STATE OF |
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BEFORE THE INDIANA
DEPARTMENT |
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COMMISSIONER OF THE
DEPARTMENT Complainant, v. INDIANAPOLIS POWER &
LIGHT CO., 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 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
2.
Respondent is Indianapolis
Power & Light Co. (“Respondent”), which owns and operates the Eagle Valley
Generating Station, which discharges to the West Fork of White River under National
Pollutant Discharge Elimination System (“NPDES”) Permit No. IN0004693, located
at
3.
IDEM has
jurisdiction over the parties and the subject matter of this action.
4.
Pursuant to IC
13-30-3-3, IDEM issued a Notice of Violation via Certified Mail to Ann D.
Murtlow, President, and S. Michael Woodard, Registered Agent, Indianapolis Power
& Light Co.,
5.
Respondent owns
and operates a 344 megawatt steam electric power plant.
6.
During an
investigation in response to a spill report conducted by a representative of
IDEM on February 14, 2007, the following violations were found:
A. Pursuant to 327 IAC
5-2-2, any discharge of pollutants into 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. Respondent discharged ash pond water into the
West Fork of White River on February 14, 2007, of a nature and from a location
not authorized by the Permit, in violation of 327 IAC 5-2-2.
B. Pursuant to 327 IAC
2-1-6(a) and Part I. B. of the Permit, 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, visible oil sheen, 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; and
(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.
Respondent
caused or contributed to the contamination of waters of the state by allowing
the release of substances and materials from the ash pond on February 14, 2007,
into the West Fork of White River that were unsightly and deleterious, in
violation of 327 IAC 2-1-6(a) and Part I. B. of the Permit.
C. Pursuant
to IC 13-18-4-5, it is unlawful for any person to throw, run, drain, or
otherwise dispose into any of the streams or waters of Indiana; or cause,
permit, or suffer to be thrown, run, drained, allowed to seep, or otherwise
disposed into any waters; any organic or inorganic matter that causes or contributes
to a polluted condition of any waters, as determined by a rule of the board
adopted under sections 1 and 3 of this chapter.
Respondent
caused or contributed to a polluted condition of waters of the state by the
release from the ash pond on February 14, 2007, into the West Fork of White
River, in violation of 327 IAC 5-2-2 and 327 IAC 2-1-6(a), rules of the water
pollution control board, in violation of IC 13-18-4-5.
D. Pursuant to IC 13-30-2-1,
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 in any form that causes or would cause pollution that violates or
would violate rules, standards, or discharge or emission requirements adopted
by the appropriate board under the environmental management laws.
Respondent
released a pollutant into the environment by the discharge from its ash pond on
February 14, 2007, into the West Fork of White River, in violation of 327 IAC
327 IAC 5-2-2 and 327 IAC 2-1-6(a), rules of the water pollution control board,
in violation of IC 13-30-2-1.
E. Pursuant
to Part II. B. 4 of NPDES permit, removed substances are to be managed in such
a manner as to prevent any pollutants from such from entering waters of the
state.
The
events of February 14, 2007, allowed amounts of ash (a removed substance) to
enter waters of the state, in violation of Part II. B. 4 of the NPDES permit.
7. Respondent
immediately notified regulatory authorities of the levee failure, took the
leaking ash pond out of service and utilized the back-up ash pond after the
levee failed. Respondent stopped the
leak roughly 30 hours after the levee failed.
Respondent is in the process of implementing permanent repairs to the
failed levee.
8. On
January 30, 2008, the levee in the main ash pond (D) failed in the same
location as it had on February 14, 2007, and again caused the levee of ash pond
E to fail, releasing approximately 30,000,000 gallons of ash pond water into
Respondent’s discharge canal and then the West Fork of White River. The circumstances were very similar to those
of the February 14, 2007, event.
Respondent reported the release to IDEM Emergency Response. As with the 2007 event, this discharge
violated 327 IAC 5-2-2, 327 IAC 2-1-6(a) and Part I.B. of the permit, IC
13-18-4-5, and IC 13-30-2-1. Respondent
waives issuance of a Notice of Violation and to the settlement period of sixty
(60) days as provided for by IC 13-30-3-3 for the violations that occurred on
January 30, 2008. This second event has
been assigned case number 2008-17693-W.
9. 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 Complainant or
Complainant’s delegate, and has been received by Respondent. This Agreed Order shall have no force or
effect until the Effective Date.
2.
Respondent shall
comply with the statutes, rules, and permit conditions listed in the findings
above at issue.
3.
