Document bBYL3KzqG1Kn77D3mZ00Me130

UNITED STATES ENVIRONMENTAl, PROTECTION AGE.NCY RegiQn 6 1445 Ross Avenue, Suite 12QQ Dallas, Texas 75202 - 2733 2 9 JUN 2016 CERTIFIED MAIL- RETURN RECEIPT REQlJESTED: 7009 2820 0004 2109 1496 Felipe Belgodere Business Development Manager Kraft Heinz Foods Company 2340 Forest Lane Garland, TX 75042 RE: Kraft Heinz Foods Company; Garland, TX EPA Doc.ket # EPCRA-06-2016-0503 Dear Mr. Belgodere: Enclosed is a copy of the fully executed Consent Agreement and Final Order (CAFO) for the above-referenced facility that has been filed with the EPA Re~ion 6 Regional Hearing Clerk. As set forth in Section IV of the CAFO, and agreed upon by both parties, Kraft Heinz has thirty (30) days from the filing date to submit its payment of$16,870.00. Your payment should be made payable to the Tre~s.trre~, U~teq St~~e~ 9.~ A!!leri'?':l E~A -13-~gn 6. To ensure proper credit is applied to your case, please specify the docket number listed above on your method of payment. In addition, please f()rward a photocopy of your payment and transmittal letter to the EPA peFsonnellisted in the CAFO. Once our Cincinnati Finance Office acknowledges receipt of your payment, we shall consider this case closed.. If you have any questions regarding this matter, please contact David Riley of my staff at (214) 665-7298. Your cooperation in the settlement of this case is most appreciated. Sincere,~ Enclosure Compliance Assurance and Enforcement Division UNITED STATES FILED ENVIRONMENTAL PROTECTION AGENCfU!6 JUL-5 !Jl 9: 02 REGION6 DALLAS, TEXAS ------------------------~------~--~------------~--------~--~~ IN THE MATTER OF: KRAFT HEINZ FOODS COMPANY DOCKET NO. EPCRA-06-2016-0503 GARLAND, TEXAS RESPONDENT CONSENT AGREEMENT AND FINAL ORDER The Director, Compliance Assurance and Enforcement Division, United States Environmental Protection Agency (EPA), Region 6 (Complainant), and Kraft Heinz Foods Company (Respondent), in the above-referenced proceeding, hereby agree to resolve this matter through the issuance of this Consent Agreement and Final Order (CAFO). I. PRELIMINARY STATEMENT 1. This proceeding for the assessment of civil penalties pwsuant to Section 325(c) of the Emergency Planning and Community Right-to-Know Act (EPCRA), 42 U.S.C. 11045(c), is simultaneously commenced and concluded by the. issuance of this CAFO against the Respondent pursuant to 40 C.P.R. 22.13(b) and 22.18(b)(2) and (3). 2. For the purposes of this proceeding, the Respondent admits the jurisdictional allegations herein; however, the Respondent neither admits nor denies the specific factual allegations and conclusions oflaw contained in this CAFO. 3. The Respondent explicitly waives any right to contest the factual allegations or conclusions oflaw contained in this CAFO, as well as its right to appeal the Final Order set forth In the Matter of Kraft Heinz Foods Company; Docket No. EPCRA-06-2016-0503 herein, and waives all defenses which have been raised or could have been raised to the claims set forth in this CAFO. 4. Compliance with all the terms and conditions of this CAFO shall resolve only the violation that is set forth herein. 5. The Respondent consents to the issuance of this CAFO, and to the assessment and payment of the stated civil penalty in the amount and by the method set forth in this CAFO. 6. The Respondent represents that it is duly authorized to execute this CAFO and that the party signing this CAFO on behalf of the Respondent is duly authorized to bind the Respondent to the terms and conditions of this CAFO. 7. The Respondent agrees that the provisions of this CAFO shall be binding on its officers, directors, employees, agents, servants, authorized representatives, successors, and assigns. 8. The Respondent hereby certifies that, as of the date of the execution of this CAFO, Kraft Heinz Foods Company has corrected the violation alleged in this CAFO, and is now, to the best of its knowledge, in compliance with all applicable requirements of Section 313 of EPCRA, 42 U.S.C. 11023, and 40 C.F.R. Part 372. II. STATUTORY AND REGULATORY BACKGROUND 9. Section 313 ofEPCRA, 42 U.S.C. 11023, and 40 C.F.R. 372.22and 372.30 require the owner or operator of a facility that: (a) has ten or more full-time employees; (b) is an establishment with a primary Standard Industrial Classification (SIC) major group or industry code listed in 40 C.F.R. 372.23(a), or a primary Nmih American Industry Classification 2 In the Matter of Kraft Heinz Foods Company; Docket No. EPCRA-06-2016-0503 System (NAICS) subsector