STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT
COMMISSIONER OF THE DEPARTMENT )
AGREED ORDER
) SS: OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
)
v. )
) CAUSE NO. B-2347
AMERICAN SCRAP PROCESSING, INC. )
d/b/a: Northern Indiana Dock Company )
a wholly owned subsidiary of )
COZZI IRON & METAL, INC. )
)
Respondent. )
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.
I. FINDINGS OF FACT
2. Respondent is American Scrap Processing, Inc., doing business as Northern Indiana Dock
Company, a wholly owned subsidiary of Cozzi Iron & Metal, Inc., at 3601 Canal Street,
located in East Chicago, Lake County, Indiana (hereinafter referred to as "Respondent").
3. On July 20, 1998, designated representative(s) of the Indiana Department of
Environmental Management (IDEM) conducted an inspection at Northern Indiana Dock
Company. The facility is owned and operated by Respondent.
4. The Indiana Department of Environmental Management ("IDEM") has jurisdiction over
the parties and subject matter of this action.
5. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation, on September 21, 1998, via
Certified Mail to:
Ms. Debra Levin Mr. Peter Suknovich
Cozzi Iron & Metals, Inc. Northern Indiana Dock Co.
2232 South Blue Island 3601 Canal Street
Chicago, Illinois 60608 East Chicago, Indiana 46312
6. Based on the aforementioned inspection, IDEM alleges the Respondent was found in
violation of the following provisions of the Indiana Code (IC) and Indiana Administrative
Code (IAC).
7. 327 IAC 2-1-6(a)(1) states, in substance, that all waters at all times and at all places,
including 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:
a. that will settle to form putrescent or otherwise objectionable deposits;
b. that are in amounts sufficient to be unsightly or deleterious;
c. that produce color, odor or other conditions in such degree as to create a nuisance;
d. which are in amounts sufficient to be acutely toxic to, or to otherwise severely
injure or kill aquatic life, other animals, plants, or humans.
e. which 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.
8. 327 IAC 2-6.1-7 states that any person who operates, controls, or maintains any mode of
transportation or facility from which a spill occurs shall, upon discovery of a reportable
spill to the soil or surface waters of the state, do the following:
(1) Contain the spill, if possible, to prevent additional spilled material from entering
the waters of the state.
(2) Undertake or cause others to undertake activities needed to accomplish a spill
response.
(3) As soon as possible but within two (2) hours of discovery, communicate a spill
report to the Department of Environmental Management, Office of Environmental
Response: Area code 1-888-233-7745 for in-state calls (toll free), 1-317-233-7745
for out-of-state calls. If new or updated spill report information becomes known
that indicates a significant increase in the likelihood of damage to the waters of
the state, the responsible party shall notify the department as soon as possible but
within two (2) hours of the time the new or updated information becomes known.
(4) Submit to the Department of Environmental Management, Office of Emergency
Response, 2525 North Shadeland Avenue, P.O. Box 6016, Indianapolis, IN,
46206-6015, a written copy of the spill report if requested in writing by the
department.
(5) Except from modes of transportation other than pipelines, exercise due diligence
and document attempts to notify the following:
(A) for spills to surface waters that cause damage, the nearest affected
downstream water user located within ten (10) miles of the spill and in the
State of Indiana; and
(B) for spills to soil outside the facility boundary, the affected property owner
or owners, operator or operators, or occupant or occupants.
9. 327 IAC 5-2-2 states that any discharge of pollutants into the waters of the state as a point
source discharge, except for exclusions made in 327 IAC 5-2-4, is prohibited unless in
conformity with a valid NPDES permit obtained prior to the discharge.
10. 327 IAC 15-6-7(a), states that the person regulated under this rule shall develop a storm
water pollution prevention plan which:
1. identifies potential sources of pollution which may reasonably be expected to
affect the quality of storm water discharges associated with industrial activities
from the facility;
2. describes practices to be used in reducing the potential for pollutants to be
exposed to storm water; and
3. assures compliance with the terms and conditions of this rule.
11. 327 IAC 15-6-7(b), states that for each area of the plant that generates storm water
discharges associated with industrial activity with a reasonable potential for containing
significant amounts of pollutants, a plan shall contain the following:
1. A description of potential pollutant sources.
2. The facility shall be operated and maintained in such a manner that exposure of
storm water to potential sources of significant pollutant material is minimized.
12. 327 IAC 15-6-7(c), states that general requirements of a storm water pollution prevention
plan shall include the following:
1. The plan shall be certified by a qualified professional.
2. The plan shall be retained on-site and be available for review by a representative
of the commissioner upon request.
