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.

DANA LIGHT AXLE PRODUCTS, LLC,

Respondent.

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Case No.
2008-17637-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 this agreement does not constitute an admission of any violation contained herein.

 

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 Dana Light Axle Products, LLC formerly Dana Torque & Traction Manufacturing Technologies (“Respondent”), which owns and operates a Class C industrial wastewater treatment facility (“WWTF”), located 2100 West State Street, Fort Wayne, Allen County, Indiana (the “Site”), and is authorized to discharge wastewater treated in accordance with the terms and conditions of National Pollutant Discharge Elimination System (“NPDES”) Permit No. IN0000388 from its WWTF into receiving waters named Neuhaus Ditch.

 

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 via Certified Mail to:

 

Robert Cole, Regional Environmental Manager

Dana Torque & Traction Manufacturing Technologies

2100 West State Street

Fort Wayne, Indiana 46808

 

5.                  During an investigation conducted by a representative of IDEM, the following violations were found:

 

a.                  Pursuant to 327 Indiana Administrative Code (“IAC”) 5-2-8 of the Permit, the permittee shall comply with all terms and conditions of its Permit.

 

Pursuant to Part I.E.1.f(2) of the NPDES Permit, if chronic toxicity is demonstrated in any toxicity test, a confirmation toxicity test must be conducted within two weeks of the completion of the failed test.  If any two (2) consecutive tests, including any and all confirmation tests, indicate the presence of toxicity, the permittee must begin the implementation of a Toxicity Reduction Evaluation (“TRE”).

 

Respondent failed the whole effluent toxicity (“WET”) test conducted during May 15 –22, 2007, and failed to conduct a confirmation test within two weeks of the completion of the failed test, in violation of 327 IAC 5-2-8 and Part I.E.1.f(2) of the NPDES Permit.

 

b.                  Pursuant to Part I.E.2.a. of the NPDES permit, within 90 days of determination of toxicity, the Permittee shall submit plans for an effluent toxicity reduction evaluation to the Data Management Section of IDEM.

 

Respondent demonstrated effluent toxicity after failing a second toxicity test conducted during September 23 – 28, 2007.  The company failed to submit an effluent TRE plan within the 90 days allowed by the NPDES permit, in violation of 327 IAC 5-2-8 and Part I.E.1.2.a of the NPDES permit.

 

6.                  Dana disputes that it failed the WET test conducted during May 15-22, 2007.  Dana maintains that under Part I.E. 1f(1) of the permit in May of 2007, there was no “chronic toxicity” unless and until both Ceriodaphnia dubia and Pimephales promelas are affected and the No Observed Effect Level (NOEL) was less than 100% for only Ceriodaphnia dubia.

 

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 rules and/or permit conditions listed in the findings above at issue.

 

3.                  Respondent submitted an Effluent Toxicity Reduction Evaluation Plan (“TRE”) to IDEM on June 9, 2009 (attached).   Beginning within 30 days of the Effective Date, Respondent shall, for the purposes of this Order initiate an effluent TRE consistent with the TRE Plan submitted.  Written reports shall be submitted twice annually with an interim report covering the warm weather period to be submitted by November 30 of each year,  and an annual report covering the previous year to be submitted by March 31 of each year.  Reporting for the full protocol format toxicity testing of outfall 001 effluent will continue throughout the TRE process (every 6 months). Respondent shall be subject to stipulated penalties, as specified below, for violations of the effluent limitations or requirements of the Permit as related to toxicity.  Within 60 days of a successful completion of the TRE, Respondent will prepare and submit to IDEM a Final TRE Study Report which shall include the steps and measures taken to eliminate the toxicity of the whole effluent if the TRE Plan indicates that such steps and measures are necessary.

 

4.                  After completion of the TRE, Respondent shall conduct Post-TRE Biomonitoring.  Post-TRE Biomonitoring requires Respondent to conduct monthly toxicity test with 2 or more species for a period of three months.  Should three consecutive monthly tests demonstrate no toxicity, the requirements of the TRE plan and the Post-TRE Biomonitoring shall be considered concluded and Respondent shall only continue the TRE testing required by the permit and the testing obligations under this Agreed Order shall be terminated.

 

5.                  All submittals required by this Agreed Order, to be submitted to the Compliance Evaluation Sections of the Office of Water Quality, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

 

Indiana Department of Environmental Management

Office of Water Quality

Compliance Evaluation Section – Mail Code 65-40

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

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

 

Sue Bock, Enforcement Case Manager

Office of Enforcement – Mail Code 60-02W

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

7.                  Respondent is assessed a civil penalty of Sixteen Thousand Dollars ($16,000).  Said penalty amount shall be due and payable to the Environmental Management Special Fund within 30 days of the Effective Date.  In the event that the civil penalty is not paid within 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:

 

Paragraph

Violation

Stipulated Penalty

3

Failure to initiate TRE within timeframe required.

$250 per week late, or part thereof.

3

Failure to submit semi-annual reports.

$250 per month late, or part thereof.

3

Failure to submit interim report by November 30.

$250 per month late, or part thereof.

3

Failure to submit annual report by March 31

$250per month late, or part thereof.

3

Failure to submit Full Protocol Format Toxicity Test Report

 

$250 per week late, or part thereof.

 

3

Failure to submit final TRE study

 

$250 per week late, or part thereof.

 

4

Failure to conduct post TRE monitoring

$1000 per month

 

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

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

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 permit 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 NOV.

 

17.             Nothing in this Agreed Order shall prevent IDEM 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 the terms and conditions of Order Paragraph Nos. 3 through 10.  Once Respondent has complied with the terms and conditions IDEM will issue a Resolution of Case letter.

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

Dana Light Axle Products, LLC

 

By:

 

 

By:

 

 

Mark W. Stanifer, Chief

 

Printed:

 

 

Water Enforcement Section

 

Title:

 

 

Office of Water Quality

 

 

 

Date:

 

 

Date:

 

 

COUNSEL FOR COMPLAINANT:

 

COUNSEL FOR RESPONDENT:

Department of Environmental Management

 

 

 

By:

 

 

By:

 

 

Deputy Attorney General

 

 

Date:

 

 

Date:

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

 

DAY OF

 

, 200

 

.

 

 

For The Commissioner:

 

 

Signed on October 8, 2009

 

Bruno Pigott

 

Assistant Commissioner

 

Office of Water Quality