STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT
) SS: OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
)
v. ) Case No. 2000-9710-H
)
NATIONAL STEEL CORPORATION, )
)
Respondent. )
AGREED ORDER
The Complainant and the 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 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.
I. FINDINGS OF FACT
1. Complainant is the Commissioner ("Complainant") of the Indiana Department of Environmental Management, a department of the State of Indiana created by
IC 13-13-1-1.
2. Respondent is National Steel Corporation ("Respondent"), which formerly owned and operated the facility with U.S. EPA ID No. IND 016 584 641, located at U.S. Highway 12, in Portage, Porter County, Indiana ("Site") and currently owns the Greenbelt I landfill at the Site.
3. The Indiana Department of Environmental Management ("IDEM") has jurisdiction over the parties and the subject matter of this action.
4. Pursuant to IC 13-30-3-3, on January 29, 2001, IDEM issued a Notice of Violation via Certified Mail to:
Yutaka Tanaka, President CT Corporation System, Registered Agent
National Steel Corporation National Steel Corporation
4100 Edison Lakes Parkway 36 South Pennsylvania Street, Suite 700
Mishawaka, Indiana 46545 Indianapolis, Indiana 46204
5. Respondent last notified the U.S. EPA of Large Quantity Generator and Treatment, Storage, and Disposal activities on February 4, 1997.
6. Inspections on July 31 and November 20, 2000 were conducted at the Site by representatives of IDEM’s Office of Land Quality ("OLQ"). The following violations were in existence or observed at the time of these inspections:
COUNT I
a. Pursuant to IC 13-30-2-1(1), no person shall discharge, emit, cause, or allow any contaminant or waste, including any noxious odor, either alone or in combination with contaminants from other sources, into the environment. Respondent allowed a discharge of F008 waste in the Fabrication Shop floor trench (Tin Line Trench) and around the 20-cubic yard roll-off containing cleanup material from the trench.
On November 28, 2000, Respondent notified Region V of the U.S. Environmental Protection Agency that the Tin Line Trench has been identified as a solid waste management unit (SWMU) and will be addressed under the corrective action portion of the Respondent's Hazardous Waste Management Permit. Additionally, Respondent notified IDEM that the trench is an excluded wastewater treatment unit under 40 CFR 260.10.
b. Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.31, facilities must be maintained and operated to minimize the possibility of a fire, explosion, or any unplanned sudden or non-sudden release of hazardous waste to the air, soil, or surface water, which could threaten human health or the environment. Respondent allowed a discharge of F008 waste in the Fabrication Shop floor trench and around the 20-cubic yard roll-off containing cleanup material from the trench.
On November 28, 2000, Respondent notified Region V of the U.S. Environmental Protection Agency that the Tin Line Trench has been identified as a solid waste management unit (SWMU) and will be addressed under the corrective action portion of the Respondent's Hazardous Waste Management Permit. Additionally, Respondent notified IDEM that the trench is an excluded wastewater treatment unit under 40 CFR 260.10.
c. Pursuant to 40 CFR 262.34(a)(1)(i) referencing 40 CFR 265.173(b), a container holding hazardous waste must not be opened, handled, or stored in a manner that may rupture the container or cause it to leak. Respondent failed to properly manage the 20-cubic yard roll-off container of hazardous waste from the Fabrication Shop floor trench. The roll-off container, located in the Tin Line inner courtyard, was leaking into a nearby drain to the dirty industrial wastewater process.
COUNT II
d. Pursuant to IC 13-30-2-1(4), no person shall deposit or cause or allow the deposit of any contaminants or solid waste upon the land, except through the use of sanitary landfills, incineration, composting, garbage grinding, or another method acceptable to the solid waste management board. Respondent allowed a release of oil outside the 52" temporary compressor area and inside and outside the secondary containment of the #6 fuel oil tank area. Respondent also allowed a release of mercury outside the northeast corner of the Utilities Building.
e. Pursuant to 329 IAC 13-4-3(c)(2), containers and aboveground tanks used to store used oil must not be leaking. Respondent's #6 fuel oil tank was leaking.
Respondent has notified IDEM that the #6 fuel oil tanks were not leaking at the time of the inspection and that the fuel oil spillage and staining resulted from the Respondent's historic fuel oil management in the area.
f. Pursuant to 329 IAC 13-4-3(d), generators must label all fill pipes used to transfer used oil into underground storage tanks with the words "Used Oil." Respondent did not label used oil fill pipes on the 500-gallon underground used oil storage tank located at the Maintenance Garage with the words "Used Oil."
Respondent has notified IDEM that the underground used oil storage tank has no fill pipes. Additionally, Respondent has notified IDEM that the exact size of the underground tank is unknown but believed to be in excess of 500 gallons.
g. Pursuant to 329 IAC 13-4-3(a)(2), used oil generators are subject to the underground storage tank standards found at 40 CFR 280. Respondent did not comply with the requirements of 40 CFR 280 for the 500-gallon underground used oil storage tank located at the Maintenance Garage.
