STATE OF
INDIANA |
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BEFORE THE
INDIANA DEPARTMENT |
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COMMISSIONER
OF THE DEPARTMENT Complainant, v. DUKE ENERGY
INDIANA, LLC, 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 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.
Duke Energy Indiana, LLC (Respondent) owns and
operates the property where the Cayuga Generating Station (Cayuga Station or
Station) is located at 3300 North SR 63, in Cayuga, Vermillion County, Indiana
(the Site).
3. Respondent
self-reported facts regarding potential violations of Indiana’s environmental
statutes and regulations.
4. Respondent
is authorized by National Pollutant Discharge Elimination System (NPDES) Permit
Number IN0002763 (the Permit) to discharge wastewater in accordance with the
terms and conditions of the Permit via Outfall 001, Outfall 002, Outfall 003
into the Wabash River and through Outfall 004 into an unnamed tributary of the
Wabash River.
5. Respondent
submitted a renewal application (the Application) for the Permit on August 25,
2017. Respondent filed a timely Application; therefore, the Permit was
considered administratively extended in accordance with 327 Indiana
Administrative Code (IAC) 5-2-6(b).
6. IDEM has
jurisdiction over the parties and the subject matter of this action pursuant to
IC 13-30-3.
7. 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.
8.
Respondent’s Cayuga Station is a coal-fired,
two-unit electric generating station that has been owned and operated by Duke
Energy or its predecessor companies from the 1970s to the present.
9.
As
part of the Station’s normal operations over the years, it used various former
and current ash surface impoundments (primary and secondary type impoundments)
to manage various coal combustion residuals (“CCR”) waste streams. These ash surface
impoundment operations were conducted in accordance with applicable laws and
regulations at the time. Indeed, the discharges from the process water system
have been subject to NPDES permit requirements.
10.
Over
the course of time; however, some of the groundwater at Cayuga Station has
become impacted by CCR-related constituents from the surface impoundment
system.
11.
There
are 22 “non-engineered” seeps at Cayuga Station. These seeps were not designed
or constructed to be, and do not act as, toe drains for any surface
impoundment. Likewise, these seeps were not designed or constructed to address
any ash impoundment berm stability issues. Rather, these seeps consist of
locations where at times existing groundwater naturally daylights (and
therefore creates some surface flow) as the ground surface slopes toward the
Wabash River at Cayuga Station. In addition to the 22 seeps, there is one seep
that has recently been discovered to be contacting the liner of the Station’s new
wastewater treatment finishing impoundment, so the Station began directing the
water from this seep into the finishing impoundment.
12.
Previous
sampling of some of these seeps indicate the presence of some CCR-related
constituents at levels above what would be naturally occurring. Therefore, it
is apparent that these seeps include some groundwater that has been impacted by
CCR-related constituents from the surface impoundment system as noted above.
13.
In
the Station’s 2013 NPDES permit, the above-referenced seeps were not treated as
point source discharge outfalls. However, monitoring for a number of parameters
was required and conducted at three of the representative seeps for compliance
purposes. The Station submitted sampling data to IDEM for each of those
representative seeps.
14.
The
flows from the seeps are highly dependent on various conditions such as
groundwater levels, changes in groundwater recharge rates, the operational
level of the surface impoundments, high precipitation events, drought
conditions, and whether the seep areas are under water due to seasonal
flooding. Limited seep flow data exists. However, based on the information that
is available, the approximate combined flow for Seeps 1-7 is 1.2 MGD; for Seeps
8-12 is 0.85 MGD, for Seeps 13-19 is 0.60 MGD, and for seep 20 is 0.0075 MGD.
15.
Seeps
1-7 flow to the Outfall 001 drainage canal downstream of the Outfall 001
sampling point. Seeps 8-12 flow to the Wabash River between Outfall 001 and
002. Seeps 13-19 flow to the Outfall 002 drainage canal downstream of the
Outfall 002 sampling point. Seep 20 is directed to the final finishing impoundment,
which in turn, discharges through Outfall 002 to the Wabash River.[1]
16.
Due,
in part, to the number, configuration, location, and hydraulics of the seeps,
IDEM has determined that it would be impractical and infeasible to regulate the
seeps at Cayuga Station as NPDES outfalls.
IDEM has determined that the seeps will be removed from the Station’s
NPDES permit and will instead be addressed by this Agreed Order. Based on the
above, IDEM has decided that using an enforcement action (i.e. this Agreed
Order) to address the seeps at Cayuga Station is the preferable approach.
17.
