STATE OF |
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BEFORE
THE INDIANA DEPARTMENT |
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COMMISSIONER
OF THE DEPARTMENT Complainant, v. ARCELOR
MITTAL USA, INC., Respondent. |
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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
2.
Respondent is Arcelor
Mittal USA, Inc., which owns and operates an integrated primary steel
manufacturing plant located at
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 June 25, 2008 via
Certified Mail to:
Arcelor
Mittal USA, Inc. |
and to: |
Arcelor
Mittal USA, Inc. |
Michael
Rippey, President |
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CT
Corporation System |
One |
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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.
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.
Pursuant
to 327 IAC 5-2-8(1) and Part II.A.1 of the Permit, Respondent is required to
comply with all terms and conditions of the Permit.
Pursuant
to Part I.A of the Permit, 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.
6.
IDEM
records, including discharge monitoring reports and letters submitted by
Respondent to IDEM for the period from December 2007 through April 2008,
indicate exceedances of numeric effluent limitations contained in the Permit as
follows:
A.
The daily maximum lbs/day
limitation for Zinc applicable to the discharge from
Outfall 011 was exceeded on December 29, 2007, January 25, 2008, and
February 14, 2008; and
B.
The monthly average
lbs/day limitation for Zinc applicable to the discharge from Outfall 011 was exceeded
during December 2007, and January, February, and March 2008.
7.
IDEM
records, including discharge monitoring reports and letters submitted by
Respondent to IDEM for the period from June 2008 through November 2008,
indicate exceedances of numeric effluent limitations contained in the Permit as
follows:
A.
The daily maximum lbs/day
limitation for Zinc applicable to the discharge from
Outfall 011 was exceeded on November 11, 2008;
B.
The monthly average
lbs/day limitation for Zinc applicable to the discharge from Outfall 011 was exceeded
during November 2008; and
C.
The daily maximum lbs/day
limitation for Cyanide applicable to the discharge
from Outfall 011 was exceeded on June 17, 2008.
8.
IDEM and Indiana
Department of Natural Resources staff conducted an investigation at the
receiving waters of Outfall 011 on June 18, 2008 (IDEM Incident Number
2008-06-217). The investigation
indicated that the daily maximum lbs/day limitation Cyanide exceedance at the discharge from Outfall 011 that occurred June
17, 2008, may have caused or contributed to a fish kill in the receiving waters
of Outfall 011, in violation of IC 13-30-2-1 and 327 IAC 5-2-2.
9.
IDEM
records, including discharge monitoring reports and letters submitted by
Respondent to IDEM for May 2009, indicate an exceedance of numeric effluent
limitations contained in the Permit as follows:
The
daily maximum lbs/day limitation for Cyanide applicable to the discharge from
Outfall 030 was exceeded on May 11, 2009.
10.
For the exceedances
set forth in Findings of Fact Paragraphs 7 through 9 above, 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.
11.
In response to the
exceedances identified in Findings of Fact Paragraphs 6 to 8 above, Respondent
implemented measures to prevent future potential exceedances of the numeric
effluent limitations for Zinc in its Permit.
IDEM inspected these measures on April 9, 2009. Respondent has not reported any exceedances
of its numeric effluent limitations contained in its Permit for Zinc since
December 2008.
12.
The Cyanide
exceedance identified in the Findings of Fact Paragraphs 7 and 8 resulted from
a burst pipe in a Blast Furnace recycle system that was repaired from noon
until 10:00 PM on June 17, 2008.
13.
Respondent has
indicated that the Cyanide exceedance identified in the Findings of Fact
Paragraph 9 was a one-time event that occurred during non-typical operations when
the furnace at the facility was in the process of being idled.
14.
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 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.
3.
Immediately following
the Effective Date, Respondent shall demonstrate six (6) consecutive months of
compliance (Compliance Demonstration) with the effluent limitations for Zinc
for Outfall 011 contained in its Permit.
During this six (6) month period (Compliance Demonstration Period),
Respondent shall be subject to stipulated penalties, as specified below, for
violations of its effluent limitations for Zinc.
