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 CO.,

Respondent.

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Case No. 2007-16780-W
                2008-17693-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 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 Indianapolis Power & Light Co. (“Respondent”), which owns and operates the Eagle Valley Generating Station, which discharges to the West Fork of White River under National Pollutant Discharge Elimination System (“NPDES”) Permit No. IN0004693, located at 4040 Blue Bluff Road, in Martinsville, Morgan County, Indiana (“Site”).

 

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

 

4.                  Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail to Ann D. Murtlow, President, and S. Michael Woodard, Registered Agent, Indianapolis Power & Light Co., One Monument Circle, Indianapolis, IN 46204.

 

5.                  Respondent owns and operates a 344 megawatt steam electric power plant.

 

6.                  During an investigation in response to a spill report conducted by a representative of IDEM on February 14, 2007, the following violations were found:

 

A.        Pursuant to 327 IAC 5-2-2, any discharge of pollutants into waters of the state as a point source discharge, except for exclusions made in 327 IAC 5-2-4, is prohibited unless in conformity with a valid NPDES permit obtained prior to the discharge.  Respondent discharged ash pond water into the West Fork of White River on February 14, 2007, of a nature and from a location not authorized by the Permit, in violation of 327 IAC 5-2-2.

 

B.        Pursuant to 327 IAC 2-1-6(a) and Part I. B. of the Permit, all 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:

(A)       that will settle to form putrescent or otherwise objectionable deposits;

(B)       that are in amounts sufficient to be unsightly or deleterious;

(C)       that produce color, visible oil sheen, odor, or other conditions in such degree as to create a nuisance;

(D)       which are in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals, plants, or humans; and

(E)       which 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.

 

Respondent caused or contributed to the contamination of waters of the state by allowing the release of substances and materials from the ash pond on February 14, 2007, into the West Fork of White River that were unsightly and deleterious, in violation of 327 IAC 2-1-6(a) and Part I. B. of the Permit.

 

C.        Pursuant to IC 13-18-4-5, it is unlawful for any person to throw, run, drain, or otherwise dispose into any of the streams or waters of Indiana; or cause, permit, or suffer to be thrown, run, drained, allowed to seep, or otherwise disposed into any waters; any organic or inorganic matter that causes or contributes to a polluted condition of any waters, as determined by a rule of the board adopted under sections 1 and 3 of this chapter.

 

Respondent caused or contributed to a polluted condition of waters of the state by the release from the ash pond on February 14, 2007, into the West Fork of White River, in violation of 327 IAC 5-2-2 and 327 IAC 2-1-6(a), rules of the water pollution control board, in violation of IC 13-18-4-5.

 

D.       Pursuant to IC 13-30-2-1, 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.

 

Respondent released a pollutant into the environment by the discharge from its ash pond on February 14, 2007, into the West Fork of White River, in violation of 327 IAC 327 IAC 5-2-2 and 327 IAC 2-1-6(a), rules of the water pollution control board, in violation of IC 13-30-2-1.

 

E.        Pursuant to Part II. B. 4 of NPDES permit, removed substances are to be managed in such a manner as to prevent any pollutants from such from entering waters of the state.

 

The events of February 14, 2007, allowed amounts of ash (a removed substance) to enter waters of the state, in violation of Part II. B. 4 of the NPDES permit.

 

7.         Respondent immediately notified regulatory authorities of the levee failure, took the leaking ash pond out of service and utilized the back-up ash pond after the levee failed.  Respondent stopped the leak roughly 30 hours after the levee failed.  Respondent is in the process of implementing permanent repairs to the failed levee.

 

8.         On January 30, 2008, the levee in the main ash pond (D) failed in the same location as it had on February 14, 2007, and again caused the levee of ash pond E to fail, releasing approximately 30,000,000 gallons of ash pond water into Respondent’s discharge canal and then the West Fork of White River.  The circumstances were very similar to those of the February 14, 2007, event.  Respondent reported the release to IDEM Emergency Response.  As with the 2007 event, this discharge violated 327 IAC 5-2-2, 327 IAC 2-1-6(a) and Part I.B. of the permit, IC 13-18-4-5, and IC 13-30-2-1.  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 for the violations that occurred on January 30, 2008.  This second event has been assigned case number 2008-17693-W.

