STATE OF INDIANA

COUNTY OF MARION

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BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

DUKE ENERGY INDIANA, INC.—GIBSON

GENERATING STATION,

Respondent.

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Case No. 2015-23003-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.             Respondent is Duke Energy Indiana, Inc. (Respondent) which owns the Gibson Generating Station located at 1097 North County Road 950 West, in Owensville, Gibson County, Indiana (Gibson Station).

3.             Respondent has self-reported violations of Indiana’s environmental statutes and regulations.

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

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.             Gibson Station does not currently have, and has never had, a National Pollutant Discharge Elimination System (NPDES) industrial discharge permit.

7.             Gibson Station draws its cooling water from a 3000-acre on-site industrial pond (the Cooling Pond).  The Cooling Pond is exempted from being a “water of the State” by IC § 13-11-2-265.

8.             There are approximately 269 “relief wells” installed along the east side of the Cooling Pond’s dike.  The relief wells discharge and/or are capable of discharging water to the East Ditch and Coon Creek.

9.             The relief wells are designed to reduce the hydrostatic head of groundwater below the toe of the dike, which then improves the slope stability (and associated safety factors) of the dike by lowering the phreatic surface at the toe.

10.          Each relief well is designed to eventually discharge through a horizontal pipe.  Depending upon the location of the particular relief well, the relief well’s horizontal pipe discharges to Gibson Station’s East Ditch or Coon Creek.

11.          Both Gibson Station’s East Ditch and Coon Creek are waters of the State of Indiana, and both these water bodies eventually flow to other water bodies that discharge to the Wabash River. (Map Attached)

12.      By letter dated April 23, 1998, IDEM determined that the relief well discharges did not require a NPDES permit because, among other reasons, “the wells will be discharging water which does not contain any pollutants.”

13.      Respondent voluntarily sampled some of the relief wells that discharge and/or are capable of discharging into the East Ditch and Coon Creek.  Some of this sampling indicated the presence of pollutants.

14.      Respondent contacted IDEM’s Office of Water Quality (OWQ) to report the results of its sampling.

15.      IDEM reviewed the relief well sampling results and determined that the relief well discharges are a point source discharge of pollutants to the waters of the state that require a NPDES permit under 327 Indiana Administrative Code (IAC) 5-2-2.

16.      Pursuant to 327 IAC 5-2-2, any discharge of pollutants into waters of the state as a point source discharge is prohibited unless in conformity with a valid NPDES permit obtained prior to the discharge.

Respondent’s relief well sampling indicates an on-going unpermitted pollutant discharge into waters of the state, in violation of 327 IAC 5-2-2.

17.      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.

2.             Within 90 days of the Effective Date, Respondent shall develop and submit to IDEM for approval a Compliance Plan (CP) which identifies actions that Respondent will take to either eliminate the discharges from the relief wells to the East Ditch and Coon Creek or apply for and obtain an NPDES permit.

The CP shall also include any actions necessary to identify and address any effects of the discharge of pollutants to East Ditch, Coon Creek and the Wabash River from the relief wells.

The CP may include other actions Respondent has taken or plans to take to address the discharges from the relief wells.

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

 

3.       In the event that Respondent determines a milestone date in the CP cannot be achieved, Respondent shall within 60 days develop and submit to IDEM, for approval, an Additional Action Plan which identifies the additional actions that Respondent will take to (1) eliminate the discharges from the relief wells to the East Ditch and Coon Creek, (2) apply for and obtain an NPDES permit, or (3) identify and address any effects from the discharge of pollutants, whichever is applicable.  The Additional Action Plan, if required, shall include an implementation and completion schedule, including specific milestone dates.

 

4.       The plans required by Paragraphs 2 and 3 above 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.  After three submissions of such plan by Respondent, IDEM may seek civil enforcement of this order.

 

5.           Respondent, upon receipt of written notification from IDEM, shall immediately implement the approved plan and adhere to the milestone dates therein.  The approved CP and Additional Action Plan shall be incorporated into the Agreed Order and shall be deemed an enforceable part thereof.  Failure by Respondent to submit any plan by the specified date or to meet any of the milestones in the approved plan will subject Respondent to stipulated penalties as described below.  Failure to achieve compliance at the conclusion of work under an Additional Action Plan will subject Respondent to additional enforcement action.