Respondent has notified IDEM that the exact size of the underground tank is unknown but believed to be in excess of 500 gallons.
h. Pursuant to 40 CFR 262.34(a)(2), a generator may accumulate hazardous waste on-site for 90 days or less without a permit, provided that the date when the accumulation begins is clearly marked and visible for inspection on each container. Respondent did not label the 20-cubic yard roll-off container of mercury cleanup waste located at the #6 fuel oil tanks with accumulation start dates.
i. Pursuant to 40 CFR 262.34(a)(3), a generator may accumulate hazardous waste on-site for 90 days or less without a permit, provided that containers are marked with the words "Hazardous Waste." Respondent did not label the 20-cubic yard roll-off container of mercury cleanup waste located at the #6 fuel oil tanks with the words "Hazardous Waste."
j. Pursuant to 40 CFR 262.34(a)(1)(i) referencing 40 CFR 265.173(a), a container holding hazardous waste must always be closed during storage, unless necessary to add or remove waste. Respondent did not store one (1) 20-cubic yard roll-off and one (1) 2-cubic yard box of mercury cleanup waste located at the #6 fuel oil tanks closed.
k. Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.31, facilities must be maintained and operated to minimize the possibility of a fire, explosion, or any unplanned sudden or non-sudden release of hazardous waste to the air, soil, or surface water, which could threaten human health or the environment. Respondent failed to properly manage the Baily Flow Transmitters outside the northeast corner of the Utilities Building to minimize a release to the environment.
7. On November 28, 2000, Respondent notified Region V of the U.S. Environmental Protection Agency that the Fabrication Shop floor trench was identified as a Solid Waste Management Unit (SWMU) as required by the facility's Hazardous Waste Management Permit.
8. In recognition of the settlement reached, Respondent waives any right to administrative and judicial review of this Agreed Order.
9. On May 20, 2003, United States Steel Corporation ("US Steel") purchased the Site. The purchase did not include the Greenbelt I landfill.
10. Respondent's responsibility under this Order shall solely consist of the obligation contained under Order paragraph 9. US Steel shall comply with Order paragraphs 2-7 and is subject to the stipulated penalties found in Order paragraph 10.
II. ORDER
1. This Agreed Order shall be effective ("Effective Date") when it is approved by the Complainant or her delegate, and has been received by the Respondent and US Steel. This Agreed Order shall have no force or effect until the Effective Date.
2 Within thirty (30) days of the Effective Date of this Agreed Order, US Steel shall implement sampling and analysis of soils underlying the area of concern described in Finding of Fact No. 6.d and 6.k, specifically, the northeast corner of the Utilities Building where the Baily Flow Transmitters cracked and were leaking mercury. The sampling and analysis to be performed shall consist of the items listed below.
a. One geoprobe shall be advanced in the center of the Baily Flow Transmitter area.
b. Soil samples shall be collected from the geoprobe plastic sampling sleeve using decontaminated stainless steel equipment from depth intervals commencing at the bottom of the backfill material placed following impacted soil removal in 2000. One (1) sample shall be collected at each of the depth intervals at 6-8 feet, 8-10 feet, 12-14 feet, and 16-18 feet below ground surface. No samples shall be collected below the water table if encountered.
c. Soil samples shall be immediately placed in a cooler with ice so that a temperature of near 4 degrees Celsius is attained and shall be submitted to an analytical laboratory under standard chain of custody procedures. Each sample shall be analyzed for total mercury (pursuant to "Test Methods for Evaluating Solid Waste, Physical/Chemical Methods," EPA Publication SW-846, Method 7471A) and soil pH (pursuant to "Test Methods for Evaluating Solid Waste, Physical/Chemical Methods," EPA Publication SW-846, Method 9045B).
d. Upon receipt, soil sample analytical results shall be compared to IDEM's Risk Integrated System of Closure (RISC) residential default closure levels for mercury. If the detected mercury concentrations are lower than the RISC residential default closure level, this shall be accepted as a suitable demonstration that the closure levels have been met.
3. If the sample analytical results are reported at concentrations below the RISC residential default closure level, no further field action shall be required. Within forty-five (45) days of obtaining the sample results, US Steel will submit the results of the analysis performed above to IDEM. Analytical results submitted to IDEM for review shall include signed chain-of-custody sheets, sampling dates, analysis dates, analytical methods used, MCLs, EQLs and quality control results. The quality assurance/quality control (QA/QC) results shall include initial and continuing calibration results, blank results, matrix duplicates, matrix spike/matrix spike duplicate results, and laboratory control sample results.
