STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT

) SS: OF ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION )

 

COMMISSIONER OF THE DEPARTMENT )

OF ENVIRONMENTAL MANAGEMENT, )

)

Complainant, )

) CASE NO. 2001-10187-S

v. )

)

AK STEEL CORPORATION, )

)

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.

 

I. FINDINGS OF FACT

1. Complainant is the Commissioner (hereinafter referred to as "Complainant") of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.

2. Respondent is AK Steel Corporation (hereinafter referred to as "Respondent"), who is a company doing business at 6500 North U.S. 231 North, Rockport, Spencer County, Indiana (hereinafter referred to as the "Site").

3. The Indiana Department of Environmental Management ("IDEM") has jurisdiction over the parties and subject matter of this action.

4. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail on February 15, 2001, to:

Richard M. Wardrop, Jr., President CT Corporation System, Registered Agent

AK Steel Corporation 36 South Pennsylvania Street

703 Curtis Street Suite 700

Middletown, OH 45043 Indianapolis, IN 46204

5. During an investigation conducted by IDEM on December 18, 2000, the following violations were observed:

A. Pursuant to IC 13-30-2-1(1), a person may not discharge, emit, cause, allow, or threaten to discharge, emit, cause, or allow any contaminant or waste into the environment or any publicly owned treatment works in any form that causes or would cause pollution. During the above noted investigation it was discovered that AK Steel Corporation caused or allowed a discharge of a contaminant into a drainage ditch leading to Honey Creek.

    1. Pursuant to 327 IAC 2-6.1-7, any person who operates, controls, or maintains a facility from which a spill occurs shall, upon discovery of a reportable spill to the soil or surface waters of the state, do the following: contain the spill to prevent additional spilled material from entering the waters of the state; respond to the spill; and notify IDEM within two (2) hours of discovery of the spill. During the above noted investigation it was discovered that AK Steel Corporation caused or allowed a discharge of a contaminant into a drainage ditch leading to Honey Creek and did not properly contain or respond to the spill.

C. 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. During the above noted investigation it was discovered that AK Steel Corporation caused or allowed a discharge into a drainage ditch leading to Honey Creek without a valid NPDES permit.

D. Pursuant to 327 IAC 2-1-6(a)(1), 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 will settle to form putrescent or otherwise objectionable deposits, that are in amounts sufficient to be unsightly or deleterious, that produce color, visible oil sheen, odor, or other conditions in such degree as to create a nuisance, which are in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals, plants, or humans, and which are in concentrations or combinations that will cause or contribute to the growth of aquatic plants or algae to such a degree as to create a nuisance. AK Steel Corporation caused or allowed a contaminant to be discharged into a drainage ditch leading to Honey Creek.

6. 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 her delegate, and has been received by the Respondent. This Agreed Order shall have no force or effect until the Effective Date.

2. Respondent shall submit a Spill Response Plan to IDEM within thirty (30) days of the Effective Date of this Agreed Order.

3. Respondent shall remediate the soil impacted by the spill within one hundred and twenty (120) days of the Effective Date of this Agreed Order.

4. Respondent shall submit to IDEM documentation of the remediation within fifteen (15) days of completion of the remediation required in Order condition 3.

5. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:

