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. 2010-19271-S
				)
SECONDARY METAL PROCESSING, 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 Secondary Metals Processing, Inc., which owns and/or operates a facility located at 525 S. Huntington Street in Wabash, Wabash County, Indiana (the “Site”).

3. Respondent processes scrap metal. Prior to the inspection, Respondent brought automobiles on-site, processed them, and sent them off-site for recycling within five (5) days of receipt. Respondent processed about ten (10) vehicles each month.

4. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation ("NOV") Certified Mail to:

Khaled Habayed, President	Khaled Habayeb, Registered Agent for
Secondary Metal Processing, Inc.	Secondary Metal Processing, Inc.
P.O. Box 274	56 W. Sinclair
Wabash, IN 46992	Wabash, IN 46992

5. 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.

6. During an investigation including an inspection on April 6, 2010, conducted by a representative of IDEM, the following violations were found:

a. 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.

As noted during the inspection, Respondent caused and/or allowed automotive fluids, oil, waste tires, tire rims, and gasoline tanks to be disposed at the Site in a manner which creates a threat to human health or the environment. Oil was observed on the ground around the baler and was migrating towards the Wabash River floodplain. Automotive fluids, waste tires, tire rims, and gasoline tanks were also observed at the back of the property near the slope leading to the Wabash River floodplain.

b. Pursuant to 327 IAC 2-6.1-5(5) and 327 IAC 2-6.1-7, the following spills from a facility must be reported, in part, to the Office of Land Quality, Emergency Response Section:

(5) Any spill for which a spill response has not been done.

As noted during the inspection, Respondent had a spill(s) of used oil for which a spill response(s) was not done, and failed to report the spill(s) to the Office of Land Quality, Emergency Response Section, of IDEM. Oil was observed on the ground around the baler and was migrating towards the Wabash River floodplain.

c. Pursuant to 329 IAC 13-4-3(e), upon detection of a release of used oil to the environment not subject to the requirements of 40 CFR 280, Subpart F, which has occurred after the effective date of this rule, a generator must perform the following cleanup steps: (1) Stop the release; (2) Contain the released used oil; (3) Clean up and manage properly the released used oil and other materials; (4) Communicate a spill report in accordance with 327 IAC 2-6.1; and (5) If necessary to prevent future releases, repair or replace any leaking used oil storage containers or tanks prior to returning them to service.

As noted during the inspection, Respondent did not perform the required cleanup steps upon detection of a release(s) of used oil. A release(s) of used oil was observed around the baler and was migrating towards the Wabash River floodplain.

d. Pursuant to IC 13-30-2-1(3)&(4), 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. Additionally, no person shall deposit or cause or allow the deposit of contaminants or solid waste upon the land, except through the use of sanitary landfills, incineration, composting, garbage grinding, or another method acceptable to the solid waste management board.

As noted during the inspection, Respondent deposited automotive fluids, oil, waste tires, tire rims, and gasoline tanks, contaminants and/or solid waste, at the Site in violation of 329 IAC 10-4-2. Oil was observed on the ground around the baler and was migrating towards the Wabash River floodplain. Automotive fluids, waste tires, tire rims, and gasoline tanks were also observed at the back of the property near the slope leading to the Wabash River floodplain.

Respondent asserts that the items referred to as contaminants and/or solid waste(s) by IDEM are actually scrap materials that have value.

e. Pursuant to 329 IAC 13-4-3(d), generators must label all used oil containers and aboveground tanks with the words “Used Oil.”

As noted during the inspection, Respondent did not label one (1) 55-gallon drum used to store used oil with the words "Used Oil."

f. Pursuant to 329 IAC 13-4-5, generators of used oil must ensure that their used oil is transported only by transporters who have obtained EPA identification.

As noted during the inspection, Respondent did not have records of used oil shipments which could verify that their used oil has been transported only by transporters who have obtained EPA identification.

g. Pursuant to 329 IAC 13-3-2, used oil burned for energy recovery is subject to regulation under 329 IAC 13, "Used Oil Management," unless it can be shown not to exceed any of the allowable levels of the constituents and properties listed in Table 1 of 329 IAC 13-3-2.

As noted during the inspection, Respondent allowed used oil generated on-site to be burnt off-site by local businesses without complying with 329 IAC 13 and without showing that it did not exceed any of the allowable levels of the constituents and properties listed in Table 1 of 329 IAC 13-3-2.

h. Pursuant to IC 13-20-17.7-5(a), motor vehicle recyclers are required to remove all mercury switches from each end of life vehicle the motor vehicle recycler receives upon receipt of the vehicle.

