NCG200339_EPA Consent Agreement Final Order_20120321

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 4
ATLANTA FEDERAL CENTER
61 FORSYTH STREET
ATLANTA, GEORGIA 30303-8960
PEAR 21 20iL
CERTIFIED MAIL 7010 1060 0002 1705 8189
RETURN RECEIPT REQUESTED
Biltmore hon and Metal Company, Incorporated
ATTN: Ms. Vonna Cloninger, Chief Executive Officer
One Meadow Road
Asheville, North Carolina 28802
Re: Consent Agreement and Final Order No. CWA-04-2012-4514(b)
p
Dear Ms. Cloninger:
Enclosed is a Consent Agreement and Final Order (CA/FO) which was prepared based on violations found atl
Biltmore Iron and Metal Company, Incorporated (BIMCO), in Asheville, North Carolina. Please review the
enclosed CA/FO, and have an authorized person for BIMCO sign and return it to Ms. Susan Pope of my staff'l
within seven days of receipt. /
Alter receiving the signed CA/FO, the U.S. Environmental Protection Agency, Region 4 must
on lace it public
p
notice in accordance with 40 Code of Federal Regulations Part 22. The public notice will be on the EPA, Region 4
Website at the following internet address: hqp://www.epa. og v/region4/water/wpeb The comment period will
remain open for 30 days. This CA/FO may not be finalized by the EPA until 10 days after the closure of the
comment period. Once the public comment period is exhausted and the CA/FO has been signed by the Clean Water
Enforcement Branch Chief, an executed copy will be sent to the Regional Judicial Officer. Upon approval by the
Regional Judicial Officer (Final Order), the CA/FO will be filed with the Regional Hearing Clerk, who will mail a
copy to you. The CA/FO will become effective upon filing with the Regional Hearing Clerk.
Please note that a settlement does not relieve you of your obligation to comply with all applicable provisions
of federal, state or local law, nor shall it be construed to be a ruling on, or determination of, any issue related
to any federal, state or local permit.
If you have any furt
her questions you may contact me at [phone] or Ms. Pope at [phone] or via
email at [e-mail]. Legal inquiries should be directed to Mr. Rolando Bascumbe, Associate
Regional. Counsel, at [phone].
Sincerely,
4
Daniel J. O'Lone, Acting Chief
Stormwater and Residuals Enforcement Section
Clean Water Enforcement Branch
Enclosure
X:
North Carolina Department of Environment and Natural Resources
Division of Water Quality
Internet Address (URL) 4
http;//www.epa,gov
Recycled/Recyclable •Primed with Vegetable oil Based Inks on Rerycled Paper (ddinimum 30 / Postconsumer)

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 4
IN THE MATTER OF: )
BILTMORE IRON AND METAL CO., INC.)
ASHEVILLE, NORTH CAROLINA )
RESPONDENT. )
CONSENT AGREEMENT AND
FINAL ORDER
DOCKET NO. CWA-04-2012-4514(b)
CONSENT AGREEMENT
I. Statutory Authority
1. This is a civil penalty proceeding pursuant to Section 309(g)(2) (A) of the Clean
Water Act ("CWA"), 33 U.S.C. § 1319(g) (2) (A), and the Consolidated Rules of Practice
Governing the Administrative Assessment of Civil Penalties, Issuance ofCompliance or
Corrective Action Orders and the Revocation, Termination or Suspension of Permits, including
Subpart 1, published at 64 Fed. Reg. 40176 (July 23, 1999) and codified at 40 Code of Federal
Regulations ("C.F.R.") Part 22,
2. The authority to take action under Section 309(g)(2)(A) of the CWA, 33 U.S.C.
§ 1319(g)(2)(A), is vested in the Administrator of the United States Environmental Protection
Agency. The Administrator has delegated this authority to the Regional Administrator, Region
4, who in turn has delegated this authority to the Director of the Water Protection Division, who
in turn has delegated this authority to the Chief of the Clean Water Enforcement Branch of the
EPA, Region 4 ("Complainant"),
If
Allegations
3. At all times relevant to this action, Biltmore Iron and Metal Company, Inc.
("Respondent"), a corporation duly organized and existing under the laws of the State of North
Carolina and, therefore, is a "person" within the meaning of Section 502(5) of the,CWA, 33
U.S.C. § 1362(5).
4. At all times relevant to this action, the Respondent owned and/or operated a scrap
metal facility located at 1 Meadow Road in Asheville, North Carolina.
5. To accomplish the objective of the CWA, defined in Section 101(a) of the CWA,
33 U.S.C. § 1251(a), to restore and maintain the chemical, physical and biological integrity of
the nation's waters, Section 301(a) of the CWA, 33 U.S.C. § 1311(a), prohibits the discharge of
pollutants by any person into waters of the United States except as in compliance with a National

