STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT
) SS:
COUNTY OF MARION ) OF ENVIRONMENTAL MANAGEMENT
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
) Cause No. H-12526
v. )
)
AUBURN FOUNDRY, 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. Pursuant to IC 13-30-3-3(c), entry into the terms of this Agreed
Order does not constitute an admission of any violation contained therein.
1. Complainant is the Commissioner (hereinafter referred to as "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 Auburn Foundry, Inc. ("Respondent"), who is a company
authorized to do business in Indiana and operates a place of business at 635 West
11th Street, located in Auburn, DeKalb County, Indiana. The U.S. EPA I.D.
number of your facility is IND 984 880 153.
3. Respondent is a gray iron foundry that casts automotive parts and parts for
refrigerator compressors.
4. Respondent is the sole owner of a landfill located on the south edge of Auburn on
Auburn Drive (County Road 48). The U.S. EPA I.D. number of the landfill is
IND 005 070 685.
5. On September 24, 1986, a Consent Decree, Cause No. N-187, was adopted by the
Commissioner. Under the terms of the Consent Decree, Auburn Foundry agreed
to submit to the Indiana Department of Environmental Management (IDEM) and
implement a closure/post-closure plan per the requirements of 320 IAC 4.1-28-4
(currently 329 IAC 3.1-10-1 referencing 40 CFR 265, Subpart G). The IDEM
approved Respondent's Closure/Post-Closure Care Plan on March 31, 1988.
6. The IDEM has jurisdiction over the parties and subject matter of this action.
7. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail
to:
Rick L. James, President William E. Fink, Resident Agent
Auburn Foundry, Inc. for Auburn Foundry, Inc.
635 W. 11th Street 635 W. 11th Street
Auburn, Indiana 46706 Auburn, Indiana 46706
8. The IDEM contends that the following violations were in existence or observed
by the Office of Solid and Hazardous Waste Management (OSHWM) of the
IDEM during an inspection of the facility on June 13, 1995. In addition to these
contentions of IDEM, the Findings of Fact contained herein include subsequent
actions taken by Respondent to come into compliance.
a. Pursuant to 40 CFR 265.14, the owner or operator must prevent the
unknowing entry, and minimize the possibility for the unauthorized entry,
of persons or livestock onto the active portion of his facility. Based on
information gathered by the IDEM, Respondent failed to control
unauthorized entry to the landfill by allowing the access gate for the fence
constructed around the perimeter of the landfill to be unlocked and open.
Respondent contends that the access gates for the fence has been kept
closed and locked since the date of the inspection.
b. Pursuant to 40 CFR 265.32 and 40 CFR 265.34, a facility must be
equipped with a device, such as a telephone or a hand-held two-way radio,
capable of summoning emergency assistance. Based on information
gathered by the IDEM, Respondent failed to provide facility personnel
with access to a communication device, such as a telephone or two-way
radio, at the landfill. Respondent contends that all personnel who may
have reason to enter the site have been advised that entrance to the landfill
is prohibited without a two-way communication device.
c. Pursuant to 40 CFR 265.31, 40 CFR 265.310, and Item #11 of the March
1988 approved Closure/Post-Closure Plan, a facility must be maintained
to minimize the possibility of a fire, explosion, or any unplanned sudden
or non-sudden release of hazardous waste or hazardous waste constituents
to air, soil, or surface water which could threaten human health or the
environment. After final closure, the owner or operator must comply with
all post-closure requirements contained in 40 CFR 265.117 through 40
CFR 265.120 including maintenance and monitoring throughout the post-
closure care period. The owner or operator must maintain the integrity
and effectiveness of the final cover, including making repairs to the cover
as necessary to correct the effects of settling, subsidence, erosion, or other
events. Based on information gathered by the IDEM, Respondent failed
to operate the landfill to minimize the possibility of a release of a
hazardous waste or hazardous waste constituent and failed to maintain the
integrity and effectiveness of the final cover, including making repairs as
necessary to correct the effects of settling, subsidence, and erosion. The
facility was not mowed and was not inspected twice annually. Facility
personnel indicated the facility was mowed and inspected only once in
1994 and had not been mowed or inspected in 1995 up to the time of the
June 13 inspection. Vegetation on the landfill at the time of the inspection
was three to five feet in height, making proper inspection of the landfill
cap difficult. There was significant erosion damage in several areas,
specifically on the east, west, and north slopes where erosion ruts of up to
six inches deep were common. The cap appeared to be breached on the
east and north slopes, causing foundry sand to be exposed. It did not
appear as if the cap consisted of a two foot low-permeability layer, a one
foot sand drainage layer, and two foot topsoil layer as required by closure.