 

6.             Respondent shall submit to IDEM a quarterly progress report detailing activity toward completion of each milestone included in the CP or Additional Action Plan.

 

7.             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.”

 

8.             In the event the terms and conditions of the preceding paragraphs are violated, IDEM may assess and Respondent shall pay the corresponding stipulated penalty:

 

Order Paragraph Number

Violation

Penalty Amount

2, 4

Failure to submit or modify the CP, as required, within the given time period.

$250 per each week late

3

Failure to submit or modify the Additional Action Plan, if required, within the given time period.

$250 per each week late

5

Failure to meet any milestone date set forth in the approved CP or Additional Action Plan.

$500 per each week late

6

Failure to submit quarterly progress reports.

$250 per each week late

 

9.             Stipulated penalties shall be due and payable no later than the 30th day after Respondent receives written notice that IDEM has determined a stipulated penalty is due, the 30th day being a “Due Date.”  IDEM may notify Respondent at any time that a stipulated penalty is due.  Failure to notify Respondent in writing in a timely manner 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.  Neither assessment nor payment of stipulated penalties shall preclude IDEM from seeking additional relief against Respondent for a 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.

 

10.          Civil and stipulated penalties are payable by check to the “Environmental Management Special Fund.”  Checks shall include the Case Number 2015-23003-W of this action and shall be mailed to:

 

Office of Legal Counsel

Indiana Department of Environmental Management

IGCN, Rm N1307

100 North Senate Avenue

Indianapolis, IN 46204

 

11.      Force majeure, for purposes of this Agreed Order, is defined as any event arising from causes totally beyond the control and without fault of Respondent that delays or prevents the performance of any obligation under this Agreed Order despite Respondent’s best efforts to fulfill the obligation.  The requirement that Respondent exercise “best efforts to fulfill the obligation” includes using best efforts to anticipate any potential force majeure event and best efforts to address the effects of any potential force majeure event:  (1) as it is occurring; and (2) following the potential force majeure event, such that the delay is minimized to the greatest extent possible.  Force majeure does not include:  (1) changed business or economic conditions; (2) financial inability to complete the work required by this Agreed Order; or (3) increases in costs to perform the work.

Respondent shall notify IDEM by calling the case manager within three (3) calendar days and by writing no later than seven (7) calendar days after it has knowledge of any event which Respondent contends is a force majeure.  Such notification shall describe: (1) the anticipated length of the delay; (2) the cause or causes of the delay; (3) the measures taken or to be taken by Respondent to minimize the delay; and (4) the timetable by which these measures will be implemented.  Respondent shall include with any notice all available documentation supporting its claim that the delay was attributable to a force majeure.  Failure to comply with the above requirements shall preclude Respondent from asserting any claim of force majeure for that event. Respondent shall have the burden of demonstrating that the event is a force majeure.  The decision of whether an event is a force majeure shall be made by IDEM.

If a delay is attributable to a force majeure, IDEM shall extend, in writing, the time period for performance under this Agreed Order, by the amount of time that is directly attributable to the event constituting the force majeure.

12.      All submittals and notices required by this Agreed Order shall be sent to the following:

As to Duke Energy:

 

Julie L. Ezell, Esq.

Duke Energy Legal Department

1000 East Main Street

Plainfield IN 46168

(317) 838-1100

Julie.ezell@duke-energy.com

 

As to IDEM:

 

Edward C. Judson, Enforcement Case Manager

Office of Water Quality – IGCN 1255

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

13.          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.

 

14.          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.

 

15.          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.

 

16.          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.

 

17.          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.

 

18.          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.

 

19.          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 this Order.

 

20.          Nothing in this Agreed Order shall prevent IDEM, or anyone acting on its behalf, from communicating with the United States Environmental Protection Agency (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 EPA or any other agency or entity.

 

21.          This Agreed Order shall remain in effect until Respondent has complied with all 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

 

 

By: ________________________

By: _________________________

Mary E. Hoover, Chief

 

Enforcement Section

Printed: ______________________

Surface Water, Operations and

 

Enforcement Branch

Title: ________________________

Office of Water Quality

 

 

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 May 13, 2015

 

Bruno Pigott

 

Assistant Commissioner

 

Office of Water Quality