Case No. 2008-18144-A





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.




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. (“Respondent”), which owns and operates a secondary lead smelting company with Plant I.D. No. 035-00028 located at 2601 West Mount Pleasant Boulevard, in Muncie, Delaware 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”) on February 20, 2009 via Certified Mail to:


Mr. Gordon Ulsh, President

CT Corporation System

Exide Technologies, Inc.

251 E. Ohio Street, Suite 1100

13000 Deerfield Parkway, Bldg. 200

Indianapolis, IN  46204

Alpharetta, GA  30004



5.                  During an investigation conducted by representatives of IDEM, the following violations were found:


a.         Pursuant to IC 13-30-2-1, a person may not discharge, emit, cause, allow, or threaten to discharge, emit, cause or allow any contaminant or waste into the environment in any form that causes or would cause pollution that violates or would violate rules, standards, or discharge or emission requirements adopted by the appropriate board under the environmental management laws.


b.                  326 IAC 1-3-4 establishes the maximum permissible ambient air quality level for lead to be 1.5 micrograms lead per cubic meter of air, averaged over a calendar quarter and measured as elemental lead.

c.                  Respondent experienced a short duration event (fire in the process dryer) that caused ambient lead concentrations from the Site to exceed 1.5 micrograms per cubic meter of air averaged over a calendar quarter during the 2nd Quarter of 2008, in violation of IC 13-30-2-1 and 326 IAC 1-3-4.  The average lead emissions for that quarter were reported to be 2.33 micrograms per cubic meter.


6.                  In recognition of the settlement reached, Respondent waives any right to administrative and judicial review of this Agreed 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 all applicable federal and state environmental statutes, rules and permits.


3.                  By October 15, 2009, Respondent shall construct a total enclosure sheet metal structure around the Rotary Dryer Kiln baghouse to minimize the potential release of fugitive lead emissions from the Rotary Dryer Kiln baghouse structure.


4.                  Respondent shall update its Standard Operating Procedure Manual for Fugitive Dust Control by October 31, 2009 to include cleaning and maintenance of baghouse enclosures as specified by paragraph 3 of this Order, to minimize the potential release of fugitive lead emissions.


5.                  By October 31, 2009, Respondent shall replace the existing 135 ft enclosed/covered auger at the Ventilation baghouse with a 25 ft enclosed/covered auger to convey baghouse dust directly into the Bin Room.


6.                  Respondent shall install upgraded bags in the Refinery baghouse according to the following schedule.

a.                  By October 31, 2009, Respondent shall install upgraded bags in one cell of the Refinery baghouse as specified in Attachment 1.

b.                  Respondent shall evaluate performance of the upgraded bags between six (6) to eight (8) months of installation to determine if bag performance has been improved.

c.                  Provided that performance of upgraded bags has been improved, Respondent shall replace the remaining bags in the Refinery baghouse with the upgraded bags within ninety (90) days of the successful performance evaluation.  Respondent may utilize an equivalent baghouse bag as specified in Attachment 1 during the initial replacement phase and during any subsequent changes.

d.                  In the event that the evaluation of the upgraded bags demonstrates unacceptable performance, Respondent shall submit a proposal for approval by IDEM to evaluate an alternative bag for evaluation within thirty (30) days of the performance evaluation specified in 6b.

e.                  Within thirty (30) days of IDEM approval, Respondent shall initiate the steps in paragraph 6 of this Order.  Should the events in paragraphs 6.d and 6.e. not produce a successful trial and performance evaluation, Respondent has the option to continue utilizing the baghouse bags that were in place during the most recent performance test that demonstrated compliance with the applicable emission standards.


7.                  Respondent shall provide a written notification to IDEM within fifteen (15) days of completion of each project required in paragraphs 3, 4, and 5.  Respondent shall provide details and documentation of each completed project in the next subsequent status report after the completion of each project.  This information shall be submitted to IDEM as specified in paragraph 8 of this Order.

8.                  Respondent shall provide a status report to IDEM on the 15th of each month to include an update of the project required in paragraph 6 including and until the date the project is complete.

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

Lynne Sullivan, Compliance and Enforcement Manager

Compliance and Enforcement Branch – Mail Code 61-53

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251


10.             Respondent is assessed a civil penalty of Ninety-Seven Thousand Five Hundred Dollars ($97,500).  Within forty-five (45) days of the Effective Date of the Agreed Order, Respondent shall pay a portion of this penalty in the amount of Nineteen Thousand Five Hundred Dollars ($19,500) to the Environmental Management Special Fund, noting the case number on the check.  In lieu of payment of the remaining civil penalty, Respondent shall make a payment in the amount of Seventy-Eight Thousand Dollars ($78,000) to the Environmental Management Special Fund, noting “DieselWise Indiana Initiative” on the check, to be used for diesel emission reduction projects in Indiana.  Payment for the DieselWise Indiana Initiative satisfies Respondent’s obligation to undertake a SEP to offset a portion of the civil penalty assessed in this matter.  Implementation of this SEP will benefit Indiana’s air quality by providing funds to IDEM’s DieselWise Indiana Initiative which works to reduce the exposure of pollution from diesel exhaust.

11.             In the event that the civil penalty as stated in paragraph 10 above is not paid within forty-five (45) days of the Effective Date, 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.

12.             In the event that Respondent does not make its SEP payment within forty-five (45) days of the Effective Date of this Agreed Order, the full amount of the civil penalty as stated in paragraph 10 above, plus interest established by IC 24-4.6-1-101 on the remaining amount, less the portion of the civil penalty Respondent has already paid, will be due within fifteen (15) days from Respondent's receipt of IDEM’s notice to pay.  Interest, at the rate established by IC 24-4.6-1-101, shall be calculated on the amount due from the date which is forty-five (45) days after the Effective Date of this Agreed Order until the full civil penalty is paid.

13.             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:




Stipulated Penalty


Install enclosure on Rotary Dryer Kiln baghouse by October 15, 2009.

$1,000 per week


Update SOP Manual by October 31, 2009.

$500 per week


Replace Ventilation baghouse auger by October 31, 2009.

$1,000 per week


Upgrade bags in one cell of Refinery baghouse by October 31, 2009.

$1,000 per week


Evaluate performance of upgraded bags between 6 – 8 months of installation.

$500 per week


Upgrade remaining bags in Refinery baghouse within 90 days of successful performance evaluation.

$1,000 per week


Submit proposal for alternative bag, if necessary.

$500 per week


Install alternative upgraded bags, if necessary.

$1,000 per week

7 and 8

Provide reports on project status

$100 per week per report


14.             Stipulated penalties shall be due and payable within thirty (30) days after Respondent receives written notice that Complainant has determined a stipulated penalty is due.  Assessment and payment of stipulated penalties shall not preclude Complainant from seeking any additional relief against Respondent for 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.


15.             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


16.             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.


17.             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.


18.             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.


19.             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.


20.             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.


21.             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 Notice of Violation.


22.             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.


23.             Respondent shall perform the requirements of this Order in the manner and within the time limits set forth herein, unless the performance is prevented or delayed by events which constitute a force majeure.  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.


24.             This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of this Agreed Order and IDEM issues a Resolution of Case letter to Respondent.






Department of Environmental Management


Exide Technologies, Inc.










Craig Henry, Chief





Compliance and Enforcement Section 4





Office of Air Quality




















For the Department of Environmental Management












Deputy Attorney General
























, 2009.



For the Commissioner:




Signed on October 20, 2009


Daniel Murray


Assistant Commissioner


Office of Air Quality

Attachment 1