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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 owns and
operates an electric generating plant located
at
3. Respondent is authorized
by NPDES Permit Number IN 0002810 (the "Permit") to discharge cooling
water from Outfall 001, and ash pond effluent from Outfall 002, into receiving
waters named the
4. IDEM has jurisdiction over the parties and the subject
matter of this action.
5. 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.
6. 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, and it shall not be a defense for
Respondent in an enforcement action that it would have been necessary to halt
or reduce the permitted activity in order to maintain compliance with the
conditions of the Permit.
Pursuant to Part I.A.3 of the Permit, Respondent is
required to comply with the discharge limitations contained in the Permit that
are applicable to the discharges from Outfall 102. Part I.A.3 of the Permit contains the
discharge monitoring frequency requirements, and the daily maximum and monthly
average concentration limitations for arsenic, cyanide, selenium, zinc, copper,
ammonia (as N), and hexavalent chromium.
Respondent is required to sample the discharge from Outfall 102 for the
above referenced parameters three times per week, and is required to sample for
pH daily.
Pursuant
to Part I.C.1 of the Permit, samples and measurements taken as required in the
Permit are required to be representative of the volume and nature of the
discharge.
A
review of Discharge Monitoring Reports (DMRs) and Monthly Reports of Operation
(MROs) submitted by Respondent to IDEM indicate that Respondent reported
exceedances of the discharge limitations for arsenic, free cyanide, selenium, zinc,
copper, for ammonia (as N).
Additionally,
Respondent reported a daily flow at internal Outfall 102 but failed to report
sample results with the required frequency, from Outfall 102 as follows: for arsenic, free cyanide, selenium, zinc,
copper, ammonia (as N), and cadmium for the period of June 16 through June 26;
for hexavalent chromium for the period of June 16 through July 1; and for pH
for the period of June 18 through June 20, and June 27 through July 5.
The
above referenced exceedances of the permit limitations at Outfall 102 during
June and July 2007 were in violation of 327 IAC 5-2-8(1), and Part II.A.1 and
Part I.A.3 of the Permit. The above
referenced instances of Respondent's failure to report sample results at
Outfall 102 during June and July 2007 were in violation of 327 IAC 5-2-8(1),
and Part II.A.1, Part I.A.3, and Part I.C.1 of the Permit.
7. Respondent
has indicated that during June and July, 2007, the relevant time period for
these Findings, the WRS facilities owned and operated by Respondent included
the Wabash River Repowering Wastewater Pond (WRRW Pond), which receives several
wastewater streams, including certain wastewaters from the Repowering Unit,
service water treatment, coal pile runoff, and boiler blowdown.
To
improve detention times and increase the treatment efficiency of the WRRW Pond,
Respondent conducted hydraulic dredging of accumulated solids from the pond
over the period of June 27 through July 5, 2007. Waters from the Pond were used to partially
liquefy and pump dredged solids from the WRRW Pond to a largely filled area in
the WRS's ash pond where fly ash from the WRS's boilers is transported. This area serves as a temporary staging area
for the fly ash before it is transported through a dredging system to the
current working cell of the ash pond.
The solids dredged from the WRRW Pond were transported along with fly
ash by the ash dredging system to the ash pond's current working cell, which is
lined.
The
normal point of discharge from the WRRW Pond is from internal Outfall 102 to
the ash pond to a somewhat different location from the fly ash staging area of
the ash pond where the dredged solids were transported; Outfall 102 has a more
direct route through the ash pond to the final polishing cell of the ash pond
and thence to Outfall 002. Discharges
from Outfall 102's normal location were suspended during the dredging
operation; Respondent took samples instead on June 27 and 29 and July 2, 2007,
from the more liquid component of the dredged solids/wastewater mixture being
pumped from the WRRW Pond. The samples
were taken from the transport pipe at the point of entry into the fly ash
staging area of the ash pond.
The
wastewater sample results reported for June 27, June 29, and July 2, 2007,
showed substantial exceedances of daily maximum limits for internal Outfall 102
for free cyanide and total recoverable arsenic, and slight exceedances of daily
maximum limits for ammonia (June 27) and total recoverable zinc (June 29 and
July 2). The sample results for these
three days also produced exceedances of monthly average limits for free cyanide
and arsenic in the months of June and July, 2007.
Respondent
believes that the high solids content of the dredged solids/wastewater mixture
sampled on June 27, June 29, and July 2 contributed to the high sample
results. Respondent expects that the
high solids removal efficiency achieved in the ash pond would have applied
equally well to the dredged solids.
Samples taken for free cyanide and arsenic on July 2 of the discharge
from Outfall 002 do not show atypical results.
No
sampling for metals, free cyanide, and ammonia occurred on June 18, 20, 22, and
25, 2007 since there was no flow from Outfall 102 during the periods scheduled
for sampling. No analyses were performed
for hexavalent chrome for samples collected on June 27 and 29, 2007, since
there was not enough water available in the sample.
Subsequent
to the 2007 dredging operation, the WRRW Pond was sold by Respondent to another
entity as part of a sale of the Repowering Unit (coal gasification/combustion
turbine generating unit) and associated facilities at the WRS plant. By no later than July 1, 2009, Respondent
expects that the WRRW Pond will no longer discharge to Respondent's ash pond
and instead will be utilized by the new owner as a wastewater treatment
facility wholly dedicated to the wastewater generated by Repowering Unit and
associated operations, at which time Respondent's operation of the WRRW Pond
will terminate.
8. 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 327 IAC 5-2-8(1) and Part II.A.1, Part I.A.3, and Part I.C.1
of the Permit.
3. In
any future dredging of solids from the WRRW Pond between the Effective Date of
this Agreed Order and the date on which Respondent's obligations from operation
of the WRRW Pond terminate, Respondent will not transport dredged solids to the
WRS ash pond.
4. Respondent
shall make additional efforts to obtain a sample from Outfall 102 on days when
there is no flow during the normal scheduled sampling period.
5. Respondent
will provide a copy of this Agreed Order to the new owner of the Repowering
Unit within 15 days after the Effective Date of this Agreed Order.
6. Respondent
is assessed a civil penalty of Twenty-Five Thousand Four Hundred and Fifty-Five
Dollars ($25,455). 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.
7. 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 |
Transporting
dredged solids to the WRS ash pond |
$5,000
per occurrence |
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4 |
Failure to make additional efforts to obtain a
sample from Outfall 102 on days when there is no flow during the normal
scheduled sampling period |
$5,000 per occurrence |
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5 |
Failure to provide a copy of this Agreed Order to
the new owner of the Repowering Unit within 15 days after the Effective Date
of this Agreed Order. |
$500 per day late |
8. 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.
9. 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:
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Indiana
Department of Environmental Management |
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Cashier
– Mail Code 50-10C |
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10. This
Agreed Order shall apply to and be binding upon Respondents 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 he/she/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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. This Agreed Order shall
remain in effect until Respondent has complied with all terms and conditions of
Order Paragraph Nos. 3 through 9 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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By: |
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Mark W. Stanifer, Chief |
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Printed: |
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Water Enforcement Section |
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Title: |
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Office of Enforcement |
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Date: |
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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 June 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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