STATE OF INDIANA

COUNTY OF MARION

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BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

ALCOA INC., WARRICK OPERATIONS,

Respondent.

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Case No. 2007-17694-W

 

 

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 Agreed 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 Alcoa Inc.—Warrick Operations (“Respondent”), which owns and operates a plant producing aluminum coil, and discharging wastewater to the Ohio River with National Pollutant Discharge Elimination System (“NPDES”) Permit No. IN0001155, (the “Permit”) located on Highway 66, in Newburgh, Warrick County, Indiana (“Site”).

 

3.                  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.                  Pursuant to 327 IAC 5-2-8(1) and Part I.A.1 of the Permit, Respondent is required to comply with all terms and conditions of its NPDES permit.

 

6.                  On December 13, 2007, representatives of Respondent met with representatives of Complainant to discuss the various self-reported deviations from Respondent’s NPDES permit and actions it has taken to prevent those deviations from occurring in the future.  The deviations that were discussed are itemized as follows:

 

a.         2003

 

From March 19 through April 9, and on April 18, sampling for pH and total residual chlorine at Outfall 002 could not be conducted in a safe manner due to low flow conditions.  A total of 9 samples for each parameter could not be collected.

 

b.         2004

 

During the weeks of May 5 and May 29, a total of 3 BOD samples were not obtained due to flooding of the Outfall 303 weir caused by heavy rainfall.  Because of the potential for composite samples to be invalidated by heavy rainfall, sampling schedules were adjusted to accommodate for the potential of flooding of the outfall weir.

 

On August 26, a sample for total suspended solids (TSS) at Outfall 303 measuring 47 parts per million (ppm) versus a permit limit of 40 ppm was reported.  The elevated TSS measurement was attributed to a storm water event of 0.4” and an upset clarifier at the wastewater treatment plant.

 

From September 16 through October 24, total residual chlorine samples for Outfall 003 were not collected due to a communication error with the laboratory.  Permit requirements for this parameter were to sample three times weekly (report only) and monthly average (report only).  Approximately 6 weeks worth of sampling (e.g., 18 samples) over a thirty-nine (39) day period were not collected.

 

On December 25, a fifty gallon oil spill overwhelmed an oil/water separator due to frigid conditions creating a small oil sheen at Outfall 006.

 

c.         2005

 

The permit requires that the temperature measurements for Outfall 002 influent, effluent, and mixed river temperatures are to be submitted by January 28th of the following year. The temperature measurements for 2004 were submitted on March 24, 2005.

 

Cyanide samples have an analytical holding time of 14 days.  A sample collected on March 7th was not analyzed until 16 days after collection. Two samples, one collected on March 8th and the other on March 17th were not analyzed until 15 days after collection.

 

On April 22, a BOD5 sample was not measured until the 6th day after the sample was collected.

 

d.         2006

 

On February 20, as a result of an inversion that caused an upset of the fly ash ponds, TSS at Outfall 103 was measured at 155 ppm, which then resulted in a monthly average of 54.0 ppm.  The permit limits for TSS at outfall 103 are 100 ppm for a daily maximum and a monthly average of 30 ppm.  As a part of this Agreed Order, there will be no assessed fine or stipulated penalty due to an “Upset Condition” as defined in the NPDES permit.

 

On July 18, what appeared to be an oil sheen of less than 20 gallons was observed discharging from Outfall 002 (condenser cooling).  A sample was taken of the effluent at the outfall and chemical analysis confirmed that the oily material did not come from Warrick’s operations (e.g., from the power plant equipment) based upon the chemical constituents of the oily material.

 

e.         2007

 

On March 18, as a result of another inversion that caused an upset of the fly ash ponds, TSS at Outfall 103 was measured at 238 ppm, which then resulted in a monthly average of 35.8 ppm.  As stated above, the permit limits for TSS at Outfall 103 are 100 ppm for a daily maximum and a monthly average of 30 ppm.  As a part of this Agreed Order, there will be no assessed fine or stipulated penalty due to an “Upset Condition” as defined in the NPDES permit.

 

On March 28th, 85.49 pounds of aluminum was measured as being discharged from Outfall 303 versus a permit limit of 73.36 pounds per day.  This event was attributed to a storm water event and high flow conditions.

 

On April 30 and May 1, 2 and 8, the facility experienced an upset at wastewater treatment plant 879 resulting in measured aluminum discharges of 90.4, 105.49, 125.93 and 83.71 lbs/day respectively at outfall 303.  As a result of this, the monthly average aluminum discharge for May was 37.14 lbs/day.  The permit limits for aluminum at outfall 303 are 73.36 lbs/day for a daily maximum and 34.91 lbs/day for a monthly average.  This event was caused by an increase in rate of wastewater flow to the 879 wastewater treatment plant from a “squeegee” roll from approximately 3-5 gpm to 20 gpm, thus overwhelming the treatment capacity of the plant.