Pollutant Discharge Elimination System ("NPDES") permit issued pursuant to Section 402 of the
CWA, 33 U.S.C. § 1342.
6. Section 402 of the CWA, 33 U.S.C. 11342, establishes an NPDES Permit
Program authorizing the EPA or authorized states to administer the NPDES Permit Program,
including the issuance of NPDES permits allowing for the discharge of pollutants, including
Stormwater, into navigable waters subject to specific terms and conditions. The EPA has granted
the State of North Carolina, through the Department of Environment and Natural Resources
("NCDENR"), approval to issue NPDES permits pursuant to Section 402(b) of the CWA.
7. The NCDENR issued a General Permit to Discharge Stormwater Under the
National Pollutant Discharge Elimination System for Construction Activities, Permit No.
NCG20000 ("Permit"), establishments primarily engaged in assembling, breaking up, sorting
and whole trade of scrap metal Standard Industrial Classification ("SIC") Code 5093 and areas at
scrap metal recycling facilities which are used to process other scrap materials (plastic, paper,
glass, rubber and textiles) or used for vehicle maintenance activities, in accordance with North
Carolina General Statue 153-215.1 and the CWA. The Permit was effective January 1, 2010,
and shall expire on December 31, 2014. 1
8. The NCDENR Division of Water Quality is responsible for the approval of
coverage under the Permit upon receipt of a Notice of Intent ("NOI" ).
9. On February 11, 2010, the Respondent received coverage under the Permit from
NCDENR. The Permit shall expire on December 31, 2014.
10. Part ILA.1 of the Permit requires the development of a Stormwater Pollution
Prevention Plan ("SWPPP") which shall include:
A. a site plan which provides a description of the physical facility and the
potential pollutant sources which maybe expected to contribute to contamination of stormwater
discharges;
B. a general location map showing the facility's location in relation to
transportation routes and surface waters, the name of the receiving water, and accurate latitude
and longitude of the point(s) of discharge;
C: a narrative description of storage practices, loading and unloading
activities, outdoor process areas, dust or particulate generating or control processes, waste
disposal practices and a description of the potential pollutants which could be expected to be
present in the any stormwater discharge from each outfall; and
D, a site map depicting the site property boundary, the stormwater
discharge
outfalls, all on-site .and adjacent surface waters and wetlands, industrial activity areas, site
topography, all drainage features and structures, drainage areas for each outfall, direction of flow
in each drainage area, industrial activities occurring in each drainage area, buildings, existing
2

