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. 2014-22154-H
					)
EXIDE TECHNOLOGIES, 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 Exide Technologies, Inc., which owns and operates a facility with EPA I.D. No. IND 000717959, located at 2601 W. Mount Pleasant Blvd. in Muncie, Delaware County, Indiana (the "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:

James R. Bolch, President	CT Corporation System, Registered Agent
Exide Technologies, Inc.	Exide Technologies, Inc.
13000 Deerfield Pkwy, Bldg. 200	150 W. Market Street, Suite 800
Milton, GA 30004	Indianapolis, IN 46204

5. Respondent has a Resource Conservation and Recovery Act (“RCRA”) permit for container storage and for a containment building. Respondent also notified of large quantity generator hazardous waste activities on February 26, 2008.

6. Respondent is a secondary lead smelter.

7. 329 Indiana Administrative Code (“IAC”) 3.1 incorporates certain federal hazardous waste management requirements found in 40 Code of Federal Regulations (“CFR”) Parts 260 through 270 and Part 273, including those identified below.

8. During an investigation including inspections conducted on December 31, 2013 and January 23, 2014, conducted by a representative of IDEM, the following violations were found:

a. Pursuant to Permit Conditions II.H.1&2, 40 CFR 264.32, 40 CFR 264.33, and 40 CFR 264.52(e), Respondent shall equip the facility with the equipment set forth in the Contingency Plan, Attachment G of the Permit. Respondent shall test and maintain the equipment as necessary to assure its proper operation in time of emergency. All communications or alarm systems, fire protection equipment, spill control equipment, and decontamination equipment, where required, must be tested and maintained as necessary to assure its proper operation in time of emergency. The list of emergency equipment must be kept up to date.

As noted during the investigation, Respondent had not equipped the facility with the equipment set forth in the Contingency Plan, Attachment G of the Permit, and had not tested and maintained the equipment as necessary to assure its proper operation in time of emergency. Equipment in the Response Equipment Building was missing or in poor condition and would not function as needed in an emergency; magnetic drain covers were folded, bent and torn; only one size hammer was available; the fire extinguisher had not been inspected since October of 2011; the required number of overpacks and/or 55-gallon drums was not available; and there was one 1-gallon container, presumably an emulsifier, with an illegible label.

On May 6, 2014, Respondent submitted information to IDEM stating that the items noted above as being deficient have been replaced and new items procured where necessary.

b. Pursuant to Permit Condition II.F. and 40 CFR 264.16, Respondent shall conduct training as required by 40 CFR 264.16. This training program shall follow the outline in the Personnel Training Plan, Attachment H of the Permit. Facility personnel must complete a program of classroom instruction or on-the-job training that teaches them to perform their duties in compliance with the hazardous waste management rules. Employees must be trained within six months after their date of hire and must take part in an annual review of the initial training.

As noted during the investigation, Respondent had not provided adequate training of the facility’s Contingency Plan to all applicable personnel. Mike Henry, Environmental Manager and an alternate emergency coordinator listed in the Contingency Plan, was not aware of the location of the emergency response equipment storage area (Haz-Mat Storage). Personnel were unclear on the appropriate use or necessity of emulsifier and/or dispersant, which is required equipment as listed in the Contingency Plan. Additionally, Mark Farley, health and safety manager, who accompanies the fire protection/inspection company during inspections of onsite fire extinguishers, was not aware of the fire extinguisher in the Haz-Mat Storage Room.

On May 6, 2014, Respondent submitted information to IDEM stating that Contingency Plan Training including information stating that spill equipment is located in the Hazardous Materials Shed located southwest outside was included in the training provided at the facility in October 2013 with a makeup date in November 2014. Respondent submitted training rosters and a copy of the presentation. Respondent indicated that although Michael Henry had not been in the spill kit storage room, he was aware of its existence and knew it was on the south side of the building because it had been discussed previously in the training.

c. Pursuant to Permit Conditions II.I. 3&4, 40 CFR 264.54, and 40 CFR 264.55, Respondent shall review and immediately amend, if necessary, the Contingency Plan. The plan must be amended if the facility changes the response necessary in an emergency. Respondent shall comply with requirements concerning the emergency coordinator. The emergency coordinator must be thoroughly familiar with all aspects of the facility’s Contingency Plan, all operations and activities at the facility, and the facility layout.

As noted during the investigation, Respondent had not amended the facility’s Contingency Plan to provide the new location of the response equipment, which is now located inside the main building along the south side and called Haz-Mat Storage. Furthermore, the facility’s environmental manager who is also listed as an alternate emergency coordinator in the Contingency Plan was unaware of the response equipment storage area.

On May 6, 2014, Respondent submitted information to IDEM stating that updates to the Contingency Plan have not been made yet as a request for a permit modification may be necessary.

9. 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. Respondent shall comply with the rules and Permit Conditions listed in the findings here and/or above at issue.

3. Upon the Effective Date, Respondent shall ensure compliance with Permit Conditions II.H.1&2, 40 CFR 264.32, 40 CFR 264.33, and 40 CFR 264.52(e). Specifically, Respondent shall ensure that the facility is equipped with the equipment set forth in the Contingency Plan, Attachment G of the Permit, and shall test and maintain the equipment as necessary to assure its proper peration in time of emergency.

4. Upon the Effective Date, Respondent shall ensure compliance with Permit Condition II.F. and 40 CFR 264.16. Specifically, Respondent shall ensure that adequate training of the facility’s Contingency Plan is provided to all applicable personnel.

5. Within twenty (20) days of the Effective Date, Respondent shall comply with Permit Conditions II.I. 3&4, 40 CFR 264.54, and 40 CFR 264.55. Specifically, Respondent shall update the facility’s Contingency Plan to include all current and relevant information and shall submit an updated copy of the Contingency Plan to IDEM.

6. Respondent shall submit a permit modification application to IDEM for approval if any Order requirement of this Agreed Order requires modification of its RCRA permit.

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

Brenda Lepter, Enforcement Case Manager

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

8. Respondent is assessed and agrees to pay a civil penalty of Five Thousand Dollars ($5,000). 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”.

9. 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:

Failure to comply with Order Paragraph No. 5

$500 per week

10. 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; 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.

11. 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 46204-2251

12. 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 11, above.

13. 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.

14. 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.

15. 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.

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

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 same violations specified in the NOV.

19. 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.

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 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 on 8/21/14
				Bruce H Palin
				Assistant Commissioner
				Office of Land Quality