STATE OF INDIANA		)	SS:	BEFORE THE INDIANA DEPARTMENT OF
		)
COUNTY OF MARION		)		ENVIRONMENTAL MANAGEMENT
COMMISSIONER OF THE DEPARTMENT					)
OF ENVIRONMENTAL MANAGEMENT,					)
					)
Complainant,					)
					)
	v.				)	Case No. 2017-24922-S
					)
Duke energy Indiana, llc,					)
noblesville station					)
					)
Respondent.					)

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 Indiana created by Indiana Code (“IC”) 13-13-1-1.

2. Respondent is Duke Energy Indiana, LLC which owns and operates the property where the Noblesville Generating Station (“Noblesville Station”) is located at 21225 Riverwood Ave., Noblesville, IN (“Site”).

3. IDEM has jurisdiction over the parties and the subject matter of this action.

4. Respondent waives issuance of a Notice of Violation and the settlement period of sixty (60) days as provided for by Indiana Code IC 13-30-3-3.

5. Respondent’s Noblesville Station has been owned or operated by Duke Energy or its predecessor companies from the 1950s to the present. Noblesville Station was coal-fired until its conversion to natural gas combined cycle operations in approximately 2003. Prior to that time, Noblesville Station managed its coal ash in various ways. Noblesville Station never wet-sluiced coal ash to any on-site impoundment.

6. From the 1950s until about 1989, fly ash (at various times) and bottom ash was regularly transported from Noblesville Station’s dry ash handling silos to two (2) contiguous above-ground ash placement mounds on the northwest portion of the Site (collectively the “Northwest Ash Mound”). The Northwest Ash Mound Covers approximately 18 acres. (See Exhibit A attached hereto).

7. Small amounts of trash and other refuse were also placed on the Northwest Ash Mound (e.g., garbage, small pieces of equipment, appliances, and tires).

8. There is a second historic ash management mound (approximately four (4) acres in size) on the Site known as the “Eastern Hill.” (See Exhibit A attached hereto). At various times until 1989, ash was placed at the Eastern Hill. There is no evidence that trash or refuse was ever placed at the Eastern Hill.

9. At the time Noblesville Station ceased placing ash at the Northwest Ash Mound and Eastern Hill (collectively the “Historic Ash Placement Areas”), some soil was placed over the ash (from a couple of inches up to two feet in some locations), grass was sown, and trees were planted. However, although there is some soil and vegetation over the ash, the Historic Ash Placement Areas did not receive “cover” as defined in the landfill permitting context.

10. In 2015, based upon the results of an internal environmental audit, Respondent voluntarily and proactively disclosed the existence of the Historic Ash Placement Areas at the Site. At that time, IDEM was informed that Respondent had no evidence to believe that the Historic Ash Placement Areas were causing any groundwater impacts of concern. Indeed, at that time the sampling of Noblesville Station’s production well and drinking water well did not indicate any such impacts.

11. Subsequently, Respondent voluntarily installed numerous on-site monitoring wells in conjunction with Respondent’s Site investigation activities. In addition, Respondent voluntarily offered to, and did, sample many private drinking water wells in the area near Noblesville Station.

12. The results from the on-site monitoring well and private drinking water sampling indicate the existence of elevated levels of boron at certain on-site and off-site locations above what would be expected as naturally occurring. The Historic Ash Placement Areas are likely the source of the elevated boron levels.

13. While additional investigation is ongoing and next steps are being evaluated, Respondent is paying for and providing bottled water to participating property owners (one of the property owners declined) that have boron levels in their drinking water near or above 2.0 mg/L. Because Indiana does not have a Maximum Contaminant Level for boron, this action level was chosen in consideration of USEPA’s health advisory guidelines for boron.

14. Based on Respondent’s disclosures and an investigation including an inspection conducted by representatives of IDEM on November 9, 2017, the following violations were found:

a. Pursuant to IC 13-30-2-1(3), no person shall deposit any contaminants upon the land in a place and manner which creates or would create a pollution hazard that violates 329 IAC 10-4-2 and 329 IAC 10-4-3.

