STATE OF INDIANA    )            BEFORE THE INDIANA DEPARTMENT                 )    SS:        OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION    )

COMMISSIONER OF THE DEPARTMENT        )
OF ENVIRONMENTAL MANAGEMENT,        )
                                )
            Complainant,                )
                                )CAUSE NOS. H-13624 or
            v.                    ) 1998-8288-H &
                                )SW-361 or 1998-5019-S
SUGAR CREEK SCRAP, INC., and                )
                                )
SHIRLEE C. LEVIN,                        )
                                )
            Respondents.                )

    The Complainant and the Respondents 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 alleged herein.

    1.    Complainant is the Commissioner (hereinafter referred to as "Complainant") of the Indiana Department of Environmental Management (hereinafter referred to as "IDEM"), a department of the State of Indiana created by IC 13-13-1-1.

          Respondents are Sugar Creek Scrap, Inc. ("Sugar Creek"), currently operating at 1900 Prairieton Avenue, Terre Haute, Vigo County, Indiana, and Shirlee C. Levin. Sugar Creek (f/k/a Dumes Recycling) currently operates a scrap metal recycling business and Shirlee C. Levin is listed as the property owner.

    3.    Respondents, at the time of the inspection, had not submitted an initial Notification of Regulated Waste Activity (EPA Form 8700-12) and, therefore, did

not retain an EPA I.D. number. Subsequent to the inspection, Respondents were assigned the EPA I.D. number INR 000 017 699.

    4.    IDEM has jurisdiction over the parties and subject matter of this action.

    5.    Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail to:
        
        David Levin, President and Resident Agent    Shirlee C. Levin
        Sugar Creek Scrap, Inc.            c/o Dumes Salvage Company
        P.O. Box 808                    P.O. Box 135
        Terre Haute, Indiana 47802            Terre Haute, Indiana 47808

    6.    Sugar Creek is in the business of buying and selling scrap metals. In the course of its business it collects large volumes of various types of miscellaneous metallic scrap which it piles on its Terre Haute premises for sorting, preparation, stockpiling and eventual sale.

    7.    A waste stream analysis performed for Gartland Foundry ("Gartland") in August 1996 determined that Gartland was generating various hazardous, special, and solid waste streams, including induction furnace baghouse dust waste characteristic for lead (D008) and cadmium (D006). These hazardous, special, and solid waste streams were transported to and disposed at Sugar Creek.

    8.    Prior to November 19, 1997, Sugar Creek obtained scrap from Gartland in Terre Haute, Indiana. According to information provided by Sugar Creek, their practice was to place its empty containers at Gartland to be filled by Gartland employees with scrap. The employees of Gartland would then proceed to fill these containers with castings, casting spills and maintenance scrap. Sugar Creek recognized that foundry spills and castings might be accompanied by a certain amount of the spent foundry sand associated with the spills and castings. Periodically, employees of Sugar Creek would pick up the full containers, transport them to the Sugar Creek facility, and empty them onto the ground for sorting. Sugar Creek would then use an electromagnetic magnet to cull out the metallic scrap from the pile. The metallic scrap would be stockpiled and the remaining material, predominantly spent found sand, would be pushed to the side.

    9.    According to information provided by Sugar Creek, sometime prior to November 19, 1997, Gartland employees started depositing white fiberglass sacks that contained induction furnace baghouse dust into the Sugar Creek containers. During the same time period Gartland employees started depositing trash, broken wooden pallets and other solid waste into the Sugar Creek containers.

    10.    In November of 1997, Sugar Creek removed its containers from Gartland and since that date has not collected any material from Gartland.

    11.    Based upon inspections conducted at Sugar Creek on November 25 and December 11, 1997, and February 5, 1998 by the Office of Solid and Hazardous Waste Management ("OSHWM") of IDEM, the fiberglass bags of induction furnace baghouse dust which had been deposited in Sugar Creek's containers for transportation to Sugar Creek now are located on and in an area of approximately 0.55 acres, the configuration of which is depicted in Exhibit A, attached hereto.

    12.    Analysis of samples of wastes that were taken at the site by IDEM and Sugar Creek on or after November 19, 1997, indicate the presence of cadmium and lead in the samples.

