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.

Indianapolis Power & Light Company, Petersburg generating station,

Respondent.

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Case No. 2019-26621-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 owns/operates the Petersburg Generating Station, located at 6925 North State Road 57, Petersburg, Pike County, Indiana (the Site).

 

3.               Respondent is authorized by National Pollutant Discharge Elimination System (NPDES) Permit Number IN0002887 (the Permit) to discharge wastewater treated in accordance with the terms and conditions of the NPDES Permit from multiple outfalls including:

a.               the “other” wastewater treatment plant which receives wastewater from multiple non-CCR (Coal Combustion Residue) and ash pond dewatering sources and discharges into Lick Creek via Outfall 001.

b.               the sanitary wastewater treatment plant via internal Outfall 101.

c.               the cooling tower blowdown into Lick Creek via Outfalls 005, 006, and 008.

d.               the CCR landfill runoff and storm water discharge into Lick Creek via Outfall 007.

e.               the Unit’s 1 and 2 boiler blowdown discharge from internal Outfall 201; and

f.                 the various storm water outfalls into Lick Creek and White River that are represented by Outfalls 006S, 011S, 016S, 025S, 030S, and 031S.

 

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

 

5.               Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation (NOV) on January 13, 2020, via Certified Mail/personal service to:

 

Jeff Harter, Plant Leader

Indianapolis Power & Light Co.

Petersburg Generating Station

6925 North State Road 57

Petersburg, IN  46567

 

6.               During an investigation conducted by a representative of IDEM, violations were found, as described below.

 

7.               327 Indiana Administrative Code (IAC) 5-2-8(1), states the permittee shall comply with all terms and conditions of the Permit. Any permit noncompliance constitutes a violation of the Clean Water Act and Indiana Code (IC) 13 and is grounds for enforcement action by IDEM.

 

8.               Pursuant to Part I.A.1 of the Permit, the permittee is required to comply with the monitoring requirements contained in the Permit, including effluent limitations.

 

Discharge Monitoring Reports (DMRs) and Monthly Monitoring Reports (MMRs) submitted by Respondent for the period of October 2016 through October 2019 revealed violations of effluent limitations contained in Part I.A.1 of the Permit for Outfall 001 as follows:

 

A.    The daily maximum average concentration limitation for copper was exceeded in November 2018.

B.    The monthly average concentration limitation for iron was exceeded in February 2018.

C.    The daily maximum average for iron was exceeded in November 2017 and February 2018.

D.    The monthly average concentration limitation for selenium was exceeded in February 2019, and March 2019.

E.    The daily maximum concentration limitation for selenium was exceeded in February 2019, and March 2019.

 

Respondent failed to comply with the effluent limitations from Outfall 001 contained in the Permit, in violation of Part I.A.1 of the Permit.

 

9.               Pursuant to Part I.A.5 of the Permit, the permittee is required to comply with the monitoring requirements contained in the Permit, including effluent limitations.

 

DMRs and MMRs submitted by Respondent for the period of October 2016 through October 2019 revealed violations of effluent limitations contained in Part I.A.5 of the Permit for Outfall 007 as follows:

 

A.    The monthly average concentration limitation for boron was exceeded in July, August, September, October, and November 2018, and March, May, June, July, August, September, and October 2019.

B.    The daily maximum concentration limitation for boron was exceeded in July, August, September, October, and November 2018, and May, June, July, August, September, and October 2019.

C.    The monthly average concentration limitation for cadmium was exceeded in May 2019.

D.    The daily maximum concentration limitation for cadmium was exceeded in May 2019.

E.    The monthly average concentration limitation for mercury was exceeded in June and August 2018, and August 2019.

F.    The monthly average concentration limitation for selenium was exceeded in July, August, September, and October 2018 and May, June, July, August, and October 2019.

G.   The daily maximum concentration limitation for selenium was exceeded in July, August, September, and October 2018 and May, June, July, August, and October 2019.

