STATE OF INDIANA

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SS:

BEFORE THE INDIANA DEPARTMENT OF

 

)

 

 

COUNTY OF MARION

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ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT

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OF ENVIRONMENTAL MANAGEMENT,

 

)

 

 

 

)

 

Complainant,

 

)

 

 

 

)

 

 

v.

 

)

Case No. 2020-26899-H

 

 

)

 

Eurofins Food Chemistry Testing US inc.,

 

)

 

 

 

)

 

Respondent.

 

)

 

 

AGREED ORDER

 

Complainant and 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 Indiana Code (“IC”) 13-30-3-3, entry into the terms of this Agreed Order does not constitute an admission of any violation contained herein. Respondent’s entry into this Agreed Order shall not constitute a waiver of any defense, legal or equitable, which Respondent may have in any future administrative or judicial proceeding, except a proceeding to enforce this order.

 

I. FINDINGS OF FACT

 

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

 

2.            Respondent is Eurofins Food Chemistry Testing US Inc. (“Respondent”), which owns/operates the facility with United States Environmental Protection Agency (“EPA”) ID No. INR 000145839, located at 671 S. Meridian Rd. Building 255, in Greenfield, County, Indiana (“Site”).

 

3.            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 (“NOV”) on to:

 

Eurofins Food Company Testing US Inc

Cogency Global Inc. Registered

Attn: Heather Cunningham

Agent for

671 S, Meridian Rd. Bld. 255

Eurofins Food Chemistry Testing

Greenfield, IN 46140

Madison, Inc.

 

9221Crawfordsville Rd

 

Indianapolis, IN 46234

 

 

Eurofins Food Chemistry Testing

 

Madison, Inc. dba Eurofins Food

 

Chemistry Testing US Inc.

 

3301 Kinsman Blvd.

 

Madison, WI 53704

 

 

5.            Respondent notified EPA of Large Quantity Generator activities.

 

6.            Respondents business is a human and animal feed analysis laboratory which performs various analytical tests on food items for their clients.

 

329 Indiana Administrative Code (“IAC”) 3.1 incorporates federal hazardous waste management requirements found in 40 Code of Federal Regulations (“CFR”) Parts 260 through 270 and Part 273, including those identified below.

 

7.            During an investigation including an inspection on February 11, 2020 conducted by a representative of IDEM, the following violations were found:

 

a.            Pursuant to 40 CFR 262.17(a)(6) referencing 40 CFR 262.251(b)(8)(i), a large quantity generator must maintain and operate the facility to minimize the possibility of a fire, explosion, or any unplanned sudden or non-sudden release of hazardous waste or hazardous waste constituents to air, soil, or surface water which could threaten human health or the environment.

 

As noted during the inspection, Respondent failed to properly manage one (1) 55 gallon container located in Room 152 to minimize a release to the environment.  Specifically, the 55 gallon container had a corroded flat bottom metal funnel. The shape of metal funnel did not efficiently drain hazardous waste liquid into the 55 gallon container as evidenced by spills into the secondary containment and spills on the floor. The transfer of hazardous waste from a smaller container into the 55 gallon container was witnessed during the inspection.

 

Respondent has purchased a new safety drum funnel.  A picture of the funnel was submitted in the response dated June 26, 2020. Respondent has implemented preventive measures to prevent spills outside the secondary containment area. This will be field verified.

 

b.         Pursuant to 40 CFR 262.17(a)(5)(i)(C), a large quantity 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.

 

As noted during the inspection, Respondent accumulated hazardous waste on-site, without a permit, and did not mark hazardous waste containers with accumulation start dates.  Specifically, the following containers:

 

1.            One (1), 55 gallon steel container (D001, D002, F003) located in Room 152.

2.            Two (2), 55 gallon fiber containers (D001, D002. F003) located in Building 220/Lab 130.

3.            Two (2), 55 gallon fiber containers (D001, F003, F005) located in Building 220/Lab 220.

4.            Two (2), 55 gallon fiber containers (D001, F003, F005) and 2, 15 gallon fiber containers located in Lab 210.