    13.    Based upon inspections conducted at Sugar Creek on November 25 and December 11, 1997, and February 5, 1998, by OSHWM of IDEM, IDEM contends that the following violations were in existence or observed at the time of the inspection:

             Pursuant to 329 IAC 10-8-1, no person may process, dispose, cause, or allow to be processed or disposed, special waste except as provided by 329 IAC 10-7 and 329 IAC 10-9. Based upon the information gathered by IDEM, Respondents accepted special waste at Sugar Creek for the purpose of processing or disposal.

             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. Based upon the information gathered by IDEM, Respondents allowed special waste to be stored, processed, or disposed at Sugar Creek in a manner which created a threat to human health or the environment, including water pollution or other contamination.

             Pursuant to 329 IAC 10-4-3, open dumping and open dumps, as those terms are defined in IC 13-11-2-146 and 147, are prohibited. Based upon the information gathered by IDEM, Respondents allowed special waste to be open dumped at Sugar Creek.

             Pursuant to IC 13-30-2-1(3), a person may not deposit any contaminants upon the land in a place and manner that creates or would create a pollution hazard that violates or would violate a rule adopted by one (1) of the boards. Based upon the information gathered by IDEM, Respondents allowed special waste to be deposited upon the land in a place and manner

that has created a pollution hazard that violates or would violate a rule adopted by one (1) of the boards.

             Pursuant to IC 13-30-2-1(4), a person may not deposit or cause or allow the deposit of any contaminants or solid waste upon the land, except through the use of sanitary landfills, incineration, composting, garbage, or another method acceptable to the solid waste management board. Based upon the information gathered by IDEM, Respondents allowed special waste to be deposited at Sugar Creek without the use of sanitary landfills, incineration, composting, garbage, or another method acceptable to the solid waste management board.

             Pursuant to IC 13-30-2-1(5), a person may not dump or cause or allow the open dumping of garbage or of any other solid waste in violation of rules adopted by the solid waste management board. Based upon the information gathered by IDEM, Respondents caused or allowed special waste to be open dumped at Sugar Creek in violation of rules adopted by the solid waste management board.

    14.    Based upon an investigation of Respondents' facility on December 9, 1997, by OSHWM of IDEM, IDEM contends that the following violations were in existence or observed at the time of the inspection:

        a.    Pursuant to 329 IAC 3.1-1-10 and 40 CFR 263.11(a), a transporter must not transport hazardous wastes without having received an EPA identification number from the Commissioner. Based upon the information gathered by IDEM, Sugar Creek transported induction furnace baghouse dust, a characteristically-cadmium (D006) and characteristically- lead (D008) hazardous waste, from Gartland without notifying the Commissioner and obtaining an EPA identification number.

        b.    Pursuant to IC 13-30-2-1(12) and 40 CFR 262.12(c), no person may cause or allow the transportation of a hazardous waste without a manifest if a manifest is required by law. Based upon the information gathered by IDEM, Sugar Creek allowed the transportation of Gartland's induction furnace baghouse dust, a characteristically-cadmium (D006) and characteristically-lead (D008) hazardous waste without a hazardous waste manifest. Specifically, the induction furnace baghouse dust was relinquished to Sugar Creek who transported the hazardous waste from Gartland's facility to its own facility, an unpermitted landfill located at 1900 Prairieton Avenue, Terre Haute, Indiana.

        c.    Pursuant to IC 13-30-2-1(11), IC 13-30-2-1(10), IC 13-30-2-1(3) and 40 CFR 270.1(c), no person may deliver to, commence, or engage in the operation of any hazardous waste facility without having first obtained a permit from IDEM. Specifically, a person who receives and subsequently treats, stores, or disposes of hazardous waste is an operator of a hazardous waste facility and, therefore, is subject to the permit requirements of 40 CFR Part 270. Based upon information gathered by IDEM, Sugar Creek transported hazardous waste to its facility, accepted such hazardous waste from off-site, and subsequently treated, stored, or disposed of such waste on-site without obtaining a permit as required by 40 CFR Part 270.

        d.    Pursuant to 329 IAC 3.1-1-10, every owner or operator of a hazardous waste facility shall notify the commissioner of such activities on forms provided by the Commissioner. Furthermore, the Commissioner shall require every owner or operator of a hazardous waste facility to utilize the identification numbers issued by the U.S. Environmental Protection Agency. Based upon information gathered by IDEM, Respondents failed to notify as an owner or operator of a hazardous waste treatment, storage or disposal facility.