or industry code listed in 40 C.F.R. 372.23(b) or (c); and (c) "manufactured, processed, or otherwise used" a toxic chemical listed under Subsection ~ 13(c) of EPCRA and 40 C.P.R. 372.65, in excess of the threshold quantity established under Subsection 313(f) ofEPCRA., 42 U.S.C. 11023(f), and 40 C.P.R. 372.25, 372.27, or 372.28 dwing the preceding calendar year, to complete and submit a toxic chemical release form to the Administrator of EPA and to the State in which the subject facility is located by July 1, for e,ach toxic chemical known by the owner or operator to be "mruiufactured, processed, or otherwis(( used" in quantities exceeding the established threshold quantity during that preceding calendar year. 10. According to Section 313(f) ofEPCRA, 42 U.S.C. 11023(f), and 40 C.F.R. 372.25, the threshold amount for reporting under Section 313(b) ofEPCRA, 42 U.S.C. 11023(b), and 40 C.F.R. 372.30, is 25,000 pounds for any toxic chemical "manufactured or processed," and 10,000 pounds for any toxic chemical "otherwise used" for the applicable calendar year. Alternative reporting thresholds are set forth in 40 C.P.R. 372.27 and 372.28. III. FINDIN<'GS OFI FACT' AND\ CON(CLU~SI ONS OF LAW A. PRELIMINARY ALLEGATIONS 11. The Respondent is incorporated under the laws ofthe State ofPennsylvru1ia and is authorized to do business in the State of Texas. 12. The Respondent is a "person" aS defined by Section 329(7) ofEPCRA, 42 U.S.C. 11049(7). 3 In the Matter of Kraft Heinz Foods Company; Docket No. EPCRA-06-2016-0503 13. The Respondent owns and operates a business at 2340 Forest Lane, Garland, Texas, 75042. 14. The business identified in Paragraph 13 is a "fac;:ility", as that term is defined by Section 329(4) ofEPCRA, 42 U.S.C. 11049(4), and 40 C.F.R. 372.3. 15. The Respondent's facility has ten (10) or more "full-time employees" as that term is defined by 40 C.F.R. 372.3. 16. The Respondent's facility is in NAICS subsector or industry code 311941 (mayonnaise, dressing, and other prepared sauce manufacturing). 17. Ammonia is a "toxic chemical" within the meaning of 40 C.F.R. 372.3 and 372.65. 18. During the 2012 calendar year, ammonia was "manufactured", "processed", or "otherwise used" as those terms are defined by Section 313(b) ofEPCRA, 42 U.S.C. 11023(b), and 40 C.F.R. 372.3, at the Respondent's facility. As such, the Respondent is subject to the regulatory and statutory provisions cited herein. 19. On July 14, 2015, an inspection of the Respondent's facility covering the 2010 through 2014 calendar years was conducted by a duly authorized representative of the EPA. Based on information provided by the Respondent, the following violation is alleged. B. VIOLATION Count One- Failure to Timely Report Ammonia for the 2012 Calendar Year 20. During the 2012 calendar year, the Respondent otherwise used ammonia at the Respondent's facility in excess of the applicable threshold quantity. 4 In the Matter of Kraft Heinz Foods Company; Docket No. EPCRA-06-2016-0503 21. The Respondent failed to submit the required Form R for ammonia by July 1 of . 2013. The form was filed more than one year late. 22. Therefore, the Respondent violated Section 313(a) ofEPCRA, 42 U.S.C. 11023(a), and 40 C.F.R. 372.30 by failing to timely submit a complete and accurate Fonn R for ammonia for the 2012 calendar year to the EPA and to the State of Texas by the applicable due date. IV. TER.MS OF SETTLE.MENT A; CIVILPENALTY 23. For the reasons set forth above, the Respondent has agreed to pay a civil penalty which has been determined in accordance-with Section325(c) ofEPCRA, 42 U.S.C. 11045(c), which authorizes the EPA to assess a civil penalty of up to Thirty-Seven Thousand Five Hundred Dollars ($37,500) per day for each violation ofEPCRA1 Upon qonsideration ofthe entire record herein, including the Findings ofFact and Conclusions o~Law, which are hereby adopted and made a part hereof, and upon consideration of the nature, circumstances, extent, and gravity of the alleged violation, and with respect to the Respondent, ability to pay, lack of prior EPCRA Section 313 violations, the degree of culpability, economic benefit or savings (if any) resulting from the violation, cooperation, institution of corrective actions, and other factors as justice may 1 The amount of penalty that can be assessed under Section 325(c) ofEPCRA, 42 U.s.'c. 11045(c) was increased "by the Civil Monetary Penalty Inflation Adjustl}'lent Rule codified at 40 C.F.R. Part 19 to $27,500 per day of violation, for violations occurring between January 30, 1997 and March 15, 2004; and $32,500 per day of violation for violations which occurred between March 15, 2004 and January 12, 2009; and to $37,500 per day of violation for violations which occurred after January 12, 2009. 