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. 2014-22548-H
					)
MERCHANTS METALS, INC.,					)
					)
Respondents.					)

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 Merchants Metals, Inc., which owns and/or operates a company with U.S. EPA I.D. number IND 039349238, located at 71347 CR 23 in New Paris, Elkhart County, Indiana (the “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:

David Clark, President	Corporation Service Company, Registered Agent for
Merchants Metals, Inc.	Merchants Metals, Inc.
375 Northridge Road, Suite 350	251 East Ohio Street, Suite 500
Atlanta, GA 30350	Indianapolis, IN 46204

5. Respondent produces galvanized, vinyl coated, and aluminized chain link fence.

6. Respondent last notified the EPA and IDEM of large quantity generator hazardous waste activities on February 15, 2013.

7. IDEM issued a Notice of Violation in 2011, in part, for the failure to provide the requirements of 40 CFR 265, Subpart J, for a 7500 gallon surge tank at the site which was being used to accumulate corrosive rinse water (D002, D006, D007, D008). The corrosive rinse waste was being disposed of as a hazardous waste. The parties entered into an Agreed Order on December 2, 2011, which included language that Respondent intended to use this surge tank as part of the wastewater treatment system for treating aluminizing rinse water and therefore, the tank would be exempt from 40 CFR 265, Subpart J, per 40 CFR 265.1(c)(10). The requirements of the Agreed Order required that before the surge tank would ever be used as a hazardous waste accumulation tank and not as part of the permitted wastewater treatment system, Respondent shall comply with all applicable requirements of 40 CFR 265, Subpart J including, but not limited to, 40 CFR 265.192, 40 CFR 265.193, 40 CFR 265.194(b), and 40 CFR 265.193. A February 16, 2012 follow-up inspection by IDEM verified that as of that date the surge tank was being used in a wastewater treatment capacity to batch treat aluminizing rinse waters generated at the site. However, at the time of the February 4, 2014 inspection, Respondent was using the surge tank to accumulate corrosive rinse water (D002, D006, D007, D008). The corrosive rinse waste was being disposed of as a hazardous waste.

8. 329 Indiana Administrative Code (“IAC”) 3.1 incorporates certain federal hazardous waste management requirements found in 40 Code of Federal Regulations (“CFR”) Parts 260 through 270 and Part 273, including those identified below.

9. During an investigation including an inspection conducted on February 4, 2014, conducted by a representative of IDEM, the following violations were found:

a. Pursuant to 40 CFR 262.34(a)(1)(ii) referencing 40 CFR 265.192(a), a generator with a new tank system must have a written assessment certified by an independent, qualified, registered, professional engineer in accordance with 40 CFR 270.11(d) attesting that the system has sufficient structural integrity.

As noted during the inspection, Respondent did not provide the required written assessment for a 7500-gallon surge tank located in the Wastewater Treatment Unit next to the aluminizing line, which was being used to accumulate hazardous waste. Although at times, the tank has been used as part of the wastewater treatment system for treating aluminizing rinse water and therefore exempt from 40 CFR 265, Subpart J, per 40 CFR 265.1(c)(10), at the time of the inspection, the tank was not being used as a wastewater treatment tank but as an accumulation tank for corrosive rinse water (D002, D006, D007, D008). The corrosive rinse waste was being disposed of as a hazardous waste.

b. Pursuant to 40 CFR 262.34(a)(1)(ii) referencing 40 CFR 265.193, all new and existing tank systems must have secondary containment systems operated to prevent the migration of waste or liquid out of the system and be capable of detecting and collecting releases and accumulated liquid. The system must be lined with or constructed of materials compatible with the waste and provided with a leak detection system that will detect a release within 24 hours. The system must be free of cracks or gaps.

As noted during the inspection, Respondent did not provide documentation demonstrating that the secondary containment for the surge tank, which was being used to accumulate hazardous waste, met the requirements of 40 CFR 265.193.

c. Pursuant to 40 CFR 262.34(a)(1)(ii) referencing 40 CFR 265.194(b), a generator must use appropriate controls and practices, such as level sensing devises, high level alarms, and feed cut-offs, to prevent spills and overflows from tank or secondary containment systems.

As noted during the inspection, Respondent did not provide overfill protection for the surge tank being used to accumulate hazardous waste and/or its secondary containment system.

d. Pursuant to 40 CFR 262.34(a)(1)(ii) referencing 40 CFR 265.195, a generator must inspect tank systems once each operating day. Generators of tank systems that either use leak detection equipment to alert facility personnel to leaks, or implement established workplace practices to ensure leaks are promptly identified, must inspect tank systems at least weekly. Use of the alternate inspection schedule must be documented.

