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 east, 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.
3.
Respondent
is authorized by its National Pollutant Discharge Elimination System (NPDES)
Permit No. IN0000094 (the Permit), to discharge wastewater treated in
accordance with the terms and conditions of the NPDES Permit from its wastewater
treatment facilities into Lake Michigan and the Indiana Harbor Ship Canal, via Outfalls
011, 014, 018, 518, and 618.
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, Environmental |
Cleveland-Cliffs Steel LLC – Indiana Harbor
East |
3001 Dickey Road |
East Chicago, IN 46312 |
6.
During
an investigation, including inspections on September 14, 2020, and January 27,
2021, 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 IC 13 and is grounds for
enforcement action by IDEM.
Discharge
Monitoring Reports (DMRs) and Monthly Monitoring Reports (MMRs) submitted by
Respondent for the period of March 2018 through March 2021 revealed violations
of effluent limitations contained in Part I.A.2 of the Permit for Outfall 014 as
follows:
A. The daily maximum limitation for pH was
exceeded during May 2020.
B. The daily maximum concentration limitation
for Oil and Grease was exceeded during April 2018, February 2019, and April 2021.
C. For residual chlorine, the monthly average
loading limitation, the monthly average concentration limitation, the daily maximum
loading limitation, and the daily maximum concentration limitation was exceeded
during March 2021.
Respondent failed to comply with the effluent
limitations from Outfall 014 contained in the Permit, in violation of Part I.A.2 of the Permit.
9.
Pursuant
to Part I.A.3 of the Permit, the permittee is required to comply with the monitoring
requirements contained in the Permit, including effluent limitations.
DMRs and MMRs submitted by Respondent
for the period of March 2018 through March 2021
revealed violations of effluent limitations contained in Part I.A.3 of the
Permit for Outfall 018 as follows:
A. The daily maximum limitation for pH was
exceeded during September and November 2018.
Respondent failed to comply with the effluent
limitations from Outfall 018 contained in the Permit, in violation of Part I.A.3 of the Permit.
10.
Pursuant
to Part I.A.4 of the Permit, the permittee is required to comply with the
monitoring requirements contained in the Permit, including effluent limitations.
DMRs and MMRs submitted by Respondent for
the period of March 2018 through March 2021 revealed violations of effluent
limitations contained in Part I.A.4 of the Permit for
outfall 518 as follows:
A. The daily maximum loading limitation for
cyanide was exceeded during January 2021.
Respondent failed to comply with the effluent
limitations from Outfall 518 contained in the Permit, in violation of Part I.A.4 of the Permit.
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 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; or
e. Are in amounts sufficient to be acutely toxic
to, or to otherwise severely injure or kill aquatic life, other animals,
plants, or humans.
As
documented by IDEM in the September 28, 2020, Inspection Summary Letter, a
narrative water quality violation occurred on August 20, 2020, at Outfall 018. A
reddish discoloration to water was discharging through internal Outfall 618 to
Outfall 018, in violation of 327 IAC 2-1.5-8(b)(1).
12. Pursuant to 327 IAC 5-2-8(12)(D) and Part II.B
2 of the Permit, bypassing is prohibited, and the Commissioner may take enforcement
action against a permittee for bypass unless certain conditions are met.
Respondent failed to prevent unpermitted
bypassing on April 29, April 30, May 1, 2020, and May 20, 2021, in violation of
327 IAC 5-2-8(12)(D) and Part II.B.2 of the Permit.
13. Pursuant to Part II.B.1
of the Permit, all facilities and systems must be maintained in good working
order and efficiently operated at all times. The following operational problems
were self-reported by Respondent:
A. As documented by IDEM in the September 28,
2020, Inspection Summary Letter, an overflow from the No. 6 pumphouse
forebay into the main intake system caused water to bypass treatment systems at
Outfall 014 on April 29, April 30, and May 1, 2020.
B.
Subsequent
to the inspection by IDEM, Cleveland Cliffs self-reported an overflow of the No.
6 pumphouse forebay into the main intake system that caused water to bypass
treatment systems at Outfall 014 on May 20, 2021.
C. As documented by IDEM in the September 28,
2020, Inspection Summary Letter, a discharge of wastewater
with a red discoloration was self-reported at Outfalls 618 and 018 due to a sludge
blanket turning over in No. 4 SP eastern water clarifier on August 20, 2020.
D. As documented by IDEM in the February
24, 2021, Inspection Summary Letter, blowdown
water from the holding ponds discharged from the large pond pump resulting in a
loading violation for cyanide on January 25, 2021.
The operational problems listed above
are in violation of Part II.B.1 of the Permit.
14. Pursuant to 327 IAC 5-2-14 and Part I.C.5 of
the Permit, for each measurement or sample taken pursuant to the requirements
of this Permit, the permittee shall maintain records of all monitoring
information and monitoring activities, including:
a. The date, exact place and time of
sampling or measurement;
b. The person(s) who performed the
sampling or measurements;
c. The date(s) and time(s) analyses were
performed;
d. The person(s) who performed the
analyses;
e. The analytical techniques or methods
used; and
f. The results of such measurements and
analyses.
As documented by IDEM in the September 28,
2020, Inspection Summary Letter, the Chain-of-Custody
forms indicate that for the period August 21 to August 26, 2020, the name of
the sampler and the time the sample was taken were not recorded. The name of
the person taking the sample and the sample collection time the sample collection
is required by the Permit, Part I.C.5.
Respondent
failed to maintain the required monitoring information and monitoring
activities from August 21, 2020, to August 26, 2020, in violation of 327 IAC 5-2-14
and Part I.C.5 of the Permit.
15. Pursuant to Part I.A.3 of the Permit, Respondent
is required to sample Total Residual Chlorine (TRC) five times per week at Outfall
018 when mussel control is occurring at the intake. As documented by IDEM in
the September 28, 2020, Inspection Summary Letter, Respondent failed to conduct
TRC sampling for the period June 2 to August 3, 2020.
The
failure to sample TRC is in violation of Part I.A.3 of the Permit.
16.
On September
28, 2020, and February 24, 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.
However, violations continue at the facility.
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, 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 15 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, Respondents shall retain complete and accurate DMR, MMR,
and laboratory records, or a copy of its records, for the previous three (3)
years at their facility in accordance with the Permit.
4.
Within 30 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 for Outfalls 014, 018, and
518, specifically Oil and Grease, pH, Cyanide, and Total Residual Chlorine;
B.
Develop and implement a preventative
maintenance program for wastewater treatment equipment, (or reference such
existing programs at the facility) and document all maintenance (preventative
and repair) in a written record; and
C.
Evaluate and implement
means to eliminate overflows and bypasses.
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 maintain in good
working order and efficiently operate all facilities and systems (and related
appurtenances) for collection and treatment.
11.
All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
Patrick
Colcord, 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 Seventy-Three Thousand Seven
Hundred Fifty Dollars ($73,750). 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 maintain complete records and information from the monitoring activities. |
$250
per violation. |
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 wastewater treatment facilities 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 2021-27623-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 East |
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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 September 14, 2021 |
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Martha
Clark Mettler |
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Assistant
Commissioner |
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Office
of Water Quality |