Respondent shall
perform a detailed study of the ash pond levees at
·
The detailed
study will be performed by a professional with expertise evaluating ash pond
levees.
·
The detailed
study will be completed within 180 days after the Effective Date.
·
The results and
any recommendations of the detailed study will be submitted to IDEM within 60
days after the completion of the study.
·
The Respondent
will implement any recommendations that are necessary to achieve the study’s
objective, are consistent with the design and purpose of Respondent’s business
operations at Eagle Valley Generating Station, and are reasonable and
cost-effective. Such implementation will
be initiated within 60 days after submitting the results and recommendations to
IDEM.
·
A more detailed
description of the study was submitted by Respondent to Complainant dated March
21, 2008, and is included with this Agreed Order as Attachment A.
4.
Respondent will
implement system-wide inspections for all ash ponds under its control, as set
forth in Attachment A. The first
inspection of each ash pond is to be completed within 270 days after the
Effective Date.
5.
Beginning on the
Effective Date and continuing until the completion of the activities identified
in Paragraphs 3 and 4 above, Respondent
shall, at all times, operate its existing wastewater treatment facilities as
efficiently and effectively as possible, and consistent with the terms of
Respondent’s NPDES permit.
6.
All submittals
required by this Agreed Order, unless Respondent is notified otherwise in
writing by IDEM, shall be sent to:
Mark
Stanifer, Section Chief |
Indiana
Department of Environmental Management |
Office
of Enforcement – Mail Code 60-02 |
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7.
Respondent is
assessed a civil penalty of Twenty Three Thousand Eight Hundred dollars ($23,800). Said penalty amount shall be due and payable
to the Environmental Management Special Fund within thirty (30) days of the
Effective Date. In the event that the
civil penalty is not paid within thirty (30) days of the Effective Date,
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.
8.
In the event the
terms and conditions of the following paragraphs are violated, Complainant may
assess and Respondent shall pay a stipulated penalty in the following amount:
Paragraph |
Violation |
Stipulated
Penalty |
3 |
Failure
to complete the study within 180 days after the Effective Date |
$500
per week late, or part thereof. |
3 |
Failure to submit the findings and recommendations
of the study within 60 days after the completion of the study. |
$500 per week late, or part thereof. |
3 |
Failure to initiate implementation of the study
recommendations, as described under Paragraph 3, within 60 days after
submitting study results and recommendations to IDEM. |
$500 per week late, or part thereof. |
4 |
Failure to complete initial inspections within 270
days of the Effective Date, or failure to conduct inspections thereafter at
the frequency set forth in Attachment A. |
$500 per week late, or part thereof. |
9.
Stipulated
penalties shall be due and payable within thirty (30) days after Respondent
receives written notice that Complainant has determined a stipulated penalty is
due. Assessment and payment of
stipulated penalties shall not preclude Complainant from seeking any additional
relief against Respondent for violation of this Agreed Order. In lieu of any of the stipulated penalties
set out above, 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
Case Number of this action and shall be mailed to:
Indiana
Department of Environmental Management |
Cashier
– Mail Code 50-10C |
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11.
This Agreed
Order shall apply to and be binding upon Respondent and 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.
12.
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.
13.
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.
14.
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 permit or any applicable Federal
or State law or regulation.
15.
Complainant does
not, by its 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.
16.
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 NOV.
17.
Nothing in this
Agreed Order shall prevent IDEM or anyone acting on its behalf from
communicating with the 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 EPA or any other agency or entity.
18.
This Agreed
Order shall remain in effect until Respondent has complied with all terms and
conditions of Order Paragraph Nos. 3 through 10 (regarding Paragraph No. 4, and
the related stipulated penalties under Paragraph 8, through the first set of
inspections) and IDEM issues a Resolution of Case letter.
TECHNICAL RECOMMENDATION: |
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RESPONDENT: |
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Department of Environmental Management |
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Indianapolis Power & Light Co. |
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By: |
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Mark W. Stanifer, Chief |
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Water Enforcement Section |
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Office of Enforcement |
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COUNSEL FOR COMPLAINANT: |
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COUNSEL FOR RESPONDENT: |
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For the Department of Environmental Management |
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By: |
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By: |
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Deputy Attorney General |
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Date: |
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Date: |
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APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF
ENVIRONMENTAL |
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MANAGEMENT THIS |
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DAY
OF |
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, 2008. |
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For the Commissioner: |
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Signed on April 18, 2008 |
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Robert B. Keene |
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Assistant Commissioner |
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Office of Legal Counsel and Enforcement |
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