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.

Town of Burns Harbor and Cleveland-Cliffs Burns Harbor LLC,

Respondents.

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Case No. 2020-27402-W

 

AGREED ORDER

 

Complainant and Respondents 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. Respondents' entry into this Agreed Order shall not constitute a waiver of any defense, legal or equitable, which Respondents 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.               The Town of Burns Harbor and Cleveland-Cliffs Burns Harbor LLC (Respondents)own/operate the Town of Burns Harbor and Cleveland-Cliffs Burns Harbor LLC Sanitary Treatment Plant, located at U.S. Highway 12 and State Road 149 Intersection, Burns Harbor, Porter County, Indiana (the Site).

 

3.               Respondents are authorized by National Pollutant Discharge Elimination System (NPDES) Permit No. INJ060801 (the Permit), to discharge wastewater treated in accordance with the terms and conditions of the NPDES Permit from the Wastewater Treatment Plant (WWTP) into the wastestream regulated under NPDES Permit Number IN0000175 owned and/or operated by Cleveland-Cliffs Burns Harbor LLC from Outfall 031.

 

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:

 

James P. McGee

Business Commercial Registered Agent

Town Council President

Registered Agent

Town of Burns Harbor

ArcelorMittal Burns Harbor LLC

1240 North Boo Road

334 North Senate Avenue

Burns Harbor, Indiana 46304

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.1 of the Permit, the co-permittees are 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 Respondents for the period of May 2017 through May 2020 revealed violations of effluent limitations contained in Part I.A.1 of the Permit as follows:

 

A.         The daily maximum concentration limitation for total suspended solids (TSS) was exceeded during June 2018; May and June 2019; and March and May 2020.

B.         The monthly average concentration limit for TSS was exceeded during June 2019.

C.         The daily maximum concentration limitation for TBOD was exceeded during May and June 2019.

 

Respondents failed to comply with the effluent limitations from Outfall 031 contained in the Permit, in violation of Part I.A.1 of the Permit.

 

9.               Pursuant to Part I.B.3 of the Permit, co-permittees shall submit accurate monitoring reports to IDEM containing results obtained during the previous monitoring period and shall be postmarked no later than the 28th day of the month following each completed monitoring period. The first report shall be submitted by the 28th day of the month following the monitoring period in which the permit becomes effective. These reports shall include, but not necessarily be limited to, the DMR and the MRO.

 

Respondents failed to complete the Man-Hours at Plant, Temperature, Precipitation, Bypass at Plant Site, and Collection System Overflow columns of the Monthly Monitoring Report (MMR) for January 2015 through December 2019; in violation of Part I.B.3 of the Permit.

 

10.           Pursuant to 327 IAC 5-2-8(12)(D) and Part II.B.2.b of the Permit, bypassing is prohibited, and the Commissioner may take enforcement action against a permittee for bypass unless certain conditions are met.

 

Respondents failed to prevent unpermitted bypassing during three overflow events in 2017, seven overflow events in 2018, two overflow events in 2019, and one overflow event in 2020; each in violation of 327 IAC 5-2-8(12)(D) and Part II.B.2.b of the Permit. Most of the overflows were caused by excessive hydraulic loading resulting from excessive inflow/infiltration in the collection system.

 

11.           Pursuant to 327 IAC 5-2-8(3) and Part II.A.3 of the Permit, co-permittees shall take all reasonable steps to minimize or correct any adverse impact to the environment resulting from noncompliance with the Permit, during periods of noncompliance, the co-permittees shall conduct such accelerated or additional monitoring for the affected parameters, as appropriate or as requested by IDEM, to determine the nature and impact of the noncompliance.

 

Respondents failed to conduct accelerated or additional monitoring for affected parameters during the bypass/overflow events in 2017, 2018, 2019, and 2020; in violation of 327 IAC 5-2-8(3) and Part II.A.3 of the Permit.

 

12.           Pursuant to Part II.B.5 of the Permit, in order to maintain compliance with the effluent limitations and prohibitions of the Permit, co-permittees shall either provide an alternative power source sufficient to operate facilities utilized by the co-permittees to maintain compliance with the effluent limitations and conditions of the Permit, or shall halt, reduce or otherwise control all discharge in order to maintain compliance with the effluent limitations and conditions of the Permit upon the reduction, loss, or failure of one or more of the primary sources of power to facilities utilized by the co-permittees to maintain compliance with the effluent limitations and conditions of the Permit.

 

Respondents have failed to provide an alternate power source to maintain compliance with the effluent limitations and conditions of the Permit, in violation of Part II.B.5 of the Permit.

 

13.           Pursuant to Part II.B.1 of the Permit, co-permittees shall at all times maintain in good working order and efficiently operate all facilities and systems for collection and treatment that are installed or used by the co-permittees and necessary for achieving compliance with the terms and conditions of the Permit. The co-permittees shall operate the permitted facility in a manner which will minimize upsets and discharges of excessive pollutants.

 

Respondents have an inadequate preventative maintenance program and have failed to efficiently operate all facilities and systems for collection and treatment as evidenced by historic inflow and infiltration problems causing overflows and exceedances, in violation of Part II.B.1 of the Permit.

 

14.           On March 5, 2020, IDEM sent an Inspection Summary Letter to Respondent outlining violations at the WWTP. The letter stated that the violations noted were being referred to the Enforcement Section.