Respondent has caused and/or allowed contaminants, including, but not limited to, coal ash, used parts, old equipment, trash, and other materials to be deposited upon the land in a place and manner which creates or would create a pollution hazard that violates or would violate 329 IAC 10-4-2 and 329 IAC 10-4-3. In addition, during the November 9, 2017 inspection, areas of the Historic Ash Placement Areas appeared to have erosion or the cover soils were minimal.

b. Pursuant to IC 13-30-2-1(4), no person shall deposit or cause or allow the deposit of any contaminants or solid waste upon the land, except through the use of sanitary landfills, incineration, composting, garbage grinding, or another method acceptable to the board.

Respondent has deposited or caused and/or allowed the deposit of contaminants and/or solid waste, including, but not limited to, coal ash, used parts, old equipment, trash, and other materials on the Historic Ash Placement Areas of the Site in a method which has not been deemed acceptable to the board. In addition, during the November 9, 2017 inspection, areas of the Historic Ash Placement Areas appeared to have erosion or the cover soils were minimal.

c. Pursuant to IC 13-30-2-1(5), no person shall dump or cause or allow the open dumping of garbage or any other solid waste in violation of 329 IAC 10-4-2 and 329 IAC 10-4-3.

Respondent has dumped or caused and/or allowed the open dumping of solid waste, including, but not limited to, coal ash, used parts, old equipment, trash, and other materials on the Historic Ash Placement Areas of the Site. In addition, during the November 9, 2017 inspection, areas of the Historic Ash Placement Areas appeared to have erosion or the cover soils were minimal.

d. Pursuant to 329 IAC 10-4-2, no person shall cause or allow the storage, containment, processing, or disposal of solid waste in a manner which creates a threat to human health or the environment, including the creating of a fire hazard, vector attraction, air or water pollution, or other contamination.

Respondent has caused and/or allowed solid waste, including, but not limited to, coal ash, used parts, old equipment, trash, and other materials to be disposed in the Historic Ash Placement Areas of the Site in a manner that caused adverse impacts to ground water. In addition, during the November 9, 2017 inspection, areas of the Historic Ash Placement Areas appeared to have erosion or the cover soils were minimal.

e. Pursuant to 329 IAC 10-4-3, open dumping and open dumps, as those terms are defined in IC 13-11-2-146 and IC 13-11-2-147, are prohibited.

Respondent has caused and/or allowed solid waste, including, but not limited to, coal ash, used parts, old equipment, trash, and other materials to be open dumped at the Historic Ash Placement Areas of the Site. In addition, during the November 9, 2017 inspection, areas of the Historic Ash Placement Areas appeared to have erosion or the cover soils were minimal.

f. Pursuant to 329 IAC 10-4-4(a), the owner of real estate upon which an open dump is located is responsible for the following:

(1) Correction and controlling any nuisance conditions that occur as a result of the open dump. Correction and control of nuisance conditions must include:

(A) removal of all solid waste from the area of the open dump and disposal of such wastes in a solid waste land disposal facility permitted to accept the waste; or

(B) other methods as approved by the commissioner.

(2) Eliminating any threat to human health or the environment.

Respondent has caused and/or allowed solid waste, including, but not limited to, coal ash, used parts, old equipment, trash, and other materials to be open dumped at the Historic Ash Placement Areas of the Site and has failed to comply with the requirements of 329 IAC 10-4-4(a)(1) and (2). In addition, during the November 9, 2017 inspection, areas of the Historic Ash Placement Areas appeared to have erosion or the cover soils were minimal.

15. Respondent is currently evaluating long term actions to: (a) further investigate and monitor the Site; (b) inhibit further off-site movement of contaminants from the Historic Ash Placement Areas; (c) conduct closure of the Historic Ash Placement Areas (which may also include coal ash that has been beneficially re-used on the Site); and (d) address off-site impacts to groundwater/drinking water from the Historic Ash Placement Areas, including without limitation securing an alternative water supply for sufficiently impacted properties or appropriately treating the drinking water that may be used for consumption.

16. 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. Within ninety (90) days of the Effective Date, Respondent shall develop and submit to IDEM for review and approval a Compliance Plan (“CP”) which identifies actions that Respondent will take to: (a) further investigate and monitor the Site; (b) inhibit further off-site movement of contaminants from the Historic Ash Placement Areas; and (c) address off-site impacts to drinking water from the Historic Ash Placement Areas, including without limitation securing an alternative water supply for sufficiently impacted properties or appropriately treating the drinking water that may be used for consumption, if the approved alternative water supply is accepted by the property owner.

