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BEFORE THE INDIANA DEPARTMENT OF |
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ENVIRONMENTAL MANAGEMENT |
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COMMISSIONER OF THE DEPARTMENT |
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OF ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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Case No. 2009-18780-H |
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tdy industries, inc.
d.b.a. casting service, |
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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 TDY Industries, Inc. d.b.a. Casting Service (“Respondent”), which owns
and/or operates the facility with United States Environmental Protection Agency
(“EPA”) ID No. IND005106703, located at County Road 150 East, in
3.
IDEM
has jurisdiction over the parties and the subject matter of this action.
4.
Pursuant
to IC 13-30-3-3, on December 11, 2009, IDEM issued a Notice of Violation (NOV)
via Certified Mail to:
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L. Patrick Hassey, President |
CT Corporation System |
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TDY Industries, Inc. d.b.a.
Casting Service |
Registered Agent |
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C/O Allegheny Technologies |
TDY Industries, Inc. |
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1000 |
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5.
Respondent
owns and operates an iron casting facility.
6.
On October 27, 2006, Respondent was
issued a Solid Waste Facility Permit 46-08, for a Restricted Waste Site Type I landfill
(“RWS”), located along County Road 150
East, approximately 1.25 miles north of State Road 2, in LaPorte,
7.
During
an investigation including inspections performed on March 28, 2008, June 19,
2008, September 30, 2008, October 28, 2008, March 30, 2009, and June 29, 2009 conducted
by a representative of IDEM, the following violations were found:
a. Pursuant
to Permit Condition A4 of the Solid Waste Facility Permit 46-08 issued to
Respondent on October 27, 2006, the Permittee shall at all times properly
manage, operate, and maintain all facilities and systems of treatment and
control which are installed or used by the Permittee to comply with the
specifications included in the original application and permit requirements. Respondent did not properly manage, operate
and maintain the restricted waste site in accordance with the permit
requirements. This violation did not
occur on March 30, 2009 and June 29, 2009.
b. Pursuant
to Permit Condition E12 of the Solid Waste Facility Permit 46-08 issued to
Respondent on October 27, 2006, the Permittee shall minimize the working face
of the landfill. Respondent did not
minimize the working face of the landfill.
Specifically, slope failures and erosion rills were observed in the
overfill area due to the steep slopes and instability of the foundry waste. This violation did not occur on March 30,
2009 and June 29, 2009.
c. Pursuant
to 329 Indiana Administrative Code (“IAC”) 10-28-11(b), cover must be applied
and maintained at restricted waste sites Type I and Type II and nonmunicipal
solid waste landfills in accordance with the applicable requirements of this
rule and 329 IAC 10-30-2 and 329 IAC 10-30-3.
Respondent failed to apply and/or maintain the cover as required.
d. Pursuant
to Permit Condition E13 of the Solid Waste Facility Permit 46-08 issued to
Respondent on October 27, 2006, the Permittee shall cover the facility
according to the following:
a. Apply
cover such as a plastic tarp, six inches (6”) of soil, Formula 480 Liquid Clay,
and/or alternate cover material acceptable to IDEM if the waste disposal
activities will not occur at the landfill the following day.
b. Minimize
precipitation infiltration into the waste by utilizing temporary impermeable
covers. Only the active fill area
(approximately half an acre in size) will remain uncovered at any time, except
during construction and/or transition periods, when a larger area may remain
uncovered. The Permittee shall ensure
that waste does not accumulate on top of the cover. The integrity of the cover shall be
maintained.
Respondent did not apply adequate
cover on Phase 1 or minimize precipitation infiltration into the foundry waste
by utilizing temporary covers. In
addition, Respondent allowed foundry waste and leachate to accumulate on top of
the temporary cover once it was applied to Phase 1 and the integrity of the
cover was not maintained.
e. Pursuant
to 329 IAC 10-28-14(a), cover material applied as required in sections 11
through 13 of this rule and 329 IAC 10-30-2 and 329 IAC 10-30-3 must be
continuously maintained, including application and compaction of additional
cover as needed to maintain required depth.
