STATE OF INDIANA		)		BEFORE THE INDIANA DEPARTMENT
		)	SS:	OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION		)
COMMISSIONER OF THE DEPARTMENT					)
OF ENVIRONMENTAL MANAGEMENT,					)
					)
	Complainant				)
					)
	v.				)	CASE NO. 2003-13515-H
					)
A.K. INDUSTRIES, INC.,					)
					)
	Respondent.				)

AGREED ORDER

The Complainant and the 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, a department of the State of Indiana created by IC 13-13-1-1.

2. Respondent is A.K. Industries, Inc. ("Respondent"), which operates the facility with U.S. EPA ID No. IND 984866186, located at 2055 Pidco Drive, in Plymouth, Marshall County, Indiana (“Site”).

3. The Indiana Department of Environmental Management (“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 on February 17, 2004, via Certified Mail, to:

John S. Sabo, President	Thomas J. Hall, Registered Agent for
A.K. Industries, Inc.	A.K. Industries, Inc.
P.O. Box 640	212 E. Lasalle Ave., Ste. 100
Plymouth, IN 46563	South Bend, IN 46617

5. Respondent originally notified the U.S. EPA of Large Quantity Generator activities on July 5, 1988. On February 27, 2003, Respondent informed IDEM on a Handler Update Form that it was operating as a Small Quantity Generator. Respondent manufactures fiberglass wastewater tanks.

6. An inspection on August 27 and September 3, 2003, was conducted at the Site by representatives of IDEM’s Office of Land Quality (“OLQ”). Although Respondent had notified IDEM on February 27, 2003 that it was operating as a Small Quantity Generator, the inspection revealed that Respondent was actually operating as a Large Quantity Generator. The following violations were in existence or observed at the time of this inspection:

A. Pursuant to 40 CFR 262.11, a person who generates a solid waste must determine if that waste is hazardous. Respondent did not make hazardous waste determinations on 10 containers of waste, including seven 55-gallon drums of unknown waste in the acetone room, two 5-gallon containers of acetone in the acetone room, and one 30-gallon container in the former Area 1 Gel Booth. Additionally, Respondent did not make a proper hazardous waste determination on the resin waste stream, which was treated on-site.

B. Pursuant to 40 CFR 262.34(a)(2), a generator may accumulate hazardous waste on-site for 90 days or less without a permit, provided that the date when the accumulation begins is clearly marked and visible for inspection on each container. Respondent did not label containers with accumulation start dates. Twelve 55-gallon drums of waste acetone in the Waste Storage Building had not been provided with start of accumulation dates.

C. Pursuant to 40 CFR 262.34(a)(3), a generator may accumulate hazardous waste on-site for 90 days or less without a permit, provided that containers are marked with the words "Hazardous Waste." Respondent did not label containers with the words "Hazardous Waste." Twelve 55-gallon drums of waste acetone in the Waste Storage Building had not been marked with the words "Hazardous Waste."

D. Pursuant to 40 CFR 262.34(c)(1)(ii), a generator may accumulate as much as 55 gallons of hazardous waste at or near the point of generation without a permit and without complying with 40 CFR 262.34(a), provided that the containers are marked with either the words "Hazardous Waste" or with other words describing the contents. Respondent did not properly label satellite accumulation containers. One 20-gallon container of waste resin, located in the Resin Pump Room, and one 55-gallon container of waste acetone, located in the Waste Acetone Building, had not been marked with the words "Hazardous Waste."

E. Pursuant to 40 CFR 262.34(a)(1)(i) and 40 CFR 262.34(c)(1)(i) referencing 40 CFR 265.173(a), a container holding hazardous waste must always be closed during storage, unless necessary to add or remove waste. Respondent did not store seven containers of hazardous waste, located in both 90-day accumulation areas and satellite accumulation areas, closed.

F. Pursuant to 40 CFR 262.34(a)(1)(i) referencing 40 CFR 265.174, a generator must conduct weekly inspections of container storage areas. Respondent failed to conduct weekly inspections of the Waste Acetone Building container storage area.

G. Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.35, a generator must maintain adequate aisle space to allow the unobstructed movement of personnel, fire protection, spill control, and decontamination equipment. Respondent failed to provide the required aisle space at the Waste Acetone Building container storage area.

H. Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.52, a facility’s contingency plan must include certain information. Respondent's contingency plan did not include up-to-date names, addresses, and phone numbers (office and home) of all persons qualified to act as emergency coordinator.

I. Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.53, a copy of an up-to-date contingency plan must be maintained at the facility and provided to local emergency personnel. Respondent failed to provide a copy of the contingency plan to local emergency authorities.

J. Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.54, a facility’s contingency plan must be amended whenever applicable regulations are revised; the plan fails in an emergency; the facility changes its design, construction, or operation; or the list of emergency coordinators or emergency equipment changes. Respondent failed to amend the contingency plan to reflect the correct address of the emergency coordinator and the fact that one of the two alternate emergency coordinators was no longer employed at the site.

K. Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.55, at all times there must be at least one employee either at the facility or on call with responsibility for coordinating emergency response measures. In the absence of the primary emergency coordinator, Respondent failed to have an employee at the facility who was responsible for coordinating emergency response measures.

L. Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.16(a), (b), & (c), facility personnel must complete a program of classroom instruction or on-the-job training that teaches them to perform their duties in compliance with the hazardous waste management rules. Employees must be trained within six months after their date of hire and must take part in an annual review of the initial training. Respondent did not provide initial and annual training.

M. Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.16(d)(1-4), certain hazardous waste training related documents and records must be maintained on-site. Respondent did not maintain all of the required information on-site.

N. Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.16(e), hazardous waste training records on current personnel must be kept until closure of the facility. Records on former employees must be kept for at least three years from the date the employee last worked at the facility. Respondent did not maintain copies of employee training records for the required period.

O. Pursuant to 40 CFR 268.7(a)(5), if a generator is treating prohibited waste in tanks, containers, or containment buildings, the generator must develop and follow a written waste analysis plan which describes how the generator will comply with the treatment standards. Respondent did not prepare and follow a written waste analysis plan describing the procedures for treating the waste resin on-site.

P. Pursuant to 329 IAC 3.1-12-2(7), wastes that exhibit a characteristic are also subject to the requirements of 40 CFR 268.7, except that once the waste is no longer hazardous, a one-time notification and certification must be placed in the generator’s or treater’s files and sent to the commissioner. The notification must include the following information:

(a) The name and address of the solid waste facility receiving the waste shipment.

(b) A description of the waste as initially generated, including the applicable EPA hazardous waste number.

(c) The treatment standards applicable to the waste at the initial point of generation.

(d) The certification must be signed by an authorized representative and must state the language found in 40 CFR 268.7(b)(5)(i).

The notification and certification that is placed in the generator’s or treater’s files must be updated if the process or operation generating the waste changes or if the facility receiving the waste changes.

Respondent failed to complete the one-time notification and certification for its waste resin which is treated on-site, and submit it to the commissioner.

Q. Pursuant to IC 13-30-2-1(3), no person shall deposit any contaminants upon the land in a place or manner that creates or would create a pollution hazard that violates or would violate 329 IAC 10-4-2 and/or 40 CFR 265.31. Respondent deposited contaminants upon the land. Three different areas at the Site were visibly stained, apparently from spilled wastes and/or materials. The ground in the Resin Truck Off-Loading area was visibly stained, apparently from material spilled as resin is pumped from truck to storage tank. The ground near the empty drum storage area was visibly stained from released material, possibly resin, gel coat, and/or methyl ethyl ketone peroxide. Additionally, the ground in the courtyard was stained with a similar looking material.

R. Pursuant to 329 IAC 10-4-2, no person shall cause or allow the storage, containment, processing, or disposal of solid waste in a manner which creates a threat to human health or the environment, including the creating of a fire hazard, vector attraction, air or water pollution, or other contamination. Respondent allowed the disposal of solid waste in a manner which created a threat to human health or the environment.

S. Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.31, facilities must be maintained and operated to minimize the possibility of a fire, explosion, or any unplanned sudden or non-sudden release of hazardous waste to the air, soil, or surface water, which could threaten human health or the environment. Respondent failed to properly manage the facility to minimize a release to the environment.

T. Pursuant to 40 CFR 261.5(c), when determining its generator status, a generator must include all hazardous wastes it generates. Respondent failed to include waste resin (D001) when determining its generator status.

U. Pursuant to 40 CFR 273.14(e) and 329 IAC 3.1-16-2(4), universal waste containing lamps, or a container in which the lamps are contained, must be labeled or clearly marked with any one of the following phrases: "Universal Waste--Lamps," "Waste Lamps," or "Used Lamps," or other words that accurately identify the universal waste lamps. Respondent failed to label three containers in which lamps were contained.

V. Pursuant to 40 CFR 273.16, a small quantity handler of universal waste must inform all employees who handle or have responsibility for managing universal waste. The information must describe proper handling and emergency procedures appropriate to the type(s) of universal waste handled at the facility. Respondent failed to inform employees managing universal waste with proper handling and emergency procedures appropriate to the type(s) of universal waste handled at the facility.

W. Pursuant to 329 IAC 13-4-3(d), generators must label all used oil containers and aboveground tanks with the words “Used Oil.” Respondent did not label one 55-gallon drum of used oil, located in the Romar Building Maintenance Department, with the words “Used Oil.”

7. A settlement conference was held between the parties on April 22, 2004. Respondent presented information regarding the steps taken at the facility to correct the violations at the time of the conference.

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 the Complainant or her delegate, and has been received by the Respondent. This Agreed Order shall have no force or effect until the Effective Date.

2. Upon the Effective Date of this Agreed Order, Respondent shall ensure compliance with 40 CFR 262.11. Specifically, Respondent shall ensure that proper hazardous waste determinations, including whether the wastes have to be treated before they can be land disposed, are made for all solid wastes generated at the facility.

3. Upon the Effective Date of this Agreed Order, Respondent shall ensure compliance with 40 CFR 262.34(a)(2). Specifically, Respondent shall ensure that containers used to accumulate hazardous waste are provided with the date when accumulation begins.

4. Upon the Effective Date of this Agreed Order, Respondent shall ensure compliance with 40 CFR 262.34(a)(3). Specifically, Respondent shall ensure that containers used to accumulate hazardous waste are marked with the words "Hazardous Waste."

5. Upon the Effective Date of this Agreed Order, Respondent shall ensure compliance with 40 CFR 262.34(c)(1)(ii). Specifically, Respondent shall ensure that satellite containers are marked with the words "Hazardous Waste."

6. Upon the Effective Date of this Agreed Order, Respondent shall ensure compliance with 40 CFR 265.173(a). Specifically, Respondent shall ensure that containers used to accumulate hazardous waste are kept closed except when necessary to add or remove waste.

7. Upon the Effective Date of this Agreed Order, Respondent shall ensure compliance with 40 CFR 265.174. Specifically, Respondent shall conduct weekly inspections of all container storage areas.

8. Upon the Effective Date of this Agreed Order, Respondent shall ensure compliance with 40 CFR 265.35. Specifically, Respondent shall maintain adequate aisle space in the Waste Acetone Building.

9. Upon the Effective Date of this Agreed Order, Respondent shall ensure compliance with 40 CFR 265.52. Specifically, Respondent shall ensure that its contingency plan is updated to include all required information whenever information changes.

10. Upon the Effective Date of this Agreed Order, Respondent shall ensure compliance with 40 CFR 265.54. Specifically, Respondent shall ensure that the contingency plan is immediately amended, if necessary, whenever the list of emergency coordinators or list of emergency equipment changes.

