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. 2011-19728-H
					)
SUPERIOR mETAL tECHNOLOGIES LLC,					)
					)
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 Superior Metal Technologies LLC (“Respondent”), which owns/operates the company with United States Environmental Protection Agency (EPA) ID No. IND 984 867 366, located at 9850 East 30^th Street, in Indianapolis, Marion 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) to:

Steve Blackburn, Registered Agent

Superior Metal Technologies LLC

9850 East 30^th Street

Indianapolis, Indiana 46229

5. Respondent last notified EPA of Large Quantity Generator activities on February 28, 2011. Respondent anodizes and paints aluminum parts.

6. 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.

7. During an investigation including an inspection on December 27, 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.

As noted during the inspection, Respondent did not make a proper hazardous waste determination on one (1) 55-gallon container stored in the less than 90 day accumulation area.

b. Pursuant to 40 CFR 270.1(c), a permit is required for the treatment, storage and disposal of any hazardous waste as identified or listed in 40 CFR Part 261.

As noted during the inspection, Respondent stored hazardous waste identified or listed in 40 CFR Part 261 without a permit.

c. Pursuant to IC 13-30-2-1(10), a person may not commence or engage in the operation of a hazardous waste facility without having first obtained a permit from the department.

As noted during the inspection, Respondent operated a hazardous waste facility without having first obtained a permit from the department.

d. Pursuant to 329 IAC 3.1-1-10, every hazardous waste generator, transporter, or owner or operator of a hazardous waste facility shall notify the commissioner of its hazardous waste activity on the approved forms.

As noted during the inspection, Respondent failed to notify the Commissioner of hazardous waste storage activities.

e. Pursuant to 40 CFR 262.34(b), a generator who accumulates hazardous waste for more than 90 days is an operator of a storage facility and is subject to the requirements of 40 CFR Part 264 and the permit requirements of 40 CFR Part 270.

As noted during the inspection, Respondent stored four (4) hazardous waste containers dated September 18, 2010, on-site for greater than 90 days without complying with 40 CFR Part 264 and 40 CFR Part 270. The hazardous waste containers were stored in the less than 90 days accumulation area.

f. 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.

As noted during the inspection, Respondent accumulated two (2) 1 cubic yard containers of F019 hazardous waste on-site, without a permit, and did not mark hazardous waste containers with accumulation start dates.

g. 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."

As noted during the inspection, Respondent accumulated two (2) 1 cubic yard containers of F019 hazardous waste on-site, without a permit, and did not label or clearly mark hazardous waste containers with the words "Hazardous Waste."

h. Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.35, a generator must maintain aisle space to allow the unobstructed movement of personnel, fire protection, equipment, spill control equipment, and decontamination equipment to any area of facility operation in an emergency.

As noted during the inspection, Respondent failed to provide the required aisle space in the less than 90 day accumulation area.

i. Pursuant to 329 IAC 3.1-16-2(a)(8) and 40 CFR 273.34(e), each lamp or a container or package in which such lamps are contained must be labeled or marked clearly with any one of the following phrases: “Universal Waste—Lamp(s),” or “Waste Lamp(s),” or “Used Lamp(s)” or with words that accurately identify the universal waste lamps.

As noted during the inspection, Respondent did not label the used fluorescent lamps.

j. Pursuant to 40 CFR 273.13(d)(1), A small quantity handler of universal waste must manage lamps in a way that prevents releases of any universal waste or component of a universal waste to the environment, as follows: (1) A small quantity handler of universal waste must contain any lamp in containers or packages that are structurally sound, adequate to prevent breakage, and compatible with the contents of the lamps. Such containers and packages must remain closed and must lack evidence of leakage, spillage or damage that could cause leakage under reasonably foreseeable conditions.

As noted during the inspection, Respondent did not store the used fluorescent lamps in the required containers or packages.

8. In recognition of the settlement reached, Respondent waive 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 statutes and rules listed in the findings here and/or above at issue.

