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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. United States Steel Corporation Gary Works, 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.
United
States Steel Corporation Gary Works (Respondent) owns/operates a steel
manufacturing and finishing facility located at One North Broadway, Gary, Lake
County, Indiana (the Site).
3.
Respondent
is authorized by its National Pollutant Discharge Elimination System (NPDES)
Permit No. IN0000281 (the Permit), to discharge wastewater treated in
accordance with the terms and conditions of the NPDES Permit into the Grand
Calumet River and Lake Michigan, via multiple Outfalls.
4.
IDEM
has jurisdiction over the parties and the subject matter of this action
pursuant to IC 13-30-3.
5.
Pursuant
to IC 13-30-3-3, IDEM issued a Notice of Violation (NOV) via Certified
Mail/personal service to:
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Alexis Piscitelli |
Corporation
Service Company |
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Senior
Director of Environmental |
Registered
Agent |
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U.S. Steel –
Gary Works Facility |
United States
Steel Corporation |
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1 North
Broadway |
135 North Pennsylvania
Street, Suite 1610 |
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Gary, Indiana
46402 |
Indianapolis,
Indiana 46204 |
6.
During
an investigation conducted by a representative of IDEM, violations were found,
as described below.
7.
327
Indiana Administrative Code (IAC) 5-2-8(1) states the permittee shall comply
with all terms and conditions of the Permit. Any permit noncompliance
constitutes a violation of the Clean Water Act and Indiana Code (IC) 13 and is
grounds for enforcement action by IDEM.
8.
Pursuant
to Part I.A of the Permit, the permittee is required to comply with the
monitoring requirements contained in the Permit, including effluent
limitations.
Discharge
Monitoring Reports (DMRs) and Monthly Reports of Operation (MROs) submitted by
Respondent for the period of November 2018 through October 2020 revealed
violations of effluent limitations contained in Part I.A of the Permit as
follows:
A.
Outfall
018 – The annual average concentration limitation for Mercury was exceeded
during December 2019, February 2020, April 2020, June 2020, August 2020, and
October 2020.
B.
Outfall
019 – The annual average concentration limitation for Mercury was exceeded
during December 2019, February 2020, April 2020, June 2020, August 2020, and
October 2020.
C.
Outfall
035 – The maximum daily average Thermal Discharge limitation was exceeded
during November 2019.
D.
Outfall
607 – The maximum daily concentration limitation for Oil and Grease was
exceeded during January 2020, February 2020, and May 2020.
E.
Outfall
608 – The Cyanide quarterly sample for January 2020 through March 2020 failed
to be collected and analyzed.
Respondent
failed to comply with the effluent limitations from Outfall 018, Outfall 019,
Outfall 035, Outfall 607, and Outfall 608 contained in the Permit, in violation
of Part I.A of the Permit.
9.
Pursuant
to 327 IAC 5-2-2, any discharge of pollutants into waters of the state as a
point source discharge is prohibited unless in conformity with a valid NPDES
permit obtained prior to the discharge.
Respondent
reported the following events that do not conform with the Permit as documented
by IDEM in Inspection Summary Letters dated January 21, March 11, and April 14,
2021:
a. On
June 25, 2018, Respondent discharged wastewater from a pump station designated
as GW-10 to the Grand Calumet River and reported the discharge to IDEM on July
2, 2018.
b. On
November 27, 2019, flooding from an intake line occurred and flood waters were
discharged from Outfall 018 and Outfall 019. Respondent reported sheening and
turbid discharges at Outfall 019, and the discharges from Outfalls 018 and 019
contained pollutants, including Mercury, in amounts sufficient to be
deleterious.
c. On
February 5, 2020, approximately 80,000 gallons of water from the Quelle Basic
Oxygen Process (QBOP) shop air scrubber recycle system was released due to a
break in an above ground recycle system pipe, which resulted in a discharge of an
unknown volume of water via Outfall 021.
d. On
May 23, 2020, Respondent discharged wastewater from a pump station designated
as GW-10 to the Grand Calumet River and reported the discharge to IDEM on
January 19, 2021.
