STATE OF INDIANA

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SS:

BEFORE THE INDIANA DEPARTMENT OF

 

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COUNTY OF MARION

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ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT

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OF ENVIRONMENTAL MANAGEMENT,

 

)

 

 

 

)

 

Complainant,

 

)

 

 

 

)

 

 

v.

 

)

Case No. 2018-25311-S

 

 

)

 

DUKE ENERGY INDIANA, LLC,

 

)

 

LEGACY EDWARDSPORT 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 operated the property where the Legacy Edwardsport Station is located at 15424 IN 358, Edwardsport, IN (“Legacy 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 original Edwardsport Generating Station (Legacy Station) started operations as a coal-fired power plant in 1918. The station was retired in 2011 and demolished in 2012. Prior to 1974, the Legacy Station deposited bottom ash in at least three areas with a possible fourth on the west and southwest sides of where the current substation is located (northeast side of property).  These ash disposal areas are collectively referred to as “Historic Ash Placement Areas.”

 

6.               In the early 1970s, the Legacy Station began wet sluicing bottom and fly ash to the ash pond on-site. At certain times when the ash pond was dredged, the material was also deposited in a Historic Ash Placement Area on the northeast side of the property. After the Legacy Station was out of service, the ash from the ash ponds was removed and disposed of at the Duke Energy Gibson Station. Over time, the Historic Ash Placement Areas periodically received some soil cover, however some of the disposed ash was exposed for some periods of time.

 

7.               In 2015, based upon the results of an internal environmental audit, Respondent voluntarily and proactively notified IDEM of the existence of the Historic Ash Placement Areas at the Legacy Site.

 

8.               Based on Respondent’s disclosures and an investigation including an inspection conducted by representatives of IDEM on May 2, 2018, 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 coal combustion waste to be deposited upon the Legacy Site 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 May 2, 2018 inspection, some areas of the Historic Ash Placement Areas lacked vegetative cover, had erosion channels, exposed coal combustion waste, and natural woody growth.

 

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 coal combustion waste on the Historic Ash Placement Areas of the Legacy Site in a method which has not been deemed acceptable to the board. In addition, during the May 2, 2018 inspection, some areas of the Historic Ash Placement Areas lacked vegetative cover, had erosion channels, exposed coal combustion waste, and natural woody growth.

 

c.                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 coal combustion waste to be open dumped at the Historic Ash Placement Areas of the Legacy Site. In addition, during the May 2, 2018 inspection, some areas of the Historic Ash Placement Areas lacked vegetative cover, had erosion channels, exposed coal combustion waste, and natural woody growth.

 

d.               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)      Correcting 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 coal combustion waste to be open dumped at the Historic Ash Placement Areas of the Legacy Site and has failed to comply with the requirements of 329 IAC 10-4-4(a)(1) and (2). In addition, during the May 2, 2018 inspection, some areas of the Historic Ash Placement Areas lacked vegetative cover, had erosion channels, exposed coal combustion waste, and natural woody growth.

 

9.               Respondent is currently evaluating long term actions to: (a) further investigate and monitor the Legacy Site; (b) inhibit off-site movement of contaminants, if any, from the Historic Ash Placement Areas; (c) conduct closure of the Historic Ash Placement Areas; and (d) appropriately address off-site impacts to groundwater water, if any, from the Historic Ash Placement Areas.

 

10.            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 Legacy Site; and (b) inhibit off-site movement of contaminants, if any, from the Historic Ash Placement Areas. 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 (1) year 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 Legacy 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.

 

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.               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 Legacy 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 Legacy Site is in effect in accordance with 329 IAC 10-39.

 

10.            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

 

11.            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”.

 

12.            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, within given time period.

$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

9

Failure to demonstrate financial assurance for closure/post closure.

$250 per each week late

 

13.            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.

 

14.            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

 

15.            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 14, above.

16.            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 1DEM.

 

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.

 

17.            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.

 

18.            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.

 

19.            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.

 

20.            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.

 

21.            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.

 

22.            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.

 

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 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:

 

 

 

___ _________

 

Peggy Dorsey, Assistant Commissioner

 

Office of Land Quality