 

The events described in a. through e. above are in violation of 327 IAC 5-2-8(1) and Part I.A.1 of the Permit.

 

7.         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 permit conditions listed in the findings above at issue.

 

3.                  Within 30 days of the Effective Date, Respondent shall develop and submit to IDEM for approval a “Compliance Plan” which identifies actions that Respondent will take to achieve and maintain compliance with its NPDES Permit, specifically including the actions Respondent will take to:

 

a.                  Address aluminum limit exceedances by making capital improvements at the 879 wastewater treatment to ensure compliance with aluminum limits at outfall 303.

b.                  Address total suspended solids upset conditions at outfall 103 through the installation of a dry fly ash handling system.

 

The Compliance Plan shall include an implementation and completion schedule, including specific milestone dates.

 

4.                  Upon Respondent’s receipt of IDEM’s approval of the Compliance Plan, Respondent shall have twelve months to implement the actions set forth in the Compliance Plan.  This twelve month period shall be referred to as the Performance Period.  Following the Performance Period, Respondent shall be required to demonstrate five consecutive months of compliance with the terms and conditions of its NPDES Permit (Compliance Demonstration).  During the Performance Period, Respondent shall be subject to stipulated penalties, as specified below, for violations of its NPDES Permit.  In the event that Respondent fails to make the Compliance Demonstration within seven months following the Performance Period, Respondent shall, within sixty days of becoming aware that the Compliance Demonstration cannot be achieved within seven months following the Performance Period, develop and submit to IDEM, for approval, an “Additional Action Plan” which identifies the additional actions that Respondent will take to achieve and maintain compliance with its NPDES Permit.  The Additional Action Plan, if required, shall include an implementation and completion schedule, including specific milestone dates.

 

5.                  The plans required by Paragraphs 3 and 4 above are subject to IDEM approval.  In the event IDEM determines that any plan submitted by Respondent is deficient or otherwise unacceptable, Respondent shall revise and resubmit the plan to IDEM in accordance with IDEM’s notice. After three submissions of such plan by Respondent, IDEM may modify and approve any such plan and Respondent must implement the plan as modified by IDEM.

Respondent, upon receipt of written notification from IDEM, shall immediately implement the approved plan and adhere to the milestone dates therein.  The approved Compliance Plan and Additional Action Plan shall be incorporated into the Agreed Order and shall be deemed an enforceable part thereof.  Unless Complainant has agreed to extend a milestone, failure by Respondent to submit any plan by the specified date, or to meet any of the milestones in the approved plan may subject Respondent to stipulated penalties as described below.  Failure to achieve compliance at the conclusion of work under an Additional Action Plan will subject Respondent to additional enforcement action.

 

6.         Beginning on the Effective Date and continuing until the completion of the Compliance Plan provided for by Paragraph 3 above, Respondent shall, at all times, operate its existing wastewater treatment facilities as efficiently and effectively as possible, and shall be subject to stipulated penalties for its failure to comply with permit limitations.

 

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

 

Mark Stanifer, Section Chief

Indiana Department of Environmental Management

Office of Enforcement – Mail Code 60-02

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

8.                  Respondent is assessed a civil penalty of Forty Three Thousand Two Hundred Dollars ($43,200).  Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date.  In the event that the civil penalty is not paid within thirty (30) 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.

 

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:

 

Paragraph

Violation

Stipulated Penalty

3, 4, and 5

Failure to submit any plan within the required time period.

$500 per week late, or part thereof.

4

Failure to comply with effluent limitations during the Performance Period or the period of the Compliance Demonstration.

$500 per violation.

5

Failure to implement any approved plan.

$500 per week late, or part thereof.

4, 5

Any other NPDES violation.

$500 per violation.

 

10.             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.

 

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.             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 materially 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 in its reasonable discretion.

 

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.

 

13.             This Agreed Order shall apply to and be binding upon Respondent and its successors and assigns. This Agreed Order shall jointly and severally 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 he/she/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 permit 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 part I. 6. herein.

 

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 Respondent has complied with all terms and conditions of Order Paragraph Nos. 3 through 11 and IDEM issues a Resolution of Case letter.

 

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

 

 

 

 

By:

 

 

By:

 

 

Mark W. Stanifer, Chief

 

Printed:

 

 

Water Enforcement Section

 

Title:

 

 

Office of Enforcement

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

 

 

 

COUNSEL FOR COMPLAINANT:

 

COUNSEL FOR RESPONDENT:

For the Department of Environmental Management

 

 

 

 

 

By:

 

 

By:

 

 

 

 

 

 

 

Deputy Attorney General

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

 

DAY OF

 

, 2008.

 

 

For the Commissioner:

 

 

 

Signed on July 8, 2008

 

Robert B. Keene

 

Assistant Commissioner

 

Office of Legal Counsel and Enforcement