IDEM
has found the following violations regarding the seeps:
18. Pursuant to IC 13-30-2-1(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 327 IAC 2-1-6(a)(1), all surface 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 do any of the following:
(A) will settle to
form putrescent or otherwise objectionable deposits;
(B) are in amounts sufficient to be unsightly or deleterious;
(C) produce color, visible oil sheen, odor, or other conditions
in such degree as to create a nuisance;
(D) 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; and
(E) are in amounts sufficient to be acutely toxic to, or to
otherwise severely injure or kill aquatic life, other animals, plants, or
humans.
As identified in the Application, IDEM
has found that Respondent allowed 23 seeps to discharge, either directly or
indirectly, into the Wabash River, a water of the State, in violation of IC
13-30-2-1 and portions of 327 IAC 2-1-6(a)(1).
19. Respondent is already conducting actions,
such as the closure of Ash Disposal Area #1, that are expected to improve the
groundwater quality (and therefore the constituent levels in the seeps).
20. In addition, Respondent has ceased
operation and is initiating the closure of the other surface impoundments at
the Station pursuant to the CCR Rule’s requirements set forth in 40 C.F.R 257
as incorporated into Indiana law. These actions are further expected to improve
the groundwater quality and therefore lower the constituent concentrations in
the seeps.
21. 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 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 is in the
process of taking, and proposes to take, to: (a) annually survey, identify, and
report the existence of all seeps at the Station; (b) monitor the flow and
constituent concentrations for representative seeps; (c) reduce the CCR-related
constituent concentrations for the Station’s groundwater that has been impacted
by the Station’s former and current surface impoundments so as to adequately
protect public health, safety and welfare; (d) reduce the concentrations of
CCR-related constituents in the seeps so as to adequately protect public
health, safety and welfare; and (e) demonstrate that the seeps are not causing
any unacceptable risks to public health, safety and the environment with
respect to their total suspended solids, pH, and oil and grease.
The CP shall include an implementation
and completion schedule, including specific milestone dates.
3.
Any newly identified seeps from the Station’s annual
survey and report shall be covered by and subject to the terms of this Agreed
Order while it is in effect.
4.
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.
5.
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.
6.
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.
7.
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 if necessary to satisfy the requirements in Order Paragraph #2. The
approved plan shall be incorporated into this Agreed Order and shall be deemed
an enforceable part thereof.
8.
All submittals required by this Agreed Order,
unless Respondent is notified otherwise in writing by IDEM, shall be sent to:
Linda
McClure, Enforcement Case Manager |
Office
of Water Quality – IGCN 1255 |
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 46188 |
(317)
838-1100 |
julie.ezell@duke-energy.com |
9.
Respondent is assessed and agrees to pay a civil penalty of Thirteen
Thousand Five Hundred Dollars ($13,500). 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.
10.
As
long as the Station remains in compliance with the terms of this Agreed Order,
Complainant shall not assess civil penalties for any newly identified seeps.
11.
In
the event the terms and conditions of the preceding paragraphs are violated,
IDEM may assess and Respondent shall pay the corresponding stipulated penalty:
Paragraph |
Violation |
Penalty Amount |
2, 7 |
Failure to submit or modify the CP, as required, within the given time
period. |
$250
per each week
late |
4, 7 |
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 |
12.
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.
13.
Civil
and stipulated penalties are payable by check to the “Environmental Management
Special Fund.” Checks shall include the Case Number 2018-25152-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 |
14. 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.
15. 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.
16. 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.
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 permit 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 Order.
22. 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.
23. 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.
TECHNICAL RECOMMENDATION: |
RESPONDENT: |
Department of Environmental Management |
Duke Energy Indiana, LLC, Cayuga Station |
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By:__________________________ |
By:________________________ |
Samantha K. Groce, Chief |
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Water Enforcement Section |
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Surface
Water, Operations & |
Printed:_____________________ |
Enforcement
Branch |
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Office of
Water Quality |
Title:_______________________ |
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Date:________________________ |
Date:_______________________ |
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COUNSEL FOR RESPONDENT: |
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By:________________________ |
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Date:______________________ |
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APPROVED AND ADOPTED BY THE INDIANA
DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT THIS ___________ DAY OF
________________, 20___. |
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For The Commissioner: |
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Signed on July 11, 2018 |
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Martha Clark Mettler |
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Assistant Commissioner |
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Office of Water Quality |
[1] Three of the seeps have been split for identification purposes into two seeps each. Seep 3 became Seep 3A and 3B; Seep 5 became Seep 5A and 5B; and Seep 10 became Seep 10A and 10B. This results in a total of 23 seeps as referenced above.