|
STATE OF |
) |
|
BEFORE
THE INDIANA DEPARTMENT |
||
|
|
|||||
|
COMMISSIONER
OF THE DEPARTMENT Complainant, v. ISG
INDIANA HARBOR INC., 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
2. Respondent
is ISG Indiana Harbor Inc. (“Respondent”), owner and operator of a steel
manufacturing facility located at
3. The
4. Pursuant to
IC 13-30-3-3, on July 20, 2004, IDEM issued a Notice of Violation via Certified
Mail to:
Rodney
B. Mott, President ISG
Indiana Harbor Inc.
ISG Indiana Harbor Inc. c/o
CT Corporation System, Registered Agent
3100 E 45th Street 36
South Pennsylvania Street, Suite 700
Cleveland, OH 44217 Indianapolis, IN 46204
5. 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, including any
noxious odor either alone or in combination with contaminants from other
sources, 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.
6. Pursuant to 327 IAC 5-2-2, any discharge of pollutants into
waters of the state as a point source discharge, except for exclusions made in
327 IAC 5-2-4, is prohibited unless in conformity with a valid NPDES permit
obtained prior to the discharge.
7. Pursuant to 327 IAC 5-2-8(1) and Part II.A.1 of the Permit,
the Respondent is required to comply with all terms and conditions of the
Permit.
8. Pursuant to Part I.A of the Permit, the Respondent is
required to comply with the effluent limitations contained in the Permit that
are applicable to the discharges from the outfalls identified in the Permit.
9. IDEM
records, including discharge monitoring reports and letters submitted by the
Respondent to IDEM for the period from April 12, 2002 through December 31,
2003, indicate that the Respondent failed to comply with numeric effluent
limitations contained in the Permit, in violation of IC 13-30-2-1, 327 IAC 5-2-2, 327 IAC 5-2-8(1), Part II.A.1
of the Permit, and Part I.A of the Permit, as
follows:
A. The daily maximum limitation for chromium applicable to the discharge from Outfall 101 was
violated on May 15, 2002. The Respondent
attributed the violation to the United States Steel East Chicago Tin
Operation's Chrome recovery operation.
B. The daily maximum oil and grease mass limit requirement
applicable to the discharge from the Outfall 101 was violated on September 24,
2003. The Respondent attributed the
violation to laboratory error.
C. The maximum pH limitation applicable
to the discharge from Outfall 101 was violated on November 13,
2003. The Respondent attributed the
violation to the loss of the pH control probe in the secondary mixer and
operational difficulties resulting from taking a clarifier off line and placing
it back on line.
D. The minimum pH limitation applicable
to the discharge from Outfall 211 was violated on October 15, 2002, and
August 6, 2003. The Respondent
attributed the October 15, 2002 violation to the failure of one of its two
operating caustic soda feed pumps during a period when caustic soda was being
unloaded into the storage tanks. The
Respondent attributed the August 6, 2003 violation to low flow through the
system and low pH during a period of maintenance.
E. The maximum pH limitation applicable
to the discharge from Outfall 211 was violated on November 1, 2002. The Respondent attributed the violation to
the automatic activation of its third caustic soda pump during a low flow
period resulting in overcompensation for pH.
F. The daily maximum oil and grease mass limitation applicable
to the sum of the mass loadings discharged from Outfalls 211 and 111 was
violated on February 12, 2003. The
Respondent attributed the violation to the condition of its sample tubing,
which resulted in the collection of samples that were not representative of the
actual discharges.
G. The monthly average total suspended solids (TSS) mass limitation
applicable to the sum of the mass loadings discharged from Outfalls 211 and 111
was violated for the month of February, 2003.
The Respondent attributed the violation to the condition of its sample
tubing, which resulted in the collection of samples that were not
representative of the actual discharges.
H. The daily maximum phenol limitation applicable to the
discharge from Outfall 009 was violated on December 24, 2002. The Respondent attributed the violation to an
administrative error on the part of the contract laboratory utilized by the
Respondent. Amended discharge monitoring reports have been submitted to IDEM,
along with an explanation from the contract laboratory of the administrative
error.
I. The daily maximum oil and grease mass limitation applicable
to the discharge from Outfall 011 was violated on September 24, 2003. The Respondent attributed the violation to
laboratory error.
10. Pursuant to Part I.B.1 of the Permit, samples and measurements
taken as required by the Permit shall be representative of the volume and
nature of the monitored discharge.