 

Respondent provided pictures of the containers properly labeled in their response dated June 26, 2020.  This will be field verified.

 

c.         Pursuant to 40 CFR 262.17(a)(6) referecning 40 CFR 262.260, a large quantity generator must have a contingency plan for the facility. The contingency plan must be designed to minimize hazards to human health or the environment from fires, explosions, or any unplanned sudden or non-sudden release of hazardous waste or hazardous waste constituents to air, soil, or surface water.

 

As noted during the inspection, Respondnet did have a draft emergency action plan. The draft plan did not include the site address, site map, list of all emergency equipment, evacuation meeting areas and other required contingency plan contents.  The draft plan was prepared for the Madison, Wisconsin facility and contained majority of Madison’s information.

 

Respondnet submitted a copy of the contingency plan “Emergency Action Plan” and quick refeence guide in the submittal dated June 26, 2020.

 

d.            Pursuant to 40 CFR 262.17(a)(6) referencing 40 CFR 262.262(b), a large quantity    generator that first becomes subject to these provisions after May 30, 2017 or a large quantity generator that is otherwise amending its contingency plan must at that time submit a quick reference guide of the contingency plan to the local emergency responders identified at paragraph (a) of this section or, as appropriate, the Local Emergency Planning Committee. The quick reference guide must include:

 

(1)          The types/names of hazardous wastes in layman’s terms and the associated hazard associated with each hazardous waste present at any one time.

(2)          The estimated maximum amount of each hazardous waste that may be present at any one time.

(3)          The identification of any hazardous wastes where exposure would require unique or special treatment by medical or hospital staff.

(4)          A map of the facility showing where hazardous wastes are generated, accumulated and treated and routes for accessing these wastes.

(5)          A street map of the facility in relation to surrounding businesses, schools, residential areas to understand how best to get to the facility and also evacuate citizens and workers.

(6)          The locations of water supply.

(7)          The identification of on-site notification systems; and

(8)          The name of the emergency coordinator(s) and 7/24-hour emergency telephone number(s) or, in the case of a facility where an emergency coordinator is continuously on duty, the emergency telephone number for the emergency coordinator.

 

As noted during the inspection, Respondent did not have a contingency plan quick reference guide developed.

 

Respondnet submitted a copy of the contingency plan “Emergency Action Plan” and quick refeence guide in their submittal dated June 26, 2020.

 

e.            Pursuant to 40 CFR 262.17(a)(6) referencing 40 CFR 262.256(a), the large quantity generator must attempt to make arrangements with the local police department, fire department, other emergency response teams, emergency response contractors, equipment suppliers, and local hospitals, taking into account the types and quantities of hazardous wastes handled at the facility. Arrangements may be made with the Local Emergency Planning Committee, if it is determined to be the appropriate organization with which to make arrangements.

 

Respondent has not attempted to make arrangements with the appropriate emergency responders.

 

In the submittal dated June 26, 2020, Respondent provided documentation of arrangements made with the appropriate emergency responders.

 

f.             Pursuant to 40 CFR 262.17(a)(6) and 40 CFR 262.256(b), the large quantity generator shall maintain records documenting the arrangements with the local fire department as well as any other organization necessary to respond to an emergency. This documentation must include documentation in the operating record that either confirms such arrangements actively exist or, in cases where no arrangements exist, confirms that attempts to make such arrangements were made.

 

Respondent did not maintain records documenting the arrangements with the local fire department as well as any other organizations necessary to respond to an emergency.

 

In the submittal dated June 26, 2020, Respondent provided documentation of arrangements made with the appropriate emergency responders.

 

g.            Pursuant to 40 CFR 262.17(a)(7)(A), facility personnel must successfully complete the program required in paragraph (a)(7)(i) of this section within six months after the date of their employment or assignment to the facility, or to a new position at the facility, whichever is later. Employees must not work in unsupervised positions until they have completed the training standards of paragraph (a)(7)(i) of this section.

 

(B)       This program must be directed by a person trained in hazardous waste management procedures, and must include instruction which teaches facility personnel hazardous waste management procedures (including contingency plan implementation) relevant to the positions in which they are employed.