3. Upon the Effective Date, Respondent shall comply with 40 CFR 262.11. Specifically, Respondent shall ensure that a proper hazardous waste determination is being provided for all solid waste.

4. Upon the Effective Date, Respondent shall ensure that the facility does not operate as a hazardous waste storage facility without complying with the requirements of 40 CFR 264 and the permit requirements of 40 CFR 270.

5. Within thirty (30) days of the Effective Date of this Agreed Order, Respondent shall decontaminate the hazardous waste container storage area noted in Finding 7.e., hereinafter referred to as “the pad”, as follows:

a. remove all wastes from the pad and appropriately dispose;

b. mechanically clean the pad by scraping, sweeping, or other method, to remove all physical contamination;

c. wash the pad with a high pressure steam cleaner with detergent or appropriate solvent to remove the previously stored waste materials;

d. rinse the pad three (3) times with water;

e. collect the third (final) rinsate separately and analyze two (2) samples to show that the pad’s surface meets the cleanup levels. For inorganic and certain organic parameters, the cleanup levels of the rinsate will be based on the Maximum Contaminant Levels (MCLs) of the National Primary Drinking Water Regulations (40 CFR 141). For the organic parameters without MCLs, the cleanup levels of the rinsate will be based on the analytical methods’ Estimated Quantitation Limits (EQLs), as defined in SW-846. The analytical parameters will be based on wastes previously stored on the pad;

f. the decontamination procedure shall be repeated until the cleanup levels are met;

g. ensure that care is taken to prevent migration of cleaning liquids from the pad area; and

h. collect and dispose of all residues and rinsates as hazardous waste unless the residues and rinsates are analyzed and determined to be non-hazardous.

6. Within fifteen (15) days of completing the decontamination required in Order 5, Respondent shall submit documentation, including sample results, that the decontamination has been completed to IDEM for review. Analytical results submitted to IDEM for review shall include signed chain-of-custody sheets, sampling dates, analysis dates, analytical methods used, MCLs, EQLs and quality control results. The quality assurance/quality control (QA/QC) results shall include initial and continuing calibration results, blank results, matrix duplicates, and matrix spike/matrix spike duplicate results.

7. Within thirty (30) days of the Effective Date, Respondent shall submit documentation to IDEM verifying that all hazardous waste stored on Site for more than 90 days was properly disposed.

8. Upon the Effective Date, Respondent shall ensure compliance with 40 CFR 262.34(a)(2). Specifically, Respondent shall ensure that the date when the accumulation begins is clearly marked and visible for inspection on each hazardous waste container.

9. Upon the Effective Date, Respondent shall ensure compliance with 40 CFR 262.34(a)(3). Specifically, Respondent shall ensure that each hazardous waste container is labeled or marked clearly with the words "Hazardous Waste."

10. Upon the Effective Date, Respondent shall comply with 40 CFR 265.35. Specifically, Respondent shall ensure that the required aisle space in the less than 90 day accumulation area is provided.

11. Upon the Effective Date, Respondent shall comply with 329 IAC 3.1-16-2(a)(8) and 40 CFR 273.34(e). Specifically, Respondent shall ensure all used fluorescent lamps are labeled.

12. Upon the Effective Date, Respondent shall ensure compliance with 40 CFR 273.13(d)(1). Specifically, Respondent shall ensure that all used fluorescent lamps are stored in the required containers or packages.

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

Idelia Walker-Glover, Enforcement Case Manager

Office of Land Quality – Mail Code 60-02L

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

14. Respondent is assessed a civil penalty of Six Thousand Dollars ($6,000). 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.

15. 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:

Paragraph	Penalty
5	$500 per week or part thereof
6	$250 per week or part thereof
7	$250 per week or part thereof

16. 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.

17. 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

18. 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.

19. 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.

20. 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.

21. 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 or any applicable Federal or State law or regulation.

22. 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.

23. 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.

24. Nothing in this Agreed Order shall prevent IDEM 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.

25. 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 July 8, 2011
				Bruce H Palin
				Assistant Commissioner
				Office of Land Quality