11. Respondent attributes the effluent limitation violations
listed in Paragraph 9, items F and G above to sampling error, or more
specifically, contamination of the samples, rendering the samples
unrepresentative of the monitored discharge.
The Respondent’s failure to obtain samples that are representative of
the volume and/or nature of the monitored discharge is in violation of 327 IAC
5-2-8(1), Part II.A.1 of the Permit, and Part I.B.1 of the Permit.
12. Pursuant to Part I.B.6 of the Permit, if the Respondent
monitors any pollutant at the location(s) designated in the Permit more
frequently than required by the Permit, using approved analytical methods, the
results of such monitoring shall be included in the calculation and reporting
of the values required in the monthly discharge monitoring reports. Such increased frequency shall also be
indicated.
13. Pursuant to 327 IAC 5-2-15(b), if the Respondent monitors any
pollutant more frequency than required by the Permit using approved analytical
methods, the results of such monitoring shall be reported on the discharge
monitoring reports. Other monitoring
data not specifically required by the Permit (such as internal process or
internal waste stream data) which is collected by or for the Respondent need
not be submitted unless required by the commissioner. Any such additional monitoring data that
indicates a violation of a permit limitation shall be followed up by the
Respondent, whenever feasible, with a monitoring sample obtained and analyzed
pursuant to approved analytical methods.
The results of the analysis of the follow-up sample shall be reported on
the discharge monitoring reports.
14. IDEM
records indicate that for the period from April 12, 2002 through December 31,
2003, the Respondent monitored pH
at location(s) designated in the Permit more frequently than required by the
Permit, using approved analytical methods, and failed to indicate such
increased monitoring frequency on the discharge monitoring reports submitted
for April 2002 through December 2003, in violation of 327 IAC 5-2-8(1), Part
II.A.1 of the Permit, and Part I.B.6 of the Permit.
15. IDEM records
indicate that for the period from April 12, 2002 through December 31, 2003, the
Respondent monitored pH at location(s) designated in the Permit more frequently
than required by the Permit, using approved analytical methods, and failed to
utilize the results of such additional monitoring in the reporting of pH values
on the discharge monitoring reports, in violation of 327 IAC 5-2-8(1), Part
II.A.1 of the Permit, Part I.B.6 of the Permit, and 327 IAC 5-2-15(b) as
follows:
A. On October 15, 2002, November 1, 2002,
and August 6, 2003, the Respondent monitored pH at Outfall 211 continuously,
using approved analytical methods. The
Respondent failed to utilize the continuous monitoring results for these three
dates, which indicated violations of the effluent limitations for pH, in the
reporting of pH values, on the respective October 2002, November 2002, and
August 2003 discharge monitoring reports.
B. On November 13, 2003, the Respondent
monitored pH at Outfall 101 continuously, using approved analytical
methods. The Respondent failed to
utilize the results of the continuous monitoring for this date, which indicated
a violation of the effluent limitations for pH, in the reporting of pH values
on the November 2003 discharge monitoring reports.
The Respondent contends that the continuous pH monitoring
which it conducts at Outfalls 211 and 101 is not performed using approved
analytical methods, as the Respondent does not calibrate or maintain the
continuos monitoring equipment in conformance with the methods approved by 40
CFR Part 136. However, even if the
Respondent’s contention is correct, the Respondent violated 327 IAC 5-2-15(b)
by failing to obtain and analyze pH samples, using approved analytical methods,
upon becoming aware of the results of the continuous monitoring that indicated
violations of the effluent limitations for pH contained in the Permit.
In
an August 1, 2006 submittal, the Respondent notified IDEM that it has decided
to eliminate its pH continuous process monitoring and expects to negotiate its
pH monitoring and reporting requirements during its Permit renewal process.
16. Pursuant to
327 IAC 5-2-8(11) and Part II.B.2.b of the Permit, bypass is prohibited, and
IDEM may take an enforcement action against a permittee for bypass unless the
following conditions are met:
A. Bypass was
unavoidable to prevent loss of life, personal injury, or severe property
damage;
B. There were no
feasible alternatives to the bypass, such as the use of auxiliary treatment
facilities, retention of untreated wastes, or maintenance during normal periods
of equipment down time; and
C. The permittee
submitted notice of the bypass, as required.
For an unanticipated bypass, notice must be provided verbally within 24
hours and, in writing within five days, of becoming aware of the bypass. If the permittee knows or should have known
in advance of the need for a bypass (anticipated bypass), prior notice must be
submitted to IDEM, for approval, at least ten days before the date of the
bypass, if possible.