3. A schedule shall be included with the plan which allows for compliance with the
terms of the plan on or before three hundred sixty-five (365) days after submission
of the NOI letter, or, in the case of new facilities, prior to initiation of operation at
the facility. The commissioner may grant an extension of this time frame based
on a request by the person showing reasonable cause.
4. The person regulated under this rule shall report once per quarter its progress in
developing and implementing the plan. Once the plan is completed and
implemented, the reports may cease.
5. The person regulated under this rule shall amend the plan whenever there is a
change in design, construction, operation, or maintenance at the facility, which
may have a significant effect on the potential for the discharge of pollutants to
surface waters of the state, or upon written notice by the commissioner that the
storm water pollution prevention plan proves to be ineffective in achieving the
general objectives of controlling pollutants in storm water discharges associated
with industrial activities.
13. 327 IAC 15-6-7(d)(3) states that prior to implementation of the storm water pollution
prevention plan, the person regulated under this rule shall sample and analyze the
discharge from the outfall(s) regulated by this rule.
14. 327 IAC 15-6-7(e), states that analysis shall be performed in accordance with 40 CFR
136, in effect on February 12, 1992, for quality assurance and quality control.
15. 327 IAC 15-6-7(f)(4), states that the person regulated under this rule shall submit an
annual report to the Indiana Department of Environmental Management containing
results obtained during the previous year and shall be postmarked no later than the
twenty-eighth day of January each year.
16. IC 13-18-4-5 states, in part, that it is unlawful for any person to throw, run, drain, or
otherwise dispose into any of the streams or waters of this state, or to cause, permit, or
suffer to be thrown, run, drained, allowed to seep, or otherwise disposed into any waters,
any organic or inorganic matter that shall cause or contribute to a polluted condition of
any waters, according to any rule of the board under sections 1 and 3 of this chapter.
17. IC 13-30-2-1 requires, in substance, that a person may not discharge, emit, cause, allow,
or threaten to 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 or into any publicly owned treatment works in any form which causes or
would cause pollution which violates rules, standards, or discharge or emission
requirements adopted by the appropriate board pursuant to this article.
18. On June 5, 1994, the Respondent submitted a Notice of Intent (NOI) required under 327
IAC 15-3-3 and 327 IAC 15-6 (Rule 6). The Notice of Intent should have included
information pertaining to the discharge point(s) of the Respondent. It was represented in
the Notice of Intent that "There is no point source discharge as such" suggesting that
Respondent believed there was no point source discharge of stormwater to waters of the
state from its facility relating to industrial activities.
19. On September 20, 1994, IDEM mailed a Notice of Deficiency to the Respondent
indicating that the points of discharge were not identified in the Notice of Intent. IDEM
has no record of Respondent having responded to the Notice of Deficiency.
20. On December 11, 1996, and December 15, 1997, the IDEM Office of Water Management
performed NPDES Facility Inspections. During both inspections, Respondent's
personnel were made aware of the need to comply with the requirements of 327 IAC 15-
6.
21. On July 4, 1998, the East Chicago Fire Department responded to a fire at the Northern Indiana Docks Company. The Respondent stores numerous piles of scrap steel as well as piles of metal turnings from machine shops. A pile of approximately 16,000 tons of
metal turnings had spontaneously caught fire. The pile that caught fire was the pile
closest to the Indiana Harbor Ship Canal. Because of the substance and nature of the fire,
the Fire Department was unable to extinguish it. In an attempt to control the fire, which
was deep inside the pile, and to subsequently put it out, three (3) water hoses were set up
to spray continuously on the pile. IDEM Inspectors observed that water from this
spraying collected cutting oils and grease from the metal cuttings. The contaminated
water coming from the pile discharged into the Indiana Harbor Ship Canal (a water of the
State) causing a visible oil sheen.
22. On July 13, 1998, the East Chicago Fire Department notified IDEM of the July 4, 1998,
incident. The Respondent failed to make a report of the incident to IDEM, in violation of
327 IAC 1-6.1-7.
23. During an inspection on July 20, 1998, IDEM representatives spoke with Respondent's
personnel who indicated that there was no Spill Prevention Control & Countermeasures
plan, Spill Contingency Plan, Emergency Response Plan, or Storm Water Pollution
Prevention Plan on the Site to review. From July 4, 1998, and beyond the July 20, 1998,
inspection, oil contaminated water discharged into the Indiana Harbor Ship Canal from
the Respondent. During the inspection large areas of oil saturated soil were noted in and
around oil and fuel storage areas, railroad access areas, and heavy equipment operation
areas.