Best Management Practices ("BMPs"), impervious surfaces and a distance legend indicating the
percentage of each drainage area that is impervious.
1 1. Part II.A.2 of the Permit requires the SWPPP to include a Stormwater
Management Plan which contains a narrative description of the materials management practices
which control or minimize the exposure of significant materials to stormwater, including
structural and nonstructural measures. The Storwater Management Plant shall include:
m
A. a feasibility study to include a review of the technical and economic
feasibility of changing the methods of operations and/or storage practices to eliminate or reduce
exposure of materials and processes to stormwater. Wherever practical, RESPONDENT shall
prevent exposure of all storage areas, material handling operations, and manufacturing or fueling
operations. In areas where elimination of exposure is not practical, the stormwater management
plan shall document the feasibility of diverting stormwater runoff away from areas of potential
contamination; and
B. a listing of site structural and non-structural BMPs. A BMP Summary
shall include a written record of the specific rationale for installation and implementation of the
selected site BMPs and shall be reviewed and updated annually.
12. Part ILA.3 of the Permit requires the SWPPP to contain a Spill Prevention and
Response Plan ("SPRP") which incorporates an assessment of potential pollutant sources based
on a materials inventory of the facility. The SPRP team shall be identified in a written list
incorporated into the SPRP signed and dated by each individual acknowledging their
responsibilities for the SPRP. An oil Spill Prevention Control and Countermeasure Plan
"SPCC") may be a component of the SPRP.
13. Part II.A.4 of the Permit requires the SWPPP to include a preventative
maintenance and good housekeeping program which shall list all stormwater control systems,
stormwater discharge outfalls, on-site and adjacent surface waters and wetlands, industrial
activity areas, drainage features and structures and existing BMPs. The program shall establish
schedules of inspections, maintenance and housekeeping activities of stormwater controls
systems, facility equipment, facility areas and facility systems that present a potential for
stormwater exposure or pollution. Inspection of material handling areas and regular cleaning
schedules of these areas shall be incorporated into the program. Timely compliance with the
established schedules for inspections, maintenance and housekeeping shall be recorded in writing
and maintained in the SWPPP.
14. Part II.A.S of the Permit requires the SWPPP to contain a training program that
provides, at a minimum, annual training for facility personnel with responsibilities for: spill
response and cleanup, preventative maintenance activities and for any of the facility's operations
that have the potential to contaminate stormwater runoff. Facility personnel responsible for
implementing the training shall be identified and their annual training shall be documented by
the signature of each employee trained.
3

15. Part II.A.7 of the Permit requires amendment to the SWPPP whenever there is a
change in design, construction, operation or maintenance which has a significant effect on the
potential for the discharge of pollutants to surface waters. All aspects of the SWPPP shall be
reviewed and updated on an annual basis. The annual update shall include: an updated list of
significant spills or a statement that no spills have occurred; written re -certification that the
Stormwater outfalls have been evaluated for the present of non-stormwater discharges; and a
documented re-evaluation of the effectiveness of the BMPs listed in the BMP Summary of the
Stormwater Management Plan,
I6. Part ILA.8 of the Permit requires inspections of the facility and all stormwater
systems as part of the Preventative Maintenance and Good Housekeeping Program on at least a
semi-annual schedule; once during the first half of the year (January to June) and once in the
second half of the year (July to December), with at least sixty (60) days separating inspection
dates (unless performed more frequently than semi-annually).
17. Part ILB of the Permit requires analytical monitoring of stormwater discharges at
least twice per year via grab samples for pH, Chemical Oxygen Demand ("COD"), Total
Suspended Solids ("TSS"), Oil and Grease, Total Recoverable Cadmium, Total Recoverable
Copper, Total Recoverable Iron, Total Recoverable Lead, Total Recoverable Zinc and Total
Rainfall. All analytical monitoring shall be performed during a representative storm event at each
Stormwater discharge outfall and shall not exceed the benchmark values contained in Table 3 of
the Permit. Exceedance of the benchmark values require the permittee to increase monitoring,
increase management actions, increase recordkeeping, and/or install stormwater BMPs as
required in the tiered program contained in the Permit.
18. Part II.0 of the Permit requires qualitative monitoring which includes visual
inspection of each stormwater outfall regardless of representative status at least twice per year
during a representative storm event. If the qualitative monitoring indicates either that the existing
stormwater BMPs are ineffective, or that significant stormwater contamination is present, the
permittee shall investigate potential courses, evaluate the feasibility of corrective actions, and
implement those corrective actions appropriate. A written record of the investigation, evaluation
and response actions shall be kept in the SWPPP.
19. Part ITT
.C.1 of the Permit requires proper operation and maintenance of all
facilities and systems of treatment and control (and related appurtenances) which are installed or
used to achieve compliance. Proper operation and maintenance also includes adequate
laboratory controls and appropriate quality assurance procedures.
20. Part IIID of the Permit contains the requirements for monitori
ng and sampling,
recording sampling results, test procedures and records retention.
21. On March 2, 2011, representatives of the EPA, in conjunction with NCDENR,
performed a Compliance Stormwater Evaluation Inspection ("CSWEI") at Respondent to
evaluate the treatment and disposal of stormwater in accordance with the CWA, the regulations
promulgated thereunder at 40 Code of Federal Regulations ("C.F.R.") § 122.26 and the Permit.
4

