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STATE OF |
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BEFORE THE INDIANA
DEPARTMENT |
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COMMISSIONER OF THE
DEPARTMENT Complainant, v. DUKE ENERGY INDIANA, INC., 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 Duke Energy Indiana, Inc. (“Respondent”), which owns and/or operates a steam
electric generating plant located on
West Road, Terre Haute, Vigo County, Indiana (the “Site”), and is authorized by
NPDES Permit Number IN 0002810 (the "Permit") to discharge cooling
water discharge from Outfall 001, and ash pond effluent from Outfall 002, into
receiving waters named the Wabash River in accordance with the terms and
conditions of the NPDES Permit.
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 on July 27, 2007 via
Certified Mail to:
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Duke Energy Indiana, Inc. |
Duke Energy Indiana, Inc. |
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Kay E. Pashos, President |
CT Corporation System, Registered Agent |
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5. 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.
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 IC 13-18-4-1 and IC 13-18-4-3.
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.
Pursuant
to 327 IAC 5-2-8(1) and Part II.A.1 of the Permit, Respondent is required to
comply with all terms and conditions of its NPDES Permit. Any permit
noncompliance constitutes a violation of the Clean Water Act (CWA) and IC 13
and is grounds for enforcement action.
Pursuant to Part I.A of the Permit, Respondent is
required to comply with the effluent limitations contained in the Permit that
are applicable to the discharges from Outfalls 001 and 002. The discharge shall not contain oil or other
substances in amounts sufficient to create a visible film or sheen on the
receiving waters.
Pursuant
to 327 IAC 2-1-6, 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 that are in
amounts sufficient to be unsightly or deleterious or that produce color,
visible oil sheen, odor, or other conditions in such degree as to create a
nuisance.
An
investigation conducted by Indiana Department of Natural Resources
("IDNR") and IDEM staff, and related documents, including Incident
Reports for Incident Numbers 2007-02-070 and 2007-02-129, indicate that a spill
of petroleum product from the Site of such quantity as to cause a visible sheen
upon the Wabash River occurred on February 11 and 12, 2007, with residual
discharge causing visible sheen upon the waters on February 13, 23, 24, 2007,
in violation of IC 13-30-2-1, IC 13-18-4-5, 327 IAC 5-2-2, 327 IAC 5-2-8(1),
Part II.A.1 of the Permit, and Part I.A of the Permit.
Respondent
estimates that a release of approximately 38 gallons of oil occurred to the
6. Pursuant
to Part II.C.4 of the Permit, Respondent shall report information on any
noncompliance which may pose a significant danger to human health or the
environment within 24 hours from the time Respondent becomes aware of such
noncompliance, and a written submission shall also be provided within 5 days.
Pursuant
to 327 IAC 2-6.1-5, spills of petroleum of such quantity as to cause a sheen
upon the waters must be reported.
Pursuant
to 327 IAC 2-6.1-7, 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:
A. contain
the spill, if possible, to prevent additional spilled material from entering
the waters of the state.
B. undertake
or cause others to undertake activities needed to accomplish a spill response.
C. as
soon as possible, but within two hours of discovery, communicate a spill report
to the Department of Environmental Management, Office of Environmental Response
at 1-888-233-7745.
D. submit
to the Department of Environmental Management a written copy of the spill
report, if requested in writing by the department.
E. except
from modes of transportation other than pipelines, exercise due diligence and
document attempts to notify the following:
i. for
spills to surface water that cause damage, the nearest affected downstream
water user located within ten miles of the spill and in the state of
ii. for
spills to soil outside the facility boundary, the affected property owner or
owners, operator or operators, or occupant or occupants.
Pursuant to Part II.A.3 of the Permit, Respondent is
required to take all reasonable steps to minimize or correct any adverse impact
on the environment resulting from noncompliance with the Permit.
The
investigation by IDNR and IDEM staff indicted that after the petroleum product
release and oil sheen was discovered by IDNR and IDEM staff and communicated to
Respondent on February 11, 2007, Respondent failed to take timely action to contain
the spill, failed to undertake timely spill response, failed to timely
communicate a spill report to IDEM, and failed to take all reasonable steps to
minimize or correct any adverse impact on the environment resulting from the
noncompliance with the Permit, in violation of 327 IAC 2-6.1-5, 327 IAC
2-6.1-7, and Part II.A.3 of the Permit.
Respondent's
personnel placed absorbent booms across #3/4 intakes and #5/6 intakes within 4
to 5 hours of notification of the sheen by IDNR, which was before sample
results confirmed the Wabash River Station was the source of the sheen, and
skirt booms were placed across the discharge by Respondent's emergency response
contractor within 8 hours of notification of the sheen by IDNR. For safety reasons, it was not feasible to
install downriver booms during the dark and dangerous river conditions
prevailing on the evening of February 11, 2007, however Respondent's emergency
response contractor installed downriver booms the next morning.