As noted during the inspection, Respondent did not conduct the required inspections for the surge tank being used to accumulate hazardous waste.

e. 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.

As noted during the inspection, Respondent did not have documentation demonstrating that annual RCRA Training had been provided for employees with hazardous waste duties in the prior year.

f. Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.53, a copy of the contingency plan must be maintained at the facility and submitted to all applicable local emergency response teams.

As noted during the inspection, Respondent failed to maintain a copy of the contingency plan on-site and/or to provide a copy to local emergency authorities.

10. On October 21, 2014, Respondent presented information to IDEM detailing the reasons why the surge tank was being used as a RCRA accumulation tank and not as part of the wastewater treatment system at the time of the IDEM inspection. Respondent stated that a PLC associated with the neutralizer addition failed resulting in the need to manually operate the system. Manual operation was successful but physically difficult. At that point, Respondent determined that both repairs and improvements to the system were needed. During this period, any acidic material generated was accumulated on-site rather than discharged through the wastewater treatment system. Respondent also stated that the repairs and improvements have now been made and that the surge tank will only be used as part of the wastewater treatment system and not as a RCRA accumulation tank. Employees and managers have been provided with additional training regarding the regulatory differences for use of the surge tank as a part of the wastewater treatment system versus use of the tank to store or treat a hazardous wastewater prior to shipment off-site for treatment, storage, or disposal even on an occasional basis. Respondent submitted training records to IDEM via email on November 3, 2014. Respondent has an Industrial Pretreatment Permit renewal with an effective date of May 1, 2010 and an expiration date of April 30, 2015. Respondent has also stated that the permit renewal application is in process.

11. 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 the rules listed in the findings here and/or above at issue.

3. Upon the Effective Date, before the surge tank is ever used as a hazardous waste accumulation tank and not as part of the permitted wastewater treatment system, Respondent shall comply with all applicable requirements of 40 CFR 265, Subpart J including, but not limited to, the following:

a) compliance with 40 CFR 265.192, by providing to IDEM a written assessment certified by an independent, qualified, registered, professional engineer in accordance with 40 CFR 270.11(d) attesting that the system has sufficient structural integrity;

b) compliance with 40 CFR 265.193, by providing to IDEM documentation demonstrating that the secondary containment for the tank system meets the requirements of 40 CFR 265.193;

c) compliance with 40 CFR 265.194(b), by providing to IDEM documentation demonstrating that it has provided overfill protection for the tank and its secondary containment system; and

d) compliance with 40 CFR 265.195, by providing to IDEM documentation demonstrating that inspections are being conducted pursuant to 40 CFR 265.195

4. Upon the Effective Date, Respondent shall ensure that the wastewater treatment system is under the responsible charge of a certified operator.

5. Upon the Effective Date, Respondent shall ensure compliance with 40 CFR 265.16(a), (b), & (c). Specifically, Respondent shall ensure that all employees with hazardous waste duties are provided with all applicable training requirements of 40 CFR 265.16 including, but not limited to, annual update training.

6. Within fifteen (15) days of the Effective Date, Respondent shall comply with 40 CFR 265.53. Specifically, Respondent shall provide IDEM with documentation demonstrating that a copy of the contingency plan is being maintained at the facility and has been submitted to all applicable local emergency response teams.

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

Brenda Lepter, Enforcement Case Manager

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

8. Respondent is assessed and agrees to pay a civil penalty of Six Thousand Six Hundred and Fifty Dollars ($6,650). Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date; the 30^th day being the “Due Date”.

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

Failure to comply with Order Paragraph No. 3	$1,000 per week
Failure to comply with Order Paragraph No. 6	$500 per week

10. Stipulated penalties shall be due and payable no later than the 30^th day after Respondent receives written notice that Complainant has determined a stipulated penalty is due; the 30^th day being the “Due Date”. Complainant may notify Respondent at any time that a stipulated penalty is due. Failure to notify Respondent in writing in a timely manner of stipulated penalty assessment shall not waive Complainant’s right to collect such stipulated penalty or preclude Complainant from seeking additional relief against Respondent for violation of this Agreed Order. Neither assessment nor payment of stipulated penalties shall preclude Complainant from seeking additional relief against Respondent for a violation of this Agreed Order; such additional relief includes any remedies or sanctions available pursuant to Indiana law, including, but not limited to, civil penalties pursuant to IC 13-30-4.

11. 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:

Indiana Department of Environmental Management

Accounts Receivable

100 North Senate Avenue

Indianapolis, IN 46204-2251

12. 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 11, above.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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 RESPONDENT:
				By: ________________________
				Date: ______________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS		_________	DAY OF	_______________,	20__.
				For the Commissioner:
				Signed on December 30, 2014
				Bruce H Palin
				Assistant Commissioner
				Office of Land Quality