(C)       At a minimum, the training program must be designed to ensure that facility personnel are able to respond effectively to emergencies by familiarizing them with emergency procedures, emergency equipment, and emergency systems, including where applicable.

(D)       For facility employees that receive emergency response training pursuant to Occupational Safety and Health Administration regulations 29 CFR 1910.120(p)(8) and 1910.120(q), the large quantity generator is not required to provide separate emergency response training pursuant to this section, provided that the overall facility training meets all the conditions of exemption in this section.

 

As noted during the inspection, Respondents training program in place did not instruct employees to perform hazardous waste management duties relevant to their duties, which was evident from current hazardous waste management activities.

 

Training records were submitted on June 26, 2020.

 

h.            Pursuant to 40 CFR 262.17(a)(7)(iv), certain hazardous waste training related documents and records including job title, job descriptions, a description of the type and amount of required training, and completion documents with respect to the hazardous waste management training must be maintained on-site.

 

As noted during the inspection, Respondent did not maintain all of the required hazardous waste training related documents and records on-site. Specifically, Respondents job descriptions for each position did not address all of the hazardous waste management duties/responsibilities conducted at the facility.

 

The generators job descriptions did not discuss manifesting duties, packaging duties, marking, labeling, handling and management of container duties, and emergency coordinator duties. Training records for Heather Cunningham, Ben Abel, Tim McIntyre, Elijah Parmer, and Angela Deane were requested. Heather Cunningham, Angela Deane, and Elijah Parmer’s positions, as Analytical Chemists’, job description mentioned “May handle hazardous materials” as the only hazardous waste duty.

 

Training records were submitted on June 26, 2020.

 

i.                Pursuant to 40 CFR 262.15(a)(4), a container holding hazardous waste must be closed at all times during accumulation, except: when adding, removing, or consolidating waste; or when temporary venting of a container is necessary for the proper operation of equipment, or to prevent dangerous situations, such as build-up of extreme pressure.

 

As noted during the inspection, Respondnet had 4, ½ gallon satellite containers (D001, D002, F003) located in Building 220/Lab 220 stored open when not adding, removing or consolidating waste.  This violation was corrected during the inspection.

 

j.            Pursuant to 40 CFR 262.15(a)(5)(i), a generator must mark or label its satellite hazardous waste containers with the words “Hazardous Waste”.

 

As noted during the inspection, Respondent did not properly mark satellite accumulation containers with the words “Hazardous Waste”. Specifically, the following:

 

1.         Two (2), 7.5 liter containers (D001, D002, F003) located in Building 220/Lab 130 B.  The containers were labeled during the inspection.

2.         Two (2), 7.5 liter containers (D001, D002, F003) located in Building 220/Lab 130. The containers were labeled during the inspection.

3.         Fifteen (15), 7.5 liter containers (D001, F003, F005) and four (4) ½ gallon plastic containers (D001, F003, F005) located in Building 220/Lab 220.

4.         Two (2), 7.5 liter containers (D001, D002, F003) stored full located in Building 220/Lab 220.

5.         Ten (10), 7.5 liter containers (D001, F003, F005) located in Lab 210.

 

Respondent provided employees training on the management of satellite accumulation containers.  This will be field verified.

 

k.            Pursuant to 40 CFR 262.15(a)(5)(ii), a generator must mark or label its (satellite) containers with an indication of the hazards of the contents (examples include, but are not limited to, the applicable hazardous waste characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); hazard communication consistent with the Department of Transportation requirements at 49 CFR part 172 subpart E (labeling) or subpart F (placarding); a hazard statement or pictogram consistent with the Occupational Safety and Health Administration Hazard Communication Standard at 29 CFR 1910.1200; or a chemical hazard label consistent with the National Fire Protection Association code 704).

 

1.         Two (2), 7.5 liter containers (D001, D002, F003) located in Building 220/Lab 130 B. The containers were labeled during the inspection.

2.         Two (2), 7.5 liter containers (D001, D002, F003) located in Building 220/Lab 130.  The containers were labeled during the inspection.