H.    The monthly average concentration limitation for Total Suspended Solids (TSS) was exceeded during January 2018.

 

DMRs and MMRs submitted by Respondent for the period of November 2019 through March 2020 revealed violations of effluent limitations contained in Part I.A.5 of the Permit for Outfall 007 as follows:

 

A.    The monthly average concentration limitation for boron was exceeded in November 2019, December 2019, January 2020, and March 2020.

B.    The daily maximum concentration limitation for boron was exceeded in December 2019, January 2020, and March 2020.

C.    The monthly average concentration limitation for mercury was exceeded in December 2019.

D.    The monthly average concentration limitation for cadmium was exceeded in March 2020.

E.    The daily maximum concentration limitation for cadmium was exceeded in March 2020.

F.    The monthly average concentration limitation for selenium was exceeded in March 2020.

G.   The daily maximum concentration limitation for selenium was exceeded in March 2020.

 

Respondent failed to comply with the effluent limitations from Outfall 007 contained in the Permit, in violation of Part I.A.5 of the Permit.

 

10.           Pursuant to Part I.A.2 of the Permit, the permittee is required to comply with the monitoring requirements contained in the Permit, including effluent limitations.

 

DMRs and MMRs submitted by Respondent for the period of October 2016 through October 2019 revealed violations of effluent limitations contained in Part I.A.2 of the Permit for Outfall 101 as follows:

 

A.    The daily maximum concentration limitation for E. coli was exceeded in May 2019.

B.    The monthly average concentration limitation for Biological Oxygen Demand, Five Day was exceeded in October 2018, December 2018, January 2019, February 2019, and May 2019.

C.    The daily maximum average concentration limitation for Biological Oxygen Demand, Five Day was exceeded during September and October 2018, and January, February, and May 2019.

 

Respondent failed to comply with the effluent limitations from Outfall 101 contained in the Permit, in violation of Part I.A.2 of the Permit.

 

11.           On February 18, 2019 and March 13, 2019, IDEM sent Inspection Summary/Noncompliance Letters to Respondent outlining violations at the facility. The letters required a response detailing actions taken to correct the violations. IDEM received responses to the letters explaining compliance actions Respondent took or would take to address the violations and that Respondent has resolved the effluent limit exceedance issues at Outfalls 001 and 101. However, Respondent is continuing to evaluate the cause of the violations noted above for Outfall 007.

 

12.           According to Respondent, it performed an extensive compliance assessment to determine the cause(s) of the exceedances and notes early 2018 was the time period it was bringing its new wastewater treatment systems on-line which may have been associated with one or more exceedances.  Respondent also notes that it has not had any exceedances of effluent limitations at Outfall 001 since March 2019 and it believes it has resolved the effluent exceedance issues at this Outfall.

 

According to Respondent, it has performed a number of interim actions to address exceedances at Outfall 007.

 

According to Respondent, it believes the BOD5 exceedances at Outfall 101 were due to issues associated with the new sanitation treatment plant that was installed in the fall of 2018, such as the need for additional operator training and fine tuning the system.  The Respondent believes it has resolved the effluent exceedance issues at this Outfall.

 

13.           Orders of the Commissioner are subject to administrative review by the Office of Environmental Adjudication under IC 4-21.5; however, in recognition of the settlement reached, Respondent acknowledges notice of this right and 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. In addition to addressing the violations cited in Paragraphs 8 through 10 of the Findings of Fact above, this Agreed Order also addresses any additional violations of these same rules that may have occurred subsequent to the issuance of the NOV and prior to the Effective Date.

 

2.               Respondent shall comply with rules and statutes listed in the findings above at issue.

 

3.               Within 60 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 achieve and maintain compliance with its Permit, specifically including the actions Respondent will take to:

A.              Achieve and maintain compliance with effluent limitations contained in the Permit for Outfall 007.

 

The CP shall include an implementation and completion schedule, including specific milestone dates, identifying activities to be performed to determine if an engineered solution, such as modifications or additions to the existing wastewater treatment systems are necessary, a deadline by which a determination will be made regarding the need for and type of modified or additional wastewater treatment system(s), and a deadline to submit a schedule to design, construct, install, and operate such a system.  If a schedule to design, construct, install, and operate a modified or additional wastewater treatment system is submitted and approved by IDEM, that schedule shall be considered an addendum to the CP and an enforceable requirement of this Agreed Order.