Respondent did not maintain the covered portions of the landfill and did
not properly grade the filled areas to promote surface water drainage and to
prevent the ponding of water in previously filled areas.
f. Pursuant
to 329 IAC 10-28-14(c), restricted waste sites Type I and Type II and
nonmunicipal solid waste landfills must be graded to promote surface water
drainage and to prevent the ponding of water on previously filled areas. Respondent did not maintain the covered
portions of the landfill and did not properly grade the filled areas to promote
surface water drainage and to prevent the ponding of water in previously filled
areas.
g. Pursuant
to 329 IAC 10-28-15(a), any leachate on the surface of restricted waste sites
Type I and Type II and nonmunicipal solid waste landfills must be immediately
managed or controlled to prevent off-site migration. Respondent did not properly control or manage
the leachate to prevent off-site migration.
h. Pursuant
to 329 IAC 10-28-15(b), any surface movement of leachate past a point fifty
(50) feet outside of the solid waste boundary is prohibited except as specified
in the facility permit. Respondent did
not properly control or manage the leachate to prevent off-site migration.
i. Pursuant
to 329 IAC 10-28-16, any discharge or disposal of collected leachate must be in
accordance with applicable local, state, and federal laws and rules. Respondent recirculated leachate from Phase 1
onto the east side of the landfill (haul road) allowing leachate to migrate
outside the solid waste boundary into the sedimentation pond.
Respondent
ceased recirculation of the leachate on or before June 19, 2008.
j. Pursuant
to Indiana Code (“IC”) 13-30-2-1(1), no person shall 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 violation of 329 IAC
10-4-2. Respondent allowed leachate and
foundry waste from Phase 1, construction runoff from Phase 2 and runoff from
the overfill area to migrate into the diversion ditch and sedimentation pond.
k. Pursuant
to 329 IAC 10-4-2, no person shall cause or allow the storage, containment,
processing, or disposal of solid waste in a manner which creates a threat to
human health or the environment, including the creating of a fire hazard,
vector attraction, air or water pollution, or other contamination. Respondent caused and/or allowed foundry
waste and leachate to be stored and/or disposed at the Site in a manner which
creates a threat to human health or the environment.
l. Pursuant
to Permit Condition E15 of the Solid Waste Facility Permit 46-08 issued to
Respondent on October 27, 2006, the Permittee shall not cause the discharge of
a nonpoint source of pollution into the waters of the United States, including
wetlands, that violates any requirements of an areawide or statewide water
quality management plan that has been approved under Section 208 or 319 of the
Clean Water Act, as amended. The
Permittee shall comply with applicable requirements of 327 IAC 15 regarding storm
water discharge. Respondent allowed
leachate and foundry waste from Phase 1, construction runoff from Phase 2 and
runoff from the overfill area to migrate into the diversion ditch and sedimentation
pond.
m. Pursuant
to 329 IAC 10-27-2(1), before beginning operation, owners or operators of
restricted waste sites Type I and Type II and nonmunicipal solid waste
landfills shall be required to establish a series of identifiable boundary
markers that will delineate the approved facility boundaries and solid waste
boundaries for the life of the facility.
Respondent did not establish a
series of identifiable boundary markers to delineate the approved facility
boundaries and solid waste boundaries for the life of the facility.
n. Pursuant
to Permit Condition D4 of the Solid Waste Facility Permit 46-08 issued to
Respondent on October 27, 2006, boundary markers shall be placed to identify
the limits of construction of each new unit.
Respondent did not provide boundary markers identifying the limits of
construction for Phase 1 and Phase 2.
Respondent
provided required boundary markers on or before June 19, 2008.
o. Pursuant
to Permit Condition E6 of the Solid Waste Facility Permit 46-08 issued to
Respondent on October 27, 2006, permanent visible boundary markers which
delineate the approved facility and waste boundaries shall be maintained for
the life of the facility. Respondent did
not establish permanent visible boundary markers to delineate the approved
facility boundaries and solid waste boundaries.
