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STATE
OF INDIANA |
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BEFORE THE INDIANA DEPARTMENT |
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COMMISSIONER OF THE DEPARTMENT Complainant, v. ALCOA INC. – WARRICK OPERATIONS 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 Indiana Code (“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 IC 13-13-1-1.
2.
Respondent is Alcoa Inc.
(“Respondent”), which owns and operates the Warrick Operations located at 4000
West State Road 66, Newburgh, Warrick County,
Indiana. The Respondent is authorized by
National Pollutant Discharge Elimination System (“NPDES”) Permit No. IN0001155
(the “Permit”) to discharge from an aluminum processing plant and steam
generating facility to receiving waters named the Ohio River and unnamed
tributaries to Cypress Creek in accordance with effluent limitations,
monitoring requirements, and other conditions contained therein.
3.
IDEM has jurisdiction over the parties
and the subject matter of this action.
4.
Respondent waived issuance of a Notice
of Violation pursuant to IC 13-30-3-3 for the violations addressed herein.
5.
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.
6.
Part I.A.4 of the Permit contains an
effluent limitation for iron (total recoverable) of 1.0 mg/l (monthly average)
and 1.0 mg/l (daily maximum) that applies to non-chemical metal cleaning
wastewaters that are discharged from Internal Outfall 103.
a. Discharge monitoring reports submitted by
Respondent for the months of March and April 2014 identified concentrations of
iron (total recoverable) from Internal Outfall 103 at levels ranging from 1.13
mg/l to 3.36 mg/l, which exceeds the applicable effluent limitation. Specifically, on March 11, 2014, total iron
was measured at 1.23 mg/l, exceeding the permitted daily maximum limit. IDEM was first notified of this incident via
a 24-hour email report on March 21, 2014.
On March 12, 2014, total iron was measured at 1.13 mg/l, exceeding the
permitted daily maximum limit. IDEM was
first notified of this incident via a 24-hour email report on March 21,
2014. Total iron for March 2014 averaged
1.18 mg/l, exceeding the permitted monthly average limit. IDEM was first notified via a 24-hour email
report on April 1, 2014. On April 16,
2014, total iron was measured at 1.87 mg/l, exceeding the permitted daily
maximum limit. IDEM was first notified
of this incident via a 24-hour email report on April 24, 2014. On April 17, 2014, total iron was measured at
3.36 mg/l, exceeding the permitted daily maximum limit. IDEM was first notified of this incident via
a 24-hour email report on April 24, 2014.
Total iron for April 2014 averaged 2.62 mg/l, exceeding the permitted
monthly average limit. IDEM was first
notified of this incident via a 24-hour email report on May 1, 2014.
b. As part of negotiations to resolve
Respondent’s appeal of the Permit, Respondent and IDEM have identified possible
options to demonstrate compliance with the iron effluent limitation applicable
to non-chemical metal cleaning wastewaters discharged from Internal Outfall
103. IDEM and Respondent recognize that
time will be needed to gather sufficient data and information to identify and
implement the final option for demonstrating compliance.
7.
In September 2007, Respondent was
issued NPDES Permit No. IN0001155 which became effective on November 1, 2007
and expired on October 31, 2012 (the 2007 Permit). The 2007 Permit contained effluent
limitations, narrative water quality standards, and reporting requirements. Based on information from Respondent and a
record review, the following violations of requirements contained in the 2007
Permit were identified:
a.
A Total Suspended Solids (TSS)
exceedance at Outfall 203 occurred on May 12, 2010. TSS was measured at 54 mg/l, exceeding the
permitted daily maximum limit of 45 mg/l.
IDEM was first notified of this incident via a 24-hour fax report on May
13, 2010.
b.
The June 2010 toxicity report for
Outfall 003 was not submitted within 60 days of completion of the test as
required by the 2007 Permit. IDEM was
notified in the toxicity report submittal on April 29, 2011.
c.
A pH exceedance at Outfall 103 occurred
on April 21, 2011. The pH result was 5.9
s.u. which fell below the permitted daily minimum
limit of 6.0 s.u. IDEM was first notified of this incident via
a 24-hour fax report on April 21, 2011.
d.
A TSS exceedance at Outfall 203
occurred on May 6, 2011. TSS was
measured at 68 mg/l, exceeding the permitted daily maximum limit of 45
mg/l. IDEM was first notified of this incident
via a 24-hour fax report on May 6, 2011.
e.