3.         Fifteen (15), 7.5 liter containers (D001, F003, F005) and four (4) ½ gallon plastic containers (D001, F003, F005) located in Building 220/Lab 220.

4.         Two (2), 7.5 liter containers (D001, D002, F003) stored full located in Building 220/Lab 220.

5.         Ten (10), 7.5 liter containers (D001, F003, F005) located in Lab 210.

 

Respondent provided employees training on the management of satellite accumulation containers.  This will be field verified.

 

l.              Pursuant to 40 CFR 262.15(a)(8), all satellite accumulation areas operated by a large quantity generator must meet the Preparedness, Prevention and Emergency Procedures in subpart M of this part.

 

As noted during the inspection, Respondent did not comply with subpart M.  Specifically, Respondent’s satellite accumulation areas did not meet requirements for purpose and implementation of contingency plan and arrangements with the local authorities.

 

Respondnet submitted a copy of the contingency plan “Emergency Action Plan” and quick refeence guide in the submittal dated June 26, 2020.

 

m.        Pursuant to 40 CFR 262.15(a)(6), a generator who accumulates either acute hazardous waste listed in §261.31 or §261.33(e) of this chapter or non-acute hazardous waste in excess of the amounts listed in paragraph (a) of this section at or near any point of generation must do the following:

(i) Comply within three consecutive calendar days with the applicable central accumulation area regulations in §262.16(b) or §262.17(a), or

(ii) Remove the excess from the satellite accumulation area within three consecutive calendar days to either:

(A)       A central accumulation area operated in accordance with the applicable regulations in §262.16(b) or §262.17(a);

(B)       An on-site interim status or permitted treatment, storage, or disposal facility, or

(C)       An off-site designated facility; and

(iii)       During the three-consecutive-calendar-day period the generator must continue to comply with paragraphs (a)(1) through (5) of this section. The generator must mark or label the container(s) holding the excess accumulation of hazardous waste with the date the excess amount began accumulating.

 

As noted during the inspection, Respondent stored two (2) 7.5 liter containers (D001, D002, F003) full without accumulation dates that was in excess of the allotted 55 gallons in a satellite accumulation area. This was corrected during the inspection.

 

8.            Orders of the Commissioner are subject to administrative review by the Office of Environmental Adjudication under IC 4-21.5; however, in recognition of the settlement reached, Respondent acknowledges notice of this right and 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 Complainant or Complainant’s delegate, and has been received by Respondent. This Agreed Order shall have no force or effect until the Effective Date.

 

2.            Respondent shall comply with the statutes and rules listed in the findings of fact above.

 

3.            Respondent has submitted to IDEM preventive measures that will be implemented to minimize releases/spills when adding hazardous waste to the accumulation drum located in Room 152. The plan included that releases/spills will be responded to within 24 hours.  This will be field verified.

 

4.            Upon the Effective Date, Respondent shall comply with 40 CFR 262.17(a)(5)(i)(C). Specifically, Respondent shall ensure all less than ninety (90) day hazardous waste containers are marked clearly marked with the start of accumulation dates and visible for inspection on each container.

 

5.            Upon the Effective Date, Respondent shall comply with 40 CFR 262.15(a)(4). Specifically, ensure satellite container holding hazardous waste are closed at all times during accumulation, except: when adding, removing, or consolidating waste.

 

6.            Upon the Effective Date, Respondent shall complay with 40 CFR 262.15(a)(5)(i). Specifically, Respondent shall ensure satellite hazardous waste containers are marked or  labeled with the words “Hazardous Waste”.

 

7.            Upon the Effective Date, Respondent shall comply with 40 CFR 262.15(a)(5)(ii). Specifically, Respondent shall ensure (satellite) containers are marked or labeled with an indication of the hazards of the contents (examples include, but are not limited to, the applicable hazardous waste characteristic(s) (i.e., ignitable, corrosive, reactive, toxic).