22. As a result of the UN) Wti, the EPA, Region 4 determined that stormwater
associated with industrial activity was discharged from Respondent within the meaning of
Section 402(p) of the CWA, 33 U.S.C. § 1342(p), and its implementing regulations into an
unnamed tributary of the Swannanoa River, a water of the United States,
23. During the CSWEI, the EPA inspectors provided a copy of an "NPDES
Inspection Observation Form" to Respondent representatives. The NPDES Inspection
Observation Form and in the CSWEI Report, documented the following observations:
A. Respondent failed to develop and implement a SWPPP in
accordance with Part II.A. l of the Permit. Specifically, Respondent
failed to: sign and date the SWPPP; develop a site plan; develop a
general location map; provide a narrative description of storage
practices, loading and unloading activities, outdoor process areas
and waste disposal areas; and develop a site map.
B. Respondent failed to develop and implement a Stormwater
Management Plan in accordance with Part II.A.2 of the Permit.
The Stormwater Management Plan should have included a
narrative description of the materials management practices; a
feasibility study; and a BMP Summary.
C. Respondent failed to develop and implement SPRP and SPCC Plan
in accordance with Part II.A.3 of the Permit.
D. Respondent failed to include and implement a preventative
maintenance and good housekeeping program in its SWPPP as
required by Part II.A.4 of the Permit.
E. Respondent failed to provide and implement a training program in
the SWPPP as required by Part II.A.S of the Permit.
F. Respondent failed to review and update its SWPPP on an annual
basis as required by Part II.A.7 of the Permit.
G. Respondent failed conduct inspections on asemi-annual basis as
required by Part II.A.B of the Permit. Specifically, the inspections
for 2009 were not available to the EPA inspectors.
H. Respondent failed to conduct all analytical monitori
ng as required
by Part II.B of the Permit. Specifically, the data for 2009 was not
available to the EPA inspectors. A review of the data available
revealed that only one sample was collected for 2010. For that one
2010 sample, the benchmark values for COD, Total Recoverable
5

Cadmium and Total Recoverable Lead were exceeded. No samples
were analyzed for pH, Oil and Grease, Total Recoverable Copper
and Total Recoverable Zinc in the one 2010 analysis.
I. Respondent failed to conduct all qualitative monitoring and visual
inspections required by Part II.0 of the Permit.
24. Therefore, Respondent has violated Sections 301 and 402(p) of the CWA, 33
U.S.C. §§ 1311 and 1342(p), by failing to comply with the NCDENR Permit.
25. On July 6, 2011, the EPA issued Administrative Order ("AO") No.
CWA 04-2011-4771 and AO No. CWA 04-20124759 on December 16, 2011, requiring
compliance with the Permit. The AOs requirements included modification to the Stormwater
Pollution Prevention Plan ("SWPPP"), institution of an inspection and monitoring program, and
Tier One and Two Evaluations. Respondent has undertaken corrective actions which addressed
the conditions noted above.
III. Stipulations and Findings
26. Complainant and the Respondent have conferred for the purpose of settlement
pursuant to 40 C.F.R. § 22.18 and desire to resolve this matter and settle the allegations
described herein without a formal hearing. Therefore, without the taking of any evidence or
testimony, the making of any argument, or the adjudication of any issue in this matter, and in
accordance with 40 C.F.R. § 22.13(b), this CA/FO will simultaneously commence and conclude
this matter.
27. For the purposes of this CA/FO, the Respondent admits the jurisdictional
allegations set out above and admits the factual allegations set out above.
28. The Respondent hereby waives its right to contest the allegations set out above
and its right to appeal the Final Order accompanying this Consent Agreement.
29. The Respondent consents to the assessment of and agrees to pay the civil penalty
as set forth in this CA/FO and consents to the other conditions set forth in this CA/FO.
30. By signing this CA/FO, the Respondent certifies that the information it has
supplied concerning this matter was at the time of submission, and is, truthful, accurate and
complete for each such submission, response and statement. The Respondent realizes that there
are significant penalties for submitting false or misleading information, including the possibility
of fines and/or imprisonment for knowing submission of such information.
31. The EPA reserves the right to assess and collect any and all civil penalties for any
violation described herein to the extent that any information or certification provided by the
Respondent was materially false or inaccurate at the time such information or certification was
provided to the EPA.