Each of the above is in violation of 327
IAC 5-2-2.
10.
Pursuant
to IC 13-18-4-5, a person may not: (1) throw, run, drain, or otherwise dispose;
or (2) cause, permit, or suffer to be thrown, run, drained, allowed to seep, or
otherwise disposed; into any of the streams or waters of Indiana any organic or
inorganic matter that causes or contributes to a polluted condition of any of
the streams or waters of Indiana.
Pursuant
to IC 13-30-2-1(1), it is unlawful for any person to discharge, emit, cause or allow any contaminant or waste, including any
noxious odor, either alone or in combination with contaminants from other
sources in the environment in any form that causes or would cause pollution
that violates or would violate rules, standards, or discharge or emission
requirements adopted by the appropriate board under the environmental
management laws.
Pursuant
to 327 IAC 2-1-6(a)(1) and Part I.B of the Permit, all surface 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 do any of
the following:
a. will settle to form putrescent or
otherwise objectionable deposits;
b. are in amounts
sufficient to be unsightly or deleterious;
c. produce
color, visible oil sheen, odor, or other conditions in such degree as to create
a nuisance;
d. are in concentrations or combinations that will cause or
contribute to the growth of aquatic plants or algae to such degree as to create
a nuisance, be unsightly, or otherwise impair the designated uses;
e. are in amounts sufficient to be acutely toxic to, or to
otherwise severely injure or kill aquatic life, other animals, plants, or
humans.
Respondent reported the following
events as documented by IDEM in Inspection Summary Letters dated January 21, February 3, August 14, 2020,
and April 14, 2021:
b.
On December 19, 2019, the blowers at the Environmental
Treatment Facility (ETF) failed and Respondent failed to promptly halt the
discharge from the ETF resulting in the discharge of wastewater via Outfall 015
that was insufficiently treated, particularly for benzene.
c.
On July 30, 2020, a loss of solids occurred, which
discharged through Outfall 030 and Outfall 028. According to Respondent, the
likely cause of the solids loss was a surge of wastewater from the Basic Oxygen
Process (BOP) shop.
d.
On March 17, 2021, IDEM personnel observed a visible sheen
at Outfall 032. Respondent personnel collected a grab sample of the discharge
of Outfall 032 at the time and deployed an absorbent boom. Respondent personnel
reported that the Outfall 032 discharge, itself, did not contain a sheen.
Each
of the above is in violation of IC 13-18-4-5, IC 13-30-2-1(1), 327 IAC
2-1-6(a)(1), and Part I.B of the Permit.
11.
Pursuant to Part II.B.1 of the Permit, the permittee shall
at all times maintain in good working order and efficiently operate all
facilities and systems for the collection and treatment which are installed or
used by the permittee and which are necessary for
achieving compliance with the terms and conditions of the Permit.
In Inspection Summary Letters dated
February 3, March 11, and August 14, 2020; IDEM staff documented Respondent’s
self-reported equipment failures and failures to efficiently operate the
facility to achieve compliance with the terms and conditions of the Permit; in
violation of Part II.B.1 of the Permit.
12.
Pursuant to 327 IAC 5-2-8(3) and Part II.A.2 of the Permit,
the permittee shall take all reasonable steps to minimize or correct any
adverse impact on the environment resulting from noncompliance with the Permit.
Respondent
failed to promptly halt the discharge after the failure of the blowers
triggered two different alarms on December 19, 2019, that were unacknowledged
by the on-site operator, in violation of 327 IAC 5-2-8(3) and Part II.A.2 of
the Permit.
13.
On January
21, February 3, March 11, August 14, 2020, and April 14, 2021, IDEM sent
Inspection Summary Letters to Respondent outlining violations at the facility.
The letters required a response detailing actions
taken to correct the violations. IDEM received responses to the letters
explaining compliance actions Respondent took or would take to address the
violations.
14.
A Settlement
Conference was held July 27, 2021, to discuss the NOV. Following the Settlement
Conference, Respondent submitted a response to the NOV on August 16, 2021,
including detailed actions that have already been taken by the Respondent to
address the violations cited in the NOV.