As noted during the inspection, Respondent did not remove all mercury switches from each end of life vehicle it received upon receipt of the vehicle.

7. Respondent submitted information documenting steps to correct the violations in submittals to IDEM dated June 18 and August 17, 2010, and during settlement conferences on September 15, 2010 and April 19, 2011. Steps taken by Respondent include, but are not limited to, the following:

a. Placing baler on concrete pad with sides to minimize the potential for releases;

b. Temporary cessation of accepting any materials containing Freon or oil;

c. Clean-up and removal of solids wastes and tires. In the future, solid wastes and tires will be placed in roll-offs and transported off-site for proper processing and/or disposal when roll-offs are full; and

d. Labeling of used oil containers, as well as obtaining documentation to track transporter and end receiver.

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 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. Within sixty (60) days of the Effective Date, Respondent shall submit to IDEM a site assessment plan. The purpose of the site assessment plan shall be to conduct sampling and analysis in order to assess potential soil and ground water contamination from the area(s) of concern which includes the area(s) on the ground described in Findings 6 a. above and, if necessary, the nature and extent of contamination. The site assessment plan shall be based upon the principles outlined within IDEM’s Risk Integrated System of Closure (RISC) Technical Resource Guidance Document (“TRGD”), dated February 15, 2001, which can be accessed at: http://www.IN.gov/idem/land/risc. In addition, the site assessment plan shall:

a. Describe and evaluate all areas of potential contamination in and around each area of concern.

b. Specify the method of determining the number and location of samples to be taken to yield a representative assessment of each area of concern. This method shall be:

1. random sampling, pursuant to Section 3.4 of Chapter 3 of the TRGD; or

2. directed sampling, pursuant to Section 3.4 of Chapter 3 of the TRGD; and

3. developed to provide locations and methods of any ground water samples pursuant to Section 3.4 of Chapter 3 of the TRGD.

c. Specify how the soil samples will be obtained and handled in order to minimize loss of volatile constituents. Respondent may composite samples of non-volatiles (i.e., metals and semi-volatiles), but shall not composite samples of volatiles, pursuant to Section 3.4 of Chapter 3 of the TRGD.

d. Specify how the ground water samples will be obtained and describe the sampling procedures.

e. Clearly define all sampling and analytical protocols designed to identify hazardous waste or its constituents, pursuant to 40 CFR Part 261, including 40 CFR Part 261 Appendices I, II, III, and VIII. The site assessment plan shall include the method of sample collection, pursuant to “Test Methods for Evaluating Solid Waste, Physical/Chemical Methods,” EPA Publication SW-846. This includes, but is not limited to, sample collection containers, preservatives, and holding times. Specify the analytical methods to be used and the method’s Estimated Quantitation Limits (EQLs).

f. Specify that chain-of-custody of the samples shall be maintained and Quality Assurance and Quality Control (“QA/QC”) procedures shall be followed, pursuant to Appendix 2 of the TRGD.

g. Include within the site assessment plan a supplemental contingent plan for determining the nature and extent of:

1. soil contamination, as specified in Chapter 4 of the TRGD, in the event that sampling and analysis indicates soil contamination to exist above default residential levels as specified in Table A, Appendix I, of the TRGD; and

2. ground water contamination in the event that sampling and analysis indicates hazardous waste or its constituents are detected in the ground water as specified in Chapter 4 of the TRGD.

h. Include within the site assessment plan time frames for its implementation.

i. Be approved by IDEM prior to its implementation.

4. Within fifteen (15) days of receiving notice from IDEM of approval of the site assessment plan, Respondent shall implement it as approved and in accordance with the time frames contained therein.

5. Within fifteen (15) days of obtaining the analytical results, Respondent shall submit said results, including chain-of-custody information, and QA/QC records, pursuant to Appendix 2 of the TRGD, to IDEM.

6. If soil or ground water contamination is identified, Respondent shall submit within sixty (60) days subsequent to the completion of the analyses, a remediation workplan to IDEM for the purpose of remediating all soil and/or ground water contamination. The remediation workplan shall:

a. In accordance with Chapter 6 of the TRGD, remediate each contaminated area to closure. Closure levels shall be one of the following:

1. default residential levels, pursuant to Table A, Appendix I, in the TRGD; or

2. commercial/industrial default values (if appropriate to the facility), pursuant to Table A, Appendix I, in the TRGD. Ground water shall meet residential default values at the property boundary or control; or

3. closure levels for soil can also be established using the non-default procedures presented in Chapter 7 of the RISC Technical Guide. The alternate cleanup level proposal must document that the constituents left in soil will not adversely impact any other environmental medium (ground water, surface water, or atmosphere) and that direct contact through dermal exposure, inhalation, or ingestion will not result in threats to human health or the environment; or

4. background levels for metals, pursuant to Section 1.6 of Chapter 1 of the TRGD, and/or the analytical method’s estimated quantitation limits (“EQLs”) for organics.

b. Include a soil and/or a ground water sampling and analysis plan to be performed after the cleanup has been performed which verifies that all contamination has been removed.

c. Include within the remediation workplan time frames for its implementation.

