STATE
OF INDIANA |
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BEFORE
THE INDIANA DEPARTMENT |
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COMMISSIONER
OF THE DEPARTMENT Complainant, v. CLEVELAND-CLIFFS
STEEL LLC– INDIANA HARBOR WEST, 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.
Respondent is Cleveland-Cliffs Steel
LLC– Indiana Harbor West (Respondent), which owns/operates the steel production
facility, located at 3001 Dickey Road, East Chicago, Lake County, Indiana (the
Site).
3.
Respondent is authorized by its National
Pollutant Discharge Elimination System (NPDES) Permit No. IN0000205 (the
Permit), to discharge wastewater treated in accordance with the terms and
conditions of the NPDES Permit from its steel mill into Indiana Harbor Ship Canal
and Lake Michigan, from 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:
Tom Barnett, Manager of |
Business Commercial Registered Agent |
Environmental |
Registered Agent |
Cleveland-Cliffs Steel LLC |
Cleveland- Cliffs Steel LLC |
Indiana Harbor West |
Indiana Harbor West |
3210 Watling Street |
334 North Senate Avenue |
East Chicago, Indiana 46312 |
Indianapolis, Indiana 46204 |
6.
During investigations on October 21-23,
2019 and December 21, 2020 conducted by a
representative of IDEM, violations were found, as described below. Certain of
the violations were covered under enforcement discretion letters previously
issued by IDEM in 2015 and 2019.
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.2 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 January 2019 through February 2019 revealed
violations of effluent limitations contained in Part I.A.2 of the Permit as follows:
A.
Outfall 009 - The monthly average loading
limitation for ammonia (as nitrogen) was exceeded during January and February
2019.
Respondent failed
to comply with the effluent limitations from Outfall 009 contained in the
Permit, in violation of Part
I.A.2 of the Permit. The January and February 2019
ammonia effluent exceedances were covered by the February 15, 2019, enforcement
discretion letter. The parties agree that letter is no longer applicable.
9.
Pursuant to 327 IAC 5-2-8(3) and Part
II.A.2 of the Permit, Respondent shall take all reasonable steps to minimize or
correct any adverse impact to the environment resulting from noncompliance with
this permit. During periods of noncompliance, the permittee 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.
A review of records
between September 1, 2018 and August 23, 2019 indicate
that Respondent did not conduct accelerated sampling and analysis at Outfall
011 for the pollutants required at Outfall 509 following the bypasses of the
zinc treatment facility and Outfall 509 to the terminal treatment lagoons, in
violation of 327 IAC 5-2-8(3) and Part II.A.2 of the Permit.
10.
Pursuant to 327 IAC 5-2-8(8) and Part
II.B.1 of the Permit, Respondent 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 permittee and necessary for achieving
compliance with the terms and conditions of the Permit. The permittee shall
operate the permitted facility in a manner which will minimize upsets and discharges
of excessive pollutants.
A review of
records indicate Respondent reported to IDEM fourteen (14) bypasses over the
period of October 2018 to October 2019, four (4) bypasses over the period of February
to October 2020, and two (2) bypasses during May 2021. Twelve (12) of the bypasses
were due to mechanical problems and eight (8) of the bypasses were due to power
problems, in violation of 327 IAC 5-2-8(8) and Part II.B.1 of the Permit. The
remaining bypasses were covered under the 2015 letter. The parties agree that letter is no longer
applicable.
11.
Pursuant to 327 IAC 2-1.5-8(b)(1),
all surface waters within the Great Lakes system at all times
and at all places, including waters within 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 and
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; and
e.
Are in amounts sufficient to be
acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals,
plants, or humans.
A review of records
indicate Respondent observed and reported a bypass on June 13, 2019, caused by
high Lake Michigan water levels flowing over a metal sheet wall and allowing process
water that had gone through settling lagoons, but had not gone through the MSD
sand filters to mix with lake water, in violation of 327 IAC 2-1.5-8(b)(1).
12.
On November 14, 2019
and December 30, 2020, IDEM sent Inspection Summary Letter(s) to Respondent
outlining violations at the facility. The letter sent December 30, 2020 required a response detailing actions taken to correct
the violations. IDEM received responses to the letter(s) explaining compliance
actions Respondent took or would take to address the violations. However, the
violations noted above continued at the facility at the time of inspection.
13.
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 11
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.