15.
On May
6, 2021, Respondent filed a Petition for Administrative Review with the Office
of Environmental Adjudication (OEA) appealing IDEM’s April 22, 2021, issuance
of the renewed Permit. In its Petition, Respondent claims that the GW-10
emergency overflow should be included in the Permit as a permitted discharge.
The appeal is still pending before OEA under Cause No. 21-W-J-5143.
16.
Orders
of the Commissioner are subject to administrative review by the Office of
Environmental Adjudication under IC 4-21.5; however, in recognition of the
settlement reached, Respondent acknowledges notice of this right and 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 adopted by
Complainant or Complainant’s delegate (as evidenced by signature), and the
adopted Agreed Order has been received by Respondent. This Agreed Order shall
have no force or effect until the Effective Date. In addition to addressing the
violations cited in Paragraphs 8 through 12 of the Findings of Fact above, this
Agreed Order also addresses any additional violations of these same rules that
may have occurred subsequent to the issuance of the
NOV and prior to the Effective Date.
2.
Respondent
shall comply with rules and statutes listed in the findings above at issue.
3.
Within 30 days of the
final resolution of Cause No. 21-W-J-5143, Respondent shall complete either A
or B below:
A. Develop and submit
to IDEM for approval a Compliance Plan (CP) which identifies actions that
Respondent will take to achieve and maintain compliance with its Permit,
specifically including the actions Respondent will take to evaluate and
implement eliminating bypasses at GW-10.
The CP shall include an implementation and completion schedule, including
specific milestone dates. Respondent shall
notify IDEM in writing of variations to the approved CP.
B. Notify the
Enforcement Case Manager in writing that the resolution of Cause No.
21-W-J-5143 obviates the need to eliminate bypasses at the GW-10 emergency
overflow. The notice shall provide documentation to support Respondent’s
position. IDEM shall notify Respondent in writing whether or
not a CP is required.
4.
After either completion of the work required
pursuant to the approved CP or receipt of IDEM’s notice that a CP is not
required, Respondent shall demonstrate 6 consecutive months of compliance
(Compliance Demonstration) with the terms and conditions of the Permit.
5.
In
the event that
violation(s) occur during the Compliance Demonstration, within 30 days of the
violation, Respondent shall develop and submit to IDEM, for approval, an
Additional Action Plan (AAP) which identifies the additional actions that
Respondent will take to achieve and maintain compliance with the terms and
conditions of the Permit. The AAP, if required, shall include an implementation
and completion schedule, including specific milestone dates.
6.
The plans required by Order Paragraphs 3 and 5
are subject to IDEM approval. In the event IDEM determines that any plan or any
modified 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 submissions of such plan by Respondent, IDEM may seek civil
enforcement of this Order.
7.
Respondent, upon receipt of written
notification from IDEM, shall immediately implement the approved plan(s) and
adhere to the milestone dates therein. The approved CP and AAP, if required,
shall be incorporated into the Agreed Order and shall
be deemed an enforceable part thereof.
Following
completion of the actions included in the AAP, the 6-month Compliance Demonstration,
as specified in Paragraph 4 above, will re-start. Failure to achieve compliance
at the conclusion of work under an AAP may subject Respondent to additional
enforcement action.
8. Beginning
with the first calendar quarter following IDEM’s approval of the CP or AAP, if
required, Respondent shall submit to IDEM a written progress report within 10
days of the end of each calendar quarter, which identifies the compliance
actions implemented during each quarter ending on March 31st, June
30th, September 30th, and December 31st until
completion of the CP or AAP.
9.
Beginning on the Effective Date and continuing
until the successful completion of the Compliance Demonstration, Respondent
shall maintain in good working order and efficiently operate all facilities and
systems (and related appurtenances) for collection and treatment which are
installed or used by Respondent and which are
necessary for achieving compliance with the terms and conditions of the Permit
in accordance with 327 IAC 5-2-8(8).
10.