 

9.         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.                  Respondent shall comply with the statutes, rules, and permit conditions listed in the findings above at issue.

 

3.                  Respondent shall perform a detailed study of the ash pond levees at Eagle Valley in the areas of the breach.  The objective of the study will be to determine whether these areas are constructed adequately to prevent future breaches.  The study shall identify recommended improvements if any are necessary to achieve this objective:

·                    The detailed study will be performed by a professional with expertise evaluating ash pond levees.

·                    The detailed study will be completed within 180 days after the Effective Date.

·                    The results and any recommendations of the detailed study will be submitted to IDEM within 60 days after the completion of the study.

·                    The Respondent will implement any recommendations that are necessary to achieve the study’s objective, are consistent with the design and purpose of Respondent’s business operations at Eagle Valley Generating Station, and are reasonable and cost-effective.  Such implementation will be initiated within 60 days after submitting the results and recommendations to IDEM.

·                    A more detailed description of the study was submitted by Respondent to Complainant dated March 21, 2008, and is included with this Agreed Order as Attachment A.

 

4.                  Respondent will implement system-wide inspections for all ash ponds under its control, as set forth in Attachment A.  The first inspection of each ash pond is to be completed within 270 days after the Effective Date.

 

5.                  Beginning on the Effective Date and continuing until the completion of the activities identified in  Paragraphs 3 and 4 above, Respondent shall, at all times, operate its existing wastewater treatment facilities as efficiently and effectively as possible, and consistent with the terms of Respondent’s NPDES permit.

 

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

 

Mark Stanifer, Section Chief

Indiana Department of Environmental Management

Office of Enforcement – Mail Code 60-02

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

7.                  Respondent is assessed a civil penalty of Twenty Three Thousand Eight Hundred dollars ($23,800).  Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date.  In the event that the civil penalty is not paid within thirty (30) days of the Effective Date, Respondent shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1-101.  The interest shall continue to accrue until the civil penalty is paid in full.

 

8.                  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:

 

Paragraph

Violation

Stipulated Penalty

3

Failure to complete the study within 180 days after the Effective Date

$500 per week late, or part thereof.

3

Failure to submit the findings and recommendations of the study within 60 days after the completion of the study.

$500 per week late, or part thereof.

3

Failure to initiate implementation of the study recommendations, as described under Paragraph 3, within 60 days after submitting study results and recommendations to IDEM.

$500 per week late, or part thereof.

4

Failure to complete initial inspections within 270 days of the Effective Date, or failure to conduct inspections thereafter at the frequency set forth in Attachment A.

$500 per week late, or part thereof.

 

9.                  Stipulated penalties shall be due and payable within thirty (30) days after Respondent receives written notice that Complainant has determined a stipulated penalty is due.  Assessment and payment of stipulated penalties shall not preclude Complainant from seeking any additional relief against Respondent for violation of this Agreed Order.  In lieu of any of the stipulated penalties set out above, Complainant may seek any other remedies or sanctions available by virtue of Respondent’s violation of this Agreed Order or 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 of this action and shall be mailed to:

 

Indiana Department of Environmental Management

Cashier – Mail Code 50-10C

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

11.             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.

 

12.             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.

 

13.             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.

 

14.             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.

 

15.             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.

 

16.             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 NOV.

 

17.             Nothing in this Agreed Order shall prevent IDEM or anyone acting on its behalf from communicating with the 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 EPA or any other agency or entity.

 

18.             This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of Order Paragraph Nos. 3 through 10 (regarding Paragraph No. 4, and the related stipulated penalties under Paragraph 8, through the first set of inspections) and IDEM issues a Resolution of Case letter.

 

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

Indianapolis Power & Light Co.

 

 

 

By:

 

 

By:

 

 

Mark W. Stanifer, Chief

 

Printed:

 

 

Water Enforcement Section

 

Title:

 

 

Office of Enforcement

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

 

 

 

COUNSEL FOR COMPLAINANT:

 

COUNSEL FOR RESPONDENT:

For the Department of Environmental Management

 

 

 

 

 

By:

 

 

By:

 

 

 

 

 

 

 

Deputy Attorney General

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

 

DAY OF

 

, 2008.

 

 

For the Commissioner:

 

 

 

Signed on April 18, 2008

 

Robert B. Keene

 

Assistant Commissioner

 

Office of Legal Counsel and Enforcement