Immediately upon the Effective Date,
Respondent shall orally report all bypasses, within 24 hours from the time of
discovery and provide a written submission within five (5) days in accordance
with 327 IAC 5-2-8(11)(C). Alternatively, Respondent may submit a
“Bypass/Overflow Report” (State Form 48373) or a “Noncompliance 24-Hour
Notification Report” (State Form 54215), whichever is appropriate,
to IDEM at wwreports@idem.in.gov.
If a complete fax or e-mail submittal is sent within 24 hours of the time that Respondent
became aware of the occurrence, then the fax or email report will satisfy both
the oral and written reporting requirements.
Respondent shall submit the required oral noncompliance reports to IDEM
at wwreports@idem.in.gov,
and Nick Ream, IDEM’s Wastewater Inspection Section, Northwest Regional Office,
at nream@idem.in.gov and complete all requirements as instructed. This Paragraph
does not supersede the reporting requirements of the Permit.
4.
Within 90 days of the Effective Date, Respondent shall
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:
A.
Achieve and maintain compliance with effluent limitations
contained in the Permit, specifically ammonia (as nitrogen);
B.
Evaluate and implement means to eliminate bypasses;
C.
Provide IDEM with the facility’s preventative
maintenance program for the wastewater collection and treatment system (as
relevant to violations);
D.
Comply with reporting requirements of the permit; and
E.
Increase sampling following incidents of non-compliance,
as appropriate.
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.
5.
Respondent
shall, after completion of the work required pursuant to the approved CP from
Paragraph 4 above, demonstrate 12 consecutive months of compliance (Compliance
Demonstration) with the terms and conditions of the Permit.
6.
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.
7.
The plans required by Order Paragraphs
4 and 6 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.
8.
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 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 5 above, will re-start. Failure to achieve compliance
at the conclusion of work under an AAP may subject Respondent to additional enforcement
action.
9.
Beginning
with the first calendar quarter following the Effective Date, 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.
10.
Beginning
on the Effective Date and continuing until the successful completion of the
approved CP, Respondent shall, at all times 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 the Respondent
and which are necessary for achieving compliance with the terms and conditions
of the Permit.
11.
All submittals required by this Agreed
Order, unless Respondent is notified otherwise in writing by IDEM, shall be
sent to:
Grant Chaddock, Enforcement Case
Manager |
Office of Water Quality – IGCN
1255 |
Indiana Department of Environmental
Management |
100 North Senate Avenue |
Indianapolis, IN 46204-2251 |
12.
Respondent is assessed and agrees to
pay a civil penalty of Eighty-Seven Thousand Five Hundred Dollars ($87,500). 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.”
13.
In the event the terms and conditions
of the following paragraphs are violated, IDEM may assess
and Respondent shall pay the corresponding stipulated penalty:
Paragraph |
Violation |
Stipulated
Penalty |
3 |
Failure
to orally report noncompliance and/or submit a written report within 5 days. |
$150 per
week late, or part thereof. |
4 |
Failure to submit the CP within
the required time period. |
$250 per week late, or part
thereof. |
5 |
For violations of terms and
conditions of the Permit during the Compliance Demonstration. |
$400 per violation |
6 |
Failure to submit the AAP, if
required, within the given time period. |
$500 per week late, or part
thereof. |
7 |
Failure to modify the CP and/or AAP,
if required, within the given time period. |
$500 per week late, or part
thereof. |
8 |
Failure to meet and/or implement
any milestone date set forth in the approved CP or AAP. |
$500 per week late, or part thereof. |
9 |
Failure to
submit to IDEM a written progress report within 10 days of each calendar quarter. |
$150 per week late, or part thereof. |
10 |
Failure to operate the WWTP as
efficiently as possible prior to Compliance Demonstration. |
$200 per violation. |
14.
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.
15.
Civil and stipulated penalties are
payable by check to the “Environmental Management Special Fund.” Checks shall
include the Case Number 2020-27619-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 |
16.
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.
17.
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.
18.
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.
19.
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.
20.
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.
21.
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.
22.
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.
23.
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.
24.
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
TECHNICAL RECOMMENDATION: |
RESPONDENT: |
Department of Environmental
Management |
Cleveland-Cliffs Steel LLC-
Indiana Harbor West |
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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 November 22, 2021 |
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Martha Clark Mettler |
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Assistant Commissioner |
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Office of Water Quality |