4. If the sample analytical results are reported at concentrations above the RISC residential default closure level, at least one (1) of the following actions shall be taken:
a. Additional excavation shall be undertaken to remove soils exhibiting concentrations of mercury above RISC residential default closure level. Upon removal of additional soil, one (1) soil sample will be collected from the floor and each sidewall of the excavation. Samples shall be submitted to the laboratory for analysis of total mercury (pursuant to "Test Methods for Evaluating Solid Waste, Physical/Chemical Methods," EPA Publication SW-846, Method 7471A); or
b. Additional geoprobe sampling shall be performed for purposes of characterizing the nature and extent of mercury within soil.
5. Within forty-five (45) days of completion of the selected option, US Steel shall submit the results of the work performed above to IDEM. Analytical results submitted to IDEM for review shall include signed chain-of-custody sheets, sampling dates, analysis dates, analytical methods used, MCLs, EQLs and quality control results. The quality assurance/quality control (QA/QC) results shall include initial and continuing calibration results, blank results, matrix duplicates, matrix spike/matrix spike duplicate results, and laboratory control sample results.
6. If after completing Order requirements 2-6, mercury levels still exceed the RISC residential default closure level for mercury, US Steel shall, within forty-five (45) days of written notification by IDEM, submit a plan to conduct an SPLP analysis of the soils.
7. If US Steel conducts a Synthetic Precipitation Leaching Procedure (SPLP) analysis and the soils fail for the RISC residential default closure level for mercury, US Steel shall, within forty-five (45) days of written notification by IDEM, submit a plan to conduct a groundwater investigation and additional soil remediation.
8. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:
Lori A. Colpaert, Enforcement Case Manager
Office of Enforcement
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 6015
Indianapolis, IN 46206-6015
9. Complainant shall have an allowed, general unsecured claim against Respondent for a civil penalty of Fifty Nine Thousand Five Hundred Dollars ($59,500), which shall be dealt with in the Respondent's bankruptcy in the same manner and time as all other allowed, general unsecured claims and will not be subordinated under the Bankruptcy Code to other allowed, general unsecured claims. Respondent further agrees not to oppose entry of this Agreed Order by the Bankruptcy Court or to challenge any provision of this Agreed Order. In the event the Bankruptcy Court does not approve Respondent's entry into this Agreed Order, it shall be deemed void ad initio.
10. In the event the terms and conditions of the following paragraphs are violated, the Complainant may assess and US Steel shall pay a stipulated penalty in the following amount:
Violation
PenaltyFailure to comply with Order paragraph 2 $500 per week
Failure to comply with Order paragraph 3 $500 per week
Failure to comply with Order paragraph 4 $500 per week
Failure to comply with Order paragraph 5 $500 per week
Failure to comply with Order paragraph 6 $500 per week
Failure to comply with Order paragraph 7 $500 per week
11. Stipulated penalties shall be due and payable within thirty (30) days after US Steel receives written notice that the Complainant has determined a stipulated penalty is due. Assessment and payment of stipulated penalties shall not preclude the Complainant from seeking any additional relief against US Steel for violation of the Agreed Order. In lieu of any of the stipulated penalties given above, the Complainant may seek any other remedies or sanctions available by virtue of US Steel’s violation of this Agreed Order or Indiana law, including, but not limited to, civil penalties pursuant to IC 13-30-4.
12. Civil and stipulated penalties are payable by check to the Environmental Management Special Fund. Checks shall include the Case Number of this action and shall be mailed to:
Cashier
IDEM
100 N. Senate Avenue
P. O. Box 7060
Indianapolis, IN 46207-7060
13. This Agreed Order shall apply to and be binding upon the Respondent only after approval by the Bankruptcy Court. The Respondent's signatories to this Agreed Order certify that they are fully authorized to execute this document and legally bind the parties they represent. No change in ownership, corporate, or partnership status of the Respondent shall in any way alter its status or responsibilities under this Agreed Order.
14. In the event that any terms of the 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 the Agreed Order did not contain the invalid terms.
15. This Agreed Order shall remain in effect until IDEM issues a Resolution of Case letter to Respondent and US Steel.
TECHNICAL RECOMMENDATION: RESPONDENT:
Department of Environmental Management
By: __________________________ By: ________________________
Nancy L. Johnston, Chief
Office of Enforcement Printed: _______________________
Title: ________________________
Date: __________________________ Date: ________________________
COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:
Department of Environmental Management
By: ___________________________ By: ________________________
Office of Legal Counsel
Date: ___________________________ Date: ________________________
UNITED STATES STEEL CORPORATION:
By: ________________________
Printed: _______________________
Title: ________________________
Date: ________________________
COUNSEL FOR UNITED STATES STEEL CORPORATION:
By: ________________________
Date: ________________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _____ DAY OF _______________, 2003.
For the Commissioner:
Adopted December 12, 2003
___________________________
Felicia A. Robinson
Deputy Commissioner for Legal Affairs