STATE OF INDIANA

COUNTY OF MARION

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BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

QUAKER SALES & DISTRIBUTION, INC.RESPONDENT,

Respondent.

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Case No. 2005-15042-H

 

 

AGREED ORDER

 

The Complainant and the Respondent desire to settle and compromise this action without hearing or adjudication of any issue of fact or law, and consent to the entry of the following Findings of Fact and Order.  Pursuant to IC 13-30-3-3(c), Respondent’s entry into this Agreed Order is for purposes of settling this matter and does not constitute an admission by Respondent of the alleged violations.

 

I. FINDINGS OF FACT

 

1.         Complainant is the Commissioner (“Complainant”) of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.

 

2.         Respondent is Quaker Sales & Distribution, Inc.("Respondent"), which owns and operates the facility with U.S. EPA ID No. INR 000 113 613, located at 2233 Stafford Road, in Plainfield, Hendricks County, Indiana (“Site”).

 

3.         The Indiana Department of Environmental Management (“IDEM”) has jurisdiction over the parties and the subject matter of this action.

 

4.         Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail to:

 

Mr. John F. Akers, President

The Prentice-Hall Corporation System, Inc.,

PepsiCo, Inc.

Registered Agent

d/b/a Quaker Oats Company

PepsiCo, Inc.

700 Anderson Hill Road

d/b/a Quaker Oats Company

Purchase, New York  10577

251 East Ohio Street, Suite 500

 

Indianapolis, Indiana 46204

        

5.         Respondent notified the U.S. EPA of Large Quantity Generator activities on March 28, 2005.  Respondent operates a warehouse/distribution center for various food and beverage items.

 

6.         An inspection on September 19 and 28, 2005 was conducted at the Site by a representative of IDEM’s Office of Land Quality (“OLQ”).  Pursuant to IC 13-30-3-3(c), Respondent’s entry into this Agreed Order is for purpose of settling this matter and does not constitute an admission by Respondent of the alleged violations.  The following violations were in existence or observed at the time of this inspection:

 

a.         Pursuant to 40 CFR 262.11, a person who generates a solid waste must determine if that waste is hazardous.  Respondent did not make proper hazardous waste determinations on the following waste streams, which were solid waste generated by Respondent.

 

1.         Pepsi Cola Freeze.

2.         Pepsi Wild Cherry.

3.         Diet Pepsi .

4.         Ginger Ale.

5.         Lipton Pink/Yellow Lemonade.

 

b.         Pursuant to 40 CFR 262.12(c), a generator must not offer its hazardous waste to transporters or to treatment, storage, or disposal facilities that have not received an EPA identification number.  Respondent sent its hazardous waste to a disposal facility that did not have an EPA identification number.

 

c.         Pursuant to 40 CFR 268.7(a), a generator must determine if a hazardous waste is restricted from land disposal and if the waste has to be treated before being land disposed.  Respondent did not determine if hazardous waste had to be treated before it was land disposed.

 

d.         Pursuant to 40 CFR 262.20, a generator who transports or offers for transportation, hazardous waste for off-site treatment, storage, or disposal, must prepare a manifest.  Respondent offered hazardous waste for transportation off-site without preparing a manifest.

 

e.                  Pursuant to IC 13-30-2-1(12), a person may not cause or allow the transportation of a hazardous waste without a manifest if a manifest is required by law.  Respondent caused or allowed the transportation of a hazardous waste without a manifest as required by law.

 

f.          Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.52, a facility’s contingency plan must include certain information.  Respondent's contingency plan did not include the following required information.

 

1.         List of emergency coordinators with addresses and phone numbers.

2.         List of emergency equipment with description and location.

3.         Evacuation routes, both primary and secondary.

4.         Description of alarms or signals to indicate evacuation.

 

g.         Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.16(a), (b), & (c), facility personnel must complete a program of classroom instruction or on-the-job training that teaches them to perform their duties in compliance with the hazardous waste management rules.  Employees must be trained within six months after their date of hire and must take part in an annual review of the initial training.  Respondent did not provide all employees with initial/annual training.  Specifically, the individual responsible for signing and maintaining the facility’s hazardous waste manifests received no training.