Jennifer Andres, Enforcement Case Manager

Office of Enforcement

Indiana Department of Environmental Management

100 North Senate Avenue

P.O. Box 6015

Indianapolis, Indiana 46206-6015

  1. Respondent is assessed a civil penalty of Six Thousand, Five Hundred and Sixty Two Dollars and Fifty Cents ($6,562.50). Within thirty (30) days of the Effective Date of the Agreed Order, Respondent shall pay a portion of this penalty in the amount of one thousand, three hundred twelve dollars and fifty cents ($1,312.50). Said penalty amount shall be due and payable to the Environmental Management Special Fund. In lieu of payment of the remaining civil penalty, Respondent shall perform and complete a Supplemental Environmental Project ("SEP"). Respondent estimates that this SEP will cost Thirteen Thousand, One Hundred and Twenty Five Dollars and Zero Cents ($13,125.00). Within thirty (30) days of completing this SEP, Respondent shall submit written notice and documentation to IDEM, detailing all actions taken and an itemized listing of costs incurred with respect to the SEP.
  2. In the event that the Respondent does not complete the SEP pursuant to Order Condition 7 below, the full amount of the civil penalty as stated above, plus interest established by IC 24-4.6-101 on the remaining amount, less the portion of the civil penalty Respondent has already paid, will be due within fifteen (15) days from Respondent's receipt of IDEM's notice to pay. Interest, at the rate established by IC 24-4.6-101, shall be calculated on the amount due from the date which is thirty (30) days after the Effective Date of this Agreed Order until the full civil penalty is paid.

  3. As a SEP, Respondent shall purchase an emergency spill response trailer and equipment and donate it to the Spencer County LEPC/EMA, at a cost of not less than Five Thousand, Two Hundred and Fifty Dollars and Zero Cents ($5,250.00). Respondent will also purchase an emergency spill response trailer and equipment for on-site use at a cost of not less than Seven Thousand, Eight Hundred and Seventy Five Dollars and Zero Cents ($7,875.00). The trailers and equipment will be purchased within One Hundred and Twenty (120) days of the Effective Date of this Agreed Order. The donation of the trailer to the Spencer County LEPC/EMA shall be completed within One Hundred and Twenty (120) days of the Effective Date of this Agreed Order. A detailed expense record and documentation of all equipment purchased shall be submitted to IDEM within thirty (30) days of the completion of the SEP project.

8. In the event the following terms and conditions are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amounts:

Violation Penalty

Order Condition #2 $100 per week plan is not submitted

Order Condition #3 $1,000 per week remediation is not complete

Order Condition #4 $100 per week remediation documentation is late

9. Stipulated penalties shall be due and payable within thirty (30) days after Respondent receives written notice that the Complainant has determined a stipulated penalty is due. Assessment and payment of stipulated penalties shall not preclude the Complainant from seeking any additional relief against the Respondent for violation of the Agreed Order. In lieu of assessment of any of the stipulated penalty given above, the 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 Cause Number of this action and shall be mailed to:

Cashier

IDEM

100 North Senate Avenue

P.O. Box 7060

Indianapolis, Indiana 46207-7060

11. In the event that the civil penalty required by Order Condition 6 is not paid within thirty (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.

12. "Force Majeure," for the purposes of this Agreed Order, is defined as any event arising from causes beyond the control of the Respondent that delays or prevents the performance of any obligation under this Agreed Order despite the Respondentís best efforts to fulfill the obligation. The requirement that the 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 financial inability to complete the work required by this Agreed Order or increases in costs to perform the work.

The Respondent shall notify IDEM by calling within three (3) calendar days and by writing no later than seven (7) calendar days after any event which the Respondent contends is a force majeure. Such notification shall describe the anticipated length of the delay, the cause or causes of the delay, the measures taken or to be taken by the Respondent to minimize the delay, and the timetable by which these measures will be implemented. The Respondent shall include with any notice all available documentation supporting their 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. The 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. Said decision shall be communicated to that Respondent.

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 attributable to the event constituting the force majeure.

13. 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.

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 the Agreed Order did not contain the invalid terms.

15. 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.

16. This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of this Agreed Order. Compliance with all terms and conditions of this Agreed Order by Respondent constitutes resolution of the violations contained in the Notice of Violation issued in the case.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

TECHNICAL RECOMMENDATION: RESPONDENT:

Department of Environmental Management

By:___________________________ By:____________________________

Paul Higginbotham, Chief

Solid Waste -UST Section Printed:________________________

Office of Enforcement

Title:__________________________

Date:_________________________ Date:__________________________

 

COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:

Department of Environmental Management

By:___________________________ By:____________________________

Office of Legal Counsel

Department of Environmental Management

Date:__________________________ Date:___________________________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS __________ DAY OF __________________, 2001.

 

For the Commissioner:

 

Signed on 8/3/01

_________________________

Felicia A. Robinson

Assistant Commissioner

Office of Enforcement