STATE OF INDIANA		)	SS:	BEFORE THE INDIANA DEPARTMENT OF
		)
COUNTY OF MARION		)		ENVIRONMENTAL MANAGEMENT
COMMISSIONER OF THE DEPARTMENT					)
OF ENVIRONMENTAL MANAGEMENT,					)
					)
Complainant,					)
					)
	v.				)	Case No. 2010-19298-H
					)
nimet Industries, Inc.,					)
					)
Respondent.					)

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 Nimet Industries, Inc. (“Respondent”), which owns and operates the facility with United States Environmental Protection Agency (EPA) ID No.IND005462890, located at 2424 North Foundation Drive, in South Bend, St. Joseph 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. James S. Abbott, President and Registered Agent

Nimet Industries, Inc.

2424 North Foundation Drive

South Bend, Indiana 46628

5. Respondent notified EPA of Large Quantity Generator activities on June 11, 2010.

6. Respondent offers proprietary anodizing and electroless nickel finishes to various industries.

7. 329 IAC 3.1 incorporates certain federal hazardous waste management requirements found in 40 CFR Parts 260 through 270, and Part 273 including these identified below.

8. During an investigation, including an inspection on June 2, 2010, conducted by a representative of IDEM, the following violations were found:

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 a hazardous waste determination on two (2) fifty-five gallon containers located in the Chemical Storage Area, a solid waste generated by Respondent, and on the still bottoms generated from the distillation of Methyl Ethyl Ketone (“MEK”), a solid waste generated by Respondent.

Respondent completed the required hazardous waste determination on June 16, 2010.

b. Pursuant to 40 CFR 262.12(c), a generator must not offer its hazardous waste to transporters or to treatment, storage, or disposal facilities that have not received an EPA identification number. Respondent sent its hazardous waste to a disposal facility that did not have an EPA identification number. Specifically, Respondent sent still bottoms, a hazardous waste, to a disposal facility without an EPA identification number.

Respondent discontinued this method of disposal on June 16, 2010.

c. Pursuant to 40 CFR 262.20, a generator who transports, or offers for transportation, hazardous waste for offsite treatment, storage, or disposal, must prepare a manifest. A generator must designate on the manifest one facility which is permitted to handle the waste described on the manifest. A generator may designate an alternate facility to handle his waste in the event that an emergency prevents delivery of the waste to the primary designated facility. Respondent offered hazardous waste for transportation for offsite treatment, storage, or disposal without preparing a manifest. Specifically, Respondent allowed MEK distillation still bottoms to be transported off-site without generating a manifest.

Respondent discontinued this method of transportation on June 16, 2010.

d. Pursuant to IC 13-30-2-1(12), a person may not cause or allow the transportation of a hazardous waste without a manifest if a manifest is required by law. Respondent caused or allowed the transportation of a hazardous waste (MEK distillation still bottoms) without a manifest as required by law.

Respondent began using manifests as required on June 16, 2010.

e. 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 accumulated hazardous waste on-site, without a permit, and did not mark hazardous waste containers with accumulation start dates. Specifically, one (1) two hundred and fifty gallon tote and one (1) fifty-five gallon container were not marked with an accumulation start date.

Respondent marked the containers as required June 8, 2010.

f. 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, while being accumulated on-site, each container and tank is labeled or marked clearly with the words "Hazardous Waste."

Respondent accumulated hazardous waste on-site, without a permit, and did not label or clearly mark a hazardous waste container with the words "Hazardous Waste." Specifically, one (1) fifty-five gallon container was not marked with the words "Hazardous Waste.”

Respondent marked the containers as required June 8, 2010.

g. Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.51, a generator must have a contingency plan for the facility. Respondent did not have a contingency plan.

Respondent submitted a Contingency Plan on August 2, 2010.

h. 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 employees with initial and/or annual hazardous waste training.

Respondent completed required training on or before July 9, 2010.

i. Pursuant to 40 CFR 262.34(c)(1)(ii), a generator may accumulate as much as 55 gallons of hazardous waste in containers 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 accumulated hazardous waste in containers at or near the point of generation without a permit and did not properly mark satellite accumulation containers with either the words “Hazardous Waste” or with other words describing the contents. Specifically, one (1) thirty gallon container was not marked as required.

Respondent marked the containers as required June 8, 2010.

j. Pursuant to 40 CFR 262.34(c)(1)(i) referencing 40 CFR 265.173(a), a container holding hazardous waste must always be closed during storage, except when it is necessary to add or remove waste. Respondent did not store two (2) containers of hazardous waste closed. Specifically, one (1) fifty-five gallon container and one (1) thirty gallon container were not stored closed.

Respondent closed containers on June 2, 2010.

k. Pursuant to 40 CFR 268.7(a), with the initial shipment of waste to each treatment, storage, or disposal facility, a generator must send a one-time written notice to each facility receiving the waste and place a copy in the file. Respondent failed to provide the one-time written notice and place a copy in the file.

Respondent completed a one-time written notice and placed a copy to file on June 22, 2010.

9. 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 40 CFR 262.11; 40 CFR 262.34(a)(2); 40 CFR 262.34(a)(3); 40 CFR 262.34(a)(4) referencing 40 CFR 265.16(a), (b), & (c); 40 CFR 262.34(c)(1)(ii); IC 13-30-2-1(12); 40 CFR 262.20; 40 CFR 268.7(a) and 40 CFR 262.34(c)(1)(i) referencing 40 CFR 265.173(a) and 40 CFR 262.34(a)(4) referencing 40 CFR 265.51.

3. Respondent is assessed a civil penalty of Thirty One Thousand Eight Hundred and Forty Dollars ($31,840). 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.

4. 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

100 North Senate Avenue

Indianapolis, IN 46204-2251

5. 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.

6. 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.

7. 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.

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 permits or any applicable Federal or State law or regulation.

9. 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.

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 IDEM issues a Resolution of Case letter to Respondent.

TECHNICAL RECOMMENDATION:				RESPONDENT:
Department of Environmental Management
By: _________________________				By: _________________________
	Nancy Johnston, Section Chief
	Enforcement Section			Printed: ______________________
Office of Land Quality
				Title: ________________________
Date: __________________				Date: _______________________
COUNSEL FOR COMPLAINANT:				COUNSEL FOR RESPONDENT:
For the Department of Environmental Management
By: ________________________				By: ________________________
	Deputy Attorney General
Date: _______________________				Date: ______________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS		_________	DAY OF	_________________,	20__.
				For the Commissioner:
				Signed 12/2/2010
				Bruce H Palin
				Assistant Commissioner
				Office of Land Quality