A TSS exceedance at Outfall 203
occurred on May 12, 2011. TSS was
measured at 65 mg/l, exceeding the permitted daily maximum limit of 45
mg/l. IDEM was first notified of this
incident via a 24-hour fax report on May 12, 2011.
f.
A TSS exceedance at Outfall 203
occurred on May 13, 2011. TSS was
measured at 80 mg/l, exceeding the permitted daily maximum limit of 45
mg/l. IDEM was first notified of this
incident via a 24-hour fax report on May 13, 2011.
g.
A TSS exceedance at Outfall 006
occurred on May 23, 2011. TSS was
measured at 70 mg/l, exceeding the permitted daily maximum limit of 40
mg/l. IDEM was first notified of this
incident via a 24-hour fax report on May 24, 2011.
h.
A CBOD5 exceedance at Outfall 203
occurred on June 3, 2011. CBOD5 was
measured at 60 mg/l, exceeding the permitted daily maximum limit of 40
mg/l. IDEM was first notified of this
incident via a 24-hour fax report on June 8, 2011.
i.
A CBOD5 exceedance at Outfall 203
occurred on June 8, 2011. CBOD5 was
measured at 44 mg/l, exceeding the permitted daily maximum limit of 40
mg/l. IDEM was first notified of this
incident via a 24-hour fax report on June 13, 2011.
j.
A violation of the narrative water
quality standards occurred on October 4, 2011 when orange color was discharged
from Outfall 001 for approximately 30 minutes.
IDEM was first notified of this incident via a 24-hour fax report on
October 4, 2011.
k.
The DMR form for Outfall 006 for
December 2011 was not submitted by the 28th day of the following
month as required by the 2007 Permit.
IDEM was notified in the DMR submittal letter on February 28, 2012.
l.
The TSS sample for Outfall 303 on
January 14, 2012 was not analyzed within the required hold time. The sample was invalidated, causing an
inadequate monitoring frequency of 2x weekly instead of the required 3x
weekly. IDEM was first notified of this
incident via a 24-hour fax report on February 7, 2012.
m.
The TSS sample for Outfall 403 on
January 14, 2012 was not analyzed within the required hold time. The sample was invalidated, causing an
inadequate monitoring frequency of 2x weekly instead of the required 3x
weekly. IDEM was first notified of this
incident via a 24-hour fax report on February 7, 2012.
8.
In July 2013, Respondent was issued
NPDES Permit No. IN0001155 which became effective on August 1, 2013 and is
currently in effect (the Permit). The
Permit contains effluent limitations, narrative water quality standards, and
reporting requirements. Based on
information from Respondent and a record review, the following violations of
requirements contained in the Permit were identified:
a. A pH exceedance at Outfall 004 occurred
on August 17, 2014. The minimum daily pH
for August 17, 2014 was 4.67 s.u. which fell below
the permitted daily minimum limit of 6 s.u. IDEM was first notified of this incident via
a 24-hour email report on September 3, 2014.
b. The Ammonia sample for Outfall 503 on
October 3, 2014 was not analyzed within the required hold time. The sample was invalidated, causing an
inadequate monitoring frequency of 1x monthly instead of the required 2x
monthly. IDEM was notified of this
incident in the DMR submittal letter dated November 21, 2014.
c. The Nitrate/Nitrite sample for Outfall
503 on November 7, 2014 was not analyzed within the required hold time. The sample was invalidated, causing an
inadequate monitoring frequency of 1x monthly instead of the required 2x
monthly. IDEM was notified of this
incident in the DMR submittal letter dated December 19, 2014.
9. 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 the
following implementation schedule and requirements and demonstrate compliance
with the iron effluent limitation that applies to non-chemical metal cleaning
wastewaters discharged from Internal Outfall 103 no later than July 31, 2016.
