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. 2002-12753-H

)

ROY BAYER TESTAMENTARY TRUST, )

)

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.

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 the Roy Bayer Testamentary Trust ("Respondent"), which owns the property with U.S. EPA ID No. INT 190 010 397, located at 3830 South Meeker Avenue, in Muncie, Delaware 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 via Certified Mail to:

Ms. Penny Harris, Trustee

Roy Bayer Testamentary Trust

3840 South Meeker Avenue

Muncie, Indiana 47302

5. Respondent is the owner of the Site formerly operated by Metropolitan Environmental, Inc. Metropolitan Environmental, Inc. was a hazardous waste transporter operating with U.S. EPA ID# INT 190 010 397.

6. Inspections on May 15 and July 31, 2002 were conducted at the Site by a representative of IDEM’s Office of Land Quality (“OLQ”). The following violations were in existence or observed at the time of these inspections:

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 the following:

1. Approximately twenty (20) unlabeled 55-gallon containers.

2. One (1) unlabeled aboveground tank.

3. Various unlabeled roll-off containers.

4. Approximately forty (40) unlabeled 55-gallon containers located in two (2) trailers at the facility.

b. 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. Respondent allowed the deposit of the following contaminants upon the land:

1. Approximately twenty (20) unlabeled 55-gallon containers.

2. One (1) unlabeled aboveground tank.

3. Various unlabeled roll-off containers.

4. Approximately forty (40) unlabeled 55-gallon containers located in two (2) trailers at the facility.

c. 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 the following contaminants upon the land:

1. Approximately twenty (20) unlabeled 55-gallon containers.

2. One (1) unlabeled aboveground tank.

3. Various unlabeled roll-off containers.

4. Approximately forty (40) unlabeled 55-gallon containers located in two (2) trailers at the facility.

7. On March 28, 2002, Metropolitan Environmental, Inc. filed Chapter 7 bankruptcy dissolving the corporation.

8. On January 12, 2004, Bruce Comly French, Bankruptcy Trustee for Metropolitan Environmental, Inc., notified the United States Bankruptcy Court for the Northern District of Ohio, Western Division, that Eighteen Thousand Three Hundred Eighty Nine Dollars ($18,389) was approved for payment to New Source Management, LLC for “complete environmental remediation” of the Site.

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 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. Within sixty (60) days of the Effective Date of this Agreed Order, Respondent shall comply with 40 CFR 262.11. Specifically, Respondent shall make a proper waste determination on the following and submit the results to IDEM for review:

a. Approximately twenty (20) unlabeled 55-gallon containers.

b. One (1) unlabeled aboveground tank.

c. Various unlabeled roll-off containers.

d. Approximately forty (40) unlabeled 55-gallon containers located in two (2) trailers at the facility.

3. Within ninety (90) days of the Effective Date of this Agreed Order, Respondent shall comply with IC 13-30-2-1(3). Specifically, Respondent shall remove and dispose of all solid and hazardous waste at the Site.

4. Within one hundred twenty (120) days of the Effective Date of this Agreed Order, Respondent shall submit disposal documentation for all solid and hazardous waste to IDEM for review.

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

Ms. Lori Colpaert, Enforcement Case Manager

Office of Enforcement

Indiana Department of Environmental Management

100 N. Senate Avenue

P. O. Box 6015

Indianapolis, IN 46206-6015

6. 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 2 $1,000 per week

Failure to comply with Order paragraph 3 $1,000 per week

Failure to comply with Order paragraph 4 $1,000 per week

7. Stipulated penalties shall be due and payable within thirty (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.

8. 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

9. 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.

10. 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.

11 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.

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 L. Johnston, Chief

Office of Enforcement Printed: __________________

Title: ________________________

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:

Adopted 9/13/04

___________________________

Felicia A. Robinson

Deputy Commissioner for

Legal Affairs