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. 2005-14710-H
					)
NEWPORT CHEMICAL DEPOT,					)
					)
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 Newport Chemical Depot ("Respondent"), which operates the federal facility with U.S. EPA ID No. IN1210022272, located at Highway 63 South, in Newport, Vermillion County, Indiana (“Site”).

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

4. Respondent waives issuance of a Notice of Violation and to the settlement period of sixty (60) days as provided for by IC 13-30-3-3.

5. Respondent notified the U.S. Environmental Protection Agency (EPA) of Large Quantity Generator activities on January 17, 1997. Respondent also has a Resource Conservation and Recovery Act (RCRA) Part B Permit (the “Permit”), which was issued on December 1, 1999. A permit renewal application (latest revisions submitted on June 30, 2005) is currently being reviewed by IDEM.

6. Respondent formerly manufactured O-ethyl-S-(2-diisopropylaminoethyl) methyl phosphonothiolate (VX) nerve agent and explosives. Hazardous waste is currently being generated at the Site from agent destruction at the on-site neutralization facility (Newport Chemical Agent Disposal Facility-(NECDF)), the decommissioning activities at the former manufacturing plant, the on-site laboratory at the neutralization facility, and the various remediation activities being conducted around the base.

7. 329 Indiana Administrative Code (IAC) 3.1 incorporates certain federal hazardous waste management requirements found in 40 CFR Parts 260 through 273, including those found below

8. On July 22, 2005, Respondent voluntarily disclosed violations of 329 IAC 3.1 and the Permit to IDEM, in accordance with IDEM’s Self-Disclosure and Environmental Audit Policy. Based on the self-disclosure, the following violations were in existence:

A. Pursuant to 40 CFR 262.11, a person who generates a solid waste must determine if that waste is hazardous.

As reported in the self-disclosure, Respondent did not have knowledge in advance of generation that the hydrolysate would be ignitable (waste code D001) as the waste characterization data available from lab produced wastes indicated that it would not be RCRA ignitable or Department of Transportation (DOT) flammable/combustible. Following initiation of waste generation, Respondent submitted waste samples for RCRA characterization by laboratory analysis. While awaiting characterization results, the waste was stored in a permitted container storage area that was not permitted for D001 waste storage. The characterization results revealed that the hydrolysate possesses the ignitability characteristic, and thus should have carried the D001 hazardous waste code.

B. Pursuant to 40 CFR 264.13(a)(1), before an owner or operator treats, stores, or disposes of any hazardous wastes, he must obtain a detailed chemical and physical analysis of a representative sample of the wastes. At a minimum, the analysis must contain all the information which must be known to treat, store, or dispose of the waste in accordance with this part and 40 CFR 268.

As reported in the self-disclosure, Respondent stored hydrolysate generated from the neutralization of VX without knowing all information necessary to treat, store, and/or dispose of the waste. Analysis prior to the start of agent neutralization failed to indicate that the hydrolysate would possess the ignitability characteristic and would need to carry the D001 hazardous waste code.

C. Pursuant to Permit Condition I.A., any storage of hazardous waste not authorized in the permit is prohibited.

As reported in the self-disclosure, Respondent stored a D001 hazardous waste, hydrolysate, generated from the neutralization of VX, at the Site without being permitted to do so.

Respondent has revised the final version of the RCRA permit renewal application, submitted to IDEM on June 30, 2005, to reflect the addition of a new hazardous waste code, D001. Additionally, Respondent has implemented an evaluation of applicable codes, standards, and regulations that deal with the fire protection impacts of the ignitable hydrolysate.

D. Pursuant to Permit Condition II.B., Respondent is required to comply with the procedures described in the Waste Analysis Plan, Attachments C2, C3, and C4. Attachment C2, C-1 (Chemical and Physical Analysis), Table C2-1 identifies each hazardous waste that may be stored for more than 90 days at the Site. The table also identifies the appropriate RCRA hazardous waste designation, the EPA waste number(s), the IAC waste number, the RCRA regulatory citation for the relevant definition or criterion for designating the waste as hazardous, and the specific data or rationale relating that waste to the criterion or definition.

As reported in the self-disclosure, Respondent stored a D001 hazardous waste, hydrolysate, generated from the neutralization of VX, at the Site without being permitted to do so.

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 the Complainant or his delegate, and has been received by the Respondent. This Agreed Order shall have no force or effect until the Effective Date.

2. Within fifteen (15) days of the Effective Date of this Agreed Order, Respondent shall provide IDEM with a completed report of the evaluation of applicable codes, standards, and regulations that deal with the fire protection impacts of the ignitable hydrolysate. At a minimum, the report shall address compliance with the International Fire Code, 2000 Edition, as adopted by 675 IAC 22-2.3-1, at all areas where the ignitable hydrolysate is handled and/or stored at the Site.

3. Within thirty (30) days of the Effective Date of this Agreed Order, Respondent shall submit documentation to IDEM demonstrating compliance with the International Fire Code, 2000 Edition, and any other codes, standards, and regulations determined to be applicable as a result of the evaluation and report detailed in Order No. 2 above.

4. Within thirty (30) days of the Effective Date of this Agreed Order, Respondent shall revise the Permit renewal application as determined to be necessary as a result of the evaluation and report detailed in Order No. 2 above.

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

Victor P. Windle

Office of Land Quality

Indiana Department of Environmental Management

100 N. Senate Avenue

MC 66-20, IGCN 1101

Indianapolis, IN 46204-2251

AND to:

Brenda Lepter

Office of Enforcement

Indiana department of Environmental Management

100 N. Senate Avenue

MC 60-02 IGCN 1315

Indianapolis, IN 46204-2251

6. Respondent is assessed a civil penalty of $0 Dollars. This penalty amount reflects a significant reduction based on the applicability of IDEM’s Nonrule “Self-Disclosure and Environmental Audit Policy” to Respondent’s self-disclosure of the violations.

7. 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 2	$250 per week late
Failure to comply with Order paragraph 3	$250 per week late
Failure to comply with Order paragraph 4	$250 per week late

8. 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.

9. 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’s Office Mail Code 50-10C

100 N. Senate Avenue

Indianapolis, IN 46204-2251

10. 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.

11. 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.

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. The obligations of the Respondent to timely complete all requirements under this Order, including obligations for payment of penalties, is subject to the availability of appropriate funds consistent with the Anti-Deficiency Act, 31 U.S.C. 1341. In the event that sufficient funds are not appropriated for any reason, compliance with this agreement shall proceed if appropriate funds are subsequently appropriated by congress.

14. Complainant and Respondent shall negotiate in good faith to resolve any dispute that arises out of work to be done pursuant to this Agreed Order. In the event that the good faith efforts do not resolve the dispute, a final decision will be made by the Commissioner of IDEM. Respondent reserves the right to file a judicial appeal of any such final decision.

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

TECHNICAL RECOMMENDATION:			RESPONDENT:
Department of Environmental Management			CHALLENGE DOOR COMPANY,
			a subsidiary OF JELD-WEN, INC.,
By:	___________________		By:		_____________
	Nancy L. Johnston, Chief
	Office of Enforcement		Printed:		_____________
			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		DAY OF				, 200	.
			For The Commissioner:
			Signed on October 17, 2005
			Matthew T. Klein
			Assistant Commissioner
			of Compliance and Enforcement