Foundry sand appeared to be migrating off-site on the east and north side
of the landfill. At least six animal burrows, primarily on the north side,
penetrated the cap and allowed foundry sand to be exposed. Lower
portions of the east and north slopes appeared to be bulging and deformed.
There was extensive vegetation on the north slope, including trees up to
six inches in diameter.
9. The IDEM contends that the following violations were in existence or observed
by the OSHWM of the IDEM during an inspection and record review of the
facility on September 25 and 26, 1995.
a. Pursuant to 40 CFR 265.15(b)(1) and 40 CFR 265.91, the owner or operator must develop and follow a written schedule for inspecting all monitoring equipment that is important to preventing, detecting, or responding to environmental or human health hazards. Based on information gathered by the IDEM, Respondent has not developed a
written schedule for inspecting the groundwater monitoring system and
groundwater sampling equipment. Additionally, the groundwater
monitoring system is not adequately maintained. Maintenance
inadequacies include:
i. Well/piezometer identification numbers are not posted on the
casings of P-16A, P-17A, B-2B, B-4, B-5 and B-6.
ii. Well/piezometer identification numbers posted on the casings of P-
8A, P-9A, P-10A, P-11A, P-13A and P-15A do not agree with
identification numbers specified in facility reports.
iii. A surveyed reference point (notch) for measurement of water level
and total well depth was not installed at the top of the inside casing
of MW-12, P-16A, P-12A, P-15A, P-17A, B-2B, B-4, B-5 and B-
6.
iv. Piezometer P-9A was not fitted with a vented cap to allow for
pressure changes due to a fluctuating water table.
v. The protective casing surrounding piezometer B-4 has separated
from the base of the concrete surface seal and may allow surface
water to enter the well annulus. Additionally, the protective casing
no longer provides security from possible tampering.
vi. The surface pad of monitoring well MW-12 has cracked and may
allow surface water to enter the well annulus.
b. Pursuant to 40 CFR 265.90(a), the owner or operator of a surface
impoundment, landfill, or treatment facility which is used to manage
hazardous waste must implement a groundwater monitoring program
capable of determining the facility's impact on the quality of groundwater
in the uppermost aquifer underlying the facility. Based upon information
gathered by the IDEM during a review of facility hydrogeologic reports
including: 1) Groundwater Assessment Plan Outline, Auburn Foundry
C.R. 48 Landfill, September 21, 1992; and 2) Auburn Foundry C.R. 48
Landfill IN 005 070 685 Auburn, Indiana, Hydrogeologic Investigation,
February 22, 1995, it has been determined that the groundwater
monitoring program may not be capable of determining the facility's
impact on the quality of groundwater in the uppermost aquifer underlying
the facility. Uncertainty is based on the following:
i. Incomplete documentation of monitoring well/piezometer
construction including:
1) Monitoring well/piezometer construction details for MW-
15 and B-6 have not been submitted.
2) For wells/piezometers installed in 1994, the diameter of
screen filter packs.
3) For wells/piezometers installed prior to 1994, the type of
connections (threaded or glued) used between well and
screen casings.