 

Respondent shall notify IDEM in writing of variations to the approved CP.

 

4.               Respondent shall, after the deadline to complete the last of the actions to achieve and maintain compliance required pursuant to the approved CP from Paragraph 3 above, demonstrate 12 consecutive months of compliance (Compliance Demonstration) with the terms and conditions of the Permit.

 

5.               In the event that violation(s) occur during the Compliance Demonstration, within 60 days of the discovery of the violation, Respondent shall develop and submit to IDEM, for approval, an Additional Action Plan (AAP) which identifies the additional actions that Respondent will take to achieve and maintain compliance with the terms and conditions of the Permit. The AAP, if required, shall include an implementation and completion schedule, including specific milestone dates.

 

6.               The plans required by Order Paragraphs 3 and 5 are subject to IDEM approval. In the event IDEM determines that any plan or any modified 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.

 

7.               Respondent, upon receipt of written notification from IDEM, shall immediately implement the approved plan(s) and adhere to the milestone dates therein. The approved CP and AAP shall be incorporated into the Agreed Order and shall be deemed an enforceable part thereof.

 

Following completion of the actions included in the AAP, the 12-month Compliance Demonstration, as specified in Paragraph 4 above, will re-start. Failure to achieve compliance at the conclusion of work under an AAP may subject Respondent to additional enforcement action.

 

8.               Within 15 days of each required milestone date included in the CP or AAP, Respondent shall submit to IDEM a written progress report or notification of completion for each milestone.

 

9.               Beginning on the Effective Date and continuing until the successful completion of the approved CP, Respondent shall, at all times, operate its existing facility as efficiently and effectively as possible.

 

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

 

Patrick Colcord, Enforcement Case Manager

Office of Water Quality – IGCN 1255

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

11.           Respondent is assessed and agrees to pay a civil penalty of Ninety-Eight Thousand Five Hundred Fifty Dollars ($98,550). 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.”

 

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

 

Paragraph

Violation

Stipulated Penalty

3

Failure to submit the CP within the required time period.

$250 per week late, or part thereof.

4

For violations of terms and conditions of the Permit during the Compliance Demonstration.

$400 per violation

5

Failure to submit the AAP, if required, within the given time period.

$500 per week late, or part thereof.

6

Failure to modify the CP and/or AAP, if required, within the given time period.

$500 per week late, or part thereof.

7

Failure to meet and/or implement any milestone date set forth in the approved CP or AAP.

$500 per week late, or part thereof.

8

Failure to submit to IDEM a written progress report within 15 days of each milestone date.

$150 per week late, or part thereof.

9

Failure to operate the facility as efficiently and effectively as possible prior to Compliance Demonstration.

$200 per violation.

 

13.           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.

 

14.           Force majeure, for purposes of the 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 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 those 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.  IDEM’s decisions regarding (1) whether an event is a force majeure and (2) the duration of a force majeure are subject to appeal pursuant to IC 4-21.5.

 

15.           Civil and stipulated penalties are payable by check to the “Environmental Management Special Fund.” Checks shall include the Case Number 2019-26621-W of this action and shall be mailed to:

 

Indiana Department of Environmental Management

Accounts Receivable

IGCN, Room 1340

100 North Senate Avenue

Indianapolis, Indiana 46204

 

16.           This Agreed Order shall apply to and be binding upon Respondent, 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 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.

 

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 his 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 the Notice of Violation or this Agreed Order.

 

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

 

24.           This Agreed Order shall remain in effect until Respondent has complied with the 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

Indianapolis Power & Light Company

 

By:__________________________

By:________________________

Samantha K. Groce, Chief

 

Water Enforcement Section

 

Surface Water, Operations &

Printed:_____________________

Enforcement Branch

 

Office of Water 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 on September 10, 2020

 

Martha Clark Mettler

 

Assistant Commissioner

 

Office of Water Quality