24. On July 21, 1998, IDEM issued a Notice of Noncompliance to the Respondent for failure
to comply with provisions of 327 IAC 15-6. The Respondent is required to: prepare and
implement a Storm Water Pollution Prevention Plan within 360 days after the submission
of the Notice of Intent; submit an annual report containing all sampling and analysis
information for the previous year; and submit a quarterly report showing the progress in
developing and implementing the Storm Water Pollution Prevention Plan. The IDEM has
no record of receiving any such documentation or reports from the Respondent.
25. 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.
26. In recognition of the settlement reached, Respondent 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 approved by the
Complainant or his delegate, and has been received by the Respondent. This Agreed
Order shall have no force or effect until the Effective Date.
2. Within ninety (90) days from the Effective Date of this Order, the Respondent shall
submit to IDEM for its approval a Compliance Plan (CP) which addresses the
deficiencies and violations noted herein and provides dates by which construction and/or
improvement milestones are to be completed. The CP is subject to the approval of
IDEM. If the plan is deemed inadequate by IDEM, a revised plan shall be submitted
within fifteen (15) days of receipt of notice from IDEM of the inadequacies thereof. If
after submission of the revised document(s) IDEM still finds that the document(s) are
inadequate, then IDEM may require further modification of the CP as necessary to meet
IDEM's requirements. If further modification does not meet IDEM's approval, IDEM will
suggest appropriate modification to be undertaken by Respondent. The approval of the
CP by IDEM will not be unreasonably withheld. If such modification is not undertaken
or an alternative plan which incorporates the suggested modifications is not submitted by
the Respondent, the Respondent will be subject to stipulated penalties. Respondent, upon
written notification by IDEM, shall implement the approved plan according to the project
dates listed in the plan, including the dates for completion of the schedule. The approved
plan shall be incorporated into the Agreed Order and shall be deemed an enforceable part
thereof from the Effective Date. The CP shall include:
a. the submittal of all documentation, samples, analysis and reports required by 327
IAC 15-6;
b. the submittal and implementation of a Spill Prevention Control &
Countermeasures (SPCC) plan pursuant to 40 CFR 112.7;
c. the submittal and implementation of a Spill Contingency plan which shall explain
the actions Respondent will take in the event of a spill to limit the impacts of said
spill on the environment;
d. the submittal and implementation of a Storm Water Pollution Prevention Plan
pursuant to 327 IAC 15-6-7;
e. the submittal of documentation describing the soil remediation parameters used in conjunction with the installation of concrete containment pads, which would
include the process and/or procedure for disposal of contaminated soil and
materials;
f. the submittal and implementation of Spill Reporting and Emergency Response
plans which shall show the persons who will be notified in the event of a spill,
including the persons responsible for giving the notice, the time frame for giving
notice, the names and telephone numbers of the persons to receive notice, and the
actions that will be taken to address the spill; and
g. the submittal and implementation of a Comprehensive Environmental Training
Program for all Northern Indiana Dock Company employees, on the proper
procedures for implementation of a Spill Contingency Plan, Spill Reporting,
implementation of a SPCC, and Emergency Response procedures.
3. Written notification of completion of each scheduled CP milestone shall be submitted
within ten (10) days of completion to the address listed in paragraph 8 of the Order
portion of this Agreed Order. Compliance with this paragraph shall be determined by the
U.S. Postal Service postmark stamped on the notification.
4. The Respondent is hereby assessed a Civil Penalty of Ninety-Nine Thousand Seven
Hundred Fifty Dollars ($99,750). Within thirty (30) days of the Effective Date of the
Agreed Order, the Respondent shall pay an up front civil penalty of Nineteen Thousand
Nine Hundred Fifty Dollars ($19,950). The payment shall be submitted to the
Environmental Management Special Fund, as directed by paragraph 11. The remaining
Seventy-Nine Thousand Eight Hundred Dollars ($79,800) of the Civil Penalty will be
offset by the Respondent's completion of a Supplemental Environmental Project (SEP).
5. Respondent has elected to perform a Pollution Control SEP whereas the Respondent,
shall construct (1) a sloped metal turnings storage area, with curbs on three sides and an
oil-water separator and sediment removal system; (2) design and install a containment
pad in the area of any fuel storage; and (3) design and install containment pads in the area
of heavy equipment operations, which includes the location of two balers and one sheer.
6. The Respondent has submitted a SEP proposal quoting a total price of One Hundred
Ninety-One Thousand Dollars ($191,000). Of this amount, Seventy-Nine Thousand
Eight Hundred Dollars ($79,800) may be offset from the total Civil Penalty. The total
funds expended on the SEP shall be a minimum of One Hundred Fifty-Nine Thousand
Six Hundred Dollars ($159,600).