        e.    Pursuant to 40 CFR 268.35(a), persons may not allow the land disposal of certain hazardous waste streams, without appropriate treatment, subsequent to August 8, 1990. Based upon the information gathered by IDEM, Respondents allowed the land disposal of characteristically- cadmium (D006) and characteristically-lead (D008) hazardous waste at its facility without treatment subsequent to August 8, 1990.
    
        f.    Pursuant to 329 IAC 3.1-15-4, an owner or operator of a hazardous waste facility must establish financial assurance for closure of the facility. Based upon the information gathered by IDEM, Respondents failed to establish financial assurance for closure of the facility.

        g.    Pursuant to 329 IAC 3.1-15-8(b), an owner or operator of a hazardous waste facility must demonstrate financial responsibility for claims arising from the operation of said facility from nonsudden and accidental occurrences that cause injury to persons or property. Based upon the information gathered by IDEM, Respondents failed to demonstrate financial responsibility for claims arising from the operations of its facility from sudden and accidental occurrences that cause injury to persons or property.

             Pursuant to 40 CFR 264 Subpart B, an owner or operator of a hazardous waste facility must comply with certain general facility standards, including, but not limited to:

            (i).    General waste analysis requirements (40 CFR 264.13);

            (ii).    Security requirements (40 CFR 264.14);

            (iii).    General inspection requirements (40 CFR 264.15); and

            (iv).    Personnel training requirements (40 CFR 264.16).

            Based upon the information gathered by IDEM, Respondents failed to comply with the general facility standards of 40 CFR 264 Subpart B.

              Pursuant to 40 CFR 264 Subpart C, an owner or operator of a hazardous waste facility must comply with certain emergency preparedness and prevention requirements, including, but not limited to:

            (i).    Testing and maintenance of emergency equipment (40 CFR 264.33); and

            (ii).    Providing access to communications or alarm systems (40 CFR 264.34).

            Based upon the information gathered by IDEM, Respondents failed to comply with the emergency preparedness and prevention requirements of 40 CFR 264 Subpart C.

              Pursuant to 40 CFR 264 Subpart D, an owner or operator of a hazardous waste facility must develop a contingency plan which describes certain procedures to be taken in case of an emergency. Based upon the information gathered by IDEM, Respondents failed to develop a contingency plan and comply with the requirements of 40 CFR 264 Subpart D.

              Pursuant to 40 CFR 264 Subpart E, an owner or operator of a hazardous waste facility must comply with certain requirements related to hazardous waste manifests and recordkeeping and reporting requirements, including, but not limited to:

            (i).    Use of the hazardous waste manifest (40 CFR 264.71);

            (ii).    Maintenance of an operating record (40 CFR 264.73); and

            (iii).    The filing of a Biennial Report (40 CFR 264.75).

            Based upon the information gathered by IDEM, Respondents failed to comply with the requirements of 40 CFR 264 Subpart E.

              Pursuant to 40 CFR 264 Subpart F, an owner or operator of a hazardous waste facility must comply with certain requirements related to ground water monitoring, including the installation of ground water monitoring wells and the initiation of a detection monitoring program. Based upon the information gathered by IDEM, Respondents failed to comply with the requirements of 40 CFR 264 Subpart F.

              Pursuant to 40 CFR 264 Subpart N, an owner or operator of a hazardous waste facility that disposes of hazardous waste in a landfill must comply with certain requirements related to the design, operation, inspection, and closure of such landfill. Based upon the information gathered by IDEM, Respondents failed to comply with the requirements of 40 CFR 264 Subpart N.
    
    15.    In recognition of the settlement reached, Respondent waives any right to administrative and judicial review of this Agreed Order.

    16.    This Agreed Order is entered into without admission by the Respondents that any of the alleged violations occurred and without prejudice to any rights and claims they have against Gartland, or any other person, with respect to the alleged violations, including without limitation, all of their respective rights and claims under IC 13-30-9 and under 42 USC 9607 and 9613, which rights and claims are hereby reserved and retained by Respondents.
    