Respondent
provided boundary markers on or before June 19, 2008.
p. Pursuant
to Permit Condition E7 of the Solid Waste Facility Permit 46-08 issued to
Respondent on October 27, 2006, waste disposal shall be limited to the areas
delineated by the waste boundary line as shown on Drawing Sheet 4-4, Liner
Grades and Operational Plan East Extensions, revised February 23, 2006. Respondent deposited waste outside the fill
area and allowed leachate and foundry waste to migrate beyond the delineated
fill area.
q. Pursuant
to 329 IAC 10-28-10(a), restricted waste sites Type I and Type II and
nonmunicipal solid waste landfills must not deposit solid waste in standing or
ponding water except for the water resulting from precipitation directly upon
the working face.
Respondent did not divert surface
water from the active fill area and did not minimize surface water contact with
the foundry waste.
r. Pursuant
to Permit Condition E4 of the Solid Waste Facility Permit 46-08 issued to
Respondent on October 27, 2006, the Permittee shall implement any necessary
surface water runoff control measures around the excavated area to prevent the
creation of a nuisance or pollution condition at the site. Respondent did not divert surface water from
the active fill area and did not minimize surface water contact with the
foundry waste.
s. Pursuant
to Permit Condition E8 of the Solid Waste Facility Permit 46-08 issued to
Respondent on October 27, 2006, surface water must be diverted from the active
fill area to minimize surface water contact with the foundry waste and
interference with daily operation. Respondent
did not divert surface water from the active fill area and did not minimize
surface water contact with the foundry waste.
t. Pursuant
to Permit Condition E9 of the Solid Waste Facility Permit 46-08 issued to
Respondent on October 27, 2006, the Permittee shall manage surface water as
described in the original application.
The drainage ditches and sedimentation basins shall be properly
maintained to prevent sediment from deposition offsite. Temporary runoff control structures shall be
constructed in areas which are unable to drain to the sedimentation basins. Respondent did not follow the construction plan
described in attachment 4D of the permit application dated September 19, 2005,
to include, but not limited to, diversion of water, dewatering and erosion
control.
u. Pursuant
to Permit Condition A3 of the Solid Waste Facility Permit 46-08 issued to
Respondent on October 27, 2006, if any nuisance or ground surface pollution
conditions are created at this facility, corrective action shall be initiated
by the Permittee immediately. Respondent
improperly managed leachate and did not adequately control erosion at the Site.
v. Pursuant
to Permit Condition E10 of the Solid Waste Facility Permit 46-08 issued to
Respondent on October 27, 2006, a general inspection of the site, including,
but not limited to: inspection of the intermediate and final cover,
differential settlement, runoff structures, erosion control structures,
drainage ditches, monitoring well and manholes, and dust control must be made
and be performed at least once a month at the facility.
The inspection records must be
available for review by IDEM staff at the facility office. Respondent conducted inspections at the Site
which were inadequate and did not reflect the conditions at the Site. In addition, areas of non-compliance and
corrective actions were not documented in the inspection records.
Respondent revised inspection
protocols on or before June 29, 2009.
w. Pursuant
to Permit Condition F3 of the Solid Waste Facility Permit 46-08 issued to
Respondent on October 27, 2006, access ways to each monitoring well must be
maintained and passable throughout each season of the year. Respondent did not maintain access ways to
each monitoring well for department vehicles.
In addition some monitoring wells were blocked by vegetation and were inaccessible.
Respondent addressed this situation
on or before September 30, 2008.
8. Respondent
completed the following on or before March 31, 2010: proper cover is being used
on the old and new area, well access is maintained, and waste classifications
are properly managed.
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 statutes, rules and Permit Conditions applicable to the
facility.
3.
