B monitoring despite actual knowledge of the Permit'·s monitoring requirements. The requirement to monitor for benchmark pollutants four times a year, with two samples taken on or before December 31 and two samples on or after January 1, is an express condition of the Permit. Respondent has been previously notified of this requirement in Case Nos. WQ/SW-NWR-2009-063 and WQ/SW-NWR-2013-149. By failing to conduct monitoring one of the required two times during the first half of the 2016-17 monitoring year---even though there was sufficient rainfall in October 2016 to generate a discharge from the Facility-Respondent failed to act intentionally with actual knowledge of the Petmit's monitoring requirements. In addition, the requirement to conduct pH monitoring within 15 minutes of taking a sample is an express condition of the Petmit and Respondent has been notified of this requirement in Case No. WQ/SW-NWR-2013-149. By failing to conduct pH monitoring within 15 minutes of taking storm water samples, Respondent failed to act intentionally with actual knowledge of the pH hold time requirement.

"C" is Respondent's efforts to correct or mitigate the violation, and receives a value of -3 according to OAR 340-012-0145(6)(c) because Respondent made reasonable affirmative effmts to minimize the effects of the violations by taking an extra stmmwater sample between January 1 and June 30, 2017. In addition, Respondent took steps to ensure that the violations would not be repeated by conducting a "Problem Solving Investigation for a Missed Sample Day in October 2016" and by developing a "Stotmwater pH Sampling Form" to record pH sampling information, including the time the sample is taken and the time of the pH reading.

"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 $0 because Respondent took and analyzed an extra storm water sample between January 1 and June 30, 2017 and because Respondent has purchased a pH meter to use for future monitoring. Any economic benefit that Respondent received from delaying these costs is de minimis.

PENALTY CALCULATION: Penalty= BP + [(0.1 x BP) x (P + H + 0 + M +C)]+ EB = $4,000 +[(OJ X $4,000) X (10 + 0 + 2 + 8 + -3)) + $0 = $4,000 + ($400 X 17) + $0 = $4,000 + $6,800 + $0 = $10,800

Case No. WQ/SW-NWR-2017-220 Exhibit 1 Page 2

DEQ USE ONLY DEQ USE ONLY . '

Application#: Oregon Department of Environmental Quality Date Rcvd: Legal name checked 0 Amt Rcvd: Notes: !!IE Name Change and/or Permit Transfer Check#:

"""""""" NPDES or WPCF Permit Rcvd From: OIND ODOM OSTM 0 OSS -·· Deposit#: ,_ OUIC: ~·~ Receipt#:

A. ACTION TO BE PERFORMED D Name Change I Effective or Scheduled Date: I D Transfer of Permit/ Scheduled Date:

B. PREVIOUS INFORMATION

I. Previous Legal Name: Previous Common Name:

2. Facility Physical Address: 3. Permit#: City, State, Zip Code: DEQ File#: County:

C. NEW INFORMATION

1. NEW Legal Name:

2. NEW Common Name:

3. Responsible Official: Title: Mailing Address, City, State, Zip Code: Email Address: Telephone #:

4. Facility Contact: Title: Mailing Address, City, State, Zip Code: Email Address: Telephone#:

5. Invoice to: Title: Mailing Address, City, State, Zip Code: Email Address: Telephone#:

6. Will the name change or transfer of ownership result in a change in the character of pollutants being discharged or a new or increased discharge not addressed by cuiTent permit conditions? D No D Yes (attach explanation)

D. SIGNATURE REQUIRED FOR NAME CHANGE I herby authorize the above referenced name change.

Name of Legally Authorized Representative (Type or Print) Title

Signature of Legally Authorized Representative Date E. SIGNATURES REQUIRED FOR TRANSFER OF PERMIT

Previous owner: I hereby acknowledge the pending transfer of the above referenced permit.

Name of Legally Authorized Representative (Type or Print) Title

_________________ l:'ig~at~r_e !>_~ I;~ga_l!y_ ~ut!'_or!~~d- ~e~r~~e11_t~ti_ve __________________________________________ ])a_t_e_ ________________________

New owner: I hereby apply for permission to transfer the above referenced permit and certifY that I have acquired a property interest in the permitted activity. I agree to fully comply with all terms and conditions of the permit and DEQ rules.

Name of Legally Authorized Representative (Type or Print) Title

Signature of Legally Authorized Representative Date - I - last updated: Oct 10, 2017 (MRB)