 

h.                  Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.16(d)(1-4), certain hazardous waste training related documents and records must be maintained on-site.  Respondent did not maintain the following required information on-site.

 

1.         Job titles.

2.         Job descriptions (pertaining to hazardous waste management).

 

i.          Pursuant to 40 CFR 262.34(a)(2), a generator may accumulate hazardous waste on-site for 90 days or less without a permit, provided that the date when the accumulation begins is clearly marked and visible for inspection on each container.  Respondent did not label the following containers with accumulation start dates.

 

1.         Four (4) 55-gallon containers on the northwest corner receiving area.

2.         Various “lots” of product in the warehouse flagged by the facility’s computer system as hazardous waste.

 

The four (4) 55-gallon containers on the northwest corner receiving area were labeled during the September 28, 2005 inspection.

 

j.          Pursuant to 40 CFR 262.34(a)(3), a generator may accumulate hazardous waste on-site for 90 days or less without a permit, provided that containers are clearly marked or labeled with the words "Hazardous Waste."  Respondent did not clearly mark or label the following containers with the words "Hazardous Waste."

 

1.         Three (3) 55-gallon containers on the northwest corner receiving area.

2.         Various “lots” of product in the warehouse flagged by the facility’s computer system as hazardous waste.

 

The three (3) 55-gallon containers on the northwest corner receiving area were labeled during the September 28, 2005 inspection.

 

k.         Pursuant to 40 CFR 262.34(a)(1)(i) referencing 40 CFR 265.174, a generator must conduct weekly inspections of container storage areas.  Respondent failed to conduct weekly inspections of the warehouse.

 

7.         In recognition of the settlement reached, Respondent waives any right to administrative and judicial review of this Agreed Order.

 

II. ORDER

 

1.         This Agreed Order shall be effective ("Effective Date") when it is approved by the Complainant or his delegate, and has been received by the Respondent.  This Agreed Order shall have no force or effect until the Effective Date.

 

2.         Within thirty (30) days of the Effective Date of this Agreed Order, Respondent shall comply with 40 CFR 262.11.  Specifically, Respondent shall make a proper waste determination for each of the following waste streams and submit a copy of the results to IDEM for review.

 

a.         Pepsi Cola Freeze.

b.         Pepsi Wild Cherry.

c.         Diet Pepsi.

d.         Ginger Ale.

e.         Lipton Pink/Yellow Lemonade.

 

3.         Respondent shall comply with 40 CFR 262.12(c).  Specifically, Respondent shall not offer its hazardous waste to transporters or to treatment, storage, or disposal facilities that have not received an EPA identification number.

 

4.         Respondent shall comply with 40 CFR 268.7(a).  Specifically, Respondent shall determine if a hazardous waste is restricted from land disposal and if the waste must be treated before land disposal.  Respondent and IDEM agree that there are circumstances in which the beneficial reuse of beverage concentrate with ph of less than 2 is allowed.  If the sugar content is used for such beneficial reuse including, without limitation, as an ingredient to make food grade alcohol that will not be used for energy recovery or as a fuel, the beverage concentrate will not be considered hazardous waste under 40 CFR 261 or 329 IAC 3.1.

 

5.         Respondent shall comply with 40 CFR 262.20 and IC 13-30-2-1(12).  Specifically, Respondent shall prepare a manifest for all hazardous waste transported or offered for transportation.

 

6.         Within thirty (30) days of the Effective Date of this Agreed Order, Respondent shall comply with 40 CFR 262.34(a)(4) referencing 40 CFR 265.52.  Specifically, Respondent shall update the facility’s contingency plan to include the following required information and submit a copy to IDEM for review.

 

a.         List of emergency coordinators with addresses and phone numbers.

b.         List of emergency equipment with description and location.

c.         Evacuation routes, both primary and secondary.

d.         Description of alarms or signals to indicate evacuation.

 

7.         Within thirty (30) days of the Effective Date of this Agreed Order, Respondent shall comply with 40 CFR 262.34(a)(4) referencing 40 CFR 265.16(a), (b), & (c).  Specifically, Respondent shall provide all employees involved in hazardous waste management with initial/annual training and provide documentation to IDEM.