7. Within thirty (30) days from the Effective Date of this Order, Respondent shall provide a
detailed description of the approved SEP which shall be incorporated to this Order by
reference and become an enforceable part thereof. The Respondent shall have thirty-six
(36) months from the Effective Date of this Agreed Order to complete the entire SEP.
Within thirty (30) days after completion of the SEP, Respondent shall submit an itemized
documentation of costs incurred in performing the SEP to IDEM. In the event the SEP
cost is more than $159,600, the Respondent assumes responsibility for all additional costs
without any further offset of the Civil Penalty as cited above in paragraph 4. In the event
the SEP is not completed within the 36 month period, subject to any extension for cause
due to force majeure, Respondent shall receive no offset, and agrees to pay the entire
balance of the Civil Penalty, Seventy-Nine Thousand Eight Hundred Dollars ($79,800),
which shall become immediately due and payable, plus interest at the rate established by
IC § 24-4.6-1-101, to the Environmental Management Special Fund. Payment of any
remaining Civil Penalty shall be submitted within fifteen (15) business days from receipt
of a notice to pay from the IDEM. Interest on the remaining Civil Penalty shall be paid
from the Effective Date of this Agreed Order.
8. All submittals required by this Agreed Order, unless notified otherwise in writing, shall
be sent to:
Steven M. Judith
Senior Environmental Manager
Office of Enforcement
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 6015
Indianapolis, IN 46206-6015
9. In the event the following terms and conditions are violated, the Complainant may assess
and the Respondent shall pay a stipulated penalty in the following amounts:
Violation Penalty
$1,000 per week for each milestone in the
CP not met within the specified time.
Paragraph 3 $500 per week for failure to comply with
any provision of this paragraph.
10. Stipulated penalties shall be due and payable within thirty (30) days after Respondent
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 the Respondent 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 Respondent's violation of this Agreed Order,
or Indiana law, including but not limited to civil penalties pursuant to IC 13-30-4.
11. Civil and stipulated penalties are payable by check to the Environmental Management
Special Fund. Checks shall include the Cause Number of this action and shall be mailed
to:
Cashier
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 7060
Indianapolis, IN 46207-7060
12. In the event that the civil penalty required by paragraph 4 is not paid within thirty (30)
days of the Effective Date of this Agreed Order, Respondent shall pay interest on the
unpaid balance at the rate established by IC 24-4.6-1-101. The interest shall continue to
accrue until the civil penalty is paid in full.
13. "Force Majeure", for purposes of this Agreed Order, is defined as any event arising from
causes beyond the control of the Respondent that delays or prevents the performance of
any obligation under this Agreed Order despite Respondent's best efforts to fulfill the
obligation. The requirement that the Respondent exercise "best efforts to fulfill the
obligation" includes using best efforts to anticipate any potential force majeure event and
best efforts to address the effects of any potential force majeure event (1) as it is
occurring and (2) following the potential force majeure event, such that the delay is
minimized to the greatest extent possible. "Force Majeure" does not include financial
inability to complete the work required by this Agreed Order or increases in costs to
perform the work.
14. The Respondent shall notify IDEM by calling within three (3) business days and by writing no later than seven (7) business days after any event which the Respondent contends is a force majeure. Such notification shall describe the anticipated length of the
delay, the cause or causes of the delay, the measures taken or to be taken by the
Respondent to minimize the delay, and the timetable by which these measures will be
implemented. The Respondent shall include with any notice all available documentation
supporting their claim that the delay was attributable to a force majeure. Failure to
comply with the above requirements shall preclude Respondent from asserting any claim
of force majeure for that event. The Respondent shall have the burden of demonstrating
that the event is a force majeure. The decision of whether an event is a force majeure
shall be made by IDEM. Said decision shall be communicated to the Respondent.
If a delay is attributable to a force majeure, IDEM shall extend, in writing, the time period
for performance under this Agreed Order, by the amount of time that is attributable to the
event constituting the force majeure.
15. This Agreed Order shall apply to and be binding upon the Respondent, its officers,
directors, principals, agents, successors, subsidiaries, and assigns. 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.
16. 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.
17. The 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.
18. 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.
19. This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of this Agreed Order.
By: _________________________ By: _________________________
Mark Stanifer, Section Chief
Office of Enforcement Printed: ________________________
Title: ________________________
Date: _______________ Date: _______________
COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:
Department of Environmental Management
By: _________________________ By: ________________________
Office of Legal Counsel
Department of Environmental Management
Date: _______________ Date: _______________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS 14th DAY OF APRIL, 1999.
For the Commissioner:
___________________________
Felicia Robinson George
Assistant Commissioner of Enforcement
Converted by Andrew Scriven