STATE
OF INDIANA |
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BEFORE
THE INDIANA DEPARTMENT |
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COMMISSIONER
OF THE DEPARTMENT Complainant, v. Town of Burns Harbor and Cleveland-Cliffs Burns
Harbor LLC, Respondents. |
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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 |
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By: __________________________ |
By: ________________________ |
Amari
Farren, Chief |
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Water
Enforcement Section |
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Surface Water, Operations & |
Printed: _____________________ |
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 October 8, 2021 |
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Martha Clark Mettler |
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Assistant Commissioner |
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Office of Water Quality |