5 In the Matter of Kraft Heinz Foods Company; Docket No. EPCRA-06-20 16-0503 require, it is ORDERED that the Respondent be assessed a civil penalty of Sixteen Thousand, Eight Hundred and Seventy Dollars and no cents ($16,870.00), which will settle the violation as alleged herein. 24. Within thirty (30) days of the effective date ofthis CAPO, the Respondent shall pay the fully-assessed civil penalty of$16,870.00, by certified check, cashier's check, or wire transfer, made payable to "Treasurer, United States of America, EPA - Region 6". Payment shall be remitted in one of three (3) ways: regular U.S. Postal Service mail (including certified mail), overnight mail, or wire transfer. For regular U.S. Postal Service mail, U.S. Postal Service certified mail, or U.S. Postal Service express mail, the check(s) should be remitted to: U.S. Environmental Protection Agency Fines and Penalties Cincinnati Finance Center P.O. Box 979077 St. Louis, MO 63197-9000 For overnight mail (non-U.S. Postal Service, e.g. Fed Ex), the check(s) should be remitted to: U.S. Ban1c Government Lockbox 979077 US EPA Fines & Penalties 1005 Convention Plaza SL-MO-C2-GL St. Louis, MO 631 01 Phone No. (314) 418-1028 6 In the Matter of Kraft Heinz Foods Company; Docket No. EPCRA-06-2016-0503 For wire transfer, the payment should be remitted to: Federal Reserve Banlc ofNew York ABA= 021030004 Account= 68010727 SWIFT address= FRNYUS33 33 Liberty Street New York, NY 10045 Field Tag 4200 of the Fedwire message should read "D 68010727 Environmental Protection Agency" PLEASE NOTE: Docket number EPCRA-06-2016-0503 shall be clearly typed on the check, or other method of payment, to ensure proper credit. If payment is made by check, the check shall also be accompanied by a transmittal letter and shall reference the Respondent's name and address, the case name, and docket number of the CAFO. If payment is made by wire transfer, the wire transfer instructions shall reference the Respondent's name and address, the case name, and docket number of the CAFO. The Respondent shall also send a simultaneous notice of such payment, including a copy of the check and transmittal letter, or wire transfer instructions to the following: David Riley EPCRA 313 Enforcement Officer (6EN-H3) U.S. EPA, Region 6 1445 Ross Avenue, Suite 1200 Dallas, TX 75202-2733 Lorena Vaughn Regional Hearing Clerk (6RC-D) U.S. EPA, Region 6 1445 Ross Avenue, Suite 1200 Dallas, TX 75202-2733 7 In the Matter of Kraft Heinz Foods Company; Docket No. EPCRA-06-2016-0503 The Respondent's adherence to this request will ensure proper credit is given when penalties are received by the EPA and acknowledged in the Region. 25. The Respondent agrees not to claim or attempt to claim a federal income tax deduction or credit covering all or any part of the civil penalty paid to the United States Treasurer. 26. If the Respondent fails to submit payment within thiliy (30) days of the effective date of this Order, the Respondent may be subject to a civil action pursuant to Section 325(:t) of EPCRA, 42 U.S.C. 11 045(), to collect any unpaid portion of the assessed penalty, together with interest, handling charges and nonpayment penalties as set forth below. 27. Pursuant to 31 U.S.C. 3717 and 40 C.F.R. 13.11, unless otherwise prohibited by law, EPA will assess interest and late payment penalties on outstanding debts owed to the United States and a charge to cover the costs of processing and handling a delinquent claim. Interest on the civil penalty assessed in this CAFO will begin to accrue thirty (30) days after the effective date of the CAFO and will be recovered by the EPA on any amount of the civil penalty that is not paid by the respective due date. Interest will be assessed at the rate of the United States Treasury tax and loan rate in accordance with 40 C.F.R. 13.11(a). Moreover, the costs of the Agency's administrative handling of overdue debts will be charged and assessed monthly throughout the period the debt is overdue. See 40 C.F.R. 13.11 (b). 