STATE OF INDIANA
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BEFORE THE
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COUNTY OF MARION |
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ENVIRONMENTAL
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COMMISSIONER OF
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OF ENVIRONMENTAL
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Complainant, |
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Case No. 2019-26214-A |
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HARLAN BAKERIES-AVON
LLC, |
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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 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 Harlan Bakeries-Avon LLC (“Respondent”), which owns and operates a
stationary intermediate and finished baked goods operation with Plant ID No.
063-00059 located at 7597 East US Highway 36 in Avon, Hendricks 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”) in conjunction with this Agreed Order via Electronic Mail to:
Hugh Harlan,
President Robert E. Inveiss,
Harlan Bakeries-Avon
LLC Registered
Agent
7597 East US Highway
36 111 Monument Circle, Suite
2700
Avon, IN 46123 Indianapolis, IN
46204
hharlan@harlanbakeries.com
rinveiss@boselaw.com
5.
During
an investigation including a records review conducted by a representative of
IDEM, the following violations were found:
a.
Pursuant
to Federally Enforceable State Operating Permit No. 063-33421-00059 (“Permit”),
Condition D.1.2 and 326 IAC 2-8-4, the Volatile Organic Compounds (VOC)
emissions from the catalytic oxidizer (OXIDIZER-0001) stack exhaust (S-1) shall
not exceed 0.36 pounds per hour.
Respondent failed
to operate the catalytic oxidizer (OXIDIZER-0001) from April 22, 2019 at 7:50am to April 23, 2019 at 11:30am resulting in VOC
emissions of 4.4 pounds per hour during the time frame, in violation of Permit
Condition D.1.2 and 326 IAC 2-8-4.
b.
Pursuant
to Permit Condition D.1.4, in order to comply with
Condition D.1.1, the catalytic oxidizer (OXIDIZER-0001) shall be in operation
and control emissions from OVEN-0002 at all times that OVEN-0002 is in
operation.
Respondent failed to operate the catalytic oxidizer (OXIDIZER-0001) from April 22, 2019
at 7:50am to April 23, 2019 at 11:30am, in violation of Permit Condition D.1.4.
c.
Pursuant
to Permit Condition D.1.2 and 326 IAC 2-8-4, the Volatile Organic Compounds
(VOC) emissions from the catalytic oxidizer (OXIDIZER-0001) stack exhaust (S-1)
shall not exceed 0.36 pounds per hour.
Respondent demonstrated emissions of 1.12 pounds per hour during compliance
testing which occurred on March 19, 2019, in violation of Permit Condition
D.1.2 and 326 IAC 2-8-4.
6.
Respondent
conducted compliance testing on June 14, 2019, with the results indicating
compliance.
7.
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 Federally Enforceable
State Operating Permit No. 063-33421-00059 unless superseded by a permit
renewal or modification.
3.
All submittals required by this Agreed Order, unless
IDEM notifies the Respondent otherwise in writing, shall be sent to:
Jennifer Bailey, Senior
Enforcement Case Manager
Office of Air Quality
Indiana Department
of Environmental Management
100 North Senate
Avenue
Indianapolis, IN
46204-2251
Jbailey2@idem.in.gov
4.
Pursuant to IC 13-30-4-1, Respondent is assessed
and agrees to pay a civil penalty of Fourteen Thousand Dollars ($14,000). 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.”
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
Accounts
Receivable
IGCN, Room 1340
100 North Senate
Avenue
Indianapolis, IN
46204
6.
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.
7.
Signatories to this Agreed Order certify that they
are fully authorized to execute this Agreed Order and legally bind the party
they represent.
8.
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.
9.
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.
10.
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.
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.
12.
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.
13.
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.
14.
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.
15.
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.
16.
This Agreed Order shall remain in effect until
Respondent has complied with all terms and conditions of this Agreed Order and
IDEM has issued 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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Harlan Bakeries-Avon LLC |
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By: |
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David P. McIver, Chief |
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Printed: |
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Enforcement Section |
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Title: |
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Office of Air Quality |
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COUNSEL FOR COMPLAINANT: |
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COUNSEL FOR RESPONDENT: |
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For the Department of Environmental Management |
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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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For the Commissioner: |
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Signed on January 31, 2022 |
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Matthew Stuckey |
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Assistant Commissioner |
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Office of Air Quality Indiana Department of Environmental Management |
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