4) For wells/piezometers installed prior to 1994, the method
used to install the gravel filter pack around well screens.
5) For wells/piezometers installed prior to 1994, the type of
material used in the construction of screen gravel packs for
wells/piezometers B-4 and B-5.
6) For wells/piezometers installed prior to 1994, the method
used to install the filter pack seal above screen filter packs.
7) For wells/piezometers B-1C and B-2B, the type of well
screen (manually or factory manufactured) used in the
construction of these monitoring points.
8) For wells/piezometers installed prior to 1994, the type of
material (appropriately sized sand or gravel or natural
cave) used in the construction of screen filter packs.
ii. Geologic interpretations are incomplete. Documentation that the
ability of the confining layer (Unit C) beneath the uppermost
aquifer (Unit B) to act as an effective barrier to the downward
migration of possible groundwater contamination is incomplete in
that:
1) The lateral extent and continuity of the confining unit was
not verified, i.e. borings MW-7, P-16A and P-17A were
not advanced at least ten (10) feet into the confining layer
as required by the hydrogeologic work plan.
2) Soil boring logs for MW-8, 13 and 14 reveal the presence of saturated sand seams within the lower confining unit.
These units may provide hydraulic interconnections within
the uppermost aquifer above and hydrostratigraphic units
below.
iii. Hydrologic interpretations are incomplete in that:
1) The hydraulic conductivity of the uppermost aquifer (Unit
B) was not evaluated.
2) Vertical flow components across the site were not
evaluated through preparation of hydrologic cross-sections
(flow nets).
3) Slug/bail test results of piezometers screened in Unit C
show significant variation (four orders of magnitude) in
horizontal hydraulic conductivity ranging from 1.6 x 10-4 to
8.4 x 10-8 cm/sec.
4) Methods and procedures used to evaluate laboratory
hydraulic conductivity of soil samples were not described.
5) The influence of Cedar Creek on groundwater flow
directions beneath the landfill was not described.
c. Pursuant to 40 CFR 265.91(c), all monitoring wells must be cased in a
manner that maintains the integrity of the monitoring well borehole. This
casing must be screened or perforated, and packed with gravel or sand
where necessary, to enable sample collection at depths were appropriate
aquifer flow zones exist. The annular space (i.e., the space between the
borehole and well casing) above the sampling depth must be sealed with a
suitable material (e.g., cement grout or bentonite slurry) to prevent
contamination of samples and the groundwater. Based upon information
gathered by the IDEM, a review of facility records and field inspection of
the monitoring system demonstrate that:
i. Filter pack seals for wells/piezometers MW-7, MW-10, P-11A, B-
1C and B-2B are inadequate, i.e., filter pack seals are less than 2ft.
thick. Inadequate thickness may allow surface water to migrate to
the aquifer.
ii. Aquifer sediments were used in the construction of screen gravel packs of wells/piezometers B-1A and B-1B. Screen gravel packs that are not appropriately matched to aquifer sediments may result
in turbid samples.
iii. Piezometers B-1A, B-1B, B-1C, B-2B, B-4, B-5 and B-6 were
constructed without surface seals/pads and may allow surface
water to contaminate the groundwater and groundwater samples.
iv. Turbidity levels measured in wells/piezometers MW-7, MW-8,
MW-9, MW-10, MW-11, MW-12, MW-13, P-16A and P-17A are
elevated and may indicate that the monitoring system is not
capable of providing representative groundwater samples.