 

8.         Respondent shall comply with 40 CFR 262.34(a)(4) referencing 40 CFR 265.16(d)(1-4).  Specifically, Respondent shall maintain the following hazardous waste training related documents and records at the site.

 

a.         Job titles.

b.         Job descriptions (pertaining to hazardous waste management).

 

9.         Respondent shall comply with 40 CFR 262.34(a)(2).  Specifically, Respondent shall label all hazardous waste accumulation containers with the accumulation start date.

 

10.       Respondent shall comply with 40 CFR 262.34(a)(3).  Specifically, Respondent shall clearly mark or label all hazardous waste accumulation containers with the words “Hazardous Waste.”

 

11.       Respondent shall comply with 40 CFR 262.34(a)(1)(i).  Specifically, Respondent shall conduct weekly inspections of hazardous waste container storage areas.

 

12.       All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:

 

Ms. Idelia Walker-Glover, Enforcement Case Manager

Indiana Department of Environmental Management

Office of Enforcement          Mail Code 60-02

100 N. Senate Avenue

Indianapolis, IN 46204-2251

 

13.       Respondent is assessed a civil penalty of Thirty Two Thousand Five Hundred Dollars ($32,500).  Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date of this Agreed Order.

 

14.      In the event the terms and conditions of the following paragraphs are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amount:

 

Violation                                                                   Penalty

Failure to comply with Order paragraph 2              $500 per week

Failure to comply with Order paragraph 6              $500 per week

Failure to comply with Order paragraph 7              $500 per week

 

15.       Stipulated penalties shall be due and payable within thirty (30) days after Respondent receives written notice that the Complainant has determined a stipulated penalty is due.  Assessment and payment of stipulated penalties shall not preclude the Complainant from seeking any additional relief against the Respondent for violation of the Agreed Order.  In lieu of any of the stipulated penalties given above, the Complainant may seek any other remedies or sanctions available by virtue of Respondent’s violation of this Agreed Order or Indiana law, including, but not limited to, civil penalties pursuant to IC 13-30-4.

 

16.       Civil and stipulated penalties are payable by check to the Environmental Management Special Fund.  Checks shall include the Case Number of this action and shall be mailed to:

 

Indiana Department of Environmental Management

Cashier’s Office         Mail Code  50-10C

100 N. Senate Avenue

Indianapolis, IN 46204-2251

 

17.       In the event that the civil penalty required by Order paragraph 13 is not paid within thirty (30) days of the Effective Date of this Agreed Order, Respondent shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1-101.  The interest shall continue to accrue until the civil penalty is paid in full.

 

18.       This Agreed Order shall apply to and be binding upon the Respondent, its successors and assigns.  The Respondent's signatories to this Agreed Order certify that they are fully authorized to execute this document and legally bind the parties they represent.  No change in ownership, corporate, or partnership status of the Respondent shall in any way alter its status or responsibilities under this Agreed Order.

 

19.       In the event that any terms of the Agreed Order are found to be invalid, the remaining terms shall remain in full force and effect and shall be construed and enforced as if the Agreed Order did not contain the invalid terms.

 

20.       The Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred.   Respondent shall ensure that all contractors, firms and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.

 

21.       This Agreed Order shall remain in effect until IDEM issues a Resolution of Case letter to Respondent.

 

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

 

 

 

 

By:

 

 

By:

 

 

Nancy L. Johnston, Chief

 

Printed:

 

 

Office of Enforcement

 

Title:

 

 

 

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

 

 

 

COUNSEL FOR COMPLAINANT:

 

COUNSEL FOR RESPONDENT:

Department of Environmental Management

 

 

 

 

 

By:

 

 

By:

 

 

 

 

 

 

 

Office of Legal Counsel

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

 

DAY OF

 

, 2007.

 

 

For The Commissioner:

 

 

 

Signed on April 23, 2007

 

Robert B. Keene

 

Assistant Commissioner

 

Office of Legal Counsel and Enforcement