32. Complainant and the Respondent agree to settle this matter by their execution of
this CA/FO. The parties agree that the settlement of this matter is in the public interest and that
this CA/FO is consistent with the applicable requirements of the CWA.
IV. Payment
33. Pursuant to Section 309(g)(2)(A) of the CWA, 33 U.S.C. 1319(g)(2)(A), and
40 C.F.R. Part 19, and considering the nature of the violations and other relevant factors, the
EPA has determined that Nine Thousand dollars ($9,000) is an appropriate civil penalty to settle
this action.
34. The Respondent shall submit payment of the penalty specified in the preceding
paragraph within thirty (30) days of the effective date of this CA/FO via a cashier's or certified
check, payable to the order of "Treasurer, United States of America." The check shall reference
on its face the name of Respondent and the Docket Number of this CA/FO. Such payment shall
be tendered to:
U.S. Environmental Protection Agency
Fines and Penalties
Cincinnati Finance Center
P. O. Box 979077
St. Louis, Missouri 63197-9000
35. At the time of payment, the Respondent shall send a separate copy of the check,
and a written statement that payment has been made in accordance with this CA/FO, to the
following persons at the following addresses:
Regional Hearing Clerk
U.S. Environmental Protection Agency, Region 4
61 Forsyth Street, S.W.
Atlanta, Georgia 30303-8960
and
Ms. Mary Mattox
U.S. Environmental Protection Agency, Region 4
Water Protection Division
Clean Water Enforcement Branch
Municipal and Industrial Enforcement Section
61 Forsyth Street, S.W.
Atlanta, Georgia 30303-8960
7

36. The penalty amount specified above shall represent civil penalties assessed by the
EPA and shall not be deductible for purposes of federal taxes.
37. Pursuant to Section 309(g)(9) of the CWA, 33 U.S.C. 1319(g)(9), failure by the
Respondent to pay the penalty assessed by the CA/FO in full by its due date may subject the
Respondent to a civil action to collect the assessed penalty plus interest (at currently prevailing
rates from the effective date of this CA/FO), attorney's fees, costs for collection proceedings and
a quarterly nonpayment penalty for each quarter during which such failure to pay persists. Such
nonpayment penalty shall be in an amount equal to twenty percent (20%) of the aggregate
amount of such penalty and nonpayment penalty which are unpaid as of the beginning of such
quarter. In any such collection action, the validity, amount and appropriateness of the penalty
and of this CA/FO shall not be subject to review.
V. General Provisions
38. This CA/FO shall not relieve the Respondent of its obligation to comply with all
applicable provisions of federal, state or local law, nor shall it be construed to be a ruling on, or
determination of, any issue related to any federal, state or local permit. Other than as expressed
herein, compliance with this CA/FO shall not be a defense to any actions subsequently
commenced pursuant to federal laws and regulations administered by the EPA.
39. Nothing in this CA/FO shall be construed as prohibiting, altering, or in any way
limiting the ability of the United States to seek any other remedies or sanctions available by
virtue of the Respondent's violation of this CA/FO or of the statutes and regulations upon which
this CA/FO is based, or for the Respondent's violation of any federal or state statute, regulation
or permit.
40. Except as otherwise set forth herein, this CAIFO constitutes a settlement by
Complainant and the Respondent of all claims for civil penalties pursuant to the CWA with
respect to only those violations alleged in this CA/FO. Except as otherwise set forth herein,
compliance with this CA/FO shall resolve the allegations of violations contained herein.
Nothing in this CA/FO is intended to nor shall be construed to operate in any way to resolve any
criminal liability of the Respondent, or other liability resulting from violations that were not
alleged in this CA/FO. Other than as expressed herein, Complainant does not waive any right to
bring an enforcement action against the Respondent for violation of any federal or state statute,
regulation or permit, to initiate an action for imminent and substantial endangerment or to pursue
criminal enforcement.
41. Each undersigned representative of the parties to this CA/FO certifies that he or
she is fully authorized to enter into the terms and conditions of this CA/FO and to execute and
legally bind that party to it.
42. This CA/FO applies to and is binding upon the Respondent and its officers,
directors, employees, agents, successors and assigns.

