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

COMMISSIONER OF THE DEPARTMENT )

OF ENVIRONMENTAL MANAGEMENT, )

) Complainant, ) ) v. ) Case No. 2002-11597-H

)

 SLOSS INDUSTRIES CORPORATION, ) ) 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 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, a department of the State of Indiana created by IC 13-13-1-1.

2. Respondent is Sloss Industries Corporation ("Respondent"), which operated the facility, located at 500 West 6th Street, in Alexandria, Madison, County, Indiana ("Site"). Respondent ceased operations at the Site in November of 2000.

3. The Indiana Department of Environmental Management ("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 on July 30, 2002, via Certified Mail, to:

Charles A. Jones                             C T Corporation System, Registered Agent for
Sloss Industries Corporation             Sloss Industries Corporation
3500 35th Ave. North                     36 S. Pennsylvania Street, Suite 700
Birmingham, AL 35207                     Indianapolis, IN 46204

 5. Since the date of the inspection, Respondent has been assigned the U.S. EPA No. INX 000025262. Respondent manufactured mineral wool to be used as ceiling tiles. From October 15, 1997 until October 31, 1999, Respondent had a Type III Restricted Waste Classification for mineral wool shot.

6. An inspection on April 8, 2002, was conducted at the Site by representatives of IDEM's Office of Land Quality ("OLQ"). The following violations were in existence or observed at the time of this inspection:

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 the deposition of solid waste in a manner which created a threat to human health and the environment. Mineral wool shot and other solid wastes, such as briquettes, ceramic tile, slag, and final product, were deposited upon the land. 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 the open dumping of solid waste upon the land.

c. Pursuant to IC 13-30-2-1(3), no person shall deposit any contaminants upon the land in a place or manner that creates or would create a pollution hazard that violates or would violate 329 IAC 10-4-2 and 329 IAC 10-4-3. Respondent allowed the deposition of solid waste upon the land in violation of 329 IAC 10-4-2 and 329 IAC 10-4-3.

d. Pursuant to IC 13-30-2-1(4), no person shall 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 grinding, or another method acceptable to the solid waste management board. Respondent allowed the deposition of solid waste upon the land in violation of 329 IAC 10-4-2 and 329 IAC 10-4-3.

e. Pursuant to IC 13-30-2-1(5), no person shall dump or cause or allow the open dumping of garbage or any other solid waste in violation of 329 IAC 10-4-2 and 2329 IAC 10-4-3. Respondent allowed the deposition of solid waste upon the land in violation of 329 IAC 10-4-2 and 329 IAC 10-4-3.

 7. 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. Upon the Effective Date of this Agreed Order, Respondent shall take all reasonable and necessary steps to prevent the unauthorized deposit of solid waste and the unauthorized entry of persons onto the Site.

3. Within 60 days of the Effective Date of this Agreed Order, Respondent shall document to IDEM that all solid wastes, other than the mineral wool shot, at the Site have been transported off-site and disposed of properly at a permitted solid waste disposal facility.

4. Within 60 days of the Effective Date of this Agreed Order, if Respondent intends for any of the mineral wool shot to be used in a manner pursuant to 329 IAC 10-3-1(13), Respondent shall submit a request, including a plan, to IDEM for approval for the legitimate use of the mineral wool shot. All legitimate use shall be completed within 270 days of receipt of notification by IDEM that the legitimate use request has been approved.

5. Within 60 days of the Effective Date of this Agreed Order, Respondent shall submit a closure plan in accordance with 329 IAC 10-4-4 (a) to IDEM for approval to close in place all areas where mineral wool shot has been located at the Site. The closure plan may include leaving some mineral wool shot currently on-site to incorporate into the construction of a parking lot. This plan must provide, at a minimum, an equivalent protection to human health and the environment as that required for the closure of a Type III Restricted Waste Site landfill found in 329 IAC 10-37.

6. The closure plan shall be subject to review, modification, approval or denial by IDEM. If IDEM determines that there are deficiencies in the closure plan, Respondent shall revise and resubmit the closure plan in accordance with IDEM's notice.

7. Respondent, upon written notification by IDEM, shall immediately implement the approved plans, including the time lines for completion of the scheduled items. The approved plans shall be incorporated into the Agreed Order and shall be deemed an enforceable part thereof.

8. If IDEM does not approve the legitimate use request, or if all legitimate use is not completed within 270 days of notification from IDEM that the legitimate use request has been approved, any mineral wool shot remaining at the Site, except that which is included in the approved closure plan, shall be removed and disposed of at a permitted municipal solid waste landfill within 300 days of notification from IDEM that the legitimate use request has been approved or denied.

9. Receipts from the landfill documenting such disposal shall be submitted to IDEM within 30 days of any removal of mineral wool shot from the Site.

 10. All submittals required by this Agreed Order, unless notified otherwise in

writing, shall be sent to:

Brenda Lepter
Office of Enforcement
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 6015
Indianapolis, IN 46206-6015

11. Respondent is assessed a civil penalty of Eleven Thousand Two Hundred and Fifty Dollars ($11,250). Said penalty amount shall be due and payable to the Environmental Management Special Fund within 30 days of the Effective Date of this Agreed Order.

12. 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 amount:

 Violation Penalty

Failure to comply with Order paragraph no. 3 $500 per week
Failure to comply with Order paragraph no. 4 $500 per week
Failure to comply with Order paragraph no. 5 $500 per week
Failure to comply with Order paragraph no. 6 $500 per week
Failure to comply with Order paragraph no. 7 $500 per week
Failure to comply with Order paragraph no. 8 $500 per week
Failure to comply with Order paragraph no. 9 $500 per week

 13. Stipulated penalties shall be due and payable within 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.

14. 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:

Cashier
IDEM
100 N. Senate Avenue
P. O. Box 7060
Indianapolis, IN 46207-7060

15. "Force Majeure", for purposes of this Agreed Order, is defined as any event arising from causes totally beyond the control and without fault 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 best efforts to anticipate any potential force majeure event 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 changed business or economic conditions, financial inability to complete the work required by this Agreed Order, or increases in costs to perform the work.

The Respondent shall notify IDEM by calling the case manager within three (3) calendar days and by writing no later than seven (7) calendar days after it has knowledge of any event which the 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 its 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.

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 directly attributable to the event constituting the force majeure.

16. In the event that the civil penalty required by Order paragraph 11 is not paid within 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.

17. This Agreed Order shall apply to and be binding upon the Respondent, its successors 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.

18. 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.

19. 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.

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

By: __________________________ By: ________________________

Nancy L. Johnston, Chief Dale Gilbert, President

Office of Enforcement

Printed: __________________ Title: ________________________

Date: __________________________ Date: ________________________
 
 

COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:

Department of Environmental Management

By: ___________________________ By: ________________________

Office of Legal Counsel Harold Rice

Date: ___________________________ Date: ________________________
 
 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _____ DAY OF _______________, 2003.
 
 

For the Commissioner: Signed on April 17, 2003 ___________________________ Felicia A. Robinson
Deputy Commissioner for
Legal Affairs