After
confirmation that the source of the sheen was turbine oil from the Wabash River
Station, Respondent removed Unit 2 from service as promptly as possible and a
leak in No. 2 hydrogen seal oil cooler was identified at 10:30 PM. Respondent verified the clean river status of
the
Respondent
has indicated that it did not make an oral spill report to IDEM on February 11,
2007 concerning the sheen since IDEM's Office of Emergency Response staff had
already received information about the sheen and suspected release from IDNR
before IDNR contacted Duke and consequently, it would have been superfluous for
Respondent to re-contact IDEM's Office of Emergency Response and repeat the
same information. Respondent kept IDEM
apprised from that point on with information concerning the spill
response. Respondent did notify the
Respondent
took actions to respond to the release and to minimize or correct any adverse
impacts, and has made plans to replace the hydrogen seal oil coolers for Units
2, 3, 4, and 5 as a precautionary measure to minimize any potential for future
leaks from this equipment. Respondent
communicated at a August 22, 2007 meeting with IDEM staff that it believes that
the corrective actions that it has already taken, its existing facility
monitoring, and its implementation of its Spill Prevention Plan, are sufficient
to prevent future releases of oil from its hydrogen seal oil cooler for its
turbine generators at the Wabash River Station.
Respondent's
October 12, 2007 submittal indicated that it had been performing daily visual
inspections of the discharge from Outfall 001 since February 12, 2007, and no
further evidence of a release of oil or oily substances has been found (other
than the release of residual oils from impacted soils at the intakes on
February 23, 2007), which the Respondent indicated confirms the effectiveness
of the repairs to the hydrogen seal oil cooler for Unit 2 at the Wabash River
Station.
7. 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 IC 13-30-2-1, IC 13-18-4-5, 327 IAC 5-2-2, 327 IAC 5-2-8(1),
Part II.A.1 of the Permit, Part I.A of the Permit, 327 IAC 2-6.1-5, 327 IAC
2-6.1-7, and Part II.A.3 of the Permit.
3. Beginning
on the Effective Date, and continuing until Respondent has completed replacing
the hydrogen seal oil coolers for Units 2, 3, 4, and 5 as a precautionary
measure to minimize any potential for future leaks from this equipment, Respondent
shall inspect Outfall 001 and Outfall 002 at least once per day to determine if
the discharge contains oil or other substances in amounts sufficient to create
a visible film or sheen on the receiving waters. If an inspection indicates an oil sheen,
Respondent shall do further investigation and take a sample to determine if
turbine oil is in the discharge. Respondent shall document its inspections by
recording the following:
A. the date and time
of the inspection;
B. the name of the
person(s) conducting the inspection;
C. the
outfall location inspected;
D. the
appearance of the discharge and receiving waters, specifically noting whether a
discharge is creating a visible film or sheen on the receiving waters; and
E. the
remedial measures taken in the event that discharge is causing a visible film
or sheen on the receiving waters.
Respondent
shall retain copies of the required documentation of the inspections and
samples if taken and shall allow IDEM representatives to inspect and copy these
records upon request. Respondent will notify IDEM in writing within 15 days of
its completion of the replacement of the hydrogen seal oil coolers for Units 2,
3, 4, and 5.
4. Respondent
shall fully implement its Spill Prevention Plan and at all times maintain in
good working order and efficiently operate all facilities and systems for
wastewater collection and treatment which are installed or used by Respondent
and which are necessary for achieving compliance with the terms and conditions
of the Permit in accordance with Part II.B.1 of the Permit and 327 IAC 5-2-8.
5. All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
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Terry
Ressler, Enforcement Case Manager |
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Indiana
Department of Environmental Management |
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Office
of Enforcement – Mail Code 60-02 |
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6. Respondent
shall reimburse the IDEM for the sample costs incurred during its investigation
(Invoice Nos. 1343068 and 1341898 for sample nos. LQ4050, LQ4051, LQ4052, and LQ4053). IDEM has determined this figure to be
$1,600. Payment shall be made to the IDEM
Laboratory Contracts Account No. 3610 10110, within thirty (30) days of the
Effective Date of this Order, and sent to the address in Order Paragraph 10.
7. Respondent
is assessed a civil penalty of Nine Thousand Five Hundred Dollars ($9,500). 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:
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Paragraph |
Violation |
Stipulated Penalty |
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3 |
Failure to inspect the Outfalls at least once per
day, failure to document the inspections as required, and/or failure to
retain and allow access to these records upon request. |
$1,000 per violation |
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3 |
Failure to notify IDEM in writing within 15 days of
its completion of the replacement of the hydrogen seal oil coolers for Units
2, 3, 4, and 5. |
$100 per day |
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 and sample cost reimbursement payment are payable by
check to the “Environmental Management Special Fund.” Checks shall include the Case Number of this
action and shall be mailed to:
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Indiana
Department of Environmental Management |
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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 until Respondent complies with the terms of Order Paragraph Nos. 3
through 10 and IDEM issues a Resolution of Case letter.
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TECHNICAL RECOMMENDATION: |
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RESPONDENT: |
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Department of Environmental Management |
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Duke Energy Indiana, Inc. |
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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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APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF
ENVIRONMENTAL |
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MANAGEMENT THIS |
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, 2008. |
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For the Commissioner: |
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Signed on February 14, 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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