STATE OF INDIANA

COUNTY OF MARION

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SS:

BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

W. R. Grace & Co.-conn. d.b.a. Grace davison,

Respondent.

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Case No. 2019-25984-W

 

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.             W.R. Grace & Co. Conn. d.b.a Grace Davison (Respondent), owns/operates the facility, located at 5215 Kennedy Avenue, East Chicago, Lake County, Indiana (the Site).

3.             Respondent is authorized by its National Pollutant Discharge Elimination System (NPDES) Permit No. IN0000329 (the Permit), to discharge wastewater treated in accordance with the terms and conditions of the NPDES Permit from its Wastewater Treatment Plant (WWTP) into the Grand Calumet River from Outfall 003.

 

4.             IDEM has jurisdiction over the parties and the subject matter of this action pursuant to IC 13-30-3.

 

5.             Respondent waives the issuance of a Notice of Violation and the settlement period of sixty (60) days as provided for by IC 13-30-3-3.

 

6.             327 Indiana Administrative Code (IAC) 5-2-8(1) states the permittee shall comply with all terms and conditions of the Permit.

 

7.             Pursuant to Part I.A.1 of the Permit, the permittee is required to comply with the monitoring requirements contained in the Permit, including effluent limitations.

 

8.           The Respondent applied for, and received, a variance from the water quality criterion used to establish the mercury WQBEL under 327 IAC 5-3.5.  As such, the Permit contains an interim discharge limit for mercury at Outfall 003 that was developed in accordance with 327 IAC 5-3.5-8.

9.           The current Permit’s interim effluent limitation for mercury at Outfall 003 is 7.8 ng/L, calculated as a rolling annual average.  This limit was based on Outfall 003 monitoring data from the period of June 2014 through April 2016.  In keeping with the requirements of the variance, Respondent implemented a pollutant minimization program plan (PMPP).

10.        When submitting its permit renewal application in 2016, the Respondent requested to retain the previous interim limit of 19.6 ng/L mercury because, among other reasons, past performance of pollutant minimization activities indicated that lower limits were not reliably or consistently achievable, and the dataset used did not capture the full variability of effluent mercury concentrations.

11.        To date, Respondent has not been able to achieve the 7.8 ng/L interim annual average mercury effluent limitation during the term of the Permit.  Discharge Monitoring Reports (DMRs) and Monthly Reports of Operation (MROs) submitted by Respondent between December 2016 and December 2018 revealed exceedances of effluent limitations contained in Part I.A.1 of the Permit as follows:

The interim annual average concentration limitation for mercury was exceeded during December 2016, February, April, June, August, October, and December 2017, February, April, June, August, October, and December 2018.


During the above months, Respondent’s effluent did not comply with the interim mercury effluent limitations for Outfall 003 contained in the Permit, in violation of Part I.A.1 of the Permit.

12.        On July 6, 2017 and April 9, 2018, IDEM sent a Noncompliance Letter and an Inspection Summary Letter, respectively, to Respondent outlining effluent limit violations at Outfall 003. The letters required a response detailing actions taken to correct the violations. On August 2, 2017 and April 23, 2018, IDEM received responses to the letters explaining compliance actions Respondent took and would take in furtherance of compliance.

13.        From 2010 through present, Respondent has conducted assessments to identify the potential source(s) of mercury in its discharge from Outfall 003.  It has determined that the mercury derives from impurities present in sulfuric acid used at the facility, and does not appear to be from equipment or other process materials at the facility. Substantial efforts have not been able to consistently address this issue through the supply chain.  Therefore, the periodic mercury exceedances noted above could continue at Outfall 003 from the WWTP.

14.         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 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 Paragraph 11 of the Findings of Fact above, this Agreed Order also addresses any additional violations of these same rules that may have occurred prior to the Effective Date.

 

2.             Within 30 days of the Effective Date, Respondent shall develop and submit to IDEM for approval a Compliance Plan (CP) which identifies actions and additional efforts that Respondent will take to achieve and maintain compliance with its Permit, specifically including the actions Respondent will take to achieve and maintain compliance with effluent limitations contained in the Permit, specifically mercury.

 

The CP shall include an implementation and completion schedule, including specific milestone dates.

 

3.          After completion of the work required pursuant to the approved CP, Respondent will operate its plant for 12 consecutive months, obtaining mercury data at least bimonthly (every other month), in even numbered months as required by the Permit.  Respondent will then assess the data from this (12) twelve-month period to determine if the 12-month rolling average mercury level during this post-CP period achieves the Permit limit. The Respondent will then conduct a Compliance Demonstration for an additional twelve (12) month period (the Compliance Demonstration Period), with the 12-month rolling average mercury levels being re-calculated and reported bimonthly for the even numbered months as required by the Permit.  If the Respondent performs mercury monitoring in months other than those required by the Permit, calculation and reporting of the 12-month rolling average will still be performed on a bimonthly basis.

