STATE OF INDIANA		)	SS:	BEFORE THE INDIANA DEPARTMENT OF
		)
COUNTY OF MARION		)		ENVIRONMENTAL MANAGEMENT
COMMISSIONER OF THE DEPARTMENT					)
OF ENVIRONMENTAL MANAGEMENT,					)
					)
Complainant,					)
					)
	v.				)	Case No. 2010-19320-H
					)
ArcelorMittal Burns Harbor, LLC,					)
					)
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 ArcelorMittal Burns Harbor, LLC (“Respondent”), which owns and/or operates the integrated steel manufacturing facility with United States Environmental Protection Agency (“EPA”) ID No. IND003913423, located at 250 West US Highway 12, in Burns Harbor, Porter County, Indiana (“Site”). Respondent acquired the Site out of bankruptcy from Bethlehem Steel Corporation in 2002.

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. The Site covers approximately three square miles and was originally constructed and operated by Bethlehem Steel Corporation beginning in 1964. The northern portion of the Site consists of man-made industrial land that was constructed between 1962 and 1983 pursuant to permits issued by IDEM and the U.S. Army Corps of Engineers.

6. Respondent is engaged in the production of flat rolled carbon steel products at the Site.

7. IDEM representatives conducted a compliance evaluation inspection at the Site on November 5-6, 2008. IDEM issued a Violation Letter on November 25, 2008, identifying a violation of 329 IAC 10-11-1 relating to the on-site storage of nonhazardous Secondary Waste Water Treatment Plant Sludge (“SWWTP Sludge”).

8. On June 29, 2010, Respondent obtained a Solid Waste Facility Permit 64-10 from IDEM, which authorizes Respondent to construct and operate an on-site Type I restricted waste landfill (known as the Deerfield Storage Facility). Upon construction, the currently staged SWWTP Sludge and future production of SWWTP Sludge (and potentially other waste generated on-site that cannot be recycled) will be managed at the new permitted landfill.

9. IDEM representatives conducted a compliance evaluation inspection on March 10-11, 2010 and April 19, 2010. IDEM issued a Violation Letter dated April 22, 2010, identifying a violation of 329 IAC 10-11-1 relating to the on-site storage of the following materials for longer than six (6) months: SWWTP Sludge, blast furnace filter cake (“BFFC”), basic oxygen furnace (“BOF”) rubble debris, refractory brick and rubble debris materials in the blast furnace reline area, and refractory brick materials in the lakefront area.

10. On May 14, 2010 and May 20, 2010, Respondent submitted information in response to the requests contained within the April 22, 2010 inspection report. IDEM advised Respondent of the referral of violations to the Land Enforcement Section in a letter dated June 23, 2010.

11. As a result of the inspections described above, IDEM identified the following violations:

a. Pursuant to 329 IAC 10-11-1(a), any person who disposes of solid waste shall have a solid waste land disposal facility permit prior to construction and disposal. Respondent failed to obtain a solid waste land disposal permit prior to disposal.

b. 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. Respondent stored the materials identified in Paragraph 9 for more than six (6) months and failed to rebut the presumption that the storage did not constitute disposal at the Site.

c. 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. Respondent stored the materials identified in Paragraph 9 on the ground at the Site.

12. In 1999, Bethlehem Steel Corporation conducted a Phase 1 RCRA Facility Investigation (“RFI”) with oversight by the EPA. The locations of the materials described in Paragraph 9 are within the areas covered by the RFI. Based upon the results of the investigation, EPA concluded in 2006 that no further investigation or action was warranted, including at the BFFC stockpile. The EPA conducted confirmatory sampling in the area of the BFFC stockpile in 2009.

13. The locations of the stockpiled materials identified in Paragraph 9, as well as the Deerfield Storage Facility indentified in Paragraph 8, are shown on Figure 1 (Attachment A).

14. Subsequent to IDEM’s compliance evaluation inspections, Respondent has undertaken the following activities:

a. Removed the refractory brick and rubble materials that had been stored in the Blast Furnace Reline Area and disposed of the material off-site (completed July 2010).

b. Removed the BOF rubble debris materials that had been stored in the BOF staging area (completed October 2010).

c. Removed the refractory brick in the lakefront area and disposed of the material off-site (completed April 2011).

15. The material in the BFFC stockpile is approximately 40% iron and has significant recycling potential for Respondent. IDEM encourages the recycling of the materials identified in Paragraph 9, including specifically the BFFC, in lieu of disposing of these materials in permitted landfills and supports Respondent’s efforts to recycle. IDEM will continue to work with Respondent as Respondent develops opportunities for further recycling of such materials at its facility.

16. Respondent also plans to manage the BOF Processing Area as detailed in the Material Management Plan.

17. 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. Within thirty (30) days of Effective Date, Respondent shall submit a Material Management Plan.

3. Within ten (10) days of notice of IDEM’s approval of the Material Management Plan, Respondent shall implement the approved Material Management Plan in accordance with the timeframes therein to manage the solid wastes and materials identified in Paragraph 9 of the Findings of Fact in a manner that will prevent a threat to human health and the environment prior to their reuse or disposal in a permitted facility.

4. Commencing in 2012 and for the term of this Agreed Order, Respondent shall submit to IDEM by March 31 a report of the estimated volume of BFFC that was removed from the BFFC stockpile for recycling and/or disposal during the preceding calendar year. The report shall also include an estimate of the amount of BFFC expected to be removed for recycling and/or disposal over the next calendar year.