In the event
that Respondent fails to make the Compliance Demonstration, Respondent shall,
within sixty days of becoming aware that the Compliance Demonstration cannot be
achieved, 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 the effluent limitations for Zinc contained in its
Permit. The Additional Action Plan, if
required, shall include an implementation and completion schedule, including
specific milestone dates.
4.
The Additional Action
Plan, if required by Order Paragraph 3 above, is subject to IDEM approval,
which shall not be unreasonably withheld.
In the event IDEM determines that the Additional Action Plan submitted
by Respondent is deficient or otherwise unacceptable, Respondent shall revise
and resubmit the plan to IDEM in accordance with IDEM’s notice.
Respondent,
upon receipt of written notification from IDEM, shall immediately implement the
approved plan and adhere to the milestone dates therein. The approved Additional Action Plan, if
required, shall be incorporated into the Agreed Order and shall be deemed an
enforceable part thereof. Failure to
submit the Additional Action Plan by the specified date (if required by Order
Paragraph 3), or to meet any of the milestones in the approved plan will
subject Respondent to stipulated penalties as described below. Failure to achieve compliance with the
effluent limitations for Zinc in Respondent's Permit at the conclusion of work
under an Additional Action Plan will subject Respondent to additional
enforcement action.
5.
All submittals
required by this Agreed Order, unless Respondent is notified otherwise in
writing by IDEM, shall be sent to:
Terry
Ressler, Enforcement Case Manager |
Indiana
Department of Environmental Management |
Office of Water
Quality, Enforcement Section – Mail Code 60-02W |
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6.
Respondent shall pay
the Indiana Department of Natural Resources ("IDNR") one hundred ninety-five
dollars and ninety-two cents ($195.92) for the value of the damage to fish and
wildlife, under authority of IC 14-22-10-6.
Payment shall be made to the Contaminants Account within thirty (30)
days of the Effective Date of this Order, and sent to the IDNR Division of Fish
and Wildlife, Attention: Jennifer
Campbell-Allison, Room W-273, IGCS,
7.
Respondent is
assessed a civil penalty of Twenty-Eight Thousand Dollars ($28,000). 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.
8.
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:
Order
Paragraph Number |
Violation
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Penalty
Amount |
3 |
For violations of its Zinc effluent
limitations for Outfall 011 during the six month Compliance Demonstration Period. |
$1,000 per violation |
3 |
Failure to submit the Additional
Action Plan, if required, within the require time period. |
$500 per each week |
4 |
Failure to revise and resubmit an
approvable plan in accordance with IDEM's notice, if required, within the
given time period. |
$500 per each week |
4 |
Failure to meet any milestone date
set forth in the approved Additional Action Plan (if one is required). |
$500 per each week |
9.
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.
10.
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 |
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11.
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.
12.
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.
13.
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.
14.
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.
15.
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.
16.
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 Agreed Order.
17.
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.
18.
This Agreed Order
shall remain in effect until Respondent has complied with all terms and
conditions of Order Paragraph Nos. 3 through 10 and IDEM issues a Resolution of
Case letter. IDEM will promptly issue
the Resolution of Case letter upon notice from Respondent, and confirmation by
IDEM, that Respondent has complied with the terms and conditions of Order
Paragraph Nos. 3 through 10.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
TECHNICAL RECOMMENDATION: |
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RESPONDENT: |
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Department of Environmental Management |
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Arcelor
Mittal USA, Inc |
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By: |
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By: |
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Mark W. Stanifer, Chief |
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Printed: |
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Water Enforcement Section |
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Title: |
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Office of Water Quality |
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Date: |
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COUNSEL FOR COMPLAINANT: |
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COUNSEL FOR RESPONDENT: |
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Department of Environmental Management |
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By: |
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By: |
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Deputy Attorney General |
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APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF
ENVIRONMENTAL |
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MANAGEMENT THIS |
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OF |
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For The Commissioner: |
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Signed on July 31, 2009 |
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Bruno Pigott |
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Assistant Commissioner |
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Office of Water Quality |
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