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. 2011-20425-S
					)
Thermafiber, inc.,					)
					)
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 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 Indiana Code (“IC”) 13-13-1-1.

2. Respondent is Thermafiber, Inc. (“Respondent”), which owns/operates the company located at 3711 Mill Street, in Wabash, Wabash 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) via Certified Mail to:

Steve Edris, President	Business Filings Incorporation, Registered Agent
Thermafiber, Inc.	Thermafiber, Inc.
3711 Mill Street	251 E Ohio Street Ste 1100
Wabash, Indiana 46992	Indianapolis, Indiana46204

5. During an investigation including an inspection on July 19, 2011, conducted by a representative of IDEM, the following violations were found:

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.

As noted during the inspection, Respondent caused and/or allowed solid waste, including, but not limited to piles of solid waste, mineral wool shot mixture, to be disposed at the Site in a manner which creates a threat to human health or the environment. The piles of solid waste, mineral wool shot mixture, were located on the south west side of the main office building.

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.

As noted during the inspection, Respondent caused and/or allowed solid waste, including, but not limited to piles of solid waste, mineral wool shot mixture, to be disposed on site, creating an open dump at the Site. The piles of solid waste, mineral wool shot mixture, were located on the south west side of the main office building.

c. Pursuant to IC 13-30-2-1(4), no person shall deposit or cause or allow the deposit of 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.

As noted during the inspection, Respondent caused and/or allowed solid waste, including, but not limited to piles of solid waste, mineral wool shot mixture, to be deposited in a method which has not been determined by the solid waste management board to be acceptable. The piles of solid waste, mineral wool shot mixture, were located on the south west side of the main office building.

d. 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 10-4-3.

As noted during the inspection, Respondent caused and/or allowed solid waste, including, but not limited to piles of solid waste, mineral wool shot mixture, to be open dumped at the site. The piles of solid waste, mineral wool shot mixture, were located on the south west side of the main office building.

e. Pursuant to 329 IAC 10-2-181, “storage” means the retention, containment, or accumulation of solid waste on a temporary basis in such a manner that is does not threaten or potentially threaten human health or impact or potentially impact the environment, for a period of more than twenty-four (24) hours, in such a manner as not to constitute disposal of the waste. It must be a rebuttable presumption that storage of waste for more than six (6) months constitutes disposal.

As noted during the inspection, Respondent stored piles of solid waste, mineral wool shot mixture, for greater than six (6) months and did not rebut the presumption that the storage constituted disposal. The piles of solid waste, mineral wool shot mixture, were located on the south west side of the main office building.

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 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. Following the deadline in Order paragraph 7, Respondent shall ensure that newly generated mineral wool shot is not staged with the piles of mineral wool shot located on the south west side of the main office building that were in existence before January 17, 2012.

3. Within three hundred sixty five (365) days of the Effective Date, Respondent shall remove the piles of mineral wool shot located on the south west side of the main office building that were in existence before January 17, 2012 and any additional mineral wool shot placed in that location prior to the deadline in Order paragraph 7 from the Site and either dispose of it at a permitted solid waste management facility; send it to a third party for use in the manufacturing of Portland Cement and/or mineral wool production; send it to a landfill for use as an alternate daily cover; or use it for some other use approved by IDEM through the issuance of a legitimate use approval for mineral wool shot.

4. The use as an aggregate in concrete requires IDEM approval under 329 IAC 10-3-1(16) prior to use. Respondent may request this use from IDEM if information to support interest by a concrete producer is documented and information to support the efficacy is submitted to IDEM and approved prior to use.

5. Within thirty five days (35) of the expiration of the time period in Order paragraph 3 above, Respondent shall submit written documentation that the piles of mineral wool shot removed from the Site were managed as provided in Order paragraph 3 above.

6. Respondent shall ensure that all work conducted to satisfy the requirements of Order paragraph Nos. 3 and 5 above is done in compliance with all applicable federal, state, and local laws and regulations.

7. Within one hundred eighty (180) days of the Effective Date, Respondent shall manage newly generated mineral wool shot being stored prior to use or disposal to ensure that the material is being stored in an environmentally sound manner. At a minimum, the mineral wool shot shall be stored as follows:

a. in containers or on a low permeability barrier;

b. in a delineated area with a defined boundary;

c. surface water run-on should be diverted away from the stored material; and

d. runoff from the new mineral wool shot storage area shall either be reused on-site, properly managed to prevent a discharge of pollutants to surface waters through a valid National Pollutant Discharge Elimination System (NPDES) permit, or managed at a privately or publicly owned treatment facility following the receipt of any necessary approvals.

8. All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

Idelia Walker-Glover, Enforcement Case Manager

Office of Land Quality – Mail Code 60-02L

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

9. Respondent is assessed and agrees to pay a civil penalty of Seven Thousand Dollars ($7,000). Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date; the 30^th day being the “Due Date”.

10. In the event the terms and conditions of the following paragraphs are violated, Complainant may assess and Respondent shall pay a stipulated penalty in the following amount:

Paragraph	Penalty
2	$250 per week
3	$125 per week

11. Stipulated penalties shall be due and payable no later than the 30^th day after Respondent receives written notice that Complainant has determined a stipulated penalty is due; the 30^th 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 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. In lieu of any of the stipulated penalties set out above, 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.

12. 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

Cashier – Mail Code 50-10C

100 North Senate Avenue

Indianapolis, IN 46204-225110.

13. Force majeure, for purposes of this Agreed Order, is defined as any event arising from causes totally beyond the control and without fault of 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 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 (1) changed business or economic conditions; (2) financial inability to complete the work required by this Agreed Order; or (3) increases in costs to perform the work.

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 Respondent contends is a force majeure. Such notification shall describe (1) the anticipated length of the delay; (2) the cause or causes of the delay; (3) the measures taken or to be taken by Respondent to minimize the delay; and (4) the timetable by which these measures will be implemented. 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. 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.

14. 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 12, above.

15. This Agreed Order shall apply to and be binding upon Respondent and its successors and assigns. Respondent’s signatories to this Agreed Order certify that they are fully authorized to execute this Agreed Order and legally bind the party they represent. No change in ownership, corporate, or partnership status of Respondent shall in any way alter its status or responsibilities under this Agreed Order.

16. 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.

17. 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.

18. 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 its obligation to comply with the requirements of its applicable permits or any applicable Federal or State law or regulation.

19. 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.

20. 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 same violations specified in the NOV.

21. Nothing in this Agreed Order shall prevent IDEM or anyone acting on its behalf from communicating with the 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 EPA or any other agency or entity.

22. 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 Johnston, Section Chief
	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 11-2-2012
				Bruce H Palin
				Assistant Commissioner
				Office of Land Quality