    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 Respondents. This Agreed Order shall have no force or effect until the Effective Date.

    2.    Upon the Effective Date of the Order, Respondents shall continue to refrain from transporting hazardous waste in violation of 40 CFR 263.11(a), 40 CFR 263.20(a), and IC 13-30-2-1(12), or accepting special waste or hazardous waste in violation of IC 13-30-2-1, 329 IAC 10-8, 329 IAC 10-4, and 40 CFR 270.1(c) and IC 13-30-2-1(10), respectively.

    3.    Within forty-five (45) days of the Effective Date of the Order, Respondents shall submit to IDEM for approval a closure plan, pursuant to 40 CFR 264 Subpart G, for its unpermitted landfill that achieves the goals of the performance standards of 40 CFR 264 Subpart G, including 40 CFR 264.111(a) and (b).

    4.    Upon IDEM's approval of the closure plan, referenced in Order No. 3 above, Respondents shall implement the plan as approved, and in accordance with the timeframes contained therein.

    5.    Within one hundred and twenty (120) days of the Effective Date of the Order, Respondents shall establish financial assurance for the closure of its hazardous waste storage facility pursuant to 329 IAC 3.1-15-4.

    6.    Within forty-five (45) days of the Effective Date of the Order, Respondents shall demonstrate financial responsibility for claims arising from the operation of said facility from nonsudden and accidental occurrences that cause injury to persons or property pursuant to 329 IAC 3.1-15-8(b).

    7.    All submittals required by this Agreed Order shall be sent to (unless notified otherwise in writing):

        Matthew T. Klein
        Hazardous Waste Section
        Office of Enforcement
        Indiana Department of Environmental Management
        P.O. Box 6015
        Indianapolis, Indiana 46206-6015

    8.    Sugar Creek is assessed a Civil Penalty of $80,000. Said penalty amount shall be due and payable to the Environmental Management Special Fund in four (4) equal payments of $20,000 on July 1, 2000; January 2, 2001; and July 2, 2001; and January 2, 2002.

    9.    In the event the following terms and conditions are violated, the Complainant may assess and Sugar Creek shall pay a stipulated penalty in the following amounts:

            Violation         Penalty

        Orders 3 and 4            $1,000    per day per violation

    10.    Stipulated penalties shall be due and payable within thirty (30) days after Respondents receive written notice that the Commissioner 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

Respondents for violation of the Agreed Order. In lieu of assessment of any of the stipulated penalties given above, the Complainant may seek any other remedies or sanctions available by virtue of Respondents' violation of this Agreed Order, or 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 Cause Numbers (H-13624 & SW-361) and shall be mailed to:

        Cashier
        Indiana Department of Environmental Management
        100 North Senate Avenue
        P.O. Box 7060
        Indianapolis, Indiana 46207-7060

    12.    In the event that the civil penalty required by paragraph 8 is not paid within 30 days of the effective date of this Agreed Order, Respondents shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1-101. The interest shall begin to accrue on the date Respondents receive IDEM's demand.

    13.    This Agreed Order shall apply to and be binding upon Respondents, its officers, directors, principals, employees, agents, successors, subsidiaries, and assigns. The 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 Respondents shall in any way alter their status or responsibilities under this Agreed Order.

    14.    The Respondents shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred. Respondents shall by contract require that all contractors, firms, and other persons acting for them comply with the terms of this Agreed Order.

    15.    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 the Agreed Order did not contain the invalid terms.

    16.    This Agreed Order shall remain in effect until IDEM issues a Resolution of Cause letter to Respondents.

By:             By:
Nancy Johnston, Chief
Hazardous Waste Section            Printed:___________________
Office of Enforcement
                        Title:_____________________

Date:             Date:

By:             By:
Paul Higginbotham, Chief
Solid Waste Section            Printed:___________________
Office of Enforcement
                        Title:_____________________

Date:             Date:

COUNSEL FOR COMPLAINANT        COUNSEL FOR RESPONDENT
Department of Environmental Management

By:             By:
Loraine Seyfried
Office of Legal Counsel            

Date:             Date:

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS DAY OF , 2000.

                             [Adopted on April 20, 2000]
                            Felicia A. Robinson
                            Assistant Commissioner
                            Office of Enforcement

Converted by Andrew Scriven