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.

NEW HORIZONS BAKING COMPANY, INC.,

Respondent.

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Case No. 2013-21509-A

 

 

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 New Horizons Baking Company which owns and operates the a stationary baking plant with Plant ID No. 151-00060, located at 700 Water Street, Fremont, Steuben 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:

 

Tilmon F. Brown, President

Corporation Service Company

New Horizons Baking Company, Inc.

251 East Ohio Street Suite 599

211 –A Woodlawn Ave.

 Indianapolis, Indiana 46204

Norwalk, Ohio 44857

 

 

5.            During an investigation conducted by a representative of IDEM, the following violations were found:

 

a.            Pursuant to 326 IAC 2-7-3 (Part 70 Permit Program: Requirement for a Permit), no Part 70 source may operate after the time that it is required to submit a timely and complete application except in compliance with a Part 70 permit issued under this rule.

 

Respondent constructed and operated a baking company with potential to emit Volatile Organic Compounds (VOC) emissions that exceed Part 70 operating permit thresholds, prior to receipt of the proper permit, in violation of 326 IAC 2-7-3.

 

b.            Pursuant to 326 IAC 2-7-4, the owner of each Part 70 source is required to submit a timely and complete permit application.

 

Respondent’s Part 70 permit application was received after the December 13, 1996 submission deadline, in violation of 326 IAC 2-7-4.

 

c.            Pursuant to condition D.1.1 of permit 151-28993-00060, VOC emissions from the muffin line (Line B) shall not exceed 24.71 tons per twelve consecutive months, in order to avoid 326 IAC 8-1-6 applicability.  Pursuant to 326 IAC 8-1-6, new facilities (as of January 1, 1980), that have potential emissions of twenty-five (25) tons or more per year, shall reduce VOC emissions using Best Available Control Technology (BACT).

 

Respondent exceeded the VOC emission limit from the muffin line (Line B) from January 2011 through May 2012 without first applying for BACT review, in violation of condition D.1.1 of permit 151-28993-00060 and 326 IAC 8-1-6.

 

6.            Respondent was issued Part 70 Operating permit T151-31292-00060 on June 3, 2013 which included BACT requirements for the muffin line.

 

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 2-7-3, 326 IAC 2-7-4, and 326 IAC 8-1-6.

 

3.            All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

 

Doyle Houser, Compliance and Enforcement Manager

Compliance and Enforcement Branch – Mail Code 61-53

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

4.            Respondent is assessed and agrees to pay a total civil penalty of Twelve Thousand Seven Hundred and Fifty Dollars ($12,750). Said penalty amount shall be due and payable to IDEM within thirty (30) days of the Effective Date; the 30th day being the “Due Date”.

5.            The total penalty specified in Paragraph 4 above includes avoided Title V fees in the amount of Three Thousand Three Hundred and Fifty Dollars ($3,350) which Respondent agrees to pay.  Avoided Title V fees are assess for the period of 2011 to 2013, during which Respondent was operating without the required Title V permit.  Said fee amount shall be due and payable to IDEM within thirty (30) days of the Effective Date.

6.            Civil penalties and Title V fees are payable by check to “IDEM”.  A cover letter shall accompany the check specifying that $9,400 in civil penalties shall be deposited into the Environmental Management Special Fund and $3,350 in Title V fees shall be deposited into the Title V Investments 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

100 North Senate Avenue

Indianapolis, IN  46204-2251

 

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 their 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 6, 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 their obligation to comply with the requirements of their 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 Respondents’ 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:

 

RESPONDENT:

Department of Environmental Management

 

New Horizon Baking Company

 

 

 

By:

 

 

By:

 

 

Lynne J. Sullivan, Chief

 

Printed:

 

 

Compliance and Enforcement Section 2

 

Title:

 

 

Office of Air Quality

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

 

 

 

 

 

COUNSEL FOR RESPONDENT:

 

 

 

 

 

 

 

 

 

By:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Date:

 

 

 

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

 

DAY OF

 

, 2014.

 

 

For the Commissioner

 

 

 

Signed on June 13, 2014

 

Keith Baugues, Assistant Commissioner

 

Office of Air Quality

 

Indiana Department of Environmental Management