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. 2020-27020-H
					)
LENEX STEEL COMPANY,					)
					)
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 Indiana Code (“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 IC 13-13-1-1.

2. Respondent is Lenex Steel Company (“Respondent”), which operates the company with United States Environmental Protection Agency (“EPA”) ID No. INR000148064 located at 2902 North Tobey Drive, 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”) on August 12, 2020 via USPS to:

Michael Berghoff, President and Registered Agent for

Lenex Steel Company

9112 Walnut Grove Drive

Indianapolis, Indiana 46236

5. Respondent notified EPA of Very Small Quantity Generator activities on January 8, 2020.

6. Respondent is a steel fabrication job shop that produces stairs, ladders, and other structural units.

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

7. During an investigation including an inspection on February 19, 2020 conducted by a representative of IDEM, the following violations were found:

a. Pursuant to 40 Code of Federal Regulations (“CFR”) 262.16(a) and (b), a generator who generates greater than 100 kilograms but less than 1000 kilograms of non-acute hazardous waste in a calendar month and who accumulates hazardous waste on site for more than 180 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 unless granted an extension to the 180 day period.

As noted during the inspection, Respondent stored twenty-six (26) 55-gallon drums of hazardous waste on-site for greater than 180-days without complying with 40 CFR Part 264 and 40 CFR Part 270.

b. 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 was operating as a Small Quantity Generator (“SQG”) during calendar year 2019 and failed to notify the Commissioner of hazardous waste generator activities.

On April 16, 2020, Respondent submitted the annual manifest report for calendar year 2019, and myRCRAid notification indicating change from Very Small Quantity Generator (“VSQG”) to SQG.

c. 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 twenty-six (26) 55-gallon drums of D001 hazardous waste, as identified or listed in 40 CFR Part 261, for greater than 180 days without a permit.

On April 16, 2020, Respondent submitted the annual manifest report for calendar year 2019, and myRCRAid notification indicating change from VSQG to SQG.

d. Pursuant to Indiana Code (“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 when it stored twenty-six (26) 55-gallon drums of hazardous waste for greater than 180-days.

On April 16, 2020, Respondent submitted the annual manifest report for calendar year 2019, and myRCRAid notification indicating change from VSQG to SQG.

8. Orders of the Commissioner are subject to administrative review by the Office of Environmental Adjudication under IC 4-21.5; however, in recognition of the settlement reached, Respondent acknowledges notice of this right and 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 statutes and rules listed in the findings of fact above.

3. Within thirty (30) days of the Effective Date, Respondent shall comply with 40 CFR 262.16. Specifically, Respondent shall not accumulate hazardous waste for more than 180 days unless an extension has been granted to the timeframe for as long as it remains a small quantity generator of hazardous waste.

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

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

b. inspect the pad for cracks. If cracks are detected, perform Item j. at this point;

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;

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;

i. sample the soil underlying any cracks found in the inspection to check for contamination. If no contamination is found, seal the cracks and proceed with Items d. through i. above;

j. if contamination is found, submit a hazardous waste closure plan within sixty (60) days to IDEM for approval for the container storage area in accordance with the provisions of 40 CFR 264 Subpart G, as incorporated by 329 IAC 3.1-9-1;

k. upon notice of approval of the closure plan by IDEM, implement the approved plan in accordance with the time frames contained therein.

5. All submittals required by this Agreed Order, unless IDEM notifies the Respondent otherwise in writing, shall be sent to:

Jodi Pisula, Enforcement Case Manager

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

6. Pursuant to IC 13-30-4-1, Respondent is assessed and agrees to pay a civil penalty of Nine Thousand Dollars ($9,000.00). Said penalty amount shall be due and payable to the “Environmental Management Special Fund” within thirty (30) days of the Effective Date; the thirtieth day being the “Due Date.”

7. In the event the terms and conditions of the following paragraphs are violated, Complainant may assess and Respondent shall pay stipulated penalties in the following amounts:

Paragraph	Stipulated Penalty
Order paragraph #3	$100.00 per week
Order paragraph #4	$100.00 per week

8. Stipulated penalties shall be due and payable no later than the thirtieth day after Respondent receives written notice that Complainant has determined a stipulated penalty is due; the thirtieth 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 a 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.

9. 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

IGCN, Room 1340

100 North Senate Avenue

Indianapolis, IN 46204

10. 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 9, above.

11. Signatories to this Agreed Order certify that they are fully authorized to execute this Agreed Order and legally bind the party they represent.

12. This Agreed Order shall apply to and be binding upon Respondent and all successors and assigns. Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners, successors, or assigns before ownership rights are transferred.

13. No change in ownership, corporate, or partnership status of Respondent shall in any way alter the Respondent’s status or responsibilities under this Agreed Order.

14. Respondent shall ensure that all contractors, firms, and other persons performing work under this Agreed Order 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 this Agreed Order did not contain the invalid terms.

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 the obligation to comply with the requirements of any applicable permits or any applicable Federal or State laws or regulations.

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 violations specified in the NOV.

19. Nothing in this Agreed Order shall prevent IDEM or anyone acting on its behalf from communicating with the U.S. Environmental Protection Agency (U.S. 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 U.S. 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				Lenex Steel Company
By: _______				By: _________________________
	Jennifer Reno, Section Chief
	Land 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 9/21/2020_______________
				Peggy Dorsey, Assistant Commissioner
				Office of Land Quality