 

15.           On February 19, 2021, IDEM sent a Correction to NPDES Permit No. INJ060801 to document a name change from ArcelorMittal Burns Harbor LLC to Cleveland-Cliff Burns Harbor LLC.

 

16.           A Settlement Conference was held on March 30, 2021. Following the Settlement Conference, Respondent submitted documentation of actions taken to address the violations cited in Paragraphs 8 through 13 of the Findings of Facts; however, additional actions are necessary.

 

17.           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, Respondents acknowledge 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 Respondents. This Agreed Order shall have no force or effect until the Effective Date. In addition to addressing the violations cited in Paragraphs 8 through 13 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.               Respondents shall comply with rules and statutes listed in the findings above at issue.

 

3.               Within 30 days of the Effective Date, Respondents shall develop and submit to IDEM for approval a Compliance Plan (CP) which identifies actions that Respondents will take to achieve and maintain compliance with the Permit, specifically including the actions Respondents will take to:

A.         Provide an alternate power source to maintain compliance with the effluent limitations;

B.         Develop and implement a preventative maintenance program for WWTP equipment, and document all maintenance (preventative and repair) in a permanent record;

C.         Develop and implement a preventative maintenance program for the sanitary sewer collection system, which includes methods and milestone dates for locating and eliminating sources of inflow and infiltration (I/I) in the sewer system;

D.         Comply with reporting requirements of the permit; and

E.         Provide adequate influent flow measurement.

 

The CP shall include an implementation and completion schedule, including specific milestone dates.

 

Respondents shall notify IDEM in writing of variations to the approved CP.

 

4.               Respondents shall, after completion of the work required pursuant to the approved CP from Paragraph 3 above, demonstrate 12 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, Respondents shall develop and submit to IDEM, for approval, an Additional Action Plan (AAP) which identifies the additional actions that Respondents 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 Respondents is deficient or otherwise unacceptable, Respondents shall revise and resubmit the plan to IDEM in accordance with IDEM’s notice. After three submissions of such plan by Respondents, IDEM may seek civil enforcement of this Order.

 

7.               Respondents, 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 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 12 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 Respondents to additional enforcement action.

 

8.               Beginning with the first calendar quarter following the Effective Date, Respondents 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 approved CP, Respondents shall, at all times, operate their existing WWTP as efficiently and effectively as possible.

 

10.           All submittals required by this Agreed Order, unless Respondents are notified otherwise in writing by IDEM, shall be sent to:

 

David Koehler, Enforcement Case Manager

Email:  dkoehler@idem.in.gov

Office of Water Quality – IGCN 1255

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

11.           Respondents are assessed and agree to pay 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, 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 Respondents shall pay the corresponding stipulated penalty:

 

Paragraph

Violation

Stipulated Penalty

3

Failure to submit the CP within the required time period.

$250 per week late, or part thereof.

4

For violations of terms and conditions of the Permit during the Compliance Demonstration.

$400 per violation

5

Failure to submit the AAP, if required, within the given time period.

$500 per week late, or part thereof.

6

Failure to modify the CP and/or AAP, if required, within the given time period.

$500 per week late, or part thereof.

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.

8

Failure to submit to IDEM a written progress report within 10 days of each calendar quarter.

$150 per week late, or part thereof.

9

Failure to operate the WWTP as efficiently and effectively as possible prior to Compliance Demonstration.

$200 per violation.

 

13.           Stipulated penalties shall be due and payable no later than the 30th day after Respondents receive written notice that IDEM has determined a stipulated penalty is due, the 30th day being a “Due Date.” IDEM may notify Respondents at any time that a stipulated penalty is due. Failure to notify Respondents 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 Respondents for violation of this Agreed Order. Neither assessment nor payment of stipulated penalties shall preclude IDEM from seeking additional relief against Respondents 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 2020-27402-W of this action and shall be mailed to:

 

Indiana Department of Environmental Management

Accounts Receivable

IGCN, Room 1340

100 North Senate Avenue

Indianapolis, Indiana 46204

 

15.           This Agreed Order shall apply to and be binding upon Respondents, /their successors and assigns. Respondents’ 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 Respondents shall in any way alter their 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, Respondents 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 Respondents pay 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.           Respondents shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred. Respondents 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 Respondents pursuant to this Agreed Order, shall not in any way relieve Respondents of their obligation to comply with the requirements of their 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 Respondents’ 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 Respondents may incur as a result of Respondents’ 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 Respondents 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 Respondents have complied with the terms and conditions of this Agreed Order and IDEM issues a Resolution of Case (close out) letter to Respondents.

 

REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.

 

TECHNICAL RECOMMENDATION:

RESPONDENT:

Department of Environmental Management

Town of Burns Harbor and

Cleveland-Cliffs Burns Harbor LLC

 

By: __________________________

By: ________________________

Amari Farren, Chief

 

Water Enforcement Section

 

Surface Water, Operations &

Printed: _____________________

Enforcement Branch

 

Office of Water Quality

Title: _______________________

 

 

Date: ________________________

Date: _______________________

 

 

COUNSEL FOR RESPONDENT:

 

 

 

By: ________________________

 

 

 

Date: ______________________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS ___________ DAY OF ________________, 20___.

 

 

For the Commissioner:

 

 

Signed on October 8, 2021

 

Martha Clark Mettler

 

Assistant Commissioner

 

Office of Water Quality