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

COMMISSIONER OF THE DEPARTMENT    )
OF ENVIRONMENTAL MANAGEMENT,    )
                            )
            Complainant,            )
                            )CAUSE NO. H-13795 or 1999-8422-H
            v.                )
    )
SM&P UTILITY RESOURCES, INC.    )
                            )
            Respondent.            )

AGREED ORDER

    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 this agreement does not constitute an admission of any violation contained herein.

I. FINDINGS OF FACT

    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 SM&P Utility Resources, Inc., (hereinafter referred to as "Respondent"), which is a company doing business at 518 Herriman Court, located in Noblesville, Hamilton County, Indiana.

    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 via Certified Mail to:

        Mr. Dennis Norman, Vice President     Mr. John M. Davis, Resident Agent
        SM&P Utility Resources, Inc.     1220 Waterway Blvd.
        11455 N. Meridian St. Ste.200     Indianapolis, Indiana     46202
        Carmel, Indiana    46032    
        
    5.    On May 26, 1999, representatives of the Office of Land Quality (OLQ) of IDEM, conducted a Complaint Inspection of the facility. IDEM contends that the following violations were in existence or observed at the time of the inspection:

        a.    Pursuant to 40 CFR 262.11 and 40 CFR 268.7(a), a generator of solid waste must determine if that waste is hazardous and if the waste has to be treated before being land disposed. Based on information gathered by IDEM, Respondent did not make a proper hazardous waste determination on its discarded aerosol paint cans.

        b.    Pursuant to 40 CFR 262.12(c), a generator must not offer hazardous waste to transporters or to treatment, storage, or disposal facilities that have not received an EPA identification number. Based on information gathered by IDEM, Respondent utilized a transporter and a disposal facility, neither of which had an EPA ID number or a hazardous waste permit.

             c.    Pursuant to 329 IAC 3.1-7-3(a), 329 IAC 3.1-7-4, and IC 13-30-2-1(12), a generator who transports or offers for transportation, hazardous waste for off-site treatment, storage, or disposal, must prepare a manifest. Based on information gathered by IDEM, Respondent sent hazardous waste off-site without a manifest.     

             d.    Pursuant to 329 IAC 3.1-1-10, every hazardous waste generator, transporter, or owner or operator of a hazardous waste facility, must notify the Commissioner of its hazardous waste activity on the approved forms. Based on information gathered by IDEM, Respondent failed to notify the Commissioner of generator activities.

        e.    A generator who generates greater than 100 kilograms but less than 1000 kilograms of hazardous waste in a calendar month may accumulate hazardous waste on-site for 180 days or less without a permit provided that the generator complies with 40 CFR 262.34(d)(1 thru 5). Based on information gathered by IDEM, Respondent was determined to be a small

            quantity generator of hazardous waste at the time of inspection and failed to comply with the requirements of 40 CFR 262.34(d)(1 thru 5).

    6.    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 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.    Within thirty (30) days of the Effective Date of the Order, Respondent shall complete a proper waste determination on used aerosol cans disposed at the facility pursuant to 40 CFR 262.11 and 40 CFR 268.7(a).

    3.    Respondent shall review its current generator status and notify the commissioner of any changes pursuant to 329 IAC 3.1-1-10.

    4.    Respondent shall not offer hazardous waste to transporters or to treatment, storage, or disposal facilities that have not received an EPA ID number pursuant to 40 CFR 262.12(c).

    5.    Respondent shall not offer its hazardous waste for transport without a manifest pursuant to 329 IAC 3.1-7-3(a), 329 IAC 3.1-7-4, and IC 13-30-2-1(12).

    6.    All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:

        Richard R. Milton, Case Manager
        Office of Enforcement
        Indiana Department of Environmental Management
        100 North Senate Avenue
        P.O. Box 6015
        Indianapolis, Indiana 46206-6015

         7.    Respondent is assessed a civil penalty of $22,500. Within thirty (30) days of the Effective Date of the Agreed Order, the Respondent shall pay a cash penalty of $4,500. The payment shall be submitted to the Environmental Management Special Fund, as directed by paragraph 8. In lieu of payment of the remaining civil penalty, the Respondent shall perform and complete the Supplemental Environmental Project (SEP), as described in Exhibit "A". Exhibit "A" is hereby incorporated by reference and made part of this Agreed Order. The total funds

expended in the SEP shall exceed $36,000. The SEP shall be completed within one (1) year of the Effective Date of the Agreed Order. Respondent shall also submit at that time, a status report of the SEP including dates when the SEP was implemented at the various facilities and final project costs. If the SEP is not completed in accordance with this agreement and within the specified time period, the Respondent agrees to pay the remaining civil penalty, plus interest at the rate established by IC 24-4.6-1-101, to the Environmental Management Special Fund. Payment of the remaining civil penalty shall be submitted within fifteen (15) days from receipt of a notice to pay from IDEM. Interest on the remaining civil penalty shall be paid from the Effective Date of the Agreed Order.

     8.    Civil 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 North Senate Avenue
        P.O. Box 7060
        Indianapolis, Indiana 46207-7060

    9.    In the event that the civil penalty required by paragraph 7 is not paid within thirty (30) days of the Effective Date of this Agreed Order, 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.

    10.    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.

    11.    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.

    12.    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.

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

TECHNICAL RECOMMENDATION:        RESPONDENT:
Department of Environmental Management

By:___________________________        By:____________________________
Nancy L. Johnston, Chief
Hazardous 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

Date:__________________________        Date:___________________________

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS __20________ DAY OF __June__________, 2000.

                            For the Commissioner:

                            signed 6/20
                            _________________________
                            Felicia A. Robinson
                            Assistant Commissioner
                            Office of Enforcement

Converted by Andrew Scriven