5. Respondent shall cease adding to the existing BFFC stockpile by August 31, 2011.

6. Within ninety (90) days of the Effective Date, Respondent shall apply an initial application of dust suppressant to the BFFC stockpile. Respondent shall inspect the BFFC stockpile semi-annually to determine if re-application is necessary and apply as needed. Respondent shall evaluate at the time of load out from the BFFC stockpile whether application of water or other dust suppressant on the working face is necessary. Upon installation of the temporary engineered cover, as described in Order Paragraph 8.c., the requirement for dust suppressant shall no longer be required.

7. Respondent shall inspect the stormwater retention berm on the north side of the BFFC stockpile semi-annually. Respondent shall rebuild the berm as necessary.

8. With regard to the BFFC stockpile:

a. Within ninety (90) days of the Effective Date, Respondent shall submit a groundwater monitoring plan in accordance with 329 IAC 10-29 to IDEM for review and approval. The plan shall include timeframes for the installation of the wells. The purpose of the plan is to establish an approved groundwater monitoring system for the duration of the BFFC stockpile.

b. Within fifteen (15) days of approval by IDEM of the groundwater monitoring plan, Respondent shall implement the plan as approved and in accordance with the time frames contained therein.

c. Within six (6) months of the Effective Date, Respondent shall submit to IDEM for review and approval a plan for a temporary engineered cover system for the BFFC stockpile. The temporary engineered cover system shall be designed to facilitate the temporary removal or roll-back of a portion of the engineered cover to allow for Respondent to recover BFFC material for recycling.

d. Within eighteen (18) months of IDEM’s approval of the temporary engineered cover system, Respondent shall install the approved temporary engineered cover.

e. Within one hundred and eighty (180) days of the Effective Date, Respondent shall demonstrate to IDEM financial responsibility in an amount equal to the estimated cost of installing a permanent engineered cover system and conducting post-closure monitoring for the BFFC stockpile. Respondent may not utilize the financial test to demonstrate such financial responsibility and shall update its financial responsibility annually. Respondent must maintain financial responsibility in accordance with this subparagraph for the term of this Agreed Order.

f. By the end of the eighth (8^th) year of the Effective Date, Respondent shall demonstrate to IDEM that it can routinely remove for recycling BFFC from the existing stockpile at a rate of 25,000 tons per year. Respondent shall continue to remove for recycling 25,000 tons per year until the existing BFFC stockpile is completely removed.

g. By the end of the eighth (8^th) year of the Effective Date, if Respondent cannot demonstrate to IDEM that it can routinely remove for recycling BFFC from the existing stockpile at a rate of 25,000 tons per year, Respondent shall submit a closure plan (“Plan”) for the remaining BFFC material, which would include the installation of a permanent engineered cover, post closure care, maintenance, and groundwater monitoring, to IDEM for review and approval.

h. If the Plan is approved by IDEM, Respondent shall implement the Plan as approved and in accordance with the time frames contained therein. For purposes of this Agreed Order, certification of closure will satisfy the requirement in 8.h. and 8.j. to implement the Plan as approved and any non compliance with post closure care activities that may be necessary will be addressed with a new enforcement action and will not prevent resolution of this Agreed Order.

i. Following IDEM’s review of the Plan, if IDEM determines that permanent closure in place is not an environmentally protective option, Respondent shall remove and dispose or recycle all of the existing BFFC stockpile within ten (10) years of the Effective Date.

j. In the event that 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 (3) submissions of such plan by Respondent, IDEM may modify and approve any such plan and Respondent must implement the plan as modified by IDEM. The approved plan shall be incorporated into this Agreed Order and shall be deemed as enforceable part thereof.

9. Daily generation of the rubble debris from the BOF may be processed to recover recyclable materials, but non-recyclable components in the rubble debris must be disposed of in a permitted facility with one (1) month of generation.

10. The existing SWWTP sludge located at the SWWTP sludge staging area (identified in Attachment A) is being addressed through the Solid Waste Facility permitting process.

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

Linda L. McClure, Enforcement Case Manager

Office of Land Quality – Mail Code 60-02L

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

12. Respondent is assessed a civil penalty of Nine Thousand Dollars ($9,000). 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.

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:

Paragraph	Requirement	Penalty
4	Failure to timely submit annual report.	$100 per week
5	Failure to cease adding BFFC to stockpile by August 31, 2011.	$250 per week
6	Failure to apply dust suppressant within 90 days of Effective Date.	$100 per week
7	Failure to conduct BFFC berm semi-annual inspections.	$100 per week
8a	Failure to submit a groundwater monitoring plan.	$100 per week
8b	Failure to implement the groundwater monitoring plan.	$150 per week
8c	Failure to submit a temporary engineered cover system plan for the BFFC stockpile.	$100 per week
8d	Failure to install the temporary engineered cover system on the BFFC stockpile.	$250 per week
8e	Failure to demonstrate financial responsibility	$250 per week
8g	Failure to submit a closure plan.	$250 per week
8h	Failure to implement the closure plan if approved.	$250 per week
8i	Failure to recycle or dispose of existing pile if required.	$1,000 per week

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 enforcement referral identified in Paragraph 10 of the Findings of Fact.

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. This Agreed Order shall remain in effect until Respondent complies with all terms and conditions of this Agreed Order. Thereafter, IDEM will issue a Resolution of Case letter to Respondent.

TECHNICAL RECOMMENDATION:				RESPONDENT:
Department of Environmental Management
By: _________________________				By: _________________________
	Nancy Johnston, Section Chief
	Enforcement Section			Printed: ______________________
Office of Land Quality
				Title: ________________________
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	________________________,	2011.
				For the Commissioner:
				Signed September 22, 2011
				Bruce H Palin
				Assistant Commissioner
				Office of Land Quality