STATE OF
INDIANA |
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BEFORE THE INDIANA DEPARTMENT |
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COMMISSIONER OF THE DEPARTMENT Complainant, v. ALBANESE CONFECTIONERY GROUP, 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 Indiana created by Indiana Code (“IC”) 13-13-1-1.
2.
Respondent is Albanese Confectionery Group, Inc.
(“Respondent”), which owns and operates the Albanese Confectionery Group, Inc.
with Plant I.D. No. 089-00006, located at 5441 East Lincoln Highway, in Merrillville,
Lake 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”) via Certified Mail to:
Mr.
Scott Albanese, President and Registered Agent |
Albanese
Confectionery Group, Inc. |
5441
East Lincoln Highway |
Merrillville,
Indiana 46410 |
5.
Respondent owns and operates a stationary
candy manufacturing plant.
6.
During an investigation, including an
inspection on April 30, 2014, conducted by a representative of IDEM, the
following violations were found:
Pursuant to 326 IAC 2-5, 326 IAC 2-6,
and 326 IAC 2-7, air emission sources may not be constructed or operated prior
to obtaining the required permits.
In 1983, 1990, 1999, 2009 and 2012
Respondent constructed and operated air emission sources without first
obtaining the required permits, in violation of 326 IAC 2-5, 326 IAC 2-6 and
326 IAC 2-7.
7.
FESOP Permit No. 089-36134-00006 was issued
on November 23, 2015, properly permitting the source as required.
8. 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 2-5, 326
IAC 2-6 and 326 IAC 2-7 and FESOP No. 089-36134-00006.
3.
All submittals required by this Agreed Order,
unless Respondent is notified otherwise in writing by IDEM, shall be sent to:
Paul Brooks,
Compliance and Enforcement Manager |
Compliance
and Enforcement Branch |
Indiana
Department of Environmental Management |
Mail Code
61-53 100 North
Senate Avenue |
Indianapolis,
IN 46204-2251 |
4.
Respondent is assessed and agrees to pay a
civil penalty of Nine Thousand Dollars ($9000.00). Said penalty amount shall be due and payable
to the Environmental Management Special Fund within thirty (30) days of the
Effective Date; the 30th day being the “Due Date”.
5.
Respondent agrees to pay avoided FESOP fees
in the amount of Nine Thousand Three Hundred Seventy Five Dollars
($9,375.00). Avoided FESOP fees are
assessed for the period of 2009 to 2014, during which Respondent was operating
without the required FESOP permit. Said
fee amount shall be due and payable to IDEM within thirty (30) days of the
Effective Date.
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6.
Civil penalties and FESOP fees are payable by
check to “IDEM”. A cover letter shall
accompany the check specifying that $9,000.00 in civil penalties shall be
deposited into the Environmental Management Special Fund and $9,375.00 in FESOP
fees shall be deposited into the Title V Investments Fund. Checks shall include the Case Number of this
action and shall be mailed to:
IDEM
Office of Legal Counsel |
IGCN, Rm
N1307 100 N
Senate Ave |
Indianapolis,
IN 46204 |
7.
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.
8.
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 5, above.
9.
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.
10.
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.
11.
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.
12.
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.
13.
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.
14.
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.
15.
This Agreed Order shall remain in effect
until IDEM issues a Resolution of Case letter to Respondent.
TECHNICAL
RECOMMENDATION: |
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RESPONDENT: |
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Department
of Environmental Management |
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Albanese Confectionery Group, Inc. |
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By: |
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By: |
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Rick
Massoels |
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Printed: |
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Deputy
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Northwest
Regional Office |
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COUNSEL
FOR RESPONDENT: |
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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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DAY OF |
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2016. |
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For
the Commissioner |
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Signed
on August 4, 2016 |
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Keith
Baugues, Assistant Commissioner |
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Office
of Air Quality |
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Indiana
Department of Environmental Management |
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