28. The EPA will also assess a fifteen dollar ($15.00) administrative handling charge for administrative costs on unpaid penalties for the first thi1iy (30) day period after the payment is due and an additional fifteen dollar ($15.00) for each subsequent thirty (30) day period that the 8 In the Matter of Kraft Heinz Foods Company; Docket No. EPCRA-06-20 16-0503 penalty remains unpaid. In addition, a penalty charge of up to six percent (6%) per year will be assessed monthly on any portion of the debt which remains delinquentmore than ninety (90) days. See 40 C.F.R. 13.11 (c). Should a penalty charge on the debt be required, it shall accrue from the first day payment is delinquent. See 31 C.P.R. 901.9(d). Other penalties for failure to make a payment may also apply. 29. This document is a "Final Order" as that term is defined in the "Enforcement Response Policy for Section 313 ofthe Emergency Planning and Community Right-to-Know Act (1986) and Section 6607 ofthe Pollution Prevention Act (1990)", dated August 10, 1992; Amended, April 12, 200 1; for the purpose of demonstrating a history of "prior such violations". B. RETENTION OF ENFORCEMENT RIGHTS 30. The EPA does not waive any rights or remedies available to the EPA for any other violations by the Respondent of Federal or State laws, regulations, or permitting conditions. 31. Nothing in this CAFO shall relieve the Respondent of the duty to comply with all applicable provisions of Section 313 ofEPCRA, 42 U.S.C. 11023, and 40 C.P.R. Part 372. 32. Except as specifically provided in this CAFO, nothing herein shall limit the power and authority ofthe EPA or the United States to take, direct, or order all actions to protect public health, welfare, or the environment, or prevent, abate, or minimize an actual or tlneatened release of'hazardous substances, pollutants, or contaminants on, at, or from the Respondent's facility. Furthermore, nothing in this CAFO shall be construed to prevent or limit the EPA's civil and criminal authorities, or that of other Federal, State, or local agencies or departments, to obtain penalties or injunctive relief under other Federal, State, or local laws or regulations. 9 In the Matter of Kraft Heinz Foods Company; Docket No. EPCRA-06-:2.016-0503 C. COSTS 33. Each party shall bear its own costs and attorney's fees. Furthermore, the R~spondent specifically waives its right to seek reimbursement of its costs and attorney's fees under 5 U.S.C. 504 and 40 C.F.R. Part 17. D. EFFECTIVE DATE 34. This CAFO becomes effective upon filing with the Regional Hearing Clerk. 10 In the Matter of Kraft Heinz Foods Company; Docket No. EPCRA-06-2016-0503 THE UNDERSIGNED PARTIES CONSENT TO THE ENTRY OF TIDS CONSENT AGREEMENT AND FINAL ORDER: FOR THE RESPONDENT: Plant Manager Kraft Heinz Foods Company FOR THE COMPLAINANT: Date: ~. zq I(, irector Compliance Assurance and Enforcement Division 11 In the Matter of Kraft Heinz Foods Company; Docket No. EPCRA-06-2016-0503 V. FINAL ORDER Pursuant to the Consolidated Rules of Practice Governing the Administrative Assessment of Civil Penalties, 40 C.F.R. Part 22, the foregoing Consent Agreement is hereby ratified. This Final Order shall not in any case affect the right of the EPA or the United States to pursue appropriate injunctive ot: other equitable relief or criminal sanctions for any violations of law. This Final Order shall resolve only those causes of action alleged in the Consent Agreement. Nothing in this Final Order shall be construed to waive, extinguish or otherwise affect the Respondent's (or its officers, agents, servants, employees, successors, or assigns) obligation to comply with all applicable federal, state, ahd local statutes and regulations, including the regulationsthat were the subject ofthis action. The Respondent is ordered to comply with the terms of settlement and the civil-penalty payment instructions as set forth in the Consent Agreement. In accordance with 40 C.F.R. 22.31 (b), this Final Order shall become effective upon filing with the Regional Hearing Clerk. ' Date: 30/1 (a J (p -.\.L"-,,,_.__,..,~,~=--- /11/1/LDV~ Thomas Rucki Regional Judicial Officer 12 In the Matter of Kraft Heinz Foods Company; Docket No. EPCRA-06-2016-0503 CERTIFICATE. OF SERVIC. E +h I hereby certify that on the .5 - day of Jv. l(J: , 2016, the original and one copy ofthe foregoing Consent Agreement and Final Order was hand delivered to the Regional Hearing Clerk, U.S. EPA- Region 6, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733, and a true and correct copy was delivered to the following individual(s) by the method indicated below: Via electronic mail (PDF) & certified mail- return receipt# -:=f-004 l~l 0 OOOlf .2109 H~b Felipe Belgodere Business Development Manager Kraft Heinz Foods Company 2340 Forest Lane Garland, TX 75042 Felipe.Belgodere@kraftheinzcompany. com 13