STATE OF INDIANA		)	SS:	BEFORE THE INDIANA DEPARTMENT OF
		)
COUNTY OF MARION		)		ENVIRONMENTAL MANAGEMENT
COMMISSIONER OF THE DEPARTMENT					)
OF ENVIRONMENTAL MANAGEMENT,					)
					)
Complainant,					)
					)
	v.				)	Case Nos. 2013-21493-H
					)	& 2013-21502-S
					)
NX ENTERPRISES, 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 NX Enterprises, Inc. (“Respondent”), who owns/operates a storage warehouse and plastic grinding facility located at 2839 County Road 72, in Auburn, DeKalb 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:

Robert Owen Vegeler, Registered Agent	Marcia A. Nix, President
NX Enterprises, Inc.	NX Enterprises, Inc.
110 W. Berry St., Suite 1200	10620 Monte Vista Court
Fort Wayne, IN 46802	Fort Wayne, IN 46809

5. 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.

6. During an investigation including an inspection on February 7, 2013, conducted by a representative of IDEM, the following violations were found:

a. Pursuant to 326 IAC 4-1-2, open burning is prohibited unless exempted by rule or an approval is obtained.

As noted during the inspection, Respondent had a 30 yard roll off container full of burned waste and ash from open burning at the Site in violation of 326 IAC 4-1.

b. Pursuant to 40 CFR 262.11, a person who generates a solid waste, as defined in 40 CFR 261.2, must determine if that waste is hazardous.

As noted during the inspection, Respondent did not make a hazardous waste determination on the fluorescent bulbs the facility generates from bulk replacement.

c. 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 it 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 ground plastic chips, various material brought on site for grinding and dust collector fines from grinding plastics and rubber for greater than six (6) months and did not rebut the presumption that the storage constituted disposal. During the inspection a facility representative stated that the facility sold some fines approximately 1.5 years ago; however, the documentation was not available at the time of the inspection. During a previous inspection conducted on December 12, 2012, a facility representative stated that the fines had not been disposed or sold since they began grinding operations in approximately 2003. The fines, ground chips, and other waste brought on site for grinding had been stored in the East and Center Building for more than 5 years.

d. Pursuant to 329 IAC 10-3-1(9), the final disposal of solid waste in surface impoundments at the end of their operation is subject to approval by the commissioner.

As noted during the inspection, Respondent failed to properly close two (2) surface impoundments that contained water at the facility.

e. 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 pallets, roofing shingles, demolition debris and waste tires to be disposed at the Site in a manner which creates a threat to human health or the environment.

f. 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 pallets, roofing shingles, demolition debris and waste tires, to be open dumped at the Site.

g. Pursuant to 329 IAC 11-9-1(a), unless excluded in 329 IAC 11-3, any person who constructs or operates a solid waste processing facility as defined under 329 IAC 11-2-43 shall have a solid waste processing facility permit under this article.

As noted during the inspection, Respondent was processing solid waste including various types of plastics and rubber at the Site without a valid solid waste processing facility permit.

h. Pursuant to 329 IAC 13-4-3(d), generators must label all used oil containers and aboveground tanks with the words “Used Oil.”

As noted during the inspection, Respondent did not label two containers of used oil and 5-55 gallon drums of used oil containers with the words “Used Oil.”

i. 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 deposited or caused and/or allowed the deposit of contaminants and/or solid waste, including, but not limited to, wash water from pallet, tray, and tote cleaning to be discharged from a pipe onto the ground outside the Center Building, in a method which has not been determined by the solid waste management board to be acceptable. The discharge flows northwest and west down slope from the building toward a wetland area and a lagoon which discharges through drainage pipes under the road along the west side of the facility to a nearby ditch. Respondent also washes engine parts, forklifts and bobcats in another room in the Center Building and has allowed the wash water to be released to floor drains that lead outside to a ditch.

7. During a record review on April 15, 2013, conducted by a representative of IDEM, the following violation was found:

a. Pursuant to IC 13-20-14-4(a), A source of waste tires shall dispose of waste tires in the source’s possession by one (1) or more of the following means:

(1) Delivery to a wholesaler or to an agent of a wholesaler.

(2) Delivery to a manufacturer of tires.

(3) Delivery to a facility that retreads tires.

(4) Delivery to a permitted final disposal facility regulated under environmental management laws.

(5) Delivery to a registered waste tire storage site.

(6) Delivery to a registered waste tire processing operation.

(7) Collection by a registered waste tire transporter.

Respondent submitted documentation for the disposal of waste tires that were at the Site. The tires were taken to a business for disposal that was not a wholesaler or an agent of a wholesaler, a manufacturer of tires, a facility that retreads tires, a permitted final disposal facility regulated under environmental management laws, a registered waste tire storage site, a registered waste tire processing operation, or collected by a registered waste tire transporter.

8. Respondent submitted documentation regarding a hazardous waste determination the facility made on the fluorescent bulbs the facility generates. Respondent will treat both their “green lights” and “hazardous lamps” as hazardous and recycle the bulbs.

9. Respondent submitted documentation after the February 7, 2013, inspection that showed the drums had been labeled and were picked up by Crystal Clean the next day. The 5-55 gallon drums of used oil had been transported to Crystal Clean on February 8, 2013.

10. On August 1, 2013, Respondent submitted documentation that the roofing shingles, trash, demolition debris, plastic, ash and tires have been removed from the Site and disposed of at a permitted solid waste management facility. The pallets were sold to a recycling facility.

11. 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 not cause and/or allow the deposit of any regulated solid waste at the Site, and/or operate a solid waste disposal or processing facility unless permitted under 329 IAC 10 or 329 IAC 11.

3. Upon the Effective Date, Respondent shall comply with IC 13-30-2-1(1). Specifically, Respondent shall cease allowing wash water from pallet, tray, and tote cleaning to be discharged from a pipe onto the ground outside the Center Building toward a wetland area and lagoon which discharges through drainage pipes to a nearby ditch, allowing the release of contaminants into the environment.

4. Within ninety (90) days of the Effective Date, Respondent shall submit a plan for proper closure of the two (2) surface impoundments that contain water at the facility, which shall include an implementation and completion schedule. All questions regarding surface impoundments shall be directed to Mr. John Hale at 317/232-8871.

5. All written correspondence required by Order paragraph 4 above, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

John Hale, Senior Environmental Manager

Office of Land Quality

Solid Waste Permits

Mail Code 65-45, IGCN 1101

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

6. Upon the Effective Date of this Agreed Order, Respondent shall comply with 326 IAC 4-1-2. Specifically, Respondent shall cease open burning at the Site.

7. Upon the Effective Date of This Agreed Order, Respondent shall comply with IC 13-20-14-4(a). Specifically, Respondent shall dispose of waste tires in its position by one or more of the means allowed in accordance with IC 13-20-14-4(a).

8. All submittals required by this Agreed Order, other than Order paragraph 4, and unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

Janet Arnold, Technical Environmental Specialist

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 Zero Dollars ($0). This penalty reflects a significant reduction from the original proposed civil penalty based upon evidence submitted to IDEM by Respondent which adequately demonstrated Respondent’s inability to pay the original proposed civil penalty.

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

Failure to comply with Order Paragraph 4

$500 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; 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.

12. Stipulated penalties are payable by check to the “Environmental Management Special Fund.” Check 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

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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
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 May 13, 2014_
				Bruce H Palin
				Assistant Commissioner
				Office of Land Quality