 

8.         Upon the Effective Date, respondent shall comply with 40 CFR 262.15(a)(6).  Specifically, Respondent shall ensure to remove the excess of 55 gallons from the satellite accumulation areas within three consecutive calendar days to either:

(A)       A central accumulation area operated in accordance with the applicable regulations in §262.16(b) or §262.17(a);

(B)       An on-site interim status or permitted treatment, storage, or disposal facility, or

(C)       An off-site designated facility; and

(iii)       During the three-consecutive-calendar-day period the generator must continue to comply with paragraphs (a)(1) through (5) of this section. The generator must mark or label the container(s) holding the excess accumulation of hazardous waste with the date the excess amount began accumulating.

 

9.            All submittals required by this Agreed Order, unless IDEM notifies the Respondent otherwise in writing, shall be sent to:

 

Christina Halloran, Enforcement Case Manager

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

10.         Pursuant to IC 13-30-4-1, Respondent is assessed and agrees to pay a civil penalty of Twenty-Eight Thousand Dollars ($28,000). Said penalty amount shall be due and payable to the “Environmental Management Special Fund” within thirty (30) days of the Effective Date; the thirtieth day being the “Due Date.”

 

11.         Civil penalty is 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

Accounts Receivable

IGCN, Room 1340

100 North Senate Avenue

Indianapolis, IN 46204

 

12.         In the event that the monies due to IDEM pursuant to this Agreed Order are not paid on or before their Due Date, Respondent shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1. The interest shall be computed as having accrued from the Due Date until the date that Respondent pays any unpaid balance. Such interest shall be payable to the Environmental Management Special Fund, and shall be payable to IDEM in the manner specified in Paragraph 11, above.

 

13.         Signatories to this Agreed Order certify that they are fully authorized to execute this Agreed Order and legally bind the party they represent.

 

14.         This Agreed Order shall apply to and be binding upon Respondent and all successors and assigns. Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners, successors, or assigns before ownership rights are transferred.

 

15.         No change in ownership, corporate, or partnership status of Respondent shall in any way alter the Respondent’s status or responsibilities under this Agreed Order.

 

16.         Respondent shall ensure that all contractors, firms, and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.

 

17.         In the event that any terms of this 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 this Agreed Order did not contain the invalid terms.

 

18.         This Agreed Order is not and shall not be interpreted to be a permit or a modification of an existing permit. This Agreed Order, and IDEM’s review or approval of any submittal made by Respondent pursuant to this Agreed Order, shall not in any way relieve Respondent of the obligation to comply with the requirements of any applicable permits or any applicable Federal or State laws or regulations.

 

19.         Complainant does not, by its approval of this Agreed Order, warrant or aver in any manner that Respondent’s compliance with any aspect of this Agreed Order will result in compliance with the provisions of any permit, order, or any applicable Federal or State law or regulation. Additionally, IDEM or anyone acting on its behalf shall not be held liable for any costs or penalties Respondent may incur as a result of Respondent’s efforts to comply with this Agreed Order.

 

20.         Nothing in this Agreed Order shall prevent or limit IDEM’s rights to obtain penalties or injunctive relief under any applicable Federal or State law or regulation, except that IDEM may not, and hereby waives its right to, seek additional civil penalties for the violations specified in the NOV.

 

21.         Nothing in this Agreed Order shall prevent IDEM or anyone acting on its behalf from communicating with the U.S. Environmental Protection Agency (U.S. EPA) or any other agency or entity about any matters relating to this enforcement action. IDEM or anyone acting on its behalf shall not be held liable for any costs or penalties Respondent may incur as a result of such communications with the U.S. EPA or any other agency or entity.

 

22.         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:  _________________________

 

 

Jennifer Reno, Section Chief

 

 

Enforcement Section

Printed: ______________________

Office of Land Quality

 

 

Title: ________________________

 

 

Date:                          

Date: _______________________

 

 

 

 

 

COUNSEL FOR RESPONDENT:

 

 

 

 

 

By: ________________________

 

 

 

 

 

 

Date: ______________________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

______

DAY OF

________________________,

20__.

 

 

For the Commissioner:

 

 

 

Signed 09/21/2020 By

 

Peggy Dorsey, Assistant Commissioner

 

Office of Land Quality