Turbidity levels in wells/piezometers MW-14, MW-15, P-16A and
P-17A have not been evaluated. Each monitoring well/piezometer
used to collect groundwater samples must yield samples that are
turbid-free (i.e., <5 nephelometric units).
d. Pursuant to 40 CFR 265.92(a), the owner or operator must obtain and
analyze samples from the installed groundwater monitoring system. The
owner or operator must develop and follow a groundwater sampling and
analysis plan. Based on information gathered by the IDEM, the following
deviations from the approved facility groundwater Sampling and Analysis
Plan (SAP) were observed:
i. The groundwater sampling contractor did not have a copy of the
September 21, 1992 SAP, as modified by the May 15, 1995
response to the Notice of Deficiency. Instead a sampling plan
dated December 9, 1994 was used to collect groundwater samples.
ii. Following the collection of groundwater samples, samples were
not adequately preserved by maintaining their temperature at 4
degrees C as specified in the SAP. Instead, the temperature of
samples was measured to be 12 degrees C.
iii. TOX samples were not preserved with hydrochloric acid as
required by the SAP. Instead, sulfuric acid was used.
iv. TOC samples were not preserved with sodium sulfite as required
by the SAP. Instead, sulfuric acid was used.
v. The name of the person who collected groundwater samples was
not identified on sample container labels.
vi. The chain-of-custody form in the approved SAP was not used.
Instead, a different form was used to track sample custody.
e. Pursuant to 40 CFR 265.92(d)(1) and (2), after the first year, all
monitoring wells must be sampled and the samples analyzed with the
following frequencies: (1) samples collected to establish groundwater
quality must be obtained and analyzed for the parameters specified in 40
CFR 265.92(b)(2) annually; and (2) samples collected to indicate
groundwater contamination must be obtained and analyzed for the
parameters specified in 40 CFR 265.92(b)(3) at least semi-annually.
Based on information gathered by the IDEM, a review of facility records
and annual reports demonstrates that:
i. For the calendar years 1988, 1989, 1990 and 1994, Respondent
sampled the groundwater for indicator parameters in 40 CFR
265.92(b)(3) only once during each of these years.
ii. For calendar years 1991, 1992, and 1993, Respondent did not
sample and analyze the groundwater annually for parameters
specified in 40 CFR 265.92(b)(2), and semi-annually for indicators
of groundwater contamination specified in 40 CFR 265.92(b)(3).
f. Pursuant to 40 CFR 265.93(b), for each parameter specified in 40 CFR
265.92(b)(3), the owner or operator must calculate the arithmetic mean
and variance, based on at least four (4) replicate measurements on each
sample, for each well monitored in accordance with 40 CFR 265.92(d)(2),
and compare these results with its initial background arithmetic means.
The comparison must consider individually each of the wells in the
monitoring system, and must use the Student's t-test at the 0.01 level of
significance. Based on information gathered by the IDEM, a review of
facility records and annual reports demonstrates that:
i. For each indicator parameter specified in 40 CFR 265.92(b)(3),
Respondent collected only one (1) measurement of each sample
for each well monitored during the calendar years of 1988, 1989,
and 1990.
ii. For each well monitored in accordance with 40 CFR 265.92(d)(2),
Respondent did not statistically compare these results with its
initial background arithmetic mean for each well during the
calendar years of 1988, 1989, and 1990.
g. Pursuant to 40 CFR 265.93(f), unless the groundwater is monitored to satisfy the requirements of 40 CFR 265.93(d)(4), at least annually the owner or operator must evaluate the data on groundwater surface elevations obtained under 40 CFR 265.92(e) to determine whether the
requirements under 40 CFR 265.91(a) for locating the monitoring wells
continues to be satisfied. If the evaluation shows that 40 CFR 265.91(a) is
no longer satisfied, the owner or operator must immediately modify the
number, location, or depth of the monitoring wells to bring the
groundwater monitoring system into compliance with this requirement.