17. IDEM records
indicate that for the period from April 12, 2002 through December 31, 2003 the
Respondent reported the occurrence of bypasses on February 17, 2003, March 13,
2003, May 27, 2003, July 16, 2003, and December 11, 2003, without the
conditions set forth in 327 IAC 5-2-8(11) and Part II.B.2.b of the Permit being
satisfied, in violation of 327 IAC 5-2-8(1), Part II.A.1 of the Permit, 327 IAC
5-2-8(11), and Part II.B.2.b of the Permit.
The Respondent attributed the above noted bypasses to either mechanical or
electrical problems.
During a settlement conference held on November 29, 2005, the Respondent
advised IDEM that it has permanently sealed the bypass locations from which the
above noted bypasses occurred.
18. IDEM records
indicate that the bypasses reported by the Respondent for the period between
April 12, 2002 through December 31, 2003, referenced in Paragraph 17 above,
resulted in the discharge of blast furnace gas wash process water via Outfall
010. The Permit restricts discharges
from Outfall 010 to non-contact cooling water.
Therefore, the discharge of blast furnace gas wash process water via
Outfall 010 is in violation of 327 IAC 5-2-2 and IC 13-30-2-1.
19. Pursuant to
IC 13-18-4-5, it is unlawful for any person to throw, run, drain, or otherwise
dispose into any of the streams or waters of Indiana; or cause, permit, or
suffer to be thrown, run, drained, allowed to seep, or otherwise disposed into
any waters; any organic or inorganic matter that causes or contributes to a
polluted condition of any waters, as determined by a rule of the board adopted
under sections IC 13-18-4-1 and IC 13-18-4-3.
20. Pursuant to
327 IAC 2-1.5-8(b)(1)(C), all waters at all times and at all places, including
the mixing zone, shall meet the minimum conditions of being free from
substances, materials, floating debris, oil, or scum attributable to municipal,
industrial, agricultural, and other land use practices, or other discharges
that are in amounts sufficient to be unsightly or deleterious or that produce
color, visible oil sheen, odor, or other conditions in such degree as to create
a nuisance.
21. IDEM records
indicate that for the period between April 12, 2002 and December 31, 2003, the
Respondent discharged, to waters of the state, substances, materials, floating
debris, oil, and/or scum in amounts sufficient to be unsightly or deleterious
and/or that produced color or visible oil sheen, in violation of 327 IAC
2-1.5-8(b)(1)(C), IC 13-30-2-1, and IC 13-18-4-5, as follows:
A. On September
9, 2002, a red plume was observed on the Indiana Harbor Ship Canal (IHSC),
attributable to the discharge from Outfall 001.
The
Respondent attributed the violation to the draining of an acid rinse tank by
the coating operation pickle line, which resulted in a high level of iron being
sent to the central treatment plant, which discharges to the IHSC via Outfall
001.
B. On November
25, 2003, IDEM staff observed oil sheens on the No. 2 Intake Channel that
appeared to be attributable to oil from the Respondent’s property leaching into
the Channel.
22. Pursuant to
Part I.A.6.c of the Permit, the discharge from Outfall 009 shall not contain
oil or other substances in amounts sufficient to create a visible film or sheen
on the receiving waters.
23. On May 28,
2003, the Respondent reported oil sheen on the IHSC attributable to the
discharge from Outfall 009. The
Respondent’s discharge of oil or other substances or materials in amounts
sufficient to create a visible film or sheen on the receiving waters is in
violation of Part I.A.6.c of the Permit, 327 IAC 2-1.5-8(b)(1)(C), IC
13-18-4-5, and IC 13-30-2-1.
With respect to this incident, the Respondent indicated the
following: the contractor responsible for collecting grab samples for the NPDES
Permit reported observing a very light sheen at Outfall 009. The Facility Response plan was activated and
Clean Harbors was dispatched. The
collected sheen was conservatively estimated at less than one gallon. The incident was reported to the NRC and IDEM
spill line. Investigation revealed no
source of the sheen.
In the June 3, 2005 submittal to IDEM, the Respondent advised IDEM that recent
actions necessary to achieve and maintain compliance with the narrative
effluent limitations contained in the Permit have been taken.