11. Upon the Effective Date of this Agreed Order, Respondent shall ensure compliance with 40 CFR 265.53. Specifically, Respondent shall ensure that a copy of the contingency plan is provided to the appropriate emergency response organizations.

12. Upon the Effective Date of this Agreed Order, Respondent shall ensure compliance with 40 CFR 265.55. Specifically, Respondent shall ensure that whenever the primary emergency coordinator is not available, there is someone to act as an alternate emergency coordinator. The primary and alternate emergency coordinators shall be thoroughly familiar with all aspects of the facility's contingency plan, all operations and activities at the facility, the location and characteristics of waste handled, the location of all records within the facility, and the facility layout.

13. Upon the Effective Date of this Agreed Order, Respondent shall ensure compliance with 40 CFR 265.16(a), (b), & (c). Specifically, Respondent shall ensure that it provides facility personnel classroom instruction or on-the-job training that teaches them to perform their duties in compliance with the hazardous waste management rules. Employees shall be trained within six months after their date of hire and shall take part in an annual review of the initial training.

14. Upon the Effective Date of this Agreed Order, Respondent shall ensure compliance with 40 CFR 265.16(d)(1-4). Specifically, Respondent shall ensure that training documents are maintained on-site.

15. Upon the Effective Date of this Agreed Order, Respondent shall ensure compliance with 40 CFR 265.16(e). Specifically, Respondent shall maintain copies of employee training records for the required period.

16. Within 30 days of the Effective Date of this Agreed Order, Respondent shall comply with 40 CFR 268.7(a)(5). Specifically, Respondent shall prepare and follow a written waste analysis plan describing the procedures for treating the waste resin on-site. Respondent shall submit the plan to IDEM within 35 days of the Effective Date of this Agreed Order.

17. Within 30 days of the Effective Date of this Agreed Order, Respondent shall comply with 329 IAC 3.1-12-2(7). Specifically, Respondent shall complete the one-time notification and certification for its waste resin which is treated on-site, and submit it to the commissioner.

18. Upon the Effective Date of this Agreed Order, Respondent shall comply with 40 CFR 261.5(c). Specifically, Respondent shall include waste resin (D001) when determining its generator status.

19. Upon the Effective Date of this Agreed Order, Respondent shall ensure compliance with 40 CFR 273.14(e) and 329 IAC 3.1-16-2(4). Specifically, Respondent shall ensure that universal waste lamps or the container in which the lamps are contained are labeled.

20. Upon the Effective Date of this Agreed Order, Respondent shall ensure compliance with 40 CFR 273.16. Specifically, Respondent shall ensure that employees handling universal waste are trained regarding the proper handling and emergency procedures appropriate to the type(s) of universal waste handled at the facility.

21. Upon the Effective Date of this Agreed Order, Respondent shall ensure compliance with 329 IAC 13-4-3(d). Specifically, Respondent shall ensure that used oil containers and tanks are labeled with the words "Used Oil."

22. Within 30 days of the Effective Date of this Order, Respondent shall submit updated Annual Manifest Reports for the years 2001 and 2002 to IDEM. Respondent shall ensure that a separate OS Form is completed for each individual waste stream shipped off-site, pursuant to IC 13-22-4-3.1.

23. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:

Brenda Lepter, Enforcement Case Manager

Office of Enforcement

Indiana Department of Environmental Management

100 N. Senate Avenue

P. O. Box 6015

Indianapolis, IN 46206-6015

24. Respondent is assessed a civil penalty of Thirty Eight Thousand Four Hundred Dollars ($38,400). Respondent shall pay a portion of this penalty in the amount of Thirty Four Thousand Nine Hundred and Ten Dollars ($34,910) in four (4) equal payments of $8,727.50 each. The first payment shall be due within 30 days of the Effective Date of this Agreed Order. The second payment shall be due on or before March 31, 2005. The third payment shall be due on or before June 30, 2005, and the final payment shall be due on or before September 30, 2005. Said penalty amount shall be due and payable to the Environmental Management Special Fund. In lieu of payment of the remaining civil penalty, Respondent shall perform and complete a Supplemental Environmental Project (“SEP”). Respondent estimates that this SEP will cost Thirteen Thousand Nine Hundred and Sixty Dollars ($13,960). Within thirty (30) days of completing this SEP, Respondent shall submit written notice and documentation to IDEM which substantiates all actions taken and costs incurred with respect to the SEP. In the event that the cost of the SEP is less than Thirteen Thousand Nine Hundred and Sixty Dollars ($13,960), Respondent shall pay 25% of the difference between the proposed cost of the SEP ($13,960) and the actual cost of the SEP.

As a Supplemental Environmental Project, Respondent shall construct two (2) concrete storage areas, one being 3,617 square feet and the other 1,821 square feet, to be used for drum storage. The container storage areas shall be constructed of or coated with a substance that is compatible with the hazardous waste or other materials to be stored within or upon the container storage area. Respondent’s container storage area shall be designed to accommodate forklifts and other equipment in case of an emergency. Respondent shall complete the SEP by no later than December 31, 2004. Implementation of this SEP will minimize the possibility of contaminants being released into the environment.

In the event that the Respondent does not complete the SEP by December 31, 2004, the full amount of the civil penalty as stated in paragraph No. 24 above, plus interest established by IC 24-4.6-1-101 on the remaining amount, less the portion of the civil penalty Respondent has already paid, will be due within fifteen (15) days from Respondent's receipt of IDEM’s notice to pay. Interest, at the rate established by IC 24-4.6-1-101, shall be calculated on the amount due from the date which is thirty (30) days after the Effective Date of this Agreed Order until the full civil penalty is paid.

25. In the event the terms and conditions of the following paragraphs are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amount:

Violation	Penalty
Failure to comply with Order paragraph 16	$500 per week
Failure to comply with Order paragraph 17	$500 per week
Failure to comply with Order paragraph 22	$500 per week

26. Stipulated penalties shall be due and payable within 30 days after Respondent receives written notice that the Complainant has determined a stipulated penalty is due. Assessment and payment of stipulated penalties shall not preclude the Complainant from seeking any additional relief against the Respondent for violation of the Agreed Order. In lieu of any of the stipulated penalties given above, the Complainant may seek any other remedies or sanctions available by virtue of Respondent’s violation of this Agreed Order or Indiana law, including, but not limited to, civil penalties pursuant to IC 13-30-4.

27. Civil and stipulated 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:

Cashier

IDEM

100 N. Senate Avenue

P. O. Box 7060

Indianapolis, IN 46207-7060

28. In the event that the civil penalty required by Order paragraph 24 is not paid according to the terms of this Agreed Order, 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.

29. This Agreed Order shall apply to and be binding upon the Respondent, its successors and assigns. The Respondent's signatories to this Agreed Order certify that they are fully authorized to execute this document and legally bind the parties they represent. No change in ownership, corporate, or partnership status of the Respondent shall in any way alter its status or responsibilities under this Agreed Order.

30. In the event that any terms of the 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 the Agreed Order did not contain the invalid terms.

31. The 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.

32. This Agreed Order shall remain in effect until IDEM issues a Resolution of Case letter to Respondent.

TECHNICAL RECOMMENDATION:		RESPONDENT:
Department of Environmental Management
By:	_____________________________	By:	______________________________
	Nancy L. Johnston, Chief	Printed:	______________________________
	Office of Enforcement	Title:	John S. Sabo, President
Date:	_____________________________	Date:	______________________________
COUNSEL FOR COMPLAINANT:		COUNSEL FOR RESPONDENT:
Department of Environmental Management
By:	_____________________________	By:	______________________________
	Office of Legal Counsel
Date:	_____________________________	Date:	______________________________

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _____ DAY OF _______________, 2004.

For the Commissioner:

Signed on December 7, 2004

Felicia A. Robinson

Deputy Commissioner for

Legal Affairs