Based on information gathered by the IDEM, a review of facility records
and annual reports submitted for the calendar years of 1988, 1989, 1990,
1991, 1992, and 1993, demonstrate that Respondent did not, at least
annually, evaluate the data on groundwater surface elevations obtained
under 40 CFR 265.92(e) to determine whether the requirements under 40
CFR 265.91(a) for locating the monitoring wells continues to be satisfied.
h. Pursuant to 40 CFR 265.94(a)(2), unless the groundwater is monitored to
satisfy the requirements of 40 CFR 265.93(d)(4), the owner or operator
must report the following groundwater monitoring information to the
Commissioner:
i. During the first year when initial background concentrations are
being established for the facility, report the concentrations or
values of the parameters listed in 40 CFR 295.92(b)(1) for each
groundwater monitoring well within fifteen (15) days after
completing each quarterly analysis.
ii. Report annually, concentrations or values of the parameters listed
in 40 CFR 265.92(b)(3) for each groundwater monitoring well,
along with the required evaluations for these parameters under 40
CFR 265.93(b).
iii. No later than March 1 following each calendar year, report the
results of the evaluations of groundwater surface elevations under
40 CFR 265.93(f), and a description of the response to that
evaluation where applicable. Based on information gathered by
the IDEM, a review of facility records and available annual reports
submitted to the IDEM demonstrate that:
1) For the calendar years 1988 and 1989, concentrations or
values of the parameters listed in 40 CFR 265.92(b)(3) for
each groundwater monitoring well, were not reported until
April 15, 1991.
2) Groundwater monitoring annual reports for 1988, 1989 and 1990, were not submitted to the IDEM until April 15, 1991, while annual reports for 1991, 1992, and 1993 and
1994, have not been submitted.
i. Pursuant to 40 CFR 265.117(a)(1)(i), post-closure care for each hazardous
waste management unit subject to the requirements of 40 CFR 265.117
through 265.120 must begin after completion of closure of the unit and
continue for 30 years after that date. It must consist of at least the
following:
i. Monitoring and reporting in accordance with the requirements of
Subparts F, K, L, M, and N of 40 CFR 265.
ii. Maintenance and monitoring of waste containment systems in
accordance with the requirements of Subparts F, K, L, M, and N of
40 CFR 265.
Based on information gathered by the IDEM, the facility failed to
implement the groundwater monitoring program in accordance with the
March 31, 1988 approved Closure/Post-Closure Plan in that:
i. On June 26, 1990, the Solid Waste Management Board adopted the
recommendation of the Administrative Law Judge requiring
Respondent to close the landfill per the approved March 31, 1988,
Closure/Post-Closure Plan. Subsequently, Respondent delayed
implementation of the accelerated groundwater sampling program
required under the approved closure plan until December 1994.
ii. As required by the approved Closure/Post-Closure Plan,
Respondent failed to initiate the accelerated groundwater
monitoring program within thirty (30) days of the installation of
the new groundwater monitoring system which was completed on
September 27, 1994. Instead, groundwater sampling was not
initiated until December 12, 1994.
iii. Following receipt of laboratory analytical results for the fifth (5th)
month of accelerated groundwater sampling, Respondent failed to
determine the arithmetic mean and variance for each indicator
parameter for all wells by pooling the replicate measurements for
the respective parameter values for each monitoring zone from
each well. The arithmetic mean and variance was not then
compared with initial background means from upgradient well(s)
to determine if satistical evidence of groundwater contamination
has occurred.
10. Respondent has addressed the groundwater concerns found in Finding 9 above
since the date of the inspection.
11. In recognition of the settlement reached, Respondent waives any right to
administrative and judicial review of this Agreed 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. Upon the effective date of the Order, Respondent shall ensure that unknowing
and/or unauthorized entry by persons or livestock onto the active portion of the
landfill is controlled, per 40 CFR 265.14.
3. Within sixty (60) days of the effective date of the Order, the Respondent shall
submit a plan ("Plan") for approval by the IDEM. The Plan shall specify the
engineering controls that will be implemented at the north side of the landfill to
prevent the off-site migration of landfill material. Engineering controls proposed
by the Respondent's Plan shall be designed to cap the north side of the landfill in
order to fully cover, and prevent the off-site migration, of landfill material.
