STATE OF |
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BEFORE THE INDIANA
DEPARTMENT |
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COMMISSIONER OF THE
DEPARTMENT Complainant, v. ZACHARY CONFECTIONS, INC., Respondent. |
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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 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
2.
Respondent is Zachary
Confections, Inc. (“Respondent”), which owns and operates the candy
manufacturing facility with FESOP Permit No. 023-21425-00039, (“Permit”) located
at
3.
IDEM has
jurisdiction over the parties and the subject matter of this action.
4.
The Respondent
waives issuance of a Notice of Violation and to the settlement period of sixty
(60) days as provided for by IC 13-30-3.
5.
During an inspection
on June, 15, 2005 conducted by a representative of IDEM, the following
violation was found:
a. Pursuant
to 326 IAC 12-1-1, which incorporates 40 CFR 60.48c(g) and 40 CFR 60.48c(i) by
reference, the owner or operator of an affected facility shall record and
maintain records of the amounts of each fuel combusted during each day and all
these records shall be maintained by the owner or operator of the affected
facility for a period of two (2) years following the date of such record.
The Respondent failed to record the amount of each
fuel combusted, in violation of 326 IAC
12-1-1, which incorporates 40 CFR 60.48c(g) and 40 CFR 60.48c(i).
6.
Complainant recognizes
that Respondent has submitted a “Standard Operating Procedure” and has
determined that following procedure is acceptable and will comply to the
requirement 326 IAC 12-1-1, which incorporates 40 CFR 60.48c(g) and 40 CFR
60.48c(i).
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 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 326 IAC 12-1-1, which incorporates 40 CFR 60.48c(g) and 40 CFR
60.48c(i).
3.
All submittals
required by this Agreed Order, unless Respondent is notified otherwise in
writing by IDEM, shall be sent to:
Matthew
Chaifetz, Enforcement Case Manager |
Office
of Enforcement – Mail Code 60-02 |
Indiana
Department of Environmental Management |
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4.
Respondent is
assessed a civil penalty of Five Thousand Dollars ($5,000.00). Said penalty amount shall be due and payable
to the Environmental Management Special Fund within thirty (30) days of the
Effective Date. In the event that the
civil penalty is not paid within thirty (30) days of the Effective Date,
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.
5.
Civil 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
– Mail Code 50-10C |
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6.
This Agreed Order shall apply to and be binding upon
Respondent and its successors and assigns.
Respondent’s signatories to this Agreed Order certify that they are fully
authorized to execute this Agreed Order and legally bind the party they
represent. No change in ownership, corporate,
or partnership status of Respondent shall in any way alter its status or
responsibilities under this Agreed Order.
7.
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.
8.
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 its obligation to
comply with the requirements of its applicable permit or any applicable Federal
or State law or regulation.
9.
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.
10.
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 same violations specified in the NOV.
11.
Nothing in this
Agreed Order shall prevent IDEM or anyone acting on its behalf from
communicating with the 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
EPA or any other agency or entity.
12.
This Agreed
Order shall remain in effect until Respondent satisfies paragraphs 4 and 5 of
the Agreed Order.
13.
This Agreed
Order, and compliance with its terms, shall resolve all violations set forth in
the Findings of Fact of this Agreed Order.
TECHNICAL RECOMMENDATION: |
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RESPONDENT: |
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Department of Environmental Management |
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Craig Henry |
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Chief, Air Section |
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Office of Enforcement |
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COUNSEL FOR COMPLAINANT: |
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COUNSEL FOR RESPONDENT: |
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Department of Environmental Management |
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By: |
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By: |
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Office of Legal Counsel |
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Date: |
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Date: |
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APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF
ENVIRONMENTAL |
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MANAGEMENT THIS |
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OF |
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, 2007. |
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For The Commissioner: |
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Signed on February 26, 2007 |
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Robert B. Keene |
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Assistant Commissioner |
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Office of Legal Counsel and Enforcement |
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