 

4.             At the end of the Compliance Demonstration Period, if an exceedance of the mercury limit (measured as a rolling 12-month average) has occurred during the Compliance Demonstration Period, within 90 days of the end of the Compliance Demonstration Period, 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.

 

5.             The plans required by Order Paragraphs 2 and 4 are subject to IDEM approval. In the event IDEM determines that any plan submitted by Respondent is deficient or otherwise unacceptable, Respondent shall revise and resubmit the plan to IDEM in accordance with IDEM's notice, and the Parties will make a good faith effort to resolve any disputes regarding the content of such notice. After three submissions of such plan by Respondent, IDEM may seek civil enforcement of this Order, and Respondent reserves its rights with respect to such enforcement.

 

6.             Respondent, upon receipt of written notification from IDEM of a plan’s approval, shall immediately implement the approved plan(s) and adhere to the milestone dates therein. If, while implementing the Compliance Plan, Respondent determines that such milestone dates require adjustment, it may update the implementation and completion schedule of the Compliance Plan by submitting to IDEM for approval an Additional Action Plan with revised dates.  The approved CP and AAP shall be incorporated into the Agreed Order and shall be deemed an enforceable part thereof.

7.             Following completion of the actions included in the AAP, the 12 month Compliance Demonstration Period, as specified in Paragraph 3 above, will re-start. Failure to achieve compliance with the then-applicable permit effluent limit for mercury at the conclusion of work under an Additional Action Plan may subject Respondent to additional enforcement action.

8.             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 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, Respondent shall, at all times, operate its existing wastewater treatment plant as efficiently and effectively as possible.

10.         Concurrent with the implementation of the above plans and any related monitoring and assessment and consistent with this Agreed Order, Respondent may pursue Permit modification or other relief to the extent allowed by law.

 

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 Eleven Thousand Two Hundred Fifty Dollars ($11,250). 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:

 

Order

Paragraph

Violation

Stipulated Penalty

2

Failure to submit the CP within the required time period.

$250 per week late, or part thereof. 

3

For exceedances of the interim mercury effluent limitation during the Compliance Demonstration Period (as calculated by rolling averages on a bi-monthly basis).

$400 per violation. (Each bi-monthly assessment that exceeds the effluent limitation is one violation.A)

4

Failure to submit the AAP, if required, within the given time period.

$500 per week late, or part thereof.

5

Failure to modify the CP and/or AAP, if required, within the given time period.

$500 per week late, or part thereof.

6

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 report of progress within 10 days of each calendar quarter.

$150 per week late, or part thereof.

9

Failure to at all times maintain in good working order and efficiently operate its existing wastewater treatment plant.

$200 per violation.

 

Note:

A Both the 12-month rolling average and daily maximum for mercury are reported in even-numbered month Discharge Monitoring Reports.  However, compliance is only assessed using the reported 12-month rolling average value.  If the Respondent performs mercury monitoring in months other than those required by the Permit, calculation, reporting, and assessment of compliance with the 12-month rolling average will be still be performed on a bimonthly basis.

 

 

14.        Stipulated penalties shall be due and payable no later than the 60th day after Respondent receives written notice that IDEM has determined a stipulated penalty is due, the 60th day being a "Due Date." IDEM may notify Respondent per statute of limitations that a stipulated penalty is due. Failure to notify Respondent in writing within this time 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. 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 2019-25984-W of this action and shall be mailed to:

 

Indiana Department of Environmental Management

Accounts Receivable

IGCN, Room 1340

100 North Senate Avenue

Indianapolis, IN 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

W. R. Grace & Co.-Conn., dba Grace Davison

 

By:__________________________

By:________________________

Samantha K. Groce, Chief

 

Water Enforcement Section

 

Surface Water, Operations &

Printed:_____________________

Enforcement Branch

 

Office of Water Quality

Title:_______________________

 

 

Date:________________________

Date:_______________________

 

 

COUNSEL FOR RESPONDENT:

 

 

 

By:________________________

 

 

 

Date:______________________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS ___________ DAY OF ________________, 20___.

 

 

For The Commissioner:

 

 

 

Signed on January 22, 2020

 

Martha Clark Mettler

 

Assistant Commissioner

 

Office of Water Quality