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 sixty (60) days of making that determination, develop and submit to IDEM, for approval, an Additional Action Plan which identifies the additional actions that Respondent will take to achieve and maintain compliance. The Additional Action Plan, if required, shall include an implementation and completion schedule, including specific milestone dates.

4. Respondent, upon receipt of written notification from IDEM, shall immediately implement the approved CP and adhere to the milestone dates therein. The approved CP and Additional Action Plan shall be incorporated into this Agreed Order and shall be deemed an enforceable part thereof.

5. Respondent shall within ninety (90) days following receipt of IDEM’s written notification of approval of the CP and every ninety (90) days thereafter until completion, submit to IDEM a quarterly progress report detailing activity toward completion of each milestone included in the CP or Additional Action Plan.

6. Within one hundred eighty (180) days of the Effective Date, Respondent shall submit three (3) hard copies and one (1) complete copy of the entire document on CD, in PDF format no greater than 100 megabytes per file, of a closure/post closure plan for the Historic Ash Placement Areas at the Site to IDEM for review and approval. This closure/post closure plan shall be in accordance with the provisions of 329 IAC 10-30 and 10-31 for Restricted Waste Sites Type I, unless IDEM approves otherwise in writing.

The closure/post closure plan shall include an implementation and completion schedule, including specific milestone dates.

The closure/post closure plan shall include a proposal for financial assurance for closure and post closure care of the Historic Ash Placement Areas at the Site in accordance with 329 IAC 10-39. Within thirty (30) days after IDEM approves the closure/post closure plan, Respondent shall demonstrate to IDEM financial assurance for closure and post closure care of the Historic Ash Placement Areas at the Site is in effect in accordance with 329 IAC 10-39.

7. Respondent, upon receipt of written notification from IDEM, shall immediately implement the approved closure/post closure plan and adhere to the milestone dates therein. The approved closure/post closure plan shall be incorporated into this Agreed Order and shall be deemed an enforceable part thereof.

8. 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 (3) submissions of such plan by Respondent, IDEM may modify and approve any such plan and Respondent must implement the plan as modified by IDEM. The approved plan shall be incorporated into this Agreed Order and shall be deemed an enforceable part thereof.

9. All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

Debbie O’Brien, Enforcement Case Manager

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

As to Respondent:

Julie L. Ezell, Esq.

Duke Energy Legal Department

1000 East Main Street

Plainfield, IN 46168

(317) 838-1100

Julie.ezell@duke-energy.com

10. Respondent is assessed and agrees to pay a civil penalty of seventeen thousand five hundred dollars ($17,500). Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date; the 30th day being the “Due Date”.

11. 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:

Order Paragraph Number	Violation	Penalty Amount
2	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
4	Failure to meet any milestone date set forth in the approved CP or Additional Action Plan.	$500 per each week late
5	Failure to submit quarterly progress reports. First one being due ninety (90) days from the Effective Date.	$250 per each week late
6	Failure to submit closure/post closure plan and/or failure to demonstrate financial assurance for closure/post closure within any milestone date set forth therein.	$250 per each week late
7	Failure to implement the approved closure/post closure plan, and/or meet any milestone date set forth therein.	$250 per each week late

12. Stipulated penalties shall be due and payable no later than the 30th day after Respondent receives written notice that Complainant has determined a stipulated penalty is due; the 30th day being the “Due Date”. Complainant may notify Respondent at any time that a stipulated penalty is due. Failure to notify Respondent in writing in a timely manner of stipulated penalty assessment shall not waive Complainant’s right to collect such stipulated penalty or preclude Complainant from seeking additional relief against Respondent for violation of this Agreed Order. Neither assessment nor payment of stipulated penalties shall preclude Complainant 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.

13. 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

Office of Legal Counsel

IGCN, Room N1307

100 North Senate Avenue

Indianapolis, IN 46204-2251

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 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. Such interest shall be payable to the Environmental Management Special Fund, and shall be payable to IDEM in the manner specified in Paragraph 13, above.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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 Agreed Order.

22. 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 letter to Respondent.

TECHNICAL RECOMMENDATION:				RESPONDENT:
Department of Environmental Management
By: _________________________				By: _________________________
	Nancy Johnston, Section Chief
	Enforcement Section			Printed: ______________________
Office of Land Quality
				Title: ________________________
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 1/31/18
				Peggy Dorsey, Assistant Commissioner
				Office of Land Quality