All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
|
Amari
Farren, Enforcement Case Manager |
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Office
of Water Quality – IGCN 1255 |
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Indiana
Department of Environmental Management |
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100
North Senate Avenue |
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Indianapolis,
IN 46204-2251 |
11.
Respondent
is assessed and agrees to pay a civil penalty of One Hundred Eighty-Nine Thousand
Four Hundred Dollars ($189,400). 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.”
12.
In
the event the terms and conditions of the following paragraphs are violated,
IDEM may assess and Respondent shall pay the
corresponding stipulated penalty:
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Paragraph |
Violation |
Stipulated Penalty |
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3 |
Failure
to comply with this paragraph. |
$250
per week late, or part thereof. |
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4 |
For
violations of terms and conditions of the Permit during the Compliance
Demonstration. |
$400
per violation |
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5 |
Failure
to submit the AAP, if required, within the given time
period. |
$500
per week late, or part thereof. |
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6 |
Failure
to modify the CP and/or AAP, if required, within the given time
period. |
$500
per week late, or part thereof. |
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7 |
Failure
to meet and/or implement any milestone date set forth in the approved CP or
AAP. |
$500
per week late, or part thereof. |
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8 |
Failure to submit to IDEM a written progress
report, if required, within 10 days of each calendar quarter. |
$150
per week late, or part thereof. |
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9 |
Failure
to operate wastewater treatment facilities as effectively as possible through
the Compliance Demonstration. |
$200
per violation. |
13.
Stipulated
penalties shall be due and payable no
later than the 30th day after Respondent receives written
notice that IDEM has determined a stipulated penalty is due, the 30th day being a “Due Date.”
IDEM may notify Respondent at any time that a stipulated penalty is due.
Failure to notify Respondent in writing in a timely manner of a stipulated
penalty assessment shall not waive IDEM’s right to collect such stipulated
penalty or preclude IDEM from seeking additional relief against Respondent for violation
of this Agreed Order. Neither assessment nor payment of stipulated penalties shall preclude IDEM from seeking additional relief
against Respondent for a violation
of this Agreed Order. Such additional
relief includes any remedies or sanctions available pursuant to Indiana law, including,
but not limited to, civil penalties pursuant to IC 13-30-4.
14.
Civil
and stipulated penalties are payable by check to the “Environmental Management
Special Fund.” Checks shall include the Case Number 2020-27381-W of this action
and shall be mailed to:
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Indiana
Department of Environmental Management |
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Accounts
Receivable |
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IGCN, Room
1340 |
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100 North
Senate Avenue |
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Indianapolis,
Indiana 46204 |
15.
This
Agreed Order shall apply to and be binding upon Respondent, 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.
16.
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 and any
accrued interest 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. The interest shall continue to accrue on the first of
each month until the civil penalty and any interest accrued are paid in full.
Such interest shall be payable to the “Environmental Management Special Fund,”
and shall be payable to IDEM in the manner specified above.
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 his 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 Notice
of Violation.
22.
Nothing
in this Agreed Order shall prevent IDEM (or anyone acting on its behalf) from
communicating with the United States Environmental Protection Agency (US 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 US EPA or any other agency or entity.
23.
This
Agreed Order shall remain in effect until Respondent has complied with the
terms and conditions of this Agreed Order and IDEM issues a Resolution of Case
(close out) letter to Respondent.
REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK.
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TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
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Department
of Environmental Management |
United States Steel Corporation Gary
Works |
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By:
__________________________ |
By:
________________________ |
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Amari
Farren, Chief |
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Water
Enforcement Section |
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Surface Water, Operations & |
Printed:
_____________________ |
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Enforcement Branch |
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Office of Water Quality |
Title:
_______________________ |
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Date:
________________________ |
Date:
_______________________ |
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COUNSEL FOR RESPONDENT: |
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By:
________________________ |
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Date:
______________________ |
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APPROVED
AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT
THIS ___________ DAY OF ________________, 20___. |
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For
the Commissioner: |
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Signed on November 16, 2021 |
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Martha
Clark Mettler |
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Assistant
Commissioner |
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Office
of Water Quality |