24. During an inspection of the Site by IDEM
on November 25, 2003, it was noted that the leaking service water, referenced
in Paragraph 23 above, was being pumped into the No. 2 Intake Channel via two
diesel driven portable pumps. Such
discharge is not provided for by the Permit, and is therefore in violation of
327 IAC 5-2-2 and IC 13-30-2-1.
With respect to this incident, the Respondent indicated the following: In the
course of effecting repairs to a leaking service water line, water from the
trench was pumped along an unpaved road to a yard area to allow percolation
into the ground. Inadvertently, a berm
protecting the road to the back side of the Intake was washed out and allowed
service water to be returned to the Intake slip from which it was pumped.
25. Pursuant to Part II.B.3 of the Permit,
Upset Conditions are as follows:
A. Definition: “Upset” means an exceptional incident in which
there is unintentional and temporary noncompliance with technology-based permit
effluent limitations because of factors beyond the reasonable control of the
permittee. An upset does not include
noncompliance to the extent caused by operational error, improperly designed
treatment facilities, inadequate treatment facilities, lack of preventive
maintenance, or careless or improper operation.
B. (Effect of an upset) An upset shall
constitute an affirmative defense to an action brought for noncompliance with
such technology-based permit effluent limitations if the requirements of
Paragraph c of this subsection are met.
C. (Conditions necessary for a
demonstration of upset) A permittee who
wishes to establish the affirmative defense of upset shall demonstrate, through
properly signed, contemporaneous operating logs or other relevant evidence,
that:
(1) An upset occurred and the permittee has
identified the specific cause(s) of the upset, if possible;
(2) The permitted facility was at the time
being operated in compliance with proper operation and maintenance procedures;
and
(3) The permittee compliance with any
remedial measures required under Part II.A.3 of the Permit, which requires that
the permittee take all reasonable steps to minimize or correct any adverse
impact on the environment resulting from noncompliance with the permit.
26. The Respondent contends that a number of
the above noted violations constituted “upsets,” as defined in Part II.B.3 of
the Permit. IDEM disagrees, and finds
that none of the above noted violations meet the definition of “upset” or
otherwise satisfy the requirements of Part II.B.3 of the Permit.
27. 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. The
Respondent shall comply with the Indiana Code, the Indiana Administrative Code,
and the Permit, specifically including the following provisions: IC 13-18-4-5, IC 13-30-2-1, 327 IAC
2-1.5-8(b)(1)(C), 327 IAC 5-2-2, 327 IAC 5-2-8(1), 327 IAC 5-2-8(8), 327 IAC
5-2-8(11), 327 IAC 5-2-15, Part I.A of the Permit, Part I.B.1 of the Permit,
Part I.B.6 of the Permit, Part II.A.1 of the Permit, Part II.B.1 of the Permit,
and Part II.B.2.b of the Permit.
3. The Respondent is assessed a civil
penalty of Twenty Thousand Dollars ($20,000).
Said penalty amount shall be due and payable to the Environmental
Management Special Fund within 30 days of the Effective Date of this Agreed Order.
4.
The civil penalty is 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
Cashiers Office –
Mail Code 50-10C
5.
In the event that the civil penalty required by Order Paragraph
3 is not paid within 30 days of the Effective Date of this Agreed Order,
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.
6. 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.
7. 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.
8. 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.
9. This Agreed
Order is not and shall not be interpreted to be a Permit, nor shall it in any
way relieve Respondent of its obligation to comply with the applicable
requirements of federal or state law or regulation.
10. The
Complainant does not, by its approval of this Agreed Order, warrant or aver in
any manner that the Respondent's compliance with any aspect of this Agreed
Order will result in compliance with any applicable requirements of federal or
state law or regulation.
11. This Agreed
Order shall remain in effect until the Respondent has complied with all terms
and conditions of Paragraphs 3 through 5 of this Order and IDEM issues a “close
out” letter to the Respondent.
|
TECHNICAL RECOMMENDATION: |
|
RESPONDENT: |
|||||||
|
Department of Environmental Management |
|
ISG Indiana Harbor Inc. |
|||||||
|
|
|
|
|||||||
|
By: |
|
|
By: |
|
|||||
|
|
Mark W. Stanifer, Chief |
|
Printed: |
|
|||||
|
|
Water Enforcement Section |
|
Title: |
|
|||||
|
|
Office of Enforcement |
|
|
|
|||||
|
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 |
|
, 2006 |
|
. |
|||
|
|
|||||||||
|
|
For The Commissioner: |
||||||||
|
|
|
||||||||
|
|
Signed on August
24, 2006 |
||||||||
|
|
Matthew T. Klein |
||||||||
|
|
Assistant Commissioner |
||||||||
|
|
of Compliance and Enforcement |
||||||||