43 Any change in the legal status of the Respondent, including but not limited to any
transfer of assets of real or personal property, shall not alter the Respondent's responsibilities
under this CA/FO.
44. Each party shall bear its own costs and attorneys fees in connection with the
action resolved by this CA/FO.
accordance with 40 C.F.R. 22.5, the individuals below are authorized to
receive service relating to this proceeding.
For Complainant:
For the Respondent:
Rolando E. Bascumbe
Associate Regional Counsel
Office of Environmental Accountability
U.S. Environmental Protection Agency, Region 4
61 Forsyth Street, S.W.
Atlanta, Georgia 30303-8960
[phone]
Vonna Cloninger
Chief Executive Officer
Biltmore Iron and Metal Company, Incorporated
One Meadow Road
Asheville, North Carolina 28802
46. The parties acknowledge and agree that this CA/FO is subject to the requirements
of 40 C.F.R. 22.45(c)(4), which provides aright to petition to set aside a consent agreement
and proposed final order based on comments received during the public comment period.
47. Pursuant to Section 309(g) of the CWA, 33 U.S.C. § 1319(g), and 40 C.F.R.
� 22.38(b), Complainant represents that the State of North Carolina was provided a prior
opportunity to consult with Complainant regarding this matter.
G�

VI. Effective Date
4o. The effective date of this CA/FO shall be the date on which the CA/FO is filed
with the Regional Hearing Clerk,
AGREED AND CONSENTED TO:
For COMPLAINANT, U.S. ENVIRONMENTAL PROTECTION AGENCY:
Date:
Denise D. Diaz, Chief
Clean Water Enforcement Branch
Water Protection Division
U.S. EPA, Region 4
For RESPONDENT: Biltmore Iron and IVletal Company, Incorporated
NAME: Vonna Cloninger
TITLE: Chief Executive Officer
10
Date:

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 4
IN THE MATTER OF: )
BILTMORE IRON AND METAL CO., INC*)
ASHEVILLE, NORTH CAROLINA )
RESPONDENT. )
CONSENT AGREEMENT AND
FINAL ORDER
DOCKET NO. CWA-04-2012-4514(b)
I+INAL ORDER
In accordance with the Consolidated Rules of Practice Governing the Administrative
Assessment of Civil Penalties, Issuance of Compliance or Corrective Action Orders and the
Revocation, Termination or Suspension of Permits, including Subpart I, 40 C.F.R. Part 22, and
authorities delegated to me, the foregoing Consent Agreement is hereby approved and
incorporated by reference into this Final Order. Pursuant to Section 309(g)(2)(A) of the CWA,
33 U.S.C. � 1319(g)(2)(A), the Respondent is hereby ordered to comply with the terms of the
foregoing Consent Agreement.
U.S. ENVIRONMENTAL PROTECTION AGENCY
Date:
11
Susan B. Schub
Regional Judicial Officer

Docket No. CWA 04-2012-4514(b)
CERTIFICATE OF SERVICE
The undersigned certifies that a true and correct copy of the attached CONSENT
AGREEMENT AND FINAL ORDER in the matter %J Biltmore Iron and Metal Company,
Incorporated, Docket No. CWA-04-2012-4514(b) (filed with the Regional Hearing Clerk on
2012, was served on
of the persons listed below.
Byhand-delivery:
By certified mail,
return receipt requested:
2012, in the manner specified to each
Rolando Bascumbe
Associate Regional Counsel
Office of Environmental Accountability
U.S. Environmental Protection Agency, Region 4
61 Forsyth Street, S.W.
Atlanta, Georgia 30303-8960
Vonna Cloninger
Chief Executive Officer
Biltmore Iron and Metal Company, Incorporated
One Meadow Road
Asheville, North Carolina 28802
Charles Waklid
Director, Division of Water Quality
North Carolina Department of Environment and Natural Resources
1617 Mail Service Center
Raleigh, Nort
h Carolina 27699-1617
Ms. Patricia A. Bullock
Regional Hearing Clerk
Sam Nunn Federal Center
U.S. Environmental Protection Agency, Region 4
61 Forsyth Street, S.W.
Atlanta, Georgia 30303-8960
[phone]