7. Within fifteen (15) days of approval by IDEM of the remediation workplan, Respondent shall implement the plan as approved and in accordance with the time frames contained therein.

8. Within thirty (30) days of completion of the remedial action conducted pursuant to the remediation workplan, Respondent shall submit to IDEM certification by an independent registered professional engineer that the remedial action has been completed as outlined in the approved remediation workplan.

9. Upon the Effective Date, Respondent shall ensure compliance with 329 IAC 13-4-3(d). Specifically, Respondent shall ensure that all used oil containers and aboveground tanks are labeled with the words “Used Oil.”

10. Upon the Effective Date, Respondent shall ensure compliance with 329 IAC 13-4-5. Specifically, Respondent shall ensure that its used oil is transported only by transporters who have obtained EPA identification, and shall maintain records of such.

11. Upon the Effective Date, Respondent shall comply with 329 IAC 13-3-2. Specifically, Respondent shall comply with 329 IAC 13 for used oil burned for energy recovery, unless it can be shown not to exceed any of the allowable levels of the constituents and properties listed in Table 1 of 329 IAC 13-3-2.

12. Respondent shall comply with IC 13-20-17.7-5(a) by removing all mercury switches from each end of life vehicle whenever applicable.

13. Upon the Effective Date, Respondent shall take steps to capture any potential release(s) of fluids during processing activities conducted at the Site.

14. Within thirty (30) days of the Effective Date, Respondent shall submit to IDEM documentation, including photographs, demonstrating the cleanup of waste tires and other solid wastes at the Site.

15. In the event IDEM determines that any plan submitted by Respondent is deficient or otherwise unacceptable, Respondent shall revise and resubmit the plan to IDEM in accordance with IDEM's notice. After three (3) submissions of such plan by Respondent, IDEM may modify and approve any such plan and Respondent must implement the plan as modified by IDEM. The approved plan shall be incorporated into this Agreed Order and shall be deemed an enforceable part thereof.

16. 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 – Mail Code 60-02L

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

17. Respondent is assessed a civil penalty of Nine Thousand Two Hundred Dollars ($9,200). Respondent shall make a cash payment of One Thousand Eight Hundred and Forty Dollars ($1,840) to the Environmental Management Special Fund within thirty (30) days of the Effective Date. In lieu of payment of the remaining civil penalty, Respondent has performed a Supplemental Environmental Project (“SEP”) after the date of the violations which gave rise to this enforcement action. The cost of the SEP was $19,600. Respondent has submitted written notice and documentation to IDEM which substantiates all actions taken and costs incurred with respect to the SEP. As a Supplemental Environmental Project, Respondent has constructed a 12 foot x 42 foot x 18 inch concrete containment structure around the baler located at the Site. The containment structure limits the ability of any hazardous substance, pollutant, or contaminant released from the baler reaching the ground surface. It also reduces the potential hazards to public health and the environment associated with the release of such substances by helping prevent any released substance from reaching the ground and, potentially, the subsurface.

In the event that the cash portion of 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.

18. 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 #3	$1000 per week
Failure to comply with Order Paragraph #4	$500 per week
Failure to comply with Order Paragraph #5	$500 per week
Failure to comply with Order Paragraph #6	$500 per week
Failure to comply with Order Paragraph #7	$500 per week
Failure to comply with Order Paragraph #8	$500 per week
Failure to comply with Order Paragraph #14	$500 per week
Failure to comply with Order Paragraph #15	$1000 per week

19. Stipulated penalties shall be due and payable within thirty (30) days after Respondent receives written notice that Complainant has determined a stipulated penalty is due. Assessment and payment of stipulated penalties shall not preclude Complainant from seeking any additional relief against Respondent for violation of this Agreed Order. In lieu of any of the stipulated penalties set out above, 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.

20. 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

Cashier – Mail Code 50-10C

100 North Senate Avenue

Indianapolis, IN 46204-2251

21. 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.

22. 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.

23. 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.

24. 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 permit(s) or any applicable Federal or State law or regulation.

25. 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.

26. 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.

27. 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.

28. 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	___________,	2011.
				For the Commissioner:
				Signed on August 2, 2011
				Bruce H Palin
				Assistant Commissioner
				Office of Land Quality