STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT

) SS: OF ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION )

COMMISSIONER OF THE DEPARTMENT )

OF ENVIRONMENTAL MANAGEMENT, )

)

Complainant, )

)

v. ) CAUSE NO. A-4642

) CAUSE NO. SW-416

ALUMITECH OF WABASH, INC. )

)

Respondent. )

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. 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.

1. Complainant is the Commissioner (hereinafter referred to as "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 Alumitech of Wabash, Inc. (hereinafter referred to as "Respondent"), which owns and operates an aluminum dross processor at 109 Dimension Avenue located in Wabash County, Indiana (hereinafter referred to as the Site.)

3. The Indiana Department of Environmental Management ("IDEM") has jurisdiction over the parties and subject matter of this action.

4. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation dated December 21, 1999, for Cause No. A-4642, via Certified Mail to:

Jack Hampton Lisa Shemwell, Registered Agent

Environmental Safety & Health Manager Alumitech of Wabash, Inc.

Alumitech of Wabash, Inc. P.O. Box 810

P.O. Box 747 305 Dimension Avenue

109 Dimension Avenue Wabash, IN 46992

Wabash, IN 46992-0747

5. Pursuant to 326 IAC 6-4-2(4), no source shall allow fugitive dust to visibly cross the boundary or property line of a source. On July 27, 1999, this source allowed fugitive emissions from the outside storage of salt cake to cross property lines at ground level, a violation of 326 IAC 6-4-2(4).

6. Operation Condition No. 7 of CP 169-1887 amendment A169-6850 requires the aluminum product and the dross or salt cake residue to be cooled in the enclosed cooling area, venting through baghouse and stack S3. Also, the dross or salt cake shall be stored in concrete bins and protected from the rain. On the July 27, 1999, inspection, the IDEM inspector observed hot dross cooling outside and large piles of salt cake stored outside but not in concrete bins, violating Operation Condition No. 7 of amendment A169-6850.

7. Permit Condition No. 7 of CP 169-10043-00035 requires compliance stack tests be conducted for three (3) oxygen furnaces for Particulate Matter (PM) within 60 days after achieving maximum production rate, but no later than 180 days after initial start-up. During the July 27, 1999, inspection it was noted that Respondent had not conducted the required stack test for furnace #2 by the applicable deadline, thereby violating Permit Condition No. 7.

.

8. On November 17, 1999, IDEM's Office of Air Management issued an extension to Respondent for conducting the source tests aforementioned in paragraph seven (7). As a result of the extension, IDEM's Office of Enforcement is dismissing the noted violation in paragraph seven (7) above.

9. On June 23, 2000, an IDEM inspector observed vehicular and loading activities causing dust crossing property lines at Respondents plant located in Wabash, Indiana. In addition, a front end loader was observed loading a dumpster with raw

materials from the storage yard causing dust to drift across property lines. These incidents were violations of 326 IAC 6-4.

10. On July 1, 2000, Respondent constructed an enclosed cooling area vented to a baghouse for hot dross. This cooling area collects and removes particulate matter emissions from the cooling dross.

11. On July 1, 2000, Respondent commenced storing all salt cake in concrete bins inside an enclosed building, protected from the rain.

12. Prior to July 1, 2000, Respondent implemented a facility sweeping schedule to address concerns regarding fugitive dust.

13. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail on March 27, 2000, for Cause No. SW-416 to:

Alumitech of Wabash, Inc. Alumitech of Wabash, Inc.

109 Dimension Avenue P. O. Box 810

Wabash, IN 46992 Wabash, IN 46992

14. On July 27, 1999, an inspection was 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 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 salt cake, and baghouse dust to be deposited at the Site.

b. Pursuant to 329 IAC 10-4-3, open dumping and open dumps, as those terms are defined in IC 13-11-2-146 and IC 13-11-2-147, are prohibited. Respondent allowed salt cake, and baghouse dust to be deposited at the Site.

c. Pursuant to 329 IAC 10-7.1-3, which states a generator shall carry out a waste determination to determine the appropriate regulatory status of that waste and to determine other environmental concerns posed by any reasonably anticipated handling, transportation, storage, reuse, processing, or disposal of that waste. Respondent did not make a proper waste determination and allowed salt cake, and baghouse dust to be deposited at the Site.

d. Pursuant to 329 IAC 10-7.1-4(f), which states waste testing must comply with the applicable quality assurance and quality control procedures in SW-846, Chapter 1, "Quality Control". Respondent failed to ensure their waste testing complied with SW-846, Chapter 1, "Quality Control".

e. Pursuant to 329 IAC 10-7.1-4(g), which states for the purposes of classifying a waste in accordance with 329 IAC 10-9, the statistical sampling methodology specified in Volume II, Chapter 9, "Sampling Plan" of SW-846 must be used to determine the upper confidence limit for each constituent concentration value. Respondent failed to ensure that their waste testing complied with Volume II, Chapter 9, "Sampling Plan" of SW-846.

f. Pursuant to IC 13-30-2-1(3), which states 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. Respondent allowed salt cake, and baghouse dust to be deposited at the Site.

g. 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. Respondent allowed salt cake, and baghouse dust to be deposited at the Site.

h. Pursuant to IC 13-30-2-1(5), a person may not dump, 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. Respondent allowed salt cake, and baghouse dust to be deposited at the Site.

15. 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.

16. In recognition of the settlement reached, Respondent waives any right to administrative and judicial review of this Agreed 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. By April 1, 2001, all raw materials consisting of fines and all waste dross including any waste dross stored outside shall be unloaded and stored in an enclosed building or a three-walled structure that includes a permanent roof and floor. In addition, Respondent shall develop and implement procedures for the delivery of raw materials. The written procedures shall be made readily available upon an IDEM inspector's request.