Within
thirty (30) days of the Effective Date, Respondent shall immediately cease all
off-site discharges of leachate, sediments, and/or wastes from the RWS that are
in violation of state and federal environmental laws and regulations.
4. Within
thirty (30) days of the Effective Date of this Agreed Order, Respondent shall
immediately cease any unpermitted discharge of pollutants into waters of the
United States, including wetlands, that violates the Clean Water Act,
including, but not limited to, the requirements if the National Pollutant
Discharge Elimination System (“NPDES”).
5. Within
sixty (60) days of the Effective Date of this Agreed Order, Respondent shall
divert surface water from the active fill area to minimize surface water
contact with waste and interference with daily operations.
6. Upon
the Effective Date of this Agreed Order, Respondent shall properly manage the
RWS cover in accordance with Permit Condition E13 of the Solid Waste Facility
Permit 46-08 issued to Respondent on October 27, 2006.
7. Upon
the Effective Date of this Agreed Order, Respondent shall ensure compliance
with 329 IAC 10-9-4.
8. Upon
the Effective Date of this Agreed Order, Respondent shall ensure that it maintains
the permanent visible boundary markers which delineate the approved facility
and waste boundaries for the life of the facility.
9. Upon
the Effective Date of this Agreed order, Respondent shall maintain a record
keeping log that indicates the amount of leachate pumped from the RWS. This log shall be maintained for one (1) year
from the Effective Date.
10. Within
thirty (30) days of the Effective Date of this Agreed Order, Respondent shall
remove foundry wastes located in areas not approved for fill, namely from the
ditch on the north, west and east side of the RWS, temporary sediment basin
east of the old haul road and the delta in the northern part of the sediment
pond.
11. Within
forty-five (45) days of the Effective Date, Respondent shall submit
documentation of the foundry waste removal as required in paragraph 10 of this
Order section.
12. Within
ninety (90) days of the Effective Date of this Agreed Order, Respondent shall
submit documentation to IDEM on a quarterly basis demonstrating that leachate
and surface water are adequately being managed to prevent off-site migration of
leachate, sediments, and wastes. The
reports shall include the record keeping log described in Paragraph 9 of this
Order section, RWS inspection reports conducted quarterly and monthly to determine
compliance with the SWP3 and the solid waste permit, respectively, and records
of any maintenance performed on the control measures. The reports shall be due by the 30th
day of the month following the calendar quarter. This reporting requirement shall terminate
upon the issuance of a Resolution of Case letter from IDEM.
13.
All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
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Linda L. McClure, Enforcement Case Manager |
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Office of Land Quality – Mail Code 60-02L |
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Indiana Department of Environmental
Management |
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14.
Respondent
is assessed a civil penalty Twenty Seven Thousand Dollars ($27,000). 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.
15.
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:
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Failure
to comply with Order paragraph no. 9 |
$500
per full week |
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Failure
to comply with Order paragraph no. 10 |
$500
per full week |
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Failure
to comply with Order paragraph no. 12 |
$500
per full week |
16.
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.
17.
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:
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Indiana Department of
Environmental Management |
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Cashier – Mail Code 50-10C |
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18.
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.
19.
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.
20.
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.
21.
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.
22.
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.
23.
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.
24.
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.
25.
This
Agreed Order shall remain in effect until IDEM issues a Resolution of Case
letter to Respondent.
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TECHNICAL RECOMMENDATION: |
RESPONDENT: |
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Department of Environmental Management |
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By: _________________________ |
By:
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Nancy Johnston, Section
Chief |
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Enforcement Section |
Printed: ______________________ |
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Office of Land Quality |
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Title: ________________________ |
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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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Deputy Attorney General |
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Date: _______________________ |
Date: ______________________ |
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APPROVED
AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT THIS |
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DAY OF |
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For the
Commissioner: |
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Signed
1/5/2011 |
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Bruce H Palin |
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Assistant
Commissioner |
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Office of
Land Quality |
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