a. Respondent
shall comply with the following implementation schedule:
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Activity |
Deadline |
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1. |
Complete any necessary sampling and
analysis of waste streams discharging to or from Internal Outfall 103,
including any testing of alternate treatment methods within the ash pond. |
June 30, 2015 |
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2. |
Complete engineering evaluation of
the non-chemical Metal cleaning wastewater stream to determine if it can be stored
and treated prior to mixing with other waste streams or stored prior to
off-site management. |
July 31, 2015 |
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3. |
Determine compliance method and begin
engineering design and procurement, if necessary. |
August 31, 2015 |
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4. |
Commence any necessary construction. |
December 31, 2015 |
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5. |
Complete construction and
construction-related testing. |
June 30, 2016 |
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6. |
Complete commissioning, if necessary. |
July 31, 2016 |
b. Respondent shall submit a written
certification to IDEM, OWQ, Compliance Branch, Compliance Data Section
documenting compliance with each Activity in Order Paragraph 2.a above no later
than seven (7) calendar days following (i) the
deadline associated with that Activity or (ii) the date that Activity was
completed, whichever is earlier.
c. If construction is performed to comply
with the iron effluent limitation applicable to non-chemical metal cleaning
wastewaters that discharge from Internal Outfall 103, Respondent shall file
with the Industrial NPDES Permits Section and Compliance Data Section of IDEM,
OWQ, a notice of installation for the additional pollutant control equipment
and any modifications along with a design summary as applicable within thirty
(30) days of completion of construction for compliance.
3. All submittals required by this Agreed
Order, unless Respondent is notified otherwise in writing by IDEM, also shall
be sent to:
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Edward Judson |
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Indiana Department of Environmental
Management |
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Office of Water Quality |
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100 North Senate Avenue, Room 1255 |
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Indianapolis, IN 46204-2251 |
4. Respondent is assessed and agrees to pay
a civil penalty of Eight Thousand Seven Hundred and Fifty Dollars
($8,750). Said penalty amount shall be
due and payable to the Environmental Management Special Fund within 30 days of
the Effective Date; the 30th day being a “Due Date.”
5. In the event the terms and conditions of
the following paragraphs are violated, IDEM may assess and Respondent shall pay
a stipulated penalty in the following amount:
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Paragraph |
Violation |
Stipulated
Penalty |
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2 |
Failure to demonstrate compliance
with the iron effluent limitation applicable to non-chemical metal cleaning
wastewaters identified in Part I.A.4 of the Permit no later than July
31, 2016. |
$250 per week or portion
of week thereof |
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2.a |
Failure to complete an Activity by its Deadline. |
$250 per week or portion
of week thereof |
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2.b |
Failure to timely file a required
written certification. |
$250 per week or portion
of week thereof |
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2.c |
Failure to timely file the notice of
installation, if necessary. |
$250 per week or portion
of week thereof |
6. 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. However, Complainant agrees it shall not seek
additional monetary relief for violations for which stipulated penalties have
been assessed and paid. 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.
7. Civil and stipulated penalties are
payable by check to the “Environmental Management Special Fund.” Checks shall include the Case Number
2015-22904-W of this action and shall be mailed to:
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Office of Legal Counsel |
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IGCN, Rm N1307 |
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100 North Senate Avenue |
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Indianapolis, IN 46204 |
8. 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 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.
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.
IDEM’s decisions regarding (1) whether an event is a force majeure and
(2) the duration of a force majeure are subject to appeal pursuant to IC 4-21.5.
9. 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
submitted to IDEM in the manner specified in Order Paragraph 7 above.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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 this Agreed Order.
16. 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.
17. This Agreed Order shall remain in effect
until Respondent has complied with all terms and conditions of Order Paragraphs
2 through 6 of this Agreed Order and IDEM issues a Resolution of Case letter.
REMAINDER OF PAGE LEFT BLANK INTENTIONALLY
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TECHNICAL RECOMMENDATION: |
RESPONDENT: |
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Department of Environmental Management |
Alcoa Inc. |
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By: __________________________ |
By: _________________________ |
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Mary Hoover, Chief |
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Enforcement Section |
Printed: ______________________ |
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Surface Water, Operations, and |
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Enforcement Branch |
Title: _________________________ |
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Office of Water Quality |
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Date: ________________________ |
Date: ________________________ |
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COUNSEL FOR COMPLAINANT: |
COUNSEL FOR RESPONDENT: |
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For the Department of Environmental Management |
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By: __________________________ |
By: ______________________ |
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Sierra L. Alberts |
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Deputy Attorney General |
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Date: _______________________ |
Date: ______________________ |
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APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF
ENVIRONMENTAL MANAGEMENT THIS ________DAY OF ________________________, 2015. |
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For the Commissioner: |
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Signed on June 3, 2015 |
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Bruno Pigott |
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Assistant Commissioner |
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Office of Water Quality |