3. Respondent shall sweep the plant's roadways no less than once per day unless weather conditions or prohibit or major mechanical malfunctions. Respondent shall maintain a written log documenting when sweeping was performed, or if not performed the weather conditions or major mechanical failures that prevented it from occurring. The log shall be made readily available upon an IDEM inspector's request.

4. Respondent shall immediately cease and desist from any further unpermitted activities at the Site.

5. Respondent shall remove and properly dispose all visible contamination at the baghouse dust storage/staging area within one hundred and twenty (120) days of the Effective Date of this Order.

6. Respondent shall remove and properly dispose all visible contamination in the sediment pond/salt cake area within one hundred and twenty (120) days of the Effective Date of this Order.

7. Respondent shall, within one hundred and sixty (160) days, submit documentation of proper disposal of the material removed per Order paragraphs five (5) and six (6) above.

8. Respondent shall conduct all waste determinations in compliance with 329 IAC 10-7.1 on the material removed per Order paragraphs five (5) and six (6) above.

9. Respondent shall, within one hundred and ninety (190) days of the Effective Date of this Agreed Order, submit sampling and analysis plans (SAPs) that detail the Respondent's proposal to conduct confirmatory sampling, after the visible contamination has been removed per Order Paragraphs 5 and 6 above, of the baghouse dust storage/staging area and the sediment pond/salt cake storage area.

10. The above plans are subject to review by IDEM as follows:

a. IDEM shall approve, modify and approve or deny the plans in part or in total.

b. IDEM shall notify the Respondent, in writing, of IDEM approval, modification or denial and/or notice of deficiencies in the plans or any part thereof. Within fifteen (15) days of receipt of IDEM denial and/or notice of deficiencies, the Respondent shall submit a revised plan to IDEM that corrects the deficiencies outlined by IDEM.

c. Within thirty (30) days of approval or modification and approval by IDEM of the above described plans, Respondent shall begin implementation of the terms and conditions of the plans.

11. All submittals for Order paragraphs seven (7), nine (9), and ten (10), required by this Agreed Order, unless notified otherwise in writing, shall be sent to:

Janet Arnold, Enforcement Case Manager

Office of Enforcement

Indiana Department of Environmental Management

100 N. Senate Avenue

P. O. Box 6015

Indianapolis, IN 46206-6015

12. Respondent is assessed a civil penalty of Sixty-Seven Thousand Eight Hundred and Fifty Dollars ($67,850), for Cause No. A-4642. Respondent is assessed a civil penalty of Eight Thousand Seven Hundred and Fifty Dollars ($8,750), for Cause No. SW-416. Said penalties shall be due and payable to the Environmental Management Special Fund according to the following payment schedule:

1) $15,320 by June 1, 2001

2) $12,256 by July 1, 2001

3) $12,256 by August 1, 2001

4) $12,256 by September 1, 2001

5) $12,256 by October 1, 2001

6) $12,256 by November 1, 2001.

13. 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 amounts:

Paragraphs 2-3 of Order $1,000 per day, per violation

Paragraphs 5-6 of Order $1,000 per day, per violation

Paragraph 8 $10,938 per violation

Paragraphs 7, 9, & 10 $500 per day, per violation

14. 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.

15. Civil and stipulated penalties are payable by check to the Environmental Management Special Fund. Checks shall include the Cause Number of this action and shall be mailed to:

Cashier

IDEM

100 N. Senate Avenue

P. O. Box 7060

Indianapolis, IN 46207-7060

16. In the event that the civil penalty required by paragraph twelve (12) is not paid according to the listed payment schedule, 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.

17. "Force Majeure", for purposes of this Agreed Order, is defined as any event arising from causes beyond the control of the Respondent that delays or prevents the performance of any obligation under this Agreed Order despite Respondent's best efforts to fulfill the obligation. The requirement that the Respondent exercise "best efforts to fulfill the obligation" includes using the best efforts to anticipate any potential force majeure and best efforts to address the effects of any potential force majeure event (1) as it is occurring and (2) following the potential force majeure event, such that the delay is minimized to the greatest extent possible. "Force Majeure" does not include financial inability to complete the work required by this Agreed Order or increases in cost to perform the work.

The Respondent shall notify IDEM by calling within three (3) calendar days and by writing no later than seven (7) calendar days after any event which Respondent contends is a force majeure. Such notification shall describe the anticipated length of the delay, the cause or causes of the delay, the measures taken or to be taken by the Respondent to minimize the delay, and the timetable by which these measures will be implemented. The Respondent shall include with any notice all available documentation supporting their claim that the delay was attributable to a force majeure. Failure to comply with the above requirements shall preclude Respondent from asserting any claim of force majeure for that event. The Respondent shall have the burden of demonstrating that the event is a force majeure. The decision of whether an event is a force majeure shall be made by IDEM. Said decision shall be communicated to the Respondent.

If a delay is attributable to a force majeure, IDEM shall extend, in writing, the time period for performance under this Agreed Order, by the amount of time that is attributable to the event constituting the force majeure or may, if the obligation has been prevented, excuse the performance of the obligation.

18. This Agreed Order shall apply to and be binding upon the Respondent, its officers, directors, principals, agents, successors, subsidiaries, 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.

19. 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.

20. 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.

21. This Agreed Order shall remain in effect for two (2) years following the Effective Date of this Order.

TECHNICAL RECOMMENDATION: Alumitech of Wabash, Inc.:

Department of Environmental Management

By: By:

David P. McIver

Chief, Air Section

Office of Enforcement Printed:

Date: Title:

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:

Office of Legal Counsel

Department of Environmental Management

Date: Date:

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS DAY OF , 2001.

For the Commissioner:

Felicia A. Robinson

Assistant Commissioner

Office of Enforcement