Upon IDEM's approval, or modification and approval of the plan, the Respondent
shall implement and complete work at the site in accordance with time frames and
conditions contained within the approved Plan.
4. Upon the effective date of the Order, Respondent shall ensure that facility
personnel carry a communications device, such as a telephone or two-way radio,
whenever they are at the landfill, per 40 CFR 265.32 and 40 CFR 265.34.
5. Upon the effective date of the Order, Respondent shall assure that it complies
with all requirements of its Closure/Post-Closure Plan, which was approved by
the IDEM, until a post-closure permit is issued to Respondent. Upon issuance of
a post-closure permit, Respondent shall comply with the terms of the post-closure
permit until Respondent has certified to the IDEM that the post-closure of the site
has been completed and the certification has been approved by the IDEM.
Respondent shall maintain financial assurance for post-closure care as required by
329 IAC 3.1.
6. All submittals required by this Agreed Order, unless notified otherwise in writing,
shall be sent to:
Brenda J. Lepter
Office of Enforcement
Hazardous Waste Section
Indiana Department of
Environmental Management
P.O. Box 6015
Indianapolis, Indiana 46206-6015
7. Respondent is assessed a civil penalty of $55,326. Within thirty (30) days of the
effective date of the Agreed Order, Respondent shall pay a cash penalty of
$17,826. The payment shall be submitted to the Environmental Management
Special Fund, as directed by paragraph 10. In lieu of payment of the remaining
Civil Penalty, the Respondent shall perform and complete the Supplemental
Environmental Project ("SEP"), as described in Exhibit A. Exhibit A is hereby
incorporated by reference and made a part of this Agreed Order.. The total funds
expended on the SEP shall be a minimum of $75,000. The estimated time period
for completion of the SEP is one (1) year from the effective date of the Agreed
Order. It is Respondent's obligation to inform IDEM upon completion of the
SEP and to provide documentation of such. If the SEP is not completed in
accordance with this agreement and within the specified time period, subject to
any extension for cause due to force majeure, the Respondent agrees to pay the
remaining amount of the Civil Penalty, plus interest at the rate established by IC
24-4,6-1-101, to the Environmental Management Special Fund. Payment of the
remaining Civil Penalty shall be submitted within fifteen (15) days from receipt
of a notice to pay from IDEM. Interest on the remaining Civil Penalty shall be
paid from the effective date of this Agreed Order.
8. 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
Failure to comply with Order # 3 $1000 day
9. 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 assessment of the
stipulated penalty 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.
10. 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
IDEM
100 North Senate Avenue
P.O. Box 7060
Indianapolis, Indiana 46207-7060
11. In the event that the cash civil penalty required by paragraph 7 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.
12. This Agreed Order shall apply to and be binding upon the Respondent, its
officers, directors, principals, agents, successors, subsidiaries, and assigns. The
signatories to this Agreed Order certify that they are fully authorized to execute
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.
13. 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 the Agreed Order did not contain the invalid terms.
14. 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 by contract require that all contractors, firms, and other persons
acting for it comply with the terms of this Agreed Order.
15. This Agreed Order shall remain in effect until IDEM issues a Resolution of Cause
letter to Respondent.
TECHNICAL RECOMMENDATIONS: RESPONDENT:
Department of Environmental Management Auburn Foundry, Inc.
By: ________________________ By: ________________________
Nancy L. Johnston, Chief David D. Hunter
Hazardous Waste Section President, Auburn Foundry
Office of Enforcement
Date: ________________________ Date: ________________________
LEGAL RECOMMENDATION: COUNSEL FOR RESPONDENT:
Department of Environmental Management
By: ________________________ By: ________________________
Scott Storms Jeffrey L. Turner
Office of Legal Counsel
Date: ________________________ Date: ________________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT
THIS _______ DAY OF ________________ 1998.
For the Commissioner:
Signed on 10/21/1998
________________________
David J. Hensel, Director
